Mr. Amit Anand Tiwari has been appointed as the Additional Advocate General for the State of Tamil Nadu. Mr. Tiwari did his LL.B. and LL.M. from Delhi University and has been practising in Supreme Court since 2001. He was junior to Late Mr A Sharan, former ASG. Mr. Tiwari has appeared in various cases of constitutional importance, such as the 2002 Presidential Reference relating to Gujarat elections, M.Nagaraj case where he defended reservation in promotion and recent Maratha Reservation matter. He had the distinction of representing the Hon’ble Supreme Court of India before the Central Information Commission during 2008-2010. He worked as Counsel for UoI from 2004-2009 and as the Deputy Advocate General for Uttarakhand from 2016-2018. Mr. Tiwari is Special Counsel for CBI and has appeared in various sensitive cases of Coal Scam. He has been representing DMK and its leaders in important cases, especially those pertaining to Constitutional and Election Law, including antidefection law. Recently, he successfully argued against breach of privilege notices issued to Thiru. M.K. Stalin and 20 DMK MLAs before the High Court of Madras. He is also actively involved in advocates’ welfare issues and has been an elected Bar representative in SC from 2014-2016.

NRI (Non-Resident Indian) is an Indian citizen but stays outside India under circumstance with the intention for an uncertain duration of stay abroad. and holds the Indian Passport. A person is considered NRI if he/she is not in India for 182 days or more during financial year or if he/she is in India for less than 365 days during 4 years preceding that year and less than 60 days in that year as in India large scale migration began during the British rule as indentured labourer to former colonies. The word NRI was not defined anywhere in the Indian Laws directly, it is explained by other ways in Income tax Act, FEMA Act. Non- Resident Indian is not directly defined in Income Tax Act. Income Tax Act contains a detail criterion of who is considered as a Resident in India and provides that anyone who doesn’t meet these criteria is Non-Resident as prescribed in Section 6 of Income Tax Act, 1961

NRIS CAN BE DIVIDED BASICALLY INTO THREE MAIN CATEGORIES

An Indian citizen staying outside India for some business or for employment or for any other purpose the circumstances indicating an indefinite period of staying abroad.

An Indian citizen staying outside India for working on temporary assignment with foreign government agencies like United Nations Organization (UNO), International Monetary Fund (IMF) Fund, World Bank etc. and are required to say there till the completion.

An Indian Citizen who are the Officials of State and Central Government and Public sector undertaking working outside India on temporary assignments or are being posted to their offices, including Indian diplomat missions, abroad.

PROBLEM FACED BY NRIS IN INDIA

The migration resulted in substantial drop in the supply of professionals for running institutions and organizations in the territory of India.

Remittances are not always used for beneficial purposes. For instance, India face problems due to foreign funding for extremist movements like the Khalistan movement.

Major problem faced by NRI’S that NRI’S are not allowed to set up their firms directly in India due to which India is not able to take advantage of their entrepreneurial skills.

System of E- Migrate and the Policy of Minimum Referral Wages have been detrimental to India as Companies now find it easier to hire labor from countries like Pakistan and Bangladesh.

Poor schemes impacting the growth of India.

PROBLEMS RELATED TO OVERSEAS INDIAN MARRIAGES

The problems in Overseas Indian Marriages are complex in nature and the incidents of failed and fraudulent marriages of Indian women with NRI’S are increasing day by day. The overseas Indian Marriage are governed by Laws of Foreign Land and Private International Law. The major problem faced by Indian women is the ex- parte divorce and the discretion and have been articulated in several forums in the media. The common problem/issues relating to overseas Indian i.e., NRI marriages being faced by Indian Women Include:

Abandonment of the Wife for Various reasons

Domestic Violence

NRI husband already married

The Continuing demands for dowry which is continued till pre and post marriage

The soften legal System outside India in respect of grounds for divorce etc.

PROBLEMS FOR NRIS REMITTING SALARY TO INDIA

There is an ardent invitation from the Government of India for the NRIs to invest in India.

Legal tangles and the Convoluted Laws are only some of these. The others are structural, filled with corruption and from the complexity of dealing with various government departments.

Economies outside India are far more transparent and broader. Thereafter, among 190 nations, India ranks 63rd in ease of doing business, and that is 14 places ahead of where it was two years ago. It is most difficult for the NRIs to invest in India.

Indians who worked outside India invest their money back home. These reimburse from Non-Resident Indians are allowed us to bridge the foreign exchange deficit caused by our unbridled love for gold. The government has also ensured the tax law facility and remittance investments in India. The Merchant navy personnel Case (called ship pies in Local jargon) They serve on Indian and Foreign ships in international waters and are usually away from more than six months in a year they are classified as Non-Residents under Income Tax Act.

In most they have no residence anywhere else in the world other than India. And are being entitled to dollar salaries, which is paid to them from outside India into any bank account which is anywhere in the world.

Beside shippers, Indians working in countries with foreign currency restrictions, such as countries in Africa, face a similar problem as many ask their employers to remit these monies directly into their Indian NRE accounts. They face the same issue.

HIGHLIGHTING THE COMMON PROBLEM FACED BY NRIS WHEN INVESTING IN INDIA

Lack of Transparency in Land Records

Dubious Promoters

Illegal Possession

Tax Implications

Education System

Issue also results in Property Transfer, repatriation of funds, Complexities of residency status, and several more issues.

The Women and the Man of this land with different personal laws have migrated and are migrating to different countries either to make their permanent abode there or for temporary residence. Thereafter, there is also an immigration of the nationals of other countries. The advancement in communication and transportation has also made it easier for individuals to hop from one country to another country. It is also not unusual to come across cases where citizens of this country have been contracting marriages either in this country or abroad with nationals of others countries, or having married here, or themselves and either both or one of them migrated to other country. There are also some cases where parties are married there and have been either domiciled or residing separately in different foreign countries. The migration Temporary or permanent has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace.

The bride having a fear due to the runaway of foreign country resident Indian spouse and the stressed non- Resident Asian Parent frantically searching spouse in India as their children are separated by the order of foreign courts and the parents seeking for child maintenance from the court and the non-residence spouse seeking enforcement of foreign divorce decree in India, trying to seek the transfer of property in India for the child of deceased non Resident Indian and its repatriation to foreign shores, troubled and anxious and the for the adoption of child the foreign parents are trying to solve the problem by Indian Legal Formalities, bewildered officials of a foreign High Commission trying to understand the Customary practices of marriage and divorce and can be exclusively saved by Indian Legislation. The Foreign Officials of Police are trying to understand intricacies of the Indian Law and in apprehending the offenders of law on foreign Land.

Some instances of problem arising every day from Cross- border migration.

There have been a large number of Legal issues arising those concerns most of the section of the Global Indian Community residing outside India. The lure of settling up in foreign jurisdictions attracts a sizeable Indian Population but the main issue i.e., problems created by such huge migration largely remain unsolved at a larger extent.

Highlighting the ways through which the problem faced by NRIs can be solved to a larger extent.

A provision to be made for compulsory registration of marriage.

Dissolution of marriage on the ground of irretrievable breakdown of marriage be introduced in the Hindu Marriage Act, 1955 and Special Marriage Act, 1954.

the additions to be made in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to provide the provisions for maintenance and alimony of spouses of the child custody and for the settlement of matrimonial property for child support where any one of the spouses is an NRI.

In the matter of succession i.e., transfer of property, repartition of NRI funds, etc. The respective State Governments must simplify and streamline procedures so that the problem faced by NRIs can be solved.

The commission has already recommended in its 218th Report as to the need accede to the Hague Convention on the Civil Aspects of International Child Abduction.

The Procedures for the Inter- Country child Adoption must be simplified and be much easier a single uniform legislation must be provided for in the matter of adoption of Indian Children by NRIs. The convention on Protection of Children and Co- operation in respect of Inter- Country Adoption was signed by India on 29th May 1993. Thus, a simplified law should be enacted on the subject in the light of Convention.

Solicitors and litigants overseas worldwide frantically look for professional opinions and advice when the problems come to the Indian resident abroad. However, application of multiple laws and their judicial interpretation and other legal formalities often lead the problem unresolved even though the remedies partially exist in Indian Law and partly need new urgent Legislation.

The Procedures for the Inter- Country child Adoption must be simplified and be much easier a single uniform legislation must be provided for in the matter of adoption of Indian Children by NRIs. The convention on Protection of Children and Co- operation in respect of Inter- Country Adoption was signed by India on 29th May 1993. Thus, a simplified law should be enacted on the subject in the light of Convention.

Solicitors and litigants overseas worldwide frantically look for professional opinions and advice when the problems come to the Indian resident abroad. However, application of multiple laws and their judicial interpretation and other legal formalities often lead the problem unresolved even though the remedies partially exist in Indian Law and partly need new urgent Legislation.

It goes without saying that all the Trial Court Judges in India must certainly pay heed to what the Indore Bench of Madhya Pradesh High Court has most rightly, reasonably, remarkably and recently on July 30, 2021 held in a latest, learned, laudable and landmark judgment titled Sachin s/o Dinesh Parmar vs State of Madhya Pradesh in Miscellaneous Criminal Case No. 35901-2021 that it is expected from the Judges of the Trial Court to be patient and tolerant in their approach towards the Trial Court lawyers during the examination of witnesses. It must be apprised here that the Single Judge Bench comprising of Justice Subodh Abhyankar has observed thus in a matter challenging the order passed by an Additional Sessions Judge whereby the right of the petitioner accused to cross-examine the Investigating Officer had been closed. Very rightly so!

To start with, the Single Judge Bench of Justice Subodh Abhyankar of Indore Bench of Madhya Pradesh High Court sets the ball rolling by first and foremost stating the purpose of the petition in para 1 wherein it is put forth that, “This Miscellaneous Criminal Case has been filed by the petitioner under Section 482 of the Cr.P.C. being aggrieved by the order dated 6.1.2021 passed by the learned IIIrd Additional Sessions Judge, Barwah in S.T.No.116/2013 whereby the right of the petitioner/accused to cross examine the Investigating Officer has been closed.”

To put things in perspective, the Bench then puts it plainly in para 2 that, “Brief facts giving rise to the present petition are that the petitioner is facing the trial for offence under Sections 342, 366, 376 of the IPC in the Court of IIIrd Additional Sessions Judge, Barwah, District Khargone wherein the Investigation Officer, P.W./15 D.K. Tiwari was being examined and in the course of his cross examination on 6.1.2021, a question was asked by the counsel appearing of the petitioner/accused which, according to the learned Judge of the trial court, was a matter of argument only and was not relevant. Hence, on this question the learned Judge of the trial court directed the counsel appearing for the petitioner not to ask such irrelevant questions, otherwise his right to cross examine the witness can be closed. However, when the subsequent question was asked by the counsel for the petitioner, which according to the learned Judge was also irrelevant, the learned Jude closed the right of the petitioner/accused to cross examine the witness vide impugned order dated 6.1.2021.”

On the one hand, the Bench then points out in para 3 that, “Counsel for the petitioner has submitted that the questions which were put to the Investigating Officer were relevant and even otherwise the learned Judge of the trial court ought not to have closed the right of the petitioner which is a valuable right and all the more important in a serious offence like Section 376 of IPC. Thus, it is submitted the impugned order be quashed and the learned Judge of the trial Court be directed to allow the petitioner to cross examine the Investigating Officer.”

On the contrary, the Bench then states in para 4 that, “On the other hand, counsel for the respondent/State has opposed the prayer and it is submitted that no illegality has been committed by the learned Judge of trial Court in passing the impugned as it is necessary for the court also to curb such practice of asking irrelevant questions in the cross examination.”

To be sure, it would be germane to now mention that the Bench then holds in para 6 that, “A bare perusal of the aforesaid proceeding and the subsequent order passed by the learned Judge of the trial court leaves no manner of doubt that viewed from any angle, the impugned order cannot be sustained in the eyes of law as it defeats the entire purpose of the right of an accused to cross examine the witness. It is apparent that only one question was asked by the counsel for the petitioner prior to the impugned order was passed and regardless of its admissibility or relevance, the learned Judge of the trial court ought not to have closed the right of the petitioner to cross examine the witness. It is trite that cross-examination is the only tool available to a defence lawyer to test the veracity of a prosecution witness, it is the only way out to an accused to clear his name from the alleged offence hence his right to cross examine a witness cannot be curtailed in such a cavalier manner.”

Most significantly and also most remarkably, what forms the cornerstone of this notable judgment and is like an icing on the cake is then envisaged in para 7 wherein it is elegantly, eloquently and effectively held that, “Having said so, this court is also of the considered opinion that cross-examination of a witness is an art which, though, can be performed by any lawyer in a black coat but it is very difficult to master the same as it takes years of hard work and exposure to trials that one can have some expertise in it. It is only through a long and hard exercise of trial and error method that a lawyer learns the art of cross examination but if the judge presiding over the matter is impatient or edgy, it not only culminates into an order like the impugned one, but also hampers the overall learning process or grooming of a lawyer who, before becoming an expert trial court lawyer, is bound to falter many a times by asking irrelevant or inadmissible questions to a witness in the box. Thus, it is expected from the judges of the Trial court to be patient and tolerant in their approach towards the Trial Court lawyers during the examination of witnesses.”

What also cannot be glossed over is then stated in para 8 wherein it is put forth that, “In the considered opinion of this Court, if the learned Judge was of the opinion that despite his warnings the counsel appearing for the petitioner has continued to ask irrelevant questions, then other modes were also available to the learned Judge of the trial court as are prescribed in the Evidence Act, 1872 from Sections 146 to 152 and in some exceptional cases, the learned judge may also resort to the measure like imposing cost on the counsel for repeatedly and recklessly asking the irrelevant and inadmissible questions but, instead of taking resort of such procedure, the learned Judge has closed the right of the accused to cross examine the witness, which cannot be countenanced in the eyes of law.”

Finally, the Bench then holds in para 9 that, “In view of the same, the impugned order being contrary to law cannot be sustained and is hereby quashed. The learned Judge of the trial Court is also directed to recall the Investigating Officer, P.W.15 D.K. Tiwari and allow the counsel for the petitioner to cross-examine him. It is made clear that if any irrelevant question is asked by the counsel appearing for the petitioner, the learned Judge would be at liberty to take appropriate steps as are permissible under law. With the aforesaid, the present M.Cr.C. stands allowed. Certified copy, as per rules.”

With due respect to all the Trial Court Judges in India, it must be said or rather underscored that not a single of them should ever miss what is contained so convincingly, commendably and cogently in this brief, brilliant, balanced and bold judgment by Justice Subodh Abhyankar. The bottom-line of this notable judgment is this: The least that is expected from Trial Court Judges is to be patient and tolerant towards lawyers during examination of witnesses. No one is born perfect. Lawyers also learn by “trial and error”.

To say the least, this is most beautifully elaborated upon in para 7 as stated hereinabove and all the Trial Court Judges must definitely pay heed to it. It merits no reiteration that Judges should not be impatient or edgy under any circumstances as has been underscored also in this notable judgment. Without doubt, this will not just give an opportunity for lawyers to improve upon but also enhance the reputation of the Judge among the lawyer fraternity which is quite essential also for a Judge to conduct his proceedings in the Court smoothly without facing any brouhaha on very trivial issues.

No doubt, it has also been made absolutely clear in this noteworthy judgment that if the lawyer asks repeatedly and recklessly some very irrelevant and inadmissible questions the learned judge has the option to also resort to some viable measures like imposing cost on the lawyer but closing the right of the accused to cross examine the witness, which cannot be countenanced in the eyes of law is certainly not advisable. All the Trial Court Judges must certainly pay heed to what the Single Judge Bench of Justice Subodh Abhyankar of the Indore Bench of Madhya Pradesh High Court has held so elegantly, eloquently and effectively in this leading case also! They will themselves stand to gain the most if they prefer to do so and so will the lawyers also! This will be in the overall interests of the smooth functioning of the judiciary also! There can certainly just be no denying or disputing it!

“Tis the times’ plague, when madmen lead the blind.”

-William Shakespeare

This quote still holds true today, when the Covid-19 pandemic has spread across the globe from country to country, continent to continent, tightening its vice grip on global economy, policies and leadership. There is no doubt that even the 1st world countries have been caught off guard by this pandemic mainly since the strategic and policy responses of most of these countries lacked preparedness to deal with such a grave epidemic crisis. Even though India was also prostrated under the clutches of this virus, it made concerted efforts to combat it. As a first response to the disaster, the Government used the Epidemic Diseases Act of 1897, which was enacted to combat bubonic plague, and the Disaster Management Act of 2005 to make the pandemic a national emergency. The policy makers followed the medical experts decisively. This seemed as the best strategy for the pandemic being one of its kind and without any precedence. The fact that the healthcare system was able to follow single command and guidelines shows the resilience and ability of the system to face an emergency.

Nevertheless, the pandemic had lasting effects on India’s foreign policy. Covid-19’s second wave and its agonising results have prompted India to accept foreign aid after 17 years. This is bound to have far-reaching strategic implications for India. Let’s take a deeper look on India’s foreign policy during the pandemic and its potential consequences.

MEDICAL DIPLOMACY

Historically, India has always been portrayed as poverty-stricken and disease-ridden. Even the colonizers often painted an image of a perpetually pestilential atmosphere. While India has certainly changed since those days, for many years, the world viewed the nation as a net recipient of global health benefits, rather than as a provider. However, this pandemic has altered India’s role as an international health provider and has stepped up its medical diplomacy. From hydroxychloroquine medicines, to now shipping out Covid-19 vaccines, India is reaching out to everyone in need and condoning its age-old belief of ‘Vasudhaiva Kutumbakam’ ie “world is one family.” A large number of these are grant assistance, some are exports. India has also launched a movement called the “Vaccine Maitri”, which has not just gathered high praise from distant and afar but also illustrated what beneficial prudence in impossible moments looks like. As on May 11, 2021 India exported 663.698 lakh vaccine doses to foreign countries. At the same time, about three times as many vaccine doses have been administered within India. Out of the exports, only 107.15 lakh vaccine doses have been sent as aid. That is, just about 16 per cent of the total exports. The remaining 84 per cent vaccine supplies fall in two categories. About 54 per cent of the total exports — 357.92 lakh vaccine doses — have been sent as commercial supplies by two vaccine manufacturers (Serum Institute of India and Bharat Biotech). In addition, 198.628 lakh vaccine doses (30 per cent of the total supplies) have been sent for the WHO’s COVAX facility by Serum Institute of India. Both these categories fulfil the contractual obligations of vaccine manufacturers. This revolutionary move by India will help strengthen its strategic, economic and international image by earning a long-term goodwill, disrupting vaccine nationalism, boosting pharma manufacturing and in turn reviving the economy.

NEIGHBOURHOOD FIRST POLICY

Former Prime Minister A.B. Vajpayee once famously said “You can change your friends but not neighbours”. This policy actively focuses on improving ties with India’s immediate neighbours. The neighbourhood remains a primary diplomatic arena and a central pillar of India’s foreign and security policies since 2014. Vaccine Maitri, the complex and far-reaching effort to make India’s vaccine manufacturing capacity available for the greater good of mankind at a difficult time, is Neighbourhood First in action. India launched its national vaccine roll out on 16th January 2021 and within 4 days ie on 20th January, the first tranche of Indian vaccines landed in Bhutan and Maldives. On 21st January in Bangladesh and Nepal. And on 22nd January in Myanmar and the Seychelles. The vaccines sent as aid, have been overwhelmingly sent to India’s own neighbourhood. Out of the 107.15 lakh doses, 78.5 lakh doses (73.26 per cent) have been sent to just seven neighbouring countries. Not only is this good diplomacy, but it is also good epidemiology. Immunizing India’s immediate neighbours is an essential part of controlling the pandemic in the country. However, in the aftermath of Covid-19 due to the increasing influence of China in the South Asian region, India’s neighbourhood primacy may see a gradual decline and its historical ties alone may not maintain India’s regional hegemony.

PRIMACY IN THE INDO-PACIFIC REGION

Quadrilateral Security Dialogue (Quad) is the informal strategic dialogue between India, USA, Japan and Australia with a shared objective to support a “free, open and prosperous” Indo-Pacific region, that China seeks to threaten. Engaging with Quad may serve two geo-strategic goals of India viz. countering China’s aggressive posture on the border with India’s assertiveness in maritime domain, and emerging as a net security provider in the region. However, this pandemic could resentfully affect India’s ability and desire to contribute to the Indo-Pacific and the Quad. The economic slowdown brought in by the pandemic may prevent any ambitious military spending or modernisation plans. With reduced military spending and lesser diplomatic attention to regional geopolitics, India’s ability to project power and contribute to the growth of the Quad will be speculative.

INDIA-US RELATIONS

The challenges of the Covid pandemic and the change in US administration have increased the dynamics to the ever-evolving relationship between the two powerful democracies. Be it signing important defence pacts last year, working towards formalising Quad alliance or actively supporting India during its LAC standoff with China. The Malabar exercise, which took place in November 2020, was a high point in India-US strategic relations. A mega naval drill was held for the first time in 13 years between the navies of all four Quad countries, sending a strong message to China. However, India US relations also saw some fluctuations during the pandemic. When US was dealing with  a deadly covid wave, India succoured in  by exporting medical supplies and easing export restrictions. However, US was hesitant to reciprocate when India was going through the same phase earlier this year. The Biden administration’s “America First” policy drew widespread condemnation across the globe which resulted US in quickly changing track and rushing supplies later. At a time when the pandemic is still roaring and vaccines becoming increasingly vital, stronger Indian-US ties will be critical in helping to stave off the pandemic globally.

INDIA-CHINA RELATIONS

Although India and China got off to a positive start in 2020, things escalated quickly with the outbreak of the pandemic. Over the year, their relationship has been Janus-faced. Although there has been a significant level of humanitarian assistance between the two countries, the border tensions have flared up. A series of military and diplomatic talks led to the complete withdrawal of troops and weapons from the North and South banks of Pangong Lake in February after India and China had been engaged in military standoffs since early May last year. Disengagement talks are now taking place between the two sides to address remaining friction points. The Indian government also banned Chinese products and Chinese apps especially after the Galwan clashes. Presently, India and China have fragile relationships, and it will need to choose between protectionist policies and full cooperation. Whether India and China will be foes or friends is yet to be seen.

CONCLUSION

India’s diplomacy has fared well in adapting and evolving in these complex and uncertain times. All crises are succeeded by periods of growth. An economic boom followed the Second World War and the Great Depression, and a similar trend was observed after all the four major recessions in the post-World War II era. Health crises have led to significant investments in medicine and public health. The same is expected post pandemic and India must rise from its ashes. It is imperative that COVID-19 diplomacy goes beyond geopolitics and truly serves the public good, in the spirit of Vasudeva Kutumbakam. During the coming years, India should have a proactive and dynamic global strategy with an emphasis on adjusting to fluid alliances and convergences. India must deepen cooperation with old partners and allies and at the same time forge new partnerships with rising powers.

It must be said before stating anything else that in a significant development, the Delhi High Court in a latest, landmark, laudable and learned judgment titled Sarvesh Bisaria vs Anand Nirog Dham Hospital Pvt Ltd & Ors in CM(M) 148/2020 that was reserved on 9 July, 2021 and pronounced on 30 July, 2021 has held in no uncertain terms that if the Metropolitan Magistrate takes cognizance of an offence under Section 138 of the Negotiable Instrument Act, 1881, it is not that a decree against the respondent defendant will follow automatically. It must be mentioned here that the Court rejected the argument that mere cognizance of an offence by a Metropolitan Magistrate in Section 138 of Negotiable Instrument Act proceedings should automatically lead to passing of a decree in a civil suit based on the very cheques. While rejecting the petitioner’s argument, Justice Asha Menon of Delhi High Court noted that cognizance leads to a trial where the accused can also get acquitted. It is stated right at the outset that, “CM (M) 148/2020 and CM APPLs.4803/2020 (by the petitioner u/S 151 CPC for ex-parte stay), 16711/2020, 9007/2021 & 9198/2021 (by the petitioner u/S 151 CPC for directions and orders).”

To start with, a single Judge Bench comprising of Hon’ble Ms Justice Asha Menon of Delhi High Court who delivered this notable judgment first and foremost while mentioning about the prayer made in the petition puts forth in para 1 that, “This petition under Article 227 of the Constitution of India has been filed with the following prayers:

“It is therefore most respectfully prayed that your lordship graciously be pleased to quash / set aside the orders dated 18.01.2020 and 24.01.2020 in C.S. No.836 of 2019 passed by Ms.Chetana Singh, ADJ-03/PHC/New Delhi in the case titled as Sarvesh Bisaria Vs. Anand Nirog Dham Hospital Pvt. Ltd. or may pass any other order and directions as may deem fit and proper in the interest of justice and also award costs in favour of petitioner.”

While mentioning the facts of the case, the Bench then enunciates in para 2 that, “The brief facts as are relevant for the disposal of the present petition are that the petitioner filed a suit for recovery of Rs.1,65,75,000/- under Order XXXVII of the Code of Civil Procedure, 1908 (“CPC” for short). The petitioner/plaintiff averred in the plaint that the respondent/defendant was known to him for a long period of 20 years and had family relations with each other and were close friends (sic).”

To put things in perspective, the Bench then observes in para 3 that, “The Managing Director and other Directors of the respondent/defendant persuaded the petitioner/plaintiff to give friendly loans to them at an interest @ 18% per annum. The petitioner/plaintiff and his wife gave Rs.18,00,000/- from the bank account to Shri Hari Om Anand as the Managing Director of the respondent/defendant, who was also the sole proprietor of Anand Medical Store, on 06th November, 2015. On the request of Shri Hari Om Anand, the petitioner/plaintiff also started looking after the legal consultation work of the respondent/defendant and the Managing Director and other Directors. Subsequently, the petitioner/plaintiff gave another friendly loan of Rs.3,20,00,000/- from his bank account to Shri Hari Om Anand and continued to take care of the legal work.”

As it turned out, the Bench then states in para 4 that, “He claimed he used to raise bills for his fees and expenses which were paid by the Managing Director and other Directors from their personal accounts as also from the account of the respondent/defendant. One such bill towards fees for consultation, legal work, etc., was submitted by him on 17th March, 2017 for a sum of Rs.30 lacs, which had been paid to him. Since he had a running account with the respondent/defendant, the petitioner/plaintiff submitted a bill towards his fees etc. on 28th December, 2018 for a sum of Rs.1.50 crores, which was duly acknowledged by the respondent/defendant.”

Furthermore, the Bench then envisages in para 5 that, “The further case of the petitioner/plaintiff is that six cheques were issued by Shri Hari Om Anand after deducting TDS. Those cheques were dishonoured on presentation due to funds being insufficient and the petitioner/plaintiff filed a criminal case under Section 138 of the Negotiable Instruments Act, 1881 (“N.I. Act”, for short). This was preceded by a notice dated 6th April, 2019, to which no reply was sent. The learned Magistrate had summoned the respondent/defendant to face trial and the case was pending.”

Going ahead, the Bench then lays bare in para 6 that, “Thereafter, the petitioner/plaintiff issued a Demand Notice on 10th August, 2019 claiming Rs.1,50,00,000/- along with the unpaid TDS of Rs.15,00,000/- and interest. No reply was sent by the respondent/defendant and the suit for recovery was filed under Order XXXVII CPC. The respondent/defendant was served, but though no appearance was entered by it, no decree was passed. The petitioner/plaintiff then approached this court in CM(M) 1787/2019, which was disposed of vide order dated 17th December, 2019 directing fresh service of the respondent/defendant under Form 4 Appendix B and in the meantime, restrained it from operating the bank accounts listed in the order to the extent of Rs 1.5 crores. This order was subsequently modified on 24th December, 2019 after the respondent/defendant entered appearance and offered to furnish a corporate guarantee duly signed by the Managing Director and duly authorized by the Board Resolution, along with documents relating to immovable properties, for securing the suit amount, and the restraint order was lifted.”

As we see, the Bench then discloses in para 7 that, “The present petition has been filed against two orders of the learned Trial Court dated 18th January, 2020 and 24th January, 2020. The order dated 18th January, 2020 has been challenged on the ground that the learned Trial Court allowed the respondent/defendant to place on record photocopies of the immovable property furnished as security. This, the petitioner/plaintiff contended, was against the tenor of the order passed by this court dated 24th December, 2019 in Review Petition No. 540/2019 in CM (M) 1787/2019 against the order dated 17th December, 2019. Vide orders dated 28th July, 2020, this court observed that the learned Trial Court had erred in not securing the amount of Rs. 1.5 crores as directed in the order dated 24th December, 2019 and ought to have asked the respondent/defendant to submit documents of a property of which the title was clear or a bank certificate recording a no objection to the creation of a second charge on the property to the extent of Rs.1.5 crores ought to have been furnished.”

Of course, the Bench then states in para 8 that, “Vide orders dated 4th December, 2020, this Court had after noting the letter of the Punjab National Bank, Gymkhana Branch, Meerut, U.P. that a lien had been created in the sum of Rs.1.50 crores, directed that the said amount of Rs.1.50 crores be deposited in an interest-bearing fixed deposit initially for a period of six months with auto renewal facility. This FDR was not to be encumbered further or released without the leave of the Court and was further subject to orders of this Court. This FDR has since been deposited in the Registry of this Court as has been noted in the orders of this Court dated 5th March, 2021 and 8th March, 2021. In these circumstances, Mr. Vivek Kumar Tandon, learned counsel for the petitioner/plaintiff has submitted that the relief sought against the order dated 18th January, 2020 has been satisfied.”

Moving on, the Bench then points out in para 9 that, “With regard to the order dated 24th January, 2020, the learned counsel for the petitioner/plaintiff has submitted that the learned Trial Court had wrongly granted leave to defend to the respondent/defendant in a case where the respondent/defendant had raised no triable issues. Learned counsel for the petitioner/plaintiff submitted that the learned Trial Court had proceeded in a wrong direction as the loan transactions between the petitioner/plaintiff and the respondent/defendant were different transactions and had nothing to do with the payment of Rs.1.50 crores, which was towards the legal fees of the petitioner/plaintiff and for which the invoice had been raised. There is no dispute that the petitioner/plaintiff had acted as a legal advisor to the respondent/defendant. An earlier bill for Rs.30 lacs had also been paid by the respondent/defendant.”

Adding more to it, the Bench then also points out in para 10 that, “It is further submitted by the learned counsel for the petitioner/plaintiff that as regards the cheques in respect of which proceedings under Section 138 of the N.I. Act are still pending, the signatures thereon have not been disputed. Since the cheques were issued in the year 2019, they were presented that year and it is not relevant whether the cheques were taken from a cheque book that was issued to the respondent/defendant in the year 2013. Reference was also made to the orders passed by the learned Chief Metropolitan Magistrate dated 3rd September, 2019 (Annexure-G) and, it was urged that as cognizance had been taken, and Notice under Section 251 Cr. P.C. served, a presumption had to be drawn against the respondent/defendant and the suit ought to have been decreed under Order XXXVII CPC. Instead, unconditional leave to defend was granted.”

What’s more, the Bench then states in para 11 that, “Reliance has been placed on the judgment of this Court in Lakshmi Builders v. Devinder Lakra, 2016 SCC OnLine Del 1453 and the judgment in Hari Om Gupta v. IFB Industries Ltd., 2014 SCC OnLine Del 2055 and the judgment in Shri Colonizers & Developers Pvt. Ltd. v. Felicia Realcon India Pvt. Ltd., 2019 SCC OnLine Del 11106.”

Against this backdrop, the Bench then brings out in para 12 that, “Mr. Sanchit Garga, learned counsel for the respondent/defendant submitted that the learned Trial Court had rightly granted leave to defend the suit as it was replete with incorrect facts. A single invoice for a sum of Rs.1.5 crores had been raised apparently, towards fees for legal opinion and assistance. However, the petitioner/plaintiff in the plaint had himself referred to business transactions, namely, loans of vast amounts being given to the respondent/defendant and the receipt of interest @ 18% per annum. The cheque book was issued in the year 2013 and the six cheques were clearly lying in the possession of the petitioner/plaintiff for several years is indicative of the fact that they were given, not towards any legal liability but only as security. There is no document to establish a lawyer-client relationship, no retainership agreement had been filed and therefore, the claim of the petitioner/plaintiff was suspicious that he was entitled to a sum of Rs.1.50 crores towards such legal assistance.”

Going forward, the Bench then states in para 13 that, “As regards the payment of Rs.30 lakhs on account of legal advice, the learned counsel has submitted that this was drawn from the personal account of Shri Hari Om and not from the account of the hospital and therefore, the respondent/defendant has never acknowledged having availed of legal services. In the background of these facts, the respondent/defendant had raised triable issues. Learned counsel submitted that now that an FDR of Rs. 1.50 crores has been furnished, the leave to defend is clearly conditional and the petitioner/plaintiff’s claim has been fully secured. As regards the judgments relied upon by the learned counsel for the petitioner/plaintiff, it was submitted that they are all related to delivery of goods and were not applicable to the facts of the present case.”

For the sake of clarity, the Bench then clarifies in para 14 that, “In the light of the orders already passed in this case, whereby an FDR has been furnished for a sum of Rs.1.50 crores, the grievance of the petitioner/plaintiff against the orders dated 18th January, 2020 does not survive any longer and no further directions on the said aspect are called for.”

Needless to say, the Bench then makes it clear in para 15 that, “As regards the question whether leave to defend has been rightly granted to the respondent/defendant or not, the facts that prevailed upon before the learned Trial Court were that the petitioner/plaintiff himself has referred to loans having been given to the respondent/defendant by way of bank transfer. The petitioner/plaintiff had also accepted that the respondent/defendant had been paying interest for some time after which it defaulted. In fact, the plaint record reflects this position. The existence of some business transactions is, therefore, made out even from the plaint. Though the petitioner/plaintiff has claimed now that those loan transactions were something different, that would be a matter to be seen during trial.”

Truth be told, the Bench then holds in para 16 that, “When the respondent/defendant has challenged the claim of the petitioner/plaintiff that he had acted as legal advisor to them and, therefore, the invoice raised was for a fee, this fact too will have to be proved. In fact, in the application for leave to defend, the respondent/defendant has averred that the petitioner/plaintiff had claimed to have been providing legal assistance to the respondent/defendant since the year 2000, yet the invoice had been raised only in December, 2018, and therefore, the amounts raised in the invoice would also be time barred.”

Most significantly, the Bench then clearly, cogently and convincingly holds in para 17 that, “With regard to the submissions made by the learned counsel for the petitioner/plaintiff, that, on taking cognizance of an offence by the learned MM under Section 138 of the N.I. Act automatically a decree against the respondent/defendant should follow, cannot be accepted, as cognizance leads to trial and the accused can also get acquitted. Secondly, on the one hand the petitioner/plaintiff claims that the cheques were towards loans which were separate transactions and on the other hand, wants this Court to draw conclusions on that basis, that the signatures on the cheques were admitted and the learned MM had taken cognizance of the case to decree this suit.”

Simply put, the Bench then observes in para 18 that, “In the light of these submissions, it is indeed a matter of trial as to what was the liability of the respondent/defendant towards the petitioner/plaintiff and towards what transaction or service rendered by the petitioner/plaintiff, that is, as a lender or as a legal advisor, would he be entitled to the suit amount.”

Be it noted, the Bench then remarks in para 19 that, “The learned Trial Court was, therefore right in observing that the defence taken was not moonshine and disclosed triable issues which required inquiry. Leave to defend had to be granted in the light of these varying stands taken by the petitioner/plaintiff in different proceedings.”

It is also worth noting that the Bench then observes in para 20 that, “The judgments relied upon by the petitioner/plaintiff have no relevance to the facts of the present case and do not require detailed discussions.”

It cannot be glossed over that the Bench then envisages in para 21 that, “Though in the impugned order, it has not been so recorded that any condition was attached to the grant of leave to defend, however, in the light of the previous orders of this Court and the deposit of the FDR for a sum of Rs.1.5 crores with the Registry of this Court, the leave to defend granted to the respondent/defendant is not unconditional and does not work to the disadvantage of the petitioner/plaintiff.”

No doubt, the Bench then rightly makes it clear in para 22 that, “However, it is reiterated that the respondent/defendant is bound by the earlier orders of this Court that the said FDR shall not be encumbered in any fashion and nor shall the Registry release the FDR to the respondent/defendant till further orders of this Court.”

No wonder, the Bench then very rightly holds in para 23 that, “The petition is devoid of merit and is dismissed along with the pending application.”

Finally, the Bench then holds in para 24 that, “The judgment be uploaded on the website forthwith.”

In conclusion, the upshot of the above discussion about this noteworthy judgment by Delhi High Court is very clear: Cognizance of Section 138 NI Act offence by Magistrate will not automatically result in decree in civil suit for cheque dishonour. The reasons have already been discussed hereinabove. It certainly merits no reiteration that all the courts must always adhere to this commendable, cogent and convincing judgment by Hon’ble Ms Justice Asha Menon while ruling in similar such cases!

A INTRODUCTION

The Indian constitution is amongst the most intriguing texts in the world. Still, no nation has a constitution as extensive as ours. Despite its comprehensiveness, the reason this text is so intriguing is that it is highly adaptable. The framers of the constitution intended it to be non-rigid and should flourish the country to grow with it. As a result, the government of India has the authority to modify the constitution in response to numerous problems raised under Article 368 of the Constitution of India. An individual being a citizen of a democratic country as India has a right given by the Constitution that can be challenged any amendment made to the Constitution and when they do that it creates an obligation on the court of law to examine the matter in issue on the bases of its merits.

Along with the amendments in several legislations, some obligations are related to the Constitution. As the parliament derives its power to amend through Constitution, it is also necessary to follow the necessary procedures. Presently, the question was raised on the 97th amendment of the Constitution. It was bought in the Gujarat High Court by the way of PIL. The name of the case stands as Rajendra N. Shah v Union of India. However, the same was appealed to the Supreme Court to strike down the decision of the Gujarat High Court.

WHAT IS 97TH AMENDMENT ALL ABOUT?

The 97th amendment to the Constitution came as a dilemma. The main cause of this amendment was to look after the working of the cooperative societies and amend some of its rules and regulations. By the way of amendment, Article 19(1) (c) was amended. This was done to give protection to Article 43B of the Constitution. Article 43B of the Constitution states the promotion of cooperative societies. Also, Part IXB was inserted. The amendment was passed without being ratified by the State Legislatures. This led to the non-following of the procedure required by the Constitution.

Part IXB consists of Articles 243ZH to 243ZT. The articles in total have impacted the powers of state legislatures. It does not only restrict the powers but, has also paved a way for interference. Also, the amendment has bought the doctrine of basic structure in the scenario by making amendments to non-amendable parts of the constitution.

OVERVIEW OF THE DECISION OF GUJARAT HIGH COURT

In 2012 a writ petition was filed by Mr Rajendra N. Shah (hereinafter referred as petitioner) in the High Court of Gujarat at Ahmedabad through PIL. The major contention dealt with the 2011 amendment to the Constitution of India that the embedding Part IXB comprising Articles 243ZH to 243ZT violates the Indian Constitution since it does not make use of Article 368(2) of the Constitution, which requires the expressed ratification by a majority of the State Legislatures.

Apart from this petition, several other similar petitions were filed. The main challenge was to strike down the additions done via the 97th amendment, the argument of the petitioners was not for striking down the provisions but, for ratification by half of the state. The reason being, the amendment affected a subject that was present in the state list.

The petition expressly stated that the power under Article 368 is related to the basic structure of the Indian Constitution, and the fact that the impugned constitutional amendment did not follow the procedure prescribed in Article 368(2) of the Constitution, which recognizes the federal structure of the Constitution as one of the basic structures, is a violation of the Constitution of India. According to the petitioner, the State Legislature is the only competent authority in law to enact laws for cooperative societies as the same does not fall under the VII Schedule Entry 45 of List I of the Constitution, and that it is expressly excluded from Entry No. 43 of List and the proposed amendment should be set aside as violative of the Indian Constitution because the consent by way of ratification from the majority of State Legislatures was not obtained before presenting the Bill proposing the amendment to the President of India as provided in Article 368 (2).

The Gujarat High Court held in the present case that the amendment was taking away the necessary powers of state governments. On July 20, 2021, the apex court upheld the decision of the high court and has saved the supremacy of State Governments. Also, this amendment would have led to extensive interference of centres in subject matters of state. This judgment has been delivered by keeping in mind the federal structure of the Indian Constitution.

ARTICLE 368: IMPORTANCE AND HISTORY

As stated above, one of the major reasons for challenging the 97th amendment is that it was not done by complying with Article 368 of the Constitution. The main reason behind this is the “basic structure doctrine”. Before the applicability of this doctrine, even fundamental rights were amendable by the virtue of Article 368. With the series of judgements, the doctrine developed and some parts of the constitution were held to be non-amendable.

Mainly, in the case of I.C. Golaknath v State of Punjab and Haryana, it was held that the amendment of fundamental rights cannot be authorised. As, due to this, fundamental rights will vanish one day. So, parliament cannot amend them. Similarly, in the case of Keshvananda Bharati v State of Kerala, it was held that some of the basic features of the constitution cannot be amended as they will affect the federal structure of the constitution.

In India, we follow a rule of checks and balances. It is necessary to keep a check on the amendments made. One more important case is I.R Coelho by L.Rs v State of Tamil Nadu and ors. The main issue in the case was if Schedule IX of the Constitution can be amended by the virtue of Article 368 or not? It was held that any amendment made to Schedule IX is against the doctrine of basic structure. Also, Article 368 cannot be amended to allow the same.

Hence, when it comes to stating the importance and history of Article 368, it is an important asset to the doctrine of basic structure. It is against the basic principles to breach the basic features of the constitution. The same is being argued in the present case related to the 97th amendment. The position of Article 368 still stands the same and thus it cannot amend the basic structure of the Constitution.

THE DECISION OF THE SUPREME COURT AND ITS ANALYSIS

The decision of the Gujarat high court has been upheld by a three-judge bench consisting of R.F. Nariman, K.M. Joseph, and B.R. Gavai. Only Part IXB was stated to be struck down by Justice R.F. Nariman and B.R. Gavai. However, Justice K.M. Joseph stated that the whole of the constitutional amendment has to be stuck down.

As a consequence of the judgment, not the whole of the amendment has been struck down but, only a part of it. It has been stated that: We have struck down Part IXB but, have saved the Constitutional Amendment”. It has been contended that the part denudes the state of their powers but also restricts them. It has also been contended that the amendment is not a direct attack on the power of state legislatures in regards to cooperatives.

The other opinion that has been given about the amendment is that to achieve uniformity in the amendment, it was necessary to take recourse to Article 252 of the Constitution. This article states that it is necessary to take the consent of two or more states to bring any such amendments. Presently, the same is being challenged as the 97th amendment has been made without complying with the appropriate procedure. Hence, relying on the precedents, makes it clear that the amendment made to Part IXB of the Constitution is against the doctrine of basic structure and hence has been struck down by the Supreme Court.

The criticism for the amendment can also be seen through various opinions. One such opinion from All India Kisan Sabha states that these amendments are making India centralized which will, in turn, destroy the federal structure. To keep the working inflow, it is necessary to keep the powers with the states intact and not to include the Centre in it.

However, mixed opinions have been observed. The other side states that many of the states had already amended the legislatures according to the Constitutional Amendment. This calls for keeping the amendment intact as it is necessary for keeping a check on the activities in the state. This judgment now requires the pre-amendment of several legislatures in the states.

The decision of the High Court states that the provisions of amendment about cooperative societies lead to violation of the basic structure of federalism. The amendment was challenged based on various loopholes. One of them was, the process of amendment was not followed. Secondly, the provisions are an attack on the powers of state legislatures. Thirdly, the provisions are not following the federal feature of the constitution. Fourthly, the provisions are not empowering cooperative societies.

The judgment given by the apex court is vital. It has stated the main issues with their solutions. Striking down only part of the amendment states that no whole of the amendment was incorrect. Only the part that was being inconsistent has been removed. Various views are coming out. It has made it necessary to follow the procedures as established by law to avoid such circumstances.

Along with the amendments in several legislations, some obligations are related to the Constitution. As Parliament derives its power to amend through Constitution, it is also necessary to follow the necessary procedures. Currently, the question was raised on the 97th amendment of the Constitution. It was bought in the Gujarat High Court by the way of PIL. The name of the case stands as Rajendra N. Shah v Union of India. However, the same was appealed to the Supreme Court to strike down the decision of the Gujarat High Court.