Pakistan pushes PoJK to the verge of a major crisis - Business Guardian
Connect with us

Legally Speaking

Pakistan pushes PoJK to the verge of a major crisis



Pakistan-occupied Jammu and Kashmir (PoJK) has been grappling with a flurry of protests recently due to the Pakistan government’s plan to amend the region’s constitution to take away financial and administrative powers of the local government. This has resulted in a massive uprising in all the 10 districts of PoJK. Reports said that on July 1, a joint secretary in the Ministry of Kashmir Affairs in Islamabad sent a letter to the chief secretary of PoJK, informing that the Prime Minister of Pakistan Shahbaz Sharif has constituted a six-member committee to seek amendments in the interim constitution of PoJK. The letter has asked the PoJK government to nominate its three members to participate in the deliberations.
Pakistan government’s six-member committee that included ministers of law, defence and Kashmir Affairs will give a final shape to a draft which will be known as the 15th amendment to the Azad Jammu and Kashmir Interim Constitution. It is believed that Prime Minister of PoJK Sardar Tanveer Ilyas has nominated an additional chief secretary, secretary of law and secretary of agriculture to attend the deliberations with the leaders in Islamabad.
Protesters say that the PoJK government should have nominated political leaders cutting across the aisle as this amendment relates to curbing political powers of the local government and has wider ramifications.
The protesters say the decision to nominate bureaucrats to deliberate with the ministers of the Pakistan government is tantamount to surrendering before Islamabad. Publicly Ilyas and even opposition members have so far held the view that they will not allow implementation or legislation of this 15th amendment. Interestingly, the opposition parties in PoJK which are Pakistan Muslim League and the People’s Party are alliance partners in the government under Prime Minister Shabaz Sharif. Pakistan Tehreek e Insaf (PTI) of Imran Khan is the ruling party in PoJK.
A few years ago, under the 13th amendment, the PoJK government had secured rights to legislate on finance and administrative issues, which seems not going well with the political and bureautic class in Pakistan.
Former Prime Minister of PoJK Raja Farooq Haider, whose party PML is in power in Islamabad has stated that he will not allow this amendment to take place. This amendment involves scrapping the 13th amendment and restoration of the Kashmir Council to become a superimposing body above the PoJK government and the legislative assembly. 13th amendment had curtailed the powers of the Pakistan government and its officials on the affairs of PoJK. Pakistan had never allowed a proper set-up in the PoJK and as per the constitution it is deemed to be an interim arrangement, till the the status of the POJK is determined.Under the garb of this interim set-up and dreams of one Jammu & Kashmir State as a whole are trampled , Pakistani authorities have used every tactic to deny political rights to the people of PoJK.

Revival of unelected Kashmir Council
According to the details being drafted in the name of the 15th amendment, the powers of the unelected Kashmir Council will revive and it will play a crucial role in administrative and financial legislation. In the earlier structure, the Pakistan government used to get some Rs. 500 to 600 crore every year as taxes from PoJK. But after the 13th amendment, the money was disbursed to the PoJK government. Therefore, the Pakistan government wants to annul the 13th amendment by bringing the 15th amendment.
The Ministry of Kashmir Affairs and the Chairman of Pakistan parliament’s Kashmir Committee are seen as gravy trains by Pakistani politicians. Such is the rush to head the Kashmir Affairs Ministry in Islamabad that Mian Manzoor Ahmed Khan Watoo, who has been chief minister of Punjab and then industry minister had preferred to occupy the post of this ministry rather than seeking any other prominent role. Similarly, Maulana Fazlu Rahman always preferred to chair the parliamentary committee on Kashmir to get funds for his political and personal activities.
In the legislative scheme, there are 28 subjects, that the PoJK assembly cannot legislate which include defence, foreign affairs etc. In another set of subjects that include water sharing and electricity, the PoJK assembly is authorized to legislate, but with the consultations of the Pakistan government. Now the 15th amendment stipulates that both the subjects will be in the domain of the unelected Kashmir Council instead of the legislative assembly. If there is a need to impose an emergency in the region, it will not be done with the stamp of the PoJK president, but by the seal and signature of the Prime Minister of Pakistan after getting recommendations from the Council. Pakistan government is also authorised to appoint high court and supreme court judges, chief election commission, auditor general, chief secretary, police chief etc. The Pakistan government will also control the finances of PoJK.
Before the 13th Amendment, the council was very powerful. Headed by the prime minister of Pakistan as chairperson, the council was created under POJK’s Interim Constitution Act, 1974, “to serve as a bridge” between the governments in Islamabad and Muzaffarabad. However, it was widely alleged that this institution had assumed the role of a parallel government [for POJK]. The 13th amendment had taken away its powers. In the earlier version before the 13th amendment, there was no provision for it having its secretariat. Now the 15th amendment also calls for a separate secretariat for the Council. That means there will be a government over the government.
Under the interim constitution of PoJK, the Kashmir Council was an executive authority. Kashmir Council had responsibility for the tax collected from all over the state. All the income tax commissioners of the state were subordinate to the council. and all the revenue went directly to the council of which 80% is held by the PoJK government and 20% by the Kashmir council.
Historic 13th Amendment
After the historic 13th Amendment to the Azad Jammu and Kashmir Interim Constitution Act 1974 in the PoJK Legislative Assembly, all powers of the Kashmir Council were transferred to the PoJK Government, the Legislative Assembly, and the Prime Minister of Pakistan.
It was passed by a majority vote in the joint sitting of the Azad Jammu and Kashmir Legislative Assembly and the Kashmir Council. In the joint sitting, 49 members of the Legislative Assembly, six members of the Kashmir Council, and the Federal Minister for Kashmir Affairs cast one vote. On June 1, 2018, the PML-N government passed this historic legislation with a majority of 35 out of 56 members.
Many changes have been made through this historic legislation. Article 6 used to convene a joint sitting in case of a no-confidence motion against the President, but now a one-third majority of the Legislative Assembly, i.e. 17 members of the Assembly, can move a no-confidence motion. Under Article 14 (1), the number of Ministers in the Legislative Assembly is fixed at 30% of the total members of the Assembly. The next government will not be able to have more than 16 ministers in the cabinet under this law. Under Article 14-A, the Prime Minister of PoJK will now be able to appoint five Parliamentary Secretaries and two Special Assistants or Advisers.
According to Article 17 (3), in the absence of the Prime Minister of PoJK, the senior minister would have been the caretaker Prime Minister. The no-confidence motion against the Prime Minister of PoJK will be able to form 25% of the total members i.e. 13 members of the Assembly. Earlier, a member of the Assembly could have moved the motion.
In Article 50, the Election Commissioner will be replaced by the Election Commission which will consist of a total of three members including one Election Commissioner and two more members. The Prime Minister, after consulting the Leader of the Opposition in PoJK, will send his name to the President, who will give his formal approval.
The significance of the PoJK Council after the thirteen Amendments is toothless, but according to United Nations (UN) resolution, Kashmir Council cannot be abolished in Pakistan and Indian Kashmir.
That the Muzaffarabad government has always taken diktats from Rawalpindi is an open secret. Tourism is the major source of bread and butter for Kashmiris. However, the Pakistani military’s taking over tourist hotspots and making a tourism development authority has incensed the local people. They are jittery about Pakistan’s efforts to gobble POK into its federation. By making the high-level committee prepare a draft for the 15th amendment it is believed that Pakistan is making serious attempts to integrate PoJK into its federation. The result has been massive widespread protests and demonstrations at Rawalakot, Bagh, Poonch, Muzaffarabad and Neelam Valley among other districts in Pakistan-occupied Kashmir.

Divesting liberty and rights
Opposition and treasury benches PoJK Assembly have vowed to resist any attempt aimed at divesting the liberated territory and its people of rights that they had gained through a landmark constitutional amendment some four years ago.
The rare consensus was demonstrated by them during a debate on an adjournment motion by PML-N leader and former prime minister Raja Farooq Haider, wherein he took strong exception to a recent letter from the Ministry of Kashmir Affairs in which nomination of three representatives from the PoJK government was sought for a subcommittee constituted to “examine and finalise the proposed draft of 15th amendment”.
“The letter has disregarded facts and attempts to undermine the honour of the legislative assembly. It has not only hurt the Kashmiris who have always braved India’s machinations but also runs the risk of creating misgivings between the Kashmiris and the government of Pakistan,” he said.
Haider recalled that this house had “restored the constitutional, legal, financial and administrative authority of the POJK government following the spirit of parliamentary democracy and the aspirations of Kashmiris” through the 13th amendment in June 2018.
He made it clear that as long as POJK remained in existence with the existing special status, the struggle for freedom of occupied territory would continue with vigour.
Most of his views were endorsed not only by Sardar Hassan Ibrahim of Jammu Kashmir Peoples Party and Bazil Ali Naqvi of Pakistan Peoples Party from the opposition benches but also by Minister for Education Deevan Ali Chughtai, Minister for Local Government Khawaja Farooq Ahmed and some other treasury members. Additionally, it was also widely accused that the council has become a hub of unchecked corruption and political wheeling and dealing ahead of every election in PoJK, largely evading scrutiny of its spending by any investigating or accounting body.
The council that enjoyed administrative control of the POJK Department of Inland Revenue, AG Office and the Directorate General of Audit, would retain 20 per cent of the income tax generated from the POJK territory as well as some other funds to meet the administrative expenditures of its inflated secretariat in Islamabad and some other miscellaneous heads, and also to carry out development activities in Pakistan and PoJK.
However, as the administrative control of all three departments stood transferred to the PoJK government after the 13th amendment, the council was left with no source of income, which, according to sources, had greatly upset the beneficiaries of the previous system.
Interestingly, according to a recent statement, revenue collection had substantially increased in the wake of the 13th amendment, even though the Covid-19 pandemic and an earthquake in the southern districts had affected business activities in PoJK in 2019-20.
Relationship between Pakistan and PoJK
The relationship between Pakistan and PoJK has remained fluid over. Nothing concrete was laid out in the initial days of Independence to formalize the relationship. The people of PoJK and their leadership, strived hard to get a proper constitution and governance setup. Consequently, several legal and constitutional arrangements were introduced during the nineteen sixties and seventies. All these Acts provided for a Presidential form of Government. The 1970 Act gave full legislative powers to the POJK Assembly, as well as executive powers to POJK Government which enabled it to take major decisions.
In 1974 Azad Jammu and Kashmir Interim Constitution Act 1974 was introduced which governs the affairs of POJK till today. The 1974 Act made drastic changes such as switching to a parliamentary form of government and establishing a new forum called the Council, which was entrusted with significant legislative and executive powers. The formation of the POJK Council was perhaps intended to streamline the relationship between Islamabad and Muzaffarabad. However, the overwhelming feeling in Azad Jammu and Kashmir is that the Council has been unable to achieve the objectives for which it was established. The extent of its authority and performance remains debatable. It is widely believed that the Council’s executive powers drastically hamper the elected government’s ability to take key decisions related to finance, public policy and socio-economic development.
Ever since PoJK came into being in 1947, the Government of Pakistan has always had a strong presence in the region. It controls defence, security, currency, and foreign relations. Key officers of the Government are nominated by the Government of Pakistan. These officers are the Chief Secretary, the Inspector General of Police, the Finance Secretary, the Home Secretary, the Health Secretary, the Accountant-General, and (usually) the Additional Chief Secretary (Development). They are known as “Lent Officers”, and are not under the POJK Government’s control in matters of discipline or posting. Thus, they are a strong check on the exercise of powers by the President and Cabinet of POJK. The system of “Lent Officers” is a permanent feature, and has never been changed.
Without going into details, it can be said that the Government at Muzaffarabad was appointed and removed by – and acted under the control of – the Government of Pakistan. Few political rights were available to the people of POJK under this system. This form of government was presidential; while the Government Act 1960 provided a semblance of democracy, it did not include self-rule for Kashmiris. Even this was soon discarded.
In 1970, POJK was given an elected Government and a Legislative Assembly directly elected by the people. POJK was given powers which, in practice, had not existed in the preceding two decades. The POJK Government Act 1970 was promulgated to serve as the constitution of POJK. It provided that there would be a President, who would be elected directly by Kashmiris living in POJK and Pakistan. It empowered the POJK Assembly to amend the said Act. All executive powers were vested in the President, who was to be aided by a small cabinet of three ministers. Corresponding legislative powers were vested in the Assembly except in respect of defence and security, currency and the external affairs of Azad Jammu and Kashmir.

PoJK Interim Constitution
In 1971, the Assembly amended the Act (without having to seek prior permission from the Government of Pakistan) and gave fundamental rights to the people and writ jurisdiction to the High Court. An Apex Court was also created, in which appeals could be filed against the High Court’s judgments. The power to appoint judges to the superior courts lay with the President of POJK. Importantly, the subjects of foreign trade and foreign aid were included in the legislative and executive authority of the POJK Government which immensely raised internal autonomy to a new height.
In 1974, the elected Legislative Assembly repealed the 1970 Act and enacted the POJK Interim Constitution Act 1974. , The Government of Pakistan, discharging its responsibilities and approved the repeal of the 1970 Act and its replacement by this new Act. The draft was prepared in the offices of the Government of Pakistan. The party in power, led by the elected POJK President and all other major parties, obliged. The AJ&K Assembly consequently passed the POJK Interim Constitution Act 1974. This introduced a parliamentary form of government, and the powers of the AJ&K Government were drastically reduced.
Under the new scheme, powers in respect of 52 subjects, as well as some other important powers related to the appointments of High and Supreme Courts judges were taken away from the POJK Government and vested in the POJK Council. This body consists of elected members from POJK and nominated members from the Parliament of Pakistan.
The subjects falling under the POJK Council’s remit include electricity & Hydro Power Generation, tourism, population planning, banking, insurance, stock exchange and futures markets, trading corporations, telecommunication, planning for economic coordination, highways, miners, oil and gas, development of industries, newspapers etc. The major sources of income of the POJK Government, i.e. income tax and some other taxes, were transferred to the POJK Council, giving it greater control over POJK’s finances. In addition, powers to appoint Judges of the Supreme Court and High Court, the Chief Election Commissioner, and the Auditor General were also taken away from POJK Government and now vested in the Chairman of POJK Council.
According to section 21 of the 1974 Act, whoever is the Prime Minister or Chief Executive of Pakistan shall be Chairman of the POJK Council. All the executive powers of the Council are vested in the Chairman. Thus executive powers in respect of the 52 subjects, as well as powers to fill high offices, virtually stand transferred to the Government of Pakistan. POJK is therefore left with little autonomy or status.

Inherent defects
Some defects are inherent in the scheme of the POJK Council. The executive authority in respect of 52 subjects included in the Third Schedule as well as appointment and removal of Judges of Superior Courts, Chief Election Commissioner, Auditor General, etc, are vested in the Chairman, and the members of the POJK Council (elected or nominated) have no role to play in these matters. The Chairman is not an elected official and is not answerable to any POJK elected body about POJK affairs (even if, as an elected Prime Minister of Pakistan, he is answerable to the Pakistani electorate).
As is obvious, the Chairman is not an elected representative of the people of POJK nor is he answerable to them. Thus, democracy has little place in this system. It is an anomaly that in the setup at Muzaffarabad, executive authority (or whatever is left of it) is vested in an elected cabinet, which is answerable to the Assembly and the people of POJK, while in the POJK Council the opposite is true. This is inconsistent with the norms of a democratic polity in the present era. The political rights of the people of POJK, therefore, stand denied.
In the POJK Council, representation is separately given to Pakistan and POJK. On one side are the Prime Minister/Chief Executive of Pakistan and six Ministers/MPs who are nominated by the Chairman. On the POJK side, six members are elected by the POJK Assembly. This body legislates for POJK and also levies taxes. The composition of the Council is not representative but is heavily tilted in favour of the Government of Pakistan. This is because the Chairman and the six Ministers /MPs all belong to one political party/group, and therefore are more capable of uniting within the Council, while the six elected members are from two or three different parties. In practice, the role of these elected members, in the presence of the high personages representing the Government of Pakistan, is insignificant. Thus the elected representatives have a very insignificant role in legislating on the subjects vested in the POJK Council and levying taxes.

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

Supreme Court: Commercial Transactions Outside Purview Of Consumer Protection Act 1986



The Supreme Court in the case Annapurna B. Uppin And Ors. Versus Malsiddappa And Anr. observed wherein the complaints is filed seeking recovery of the investment from which the complainant is deriving benefit in the form of interest cannot be entertained under the Consumer Protection Act of 1986. The bench comprising of Justice Vikram Nath and Justice Satish Chandra Sharma in the case observed and has stated that it was a commercial transaction (investment) and therefore also would be outside the purview of the 1986 Act.

The court in the case stated that Commercial disputes cannot be decided in summary proceeding as stated under the 1986 Act but the appropriate remedy for recovery of the said amount, if any, admissible to the complainant respondent No.1, would be before the Civil Court. Thus, the complaint was not maintainable. The aforesaid observations came in the judgement authored by Justice Vikram Nath while deciding the civil appeal preferred by the appellants, the Legal heirs of the partner of the firm against the decision of the National Consumer Dispute Redressal Commission, NCDRC.

The present case relates to the alleged for the non-payment of the respondent no.1, the investment amount by the appellant(s). The respondent also had invested an amount of Rs. 5 lakhs in the partnership firm, wherein the husband of appellant’s was a partner to be repayable after 120 months with interest @ 18% per annum.

On the other hand, the Respondent No. 1 sought for the premature release of the invested amount but was asked to wait till the maturity period and when the amount was not returned even after the end of the maturity period, thus, he filed a consumer complaint claiming the said amount. Therefore, the Forums at various levels allowed the respondent No. 1 i.e., complaint, following which the appellant approached the Supreme Court.


It was also contended before the court Supreme Court by the appellants that the transaction to invest in the partnership firm was commercial and the consumer complaint filed seeking recovery of the investment made by respondent no. 1. Would not be maintainable under the 1986 Act. It has also been contended by the appellants that the complainant could not seek the recovery of the investment because when the investment was made by respondent no.1, he was the partner of the firm.

Further, it was contended before the court by respondent no.1 that the refusal of the appellants to return the investment amounted to a deficiency of service and therefore, the complaint was maintainable. It also being the case of respondent No.1 that the appellants herein inherited the estate of the Managing Partner Basavaraj Uppin, and hence cannot escape the liability of making the payment due to respondent No.1.

Observations Made By Supreme Court:

The court while finding force in the appellant’s contentions held that the complaint seeking recovery of the investment would not be maintainable under the old act. The court in the case noted that respondent no.1 would not benefit from the complaint as he was the partner of the partnership firm during the period of the investment made by him.

The court observed that this court is of the considered opinion that once there was a registered partnership deed dated May 27,1996, there is no further document which is placed on record by the complainant-respondent No.1 with regards to the dissolution of the said registered deed which continued till the time when the investment was made by the complainant respondent No.1 on May 21, 2002 and hence the complainant respondent No.1 would be deemed to be partner of the firm.

Deceased Partner Liability Do Not Passes Upon Its Legal Heirs:

The court in the case rejected respondent no.1 or complainant argument that being the legal heirs of the Managing Partner of the firm, the appellants cannot escape from the liability owed by the Managing Partner. It has also been stated by the said court that the legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

The court in the case observed that there was no evidence on record in order to show that a fresh partnership deed was executed reconstituting the firm in which the present appellants had become partners so as to take upon themselves the assets and liabilities of the firm. Further, the court stated that the law is well settled that legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

The court while considering the facts and circumstances of the case allowed the appeal and the complaint preferred by the complainant or respondent No. 1 was set aside. Accordingly, the court allowed the appeal. The counsel, Mr. C. B. Gururaj, Adv. Mr. Prakash Ranjan Nayak, AOR Mr. Animesh Dubey, Adv. Mr. Debendra Ghosal, Adv. Appeared for the Petitioner(s). The counsel, Mr. Chinmay Deshpande, Adv. Mr. Anirudh Sanganeria, AOR represented the respondent(s).

Continue Reading

Legally Speaking

Former AAP Minister Moves Delhi High Court, Seeks Removal Of Kejriwal From CM’s Post



In the case Sandeep Kumar v. Arvind Kejriwal and Others, the Delhi High Court observed a petition filed by Aam Aadmi Party MLA Sandeep Kumar seeking the removal of Arvind Kejriwal from the post of Chief Minister of Delhi. Arvind Kejriwal is presently in judicial custody related to an Enforcement Directorate (ED) case concerning the excise policy. This is the third petition seeking such a prayer, with the previous two pleas being rejected by the Division bench headed by Acting Chief Justice Manmohan.

Sandeep Kumar approached the court as a Court of first instance in writ jurisdiction, not as a Public Interest Litigation (PIL), in his individual capacity. He, being a lawyer by profession, claims to be a founding member of the Aam Aadmi Party and a social worker.

The plea filed seeks the issuance of a writ of quo warranto against Kejriwal, calling upon him to show by what authority, qualification, and title he is holding the office of the Chief Minister of Delhi. Additionally, the plea prays for an inquiry to dislodge Kejriwal from the office of the Chief Minister, with or without retrospective effect.

Kumar claims that as a voter of the Delhi Assembly Election, he is personally aggrieved for having a Chief Minister for his Union Territory who has incurred an ‘incapacity to hold the post’ and ‘who can never function as the Chief Minister from custody or prison’ as envisaged by the Constitution of India.

The petitioner argues that Kejriwal has incurred an incapacity to carry out his functions as the Chief Minister of Delhi under the Constitution and therefore, he cannot hold the post. The plea emphasizes that the right to have a government in accordance with the Constitution is a Constitutional Right of every citizen and voter.

Arvind Kejriwal was arrested on the night of March 21 and subsequently remanded to judicial custody until April 15. However, the court refused to entertain a Public Interest Litigation (PIL) seeking Kejriwal’s removal from the post of Chief Minister, observing that there is no scope for judicial interference in the matter, and it is for other organs of the State to examine the issue.

Continue Reading

Legally Speaking

Delhi High Court Reserved Verdict On Arvind Kejriwal’s Plea Challenging ED Arrest In Liquor Policy Case



The Delhi High Court in the case Arvind Kejriwal v. Directorate Of Enforcement observed and has reserved verdict on the plea moved by Chief Minister Arvind Kejriwal challenging his arrest by the Enforcement Directorate, ED in the money laundering case related to the alleged liquor policy scam case.

The bench headed by Justice Sharma in the case observed and has denied any interim relief to Kejriwal and only issued notice on his plea challenging the arrest, as well as his interim application seeking immediate release.

In the present case, Kejriwal is currently in judicial custody. Kejriwal was being arrested on the night of March 21.

The Trial Court in the case remanded him to six days of ED custody, which was extended by further four days. On April 01, he was remanded to judicial custody till April 15.

It has been stated by the Enforcement Directorate, ED that Kejriwal is the kingpin and the key conspirator of the excise scam and there were reasons to believe on the basis of material in its possession that he was guilty of the offence of money laundering.

It has also been alleged that the Aam Aadmi party was the ‘major beneficiary’ of the proceeds of the crime and has committed the offence through Kejriwal.

The response stated that, the Aam Aadmi Party, AAP is the major beneficiary of the proceeds of crime generated in the Delhi Liquor Scam. The Sh Arvind Kejriwal was and is not only the brain behind the AAP but also controls its major activities, he was also one of the founding members and was also involved in the decision making of the policy as evident from the statements of the witnesses.


The counsel, Additional Solicitor General SV Raju told the Court that investigation qua the sitting CM is at a nascent stage. Thus, he also pointed that Kejriwal has not challenged the latest order remanding him to 15 days judicial custody. He has also challenged the first remand order. Please look at the remand order of 26 March. Today we are on April 3. The second remand order is passed on March 28. That has not been challenged. Thus, the third remand order of judicial custody has not been challenged. So today his custody isn’t pursuant to arrest or first remand order, it’s pursuant to April 1 order which has not been challenged. Therefore, Raju also wondered if Kejriwal can challenge his remand since he did not oppose it. ‘He voluntarily accepts please remand me further. Can he challenge the remand order? Or is it barred by waiver? They are blowing hot and cold at the same time. You cant challenge the remand order and say please pass the order and accept it. They have not challenged the latest orders pursuant to which he is in custody. Thus, custody can’t be said to be illegal.”

The counsel, Senior Advocate Abhishek Manu Singhvi appearing for Kejriwal argued before the court that the central probe agency did not comply with Section 50 PMLA which empowers it to issue summons, collect evidence, etc. thus, it being clear that section 50 involves an inquiry. Because it’s inquiry which enables ED to make up mind about arrest and prosecution. No attempt is made to record my section 50 even at my residence. While pointing out the remand application he added ED wants to “find out” the role of Chief Minister. ‘Surely that’s not a ground for today’s arrest… There has to be specific role of the petitioner, even for the company, which I’m denying.’

On the other hand, it has been argued by the ASG that the fact that a PMLA offence has taken place is clear and beyond any doubt. Because as far as first Police Custody and subsequent Police Custody is concerned, court has taken cognizance… Categorical finding that there is money laundering. Cognizance of the offence of money laundering. Nobody has challenged the order.

It has also been contended by the Singhvi that ED forced the approvers Raghav Magunta, Sarath Reddy and Magunta Reddy to make statements against Kejriwal. Further, it has been alleged that two approvers even have links with the ruling party. Adding to it, Singhvi stated that initial statements that did not implicate Kejriwal are not even put on record by the ED. ‘These statements are kept in unrelied. Why should the court not see it? Is it fair? What cannon of fairness are you carrying ED? Out of 13 statements by this Reddy. He says nothing in 11 statements. The judge will go by one statement?’

He also questioned the necessity of arrest amid upcoming general elections. The test is not can arrest. It is demonstrating the necessity to arrest. The should arrest test. The necessity to arrest immediately before elections… the only object is to insult, humiliate and disable… So that the petitioner is unable to participate in the election process and to try to demolish the party before the first vote is cast. The timing reeks of basic structure issue, free and fair election issue and democracy issue. What is this urgency or necessity?

Further, Singhvi stated that it said to be a flight risk, given his deep roots in the society. Responding to this ASG stated that, supposing a political person commits murder two days before elections. This means he can’t be arrested? Basic structure comes into play? Criminals are supposed to be arrested and put in jail. In such cases there is no infringement of basic structure.

Further, it has been argued by ASG that calculation was done as to why 5 percent profit was made 12 percent in the new policy. “Only inference is that it was done so that 7 percent of portion is used for giving kickbacks. The fact that there is a scam is beyond doubt. Howsoever hue and cry you make, its a fact that a scam was there… Finding of the actual proceeds of crime is irrelevant if we make out a case that you were involved in money laundering.

Facts of the Case:

Kejriwal had skipped nine summons issued to him by ED. The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. While following his arrest, Kejriwal had promptly moved an urgent petition before the Supreme Court challenging his arrest. However, the same was withdrawn later. Kejriwal has previously moved the Delhi High Court, the division bench wherein it challenged the summons issued to him by the central probe agency. He has also filed an application seeking interim protection. The matter is fixed for hearing on April 22. The Kejriwal has skipped the summons, claiming that they are illegal.

It has also been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores. It being the case of ED’s that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. Further, it has also been claimed by the Central agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers. According to the agency, Nair was acting on behalf of Chief Minister Arvind Kejriwal and Manish Sisodia.

Continue Reading

Legally Speaking

Delhi High Court CM Arvind Kejriwal’s ED Custody extended By 4 Days Till April 1 In Liquor Policy Case



The Delhi High Court in the case Surjit Singh Yadav v. Union Of India observed and has remanded the Chief Minister Arvind Kejriwal to Enforcement Directorate, ED custody till April 01 in the money laundering case which relates to the alleged liquor policy scam case. Arwind Kejriwal was being arrested on the night of March 21, 2024. The Special CBI judge Kaveri Baweja of the Rouse Avenue Courts passed the order after Kejriwal was produced in court on the expiry of his six days of Enforcement Directorate, ED custody.

The Delhi High Court in the case declined any interim relief to Kejriwal and only issued notice on his plea challenging the arrest and remand. The counsel, Additional Solicitor General SV Raju told the court that the sitting CM was giving “evasive replies” during interrogation and the agency needs to confront him with some individuals who have been summoned from Goa. Thus, ED sought 7 more days of custody. He doesn’t get exonerated if he is a CM. There is no different standards for a CM. Right to arrest a CM is no different from an ordinary man.”

Yesterday, the Enforcement Directorate, ED summoned AAP’s Goa unit chief Amit Palekar and some other party leaders for questioning. Thus, they have been asked to appear at the agency’s Goa office on March 28, 2024. Further, the Kejriwal while appearing in person submitted before the court that he is not opposing remand. He claimed the entire case is a ‘political conspiracy’ and there is no such material against him. It has also been alleged by the Delhi CM that the central probe agency was collecting selective material and even the approver was forced to make a statement against him. Further, the central probe agency submitted before the court that Kejriwal has refused to share the password of his mobile phone.

Adding to it, Kejriwal responded that ED cannot force him to unlock his electronic gadgets. Delhi High Court Rejected PIL For Removal Of Arvind Kejriwal From Post Of Chief Minister The Delhi High Court rejected the Public Interest Litigation, PIL moved seeking removal of Arvind Kejriwal, who has been arrested by the Enforcement Directorate, ED in the liquor policy case, from the post of Chief Minister of Delhi. The Division bench comprising of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora in the case observed and has stated that the petitioner failed to show any bar in the law which prohibits the arrested CM from holding office. The CJI orally stated that, ‘Show us, where is the prohibition. Show us any legal bar which you’re canvassing’.

Further, the bench stated that there is no scope for judicial interference in the matter and the executive is examining the issue. The court in the case observed that if there is a constitutional failure, President or Governor will act on it…Is there any scope for judicial interference in this? The LG is examining the issue. It will go to the President. It belongs to a different wing. There is no scope for judicial interference in this. In the present case, the petition is moved by one Surjit Singh Yadav, a Delhi resident claiming to be a farmer and social worker. It has been claimed by him before the court that a Chief Minister accused of a financial scandal should not be permitted to continue in public office. Kejriwal is presently in ED custody which ends on March 28, 2024. It has been submitted by Yadav in the PIL that Kejriwal’s continuation in the post would not only lead to obstruction of due process of law and disrupt the course of justice, but also would lead to a breakdown of the constitutional machinery in the State as Kejriwal does not satisfy most of the limbs of Article 163 and 164 of the Constitution of India owing to his incarceration.

Further, the plea stated that the Respondent No.4 has virtually forfeited his office as a Chief Minister of account of being arrested and as he is in the Custody he has disabled himself from performing the duties and responsibilities of being a public servant and as such he ought not to continue as a Chief Minister. Therefore, the AAP Ministers have been making statements in the media that Kejriwal will not resign from the post and if need be, he will run the government from inside the prison.

It has been submitted by Yadav that a jailed CM would be incapable of transacting any business that the law enjoins upon him and if he is allowed to do so, any material, irrespective of its secretive nature, would have to be scanned thoroughly by the prison authorities before it reaches Kejriwal’s hands and such an act would amount to direct breach of oath of secrecy administered to the CM under the Third Schedule of the Constitution. Further, the plea stated that the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 empowers a CM to call for files from any department of the Cabinet and if Kejriwal continues as CM, he would be well within his rights to demand for the investigation of files wherein he has been arraigned as an accused.

The plea states that, such a situation is against the ethos of Criminal Jurisprudence. Therefore, Yadav had prayed the Court to issue a writ in the nature of Quo Warranto, calling upon Kejriwal to answer under what authority he is holding the post of CM and consequently remove him. However, Yadav has also filed another PIL seeking to prevent Kejriwal from issuing directions or orders while in ED custody. About The Case: The Kejriwal had skipped nine summons which were issued to him by the Enforcement Directorate, ED.

The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. The Kejriwal while following the arrest of him had promptly moved an urgent petition before the Supreme Court challenging his arrest. Later, the same was withdrawn. Therefore, Kejriwal has previously moved the Delhi High Court (division bench) challenging the summons issued to him by the central probe agency. Further, the Kejriwal has also filed an application seeking interim protection.

The matter was fixed for hearing on April 22. It has been alleged by ED that two criminal complaints had been filed against Kejriwal in city’s Rouse Avenue Courts alleging non-compliance of the summons by him. Kejriwal has skipped the summons, claiming that they are illegal. It has been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores.

It being the case of ED that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. It has been claimed by the Central Agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers.

Continue Reading

Legally Speaking

Supreme Court: Plea To Stay Citizenship Amendment Act



The Supreme Court in the case was hearing the application filed to stay the Citizenship Amendment Act 2019 and the Citizenship Amendment Rules 2024.

The bench comprising of CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra was hearing the present matter. In the present case, the court was hearing the 237 writ petitions challenging the CAA, filed in 2019.

Therefore, these petition before the Court on October 31, 2022. The Union Government notified the Citizenship Amendment Rules 2024 to implement the CAA and notified the formation of committees at the State or UT levels to process the applications on March 11.

The petitioner are Political party Indian Union Muslim League (IUML, the lead petitioner in the case), Democratic Youth Front of India (DYFI, youth wing of the CPI(M)), All Assam Students Union, Assam opposition leaders Debrabata Saika and Abdul Khaleque, State of Kerala, AIMIM head Asaduddin Owaisi, Socialist Democratic Party of India etc.,

The Senior Advocate Kapil Sibal told the court that there was no question of a pause back then since the rules were not notified. Adding to it, Solicitor General Tushar Mehta then said that the fact that the rules were notified before the elections was irrelevant.

The party leader Jairam Ramesh has stated that, the pposition has slammed the Narendra Modi government over the timing of the law’s implementation – four years after it cleared the Parliament. The move is “evidently designed to polarise the elections, especially in West Bengal and Assam”.

Further, the Trinamool Congress chief and Bengal Chief Minister Mamata Banerjee stated that she doubts the legality of CAA and alleged a conspiracy to “snatch citizenship rights. The Bengal Chief Minister Mamata Banerjee says that, BJP leaders say CAA gives you rights. But the moment you apply for citizenship, you become illegal migrants and you will lose your rights. You will lose rights and be taken to detention camps. Please think before you apply. The Centre has trashed the Opposition’s allegations. Stressing that the CAA is not “unconstitutional”, Home Minister Amit Shah has accused the Opposition of resorting to the “politics of lies”.

Amit Shah stated that, On the timing of the law’s implementation, “BJP made it clear in its 2019 manifesto that it will bring CAA and provide Indian citizenship to refugees (from Pakistan, Bangladesh and Afghanistan). BJP has a clear agenda and under that promise, the Citizenship (Amendment) Bill was passed in both houses of Parliament in 2019. It got delayed due to Covid.” Further, Amit Shah stated that, minorities of the country “need not be afraid because CAA has no provision to take back the rights of any citizen”.

Court Hearing:

The bench passed an order appointing separate nodal counsels for petitions which relates t0o States of Assam and Tripure. The Adv Ankit Yadav appointed for the petitioners’ side and Adv Kanu Agarwal for the Petitioners.
Sibal: the moment something like this happens, give us liberty to move here.
CJI: We are here.
Jaising : Would your lordships be pleased to say that any citizenship granted will be subject to the outcome of the petitions.
SG : No, no.
CJI : They don’t have the infrastructure in place, the committee..
SG : This attempt was made outside the court four years back. Misleading people that you will be out of NRC. Same thing Mr. Pasha did. NRC is not an issue here. Grant of citizenship is. Please don’t do this. Nizam Pasha : Muslim members left out of NRC will be prejudiced.. 19 lakhs people left out of NRC, it applies to them.
SG : NRC is not an issue
CJI : They are not willing to make a statement, that is why we keep on April 9.
Sibal : If something happens, we will come..
CJI : What we will do is we will keep on April 9, 2024.
Jaising : In the meantime no citizenship.
SG : I am not making any statement.
SC : We direct the proceedings be listed on April 9, 2024.
Sibal : In meantime no citizenship be granted.
SG: Realistically speaking, I need 4 weeks.
CJI : You can file response in one case, opposing interim prayer.
SG : Many matters have different contentions.
Sibal : Then make a statement that no citizenship will be granted
CJI dictates order : On 22.01.2020 notice was issued. The rules have been
recently notified. This has given rise to applications for stay. SG submits that 4 weeks’ time be granted to file response. The request of 4 weeks’ time is opposed on the ground that in the meantime if citizenship is granted, it will be irreversible.
Sibal : There are serious issues of constitutionality.
Sr Adv Ranjit Kumar (for migrant) : From Balochistan, I came to India because I was persecuted. If I am given citizenship, how is it affecting them?
Jaising : They will get the right to vote!.

Continue Reading

Legally Speaking

Delhi High Court: ED summons cannot be quashed merely because documents required for confrontation or probe not specified in it



The Delhi High Court in the case Mr Talib Hassan Darvesh v. The Directorate Of Enforcement observed and has said that the summons issued by Enforcement Directorate, ED cannot be quashed merely because relevant documents are required for investigation or confrontation with an accused who have not been specified in them.

The bench of Justice Anoop Kumar Mendiratta in the case observed and has stated that the summoning, in exercise of statutory powers, cannot be stalled merely on mere apprehension that the accused may be arrested and prosecuted on basis of summons issued after registration of ECIR in the proceedings which are initiated by the Enforcement Directorate, ED. The court in the case observed and has denied the interim relief to Talib Hassan Darvesh, the accused in the money laundering case.

Before the court, he also sought a stay on the summons which is issued to him by Enforcement Directorate, ED and to restrain the probe agency from taking any further coercive steps against him. Therefore, the Enforcement Directorate, ED opposed the petition which being on the ground that Darvesh cannot be insulated from any coercive action at the initial stage itself and no protective orders could be passed in his favour, ignoring the mandate of Section 45 of PMLA.

It has also been submitted before the court that the proceedings which are initiated by ED were an independent investigation into money laundering allegations based upon the ECIR and the benefit could not be granted which being merely on account of orders granting anticipatory bail to Darvesh in FIR registered by CBI.

The court stated while denying the relief that the summons issued by the Enforcement Directorate, ED cannot be quashed merely because the relevant documents required for purpose of investigation or confrontation to the petitioner, have not been specified in the summons. Adding to it, the court stated that since ECIR is an internal document which is being created before initiation of prosecution against persons involved with process or activity connected with proceeds of crime and it is not necessary to reveal the evidence collected by the Enforcement Directorate, ED at this stage in the summons forwarded to Darvesh.

Further, the court stated that the petitioner is yet to be absolved of scheduled offence by way of discharge, acquittal or quashing and as such protection orders cannot be issued in favour of petitioner ignoring the mandate as it is stated under Section 45 of PMLA, 2002 for grant of bail. Further, the court stated that summoning in exercise of statutory powers cannot be stalled merely on mere apprehension that petitioner may be arrested and prosecuted on basis of summons issued after registration of ECIR, in proceedings initiated by Enforcement Directorate, ED.

The court while considering the facts and circumstances of the case observed and found no grounds for interim relief to be made out at this stage, thus, the court disposed of the plea. Accordingly, the court the petition seeking to quash of the ECIR and summons for hearing on May 07.

The counsel, Advocates Mr. Siddharth Luthra and Mr. Siddharth Agarwal, Sr. Advs. with Mr. Ayush Agarwal, Mr. Udhav Sinha, Mr. Amar Gahlot, Ms. Srishty Jaura, Mr. Nalin Bajaj, Ms. Purvi Garg and Mr. Prashant Singh appeared for the Petitioner. The counsel, Advocates Mr. Zoheb Hossain, Special Counsel for E.D. with Mr. Vivek Gurnani, Mr. Kartik Sabharwal and Mr. Abhigiya represented the respondent.

Continue Reading