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(2015) 1 LAW
RNI No. APENG/2005/18975
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A world law fortnightly published from Hyderabad, India.
Editor: I. Mallikarjuna Sharma

ADVISORS: B.P. Jeevan Reddy (Former Judge, Supreme Court of India),
R.V.R. Chandrasekhara Rao (Politics Professor), K. Subba Rao (Senior Advocate, Bangalore),
Umesh Chandra (Senior Advocate, Lucknow), Ravi Kiran Jain (Senior Advocate, Allahabad),
Sagar Dhara (Engineer, Hyderabad), Dr. Koenraad Elst (Indologist, Belgium)
Volume 11: Part 1

CONTENTS
1. The World bows in reverence
1
2. Black Peoples Grand Jury
indicts Wilson, Glen Ford
2
3. We must all try to be a
Charlie, George Packer
3-4
4. Why al-Qaeda attacked
Satirists in Paris, Juan Cole 4-5
5. Support those fighting the
Religious-Right!
6
6. Religious Conversion
Controversies, K. Pratap Reddy 7-8
7. The Moslem Conquest of
India, Will & Ariel Durant
9-10
8. R [for Hanney, et al] v. Secretary 11-28,
of State for Justice [UK-SC] 65-82
9. The Zeitgeist Movement:
A new train of thought (17) 83-90
10. Unexpected Challenges of
of Solar Power, Adam Hashian 91
11. Poems, Jos Mart
92
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15 January 2015
No. 1
THE WORLD BOWS IN REVERENCE
Give me those eyes of yours
World leaders pay tributes to Charlie Hebdo martyrs
Courtesy: UN cartoonists for peace

Eyes of late Charlie editor Stephane Charbonnier - "Charb"
Netanyahu (Israel),
French President, Angela Merkel, Abbas (Palestine)
Wholeheartedly with Charlie Hebdo
to the intrepid French Martyrs the Editor, cartoonists, press staff and
Ahmed (the Muslim policeman), the twelve apostles for liberty who laid
down their lives in the dastardly terrorist attack on 7 January 2015 by two
religious fanatic gunmen in Paris, supposedly belonging to the dreaded
terrorist organization, al-Qaeda. More than three million people including
40 world leaders led by the French President, Franois Hollande, and
including the leaders of both the warring states Benjamin Netanyahu of
Israel and Mohammed Abbas of Palestinian Authority paid glowing
tributes in Paris to the memory of these martyrs, particularly the fearless
editor Charb and other cartoonists of Charlie Hebdo - many of them
atheist leftists, who persevered in their struggle for liberty amidst all death
threats. The fanatics forgot to note that any religion and any community
culture has to keep pace with changing times and cannot and should not
stick to its old rigid customs, traditions, etc. which have become a big fetter
and burden for its progress as also to the rest of humanity. Some people do
think Mohammed might have been progressive in some respects but was
also regressive in other respects, like in hating polytheism, in concentrating
on jihads, and his treatment of Jews, kafirs, etc. So, some reformers/critics
may begin with and persist in criticism or even mockery of this prophet
himself. Anyway, depiction of Mohammeds figure was not an offence, let
alone a sacrilege, even in early Islamic times as a number of paintings of
that period, officially encouraged and exhibited, show. So, if some journals
make a mockery of Mohammed especially if they are by non-Muslims
there is no need for Muslim orthodox to be so irate and jerky. They should
learn to take it all as a part of the process for securing and enjoying more
and more freedom of speech and human rights in present times that
includes freedom to offend even. In extreme cases of hate-speech/arts, they
can take resort to statutory provisions in the laws of the land [in which they
reside] for stringent/needed action against persons committing such
offences rather than resort to wild shouting and ruthless killings. We join
the millions in the world paying tributes to the Charlie Hebdo martyrs and
vow to fight for freedom of speech and expression.
1
Wish you a Happy New Year and Prosperous Pongal (Sankranti) 2015!
(2015) 1 LAW
BLACK PEOPLES GRAND JURY INDICTS DARREN WILSON !
- Glen Ford
McCulloch made the insinuation that Brown, not

Wilson, was the wrongdoer.
The Black Peoples Grand Jury also heard
testimony from local residents with personal
knowledge of police behavior in the region,
including Black former police officers a method
of truth-seeking grounded in the logic that the
most expert witnesses on institutional racism
are its victims, who have experienced the
phenomenon in all its dimensions.
At root, the Black Peoples Grand Jury is an
Black Peoples Grand Jury Indicts Cop for

First Degree Murder of Michael Brown
The most expert witnesses on institutional
racism are its victims.
A Black Peoples Grand Jury in St. Louis,

Missouri, this weekend delivered a true bill of
indictment for first degree murder against
former Ferguson police officer Darren Wilson in
the death of Black teenager Michael Brown.
Black people can and must take matters into our
own hands, said Omali Yeshitela, one of four
prosecutors that presented evidence, not only of
Wilsons personal guilt, but the institutional
culpability of the entire regional criminal justice
system in the murder and subsequent whitewash
of the crime.
Darren Wilson is a killer, and hes out there,
but hes not out there by himself, said Yeshitela.
He was doing what U.S. police have done historically
and traditionally to African people in this country. It
exercise in self-determination, a collective response to a

collective assault on a people that have been
criminalized by the Mass Black Incarceration State.
Most importantly, the Black Peoples Grand Jury

model is easily replicable throughout the U.S.,
just as the Mass Black Incarceration State
operates in near-uniform fashion in every precinct
of the country. The St. Louis model, and
longer-form variations such as Black Peoples
Boards of Inquiry, can go far towards exposing
and deconstructing the police/prison regime that
over the past two generations has killed
innumerable Michael Browns and spawned a gulag
wasnt Wilsons decision to leave Browns uncovered

body on the asphalt roadway for nearly four and a half
hours in 100 degree heat a collective insult and threat
to the victims community that harkens back to the
ritual public displays of mutilated and burned Black
corpses in the time of lynch law. Wilson was later
so huge and so disproportionately Black that one out of

every eight prison inmates on the planet is an African
American.
rewarded for his crime with almost one million

dollars in contributions by white people.
The 12 jurors, all of them from greater St.
Louis, spent January 3rd and 4th reviewing some
of the same evidence presented by county
prosecutor Bob McCulloch to the mostly white
grand jury that failed to indict Wilson, in
November. McCullochs mission was to
obfuscate the facts and confuse the jurors; to free
the cop and convict the victim as attested to by
one of his own jurors, who maintains, in a suit
asking permission to speak publicly, that
The Mass Black Incarceration State, erected in

response to the Black Liberation Movement of the
Sixties, is the driving force and organizing principle of
the U.S. criminal justice system. (Ironically, its
predatory mechanisms have caused more white Americans to
be imprisoned, as well collateral damage inflicted by
structures designed to ensnare masses of Blacks.)
Black Peoples Grand Juries can be part of the

process of building local self-determinationist
institutions of resistance to the ruling order,
particularly in bolstering demands for genuine
community control of police. .steady drumbeat of
protest must be accompanied by institution-building
projects aimed at dismantling the Mass Black
Incarceration State transformational task of the
current movement.
Courtesy: Glen Ford, BAR Executive Editor, dated

07-01-2015; www.blackagendareport.com/; slightly edited
excerpts; emphases in bold ours - IMS.
Law Animated World, 15 January 2015
*****
2
WE MUST ALL TRY TO BE A CHARLIE EVERYDAY !
- George Packer
thirteen adults in a school in Peshawar last

month. That regularly kills so many Nigerians,
especially young ones, that hardly anyone pays
attention.
Because the ideology is the product of a major
world religion, a lot of painstaking pretzel logic
goes into trying to explain what the violence
does, or doesnt, have to do with Islam. Some
well-meaning people tiptoe around the Islamic
connection, claiming that the carnage has nothing
to do with faith, or that Islam is a religion of
peace, or that, at most, the violence represents a
distortion of a great religion. (After suicide
bombings in Baghdad, I grew used to hearing
Iraqis say, No Muslim would do this.) Others
want to lay the blame entirely on the theological
content of Islam, as if other religions are more
inherently peaceful a notion belied by history as
well as scripture.
A religion is not just a set of texts but the living
beliefs and practices of its adherents. Islam today
includes a substantial minority of believers who
countenance, if they dont actually carry out, a
degree of violence in the application of their
convictions that is currently unique. Charlie Hebdo
had been nondenominational in its satire, sticking its
finger into the sensitivities of Jews and Christians
too but only Muslims responded with threats and acts
of terrorism. For some believers, the violence
serves a will to absolute power in the name of
God, which is a form of totalitarianism called
A tribute at the Place de la Republique, in Paris, to victims killed in the attack at Charlie Hebdo.
Courtesy: Aurelien Meunier/Getty
The murders today in Paris are not a result of

Frances failure to assimilate two generations of
Muslim immigrants from its former colonies.
Theyre not about French military action against
the Islamic State in the Middle East, or the
American invasion of Iraq before that. Theyre
not part of some general wave of nihilistic
violence in the economically depressed, socially
atomized, morally hollow Westthe Paris
version of Newtown or Oslo. Least of all should
they be understood as reactions to disrespect
for religion on the part of irresponsible
cartoonists.
They are only the latest blows delivered by an
ideology that has sought to achieve power
through terror for decades. Its the same ideology
that sent Salman Rushdie into hiding for a decade
under a death sentence for writing a novel, then
killed his Japanese translator and tried to kill his
Italian translator and Norwegian publisher. The
ideology that murdered three thousand people in
the U.S. on September 11, 2001. The one that
butchered Theo van Gogh in the streets of
Amsterdam, in 2004, for making a film. The one
that has brought mass rape and slaughter to the
cities and deserts of Syria and Iraq. That
massacred a hundred and thirty-two children and
Islamism politics as religion, religion as politics.
Allahu Akbar! the killers shouted in the street

outside Charlie Hebdo. They, at any rate, know
what theyre about.
These thoughts dont offer a guide to
mitigating the astonishing surge in Islamist
killing around the world. Rage and condemnation
dont do the job, nor is it helpful to alienate the
millions of Muslims who dislike whats being
done in the name of their religion. Many of them
Courtesy: George Packer & www.newyorker.com, dated

07-01-2015; duly edited; emphases in bold ours - IMS.
immediately condemned the attack on Charlie Hebdo, in

3
Why al-Qaeda attacked Satirists in Paris (Juan Cole)
and more religious, the vast majority reject violence

and say they are loyal to France.
tones of anguish particular to those whose deepest

beliefs have been tainted. The answer always has to
be careful, thoughtful, and tailored to particular

circumstances. In France, it will need to include a
renewed debate about how the republic can
prevent more of its young Muslim citizens from
giving up their minds to a murderous ideology
Al-Qaeda wants to mentally colonize French

Muslims, but faces a wall of disinterest. But if it
can get non-Muslim French to be beastly to

ethnic Muslims on the grounds that they are
Muslims, it can start creating a common political
identity around grievance against discrimination.
This tactic is similar to the one used by
Stalinists in the early 20th century. Decades ago
I read an account by the philosopher Karl Popper
of how he flirted with Marxism for about
6 months in 1919 when he was auditing classes at
the University of Vienna. He left the group in
disgust when he discovered that they were
attempting to use false flag operations to provoke
militant confrontations. In one of them police
killed 8 socialist youth at Hrlgasse on 15 June
1919. For the unscrupulous among Bolsheviks
who would later be Stalinists the fact that most
students and workers dont want to overthrow the
business class is inconvenient, and so it seemed
desirable to some of them to sharpen the
contradictions between labor and capital.
The operatives who carried out this attack
exhibit signs of professional training. They spoke
unaccented French, and so certainly know that
they are playing into the hands of Marine LePen
and the Islamophobic French Right wing. They
may have been French, but they appear to have
been battle hardened. This horrific murder was not a
how more of them might come to consider Mustapha

Ourrad, a Charlie Hebdo copy editor of Algerian descent
who was among the victims, a hero. In other places,
the responses have to be different, with higher

levels of counter-violence.
But the murders in Paris were so specific and so
brazen as to make their meaning quite clear. The
cartoonists died for an idea. The killers are soldiers in a
war against freedom of thought and speech, against
tolerance, pluralism, and the right to offend against
everything decent in a democratic society. So we must all
try to be Charlie, not just today but every day. (emphasis in original)
***
Sharpening Contradictions: Why

al-Qaeda attacked Satirists in Paris
By Juan Cole | Jan. 7, 2015 |
The horrific murder of the editor, cartoonists

and other staff of the irreverent satirical weekly
Charlie Hebdo, along with two policemen, by
terrorists in Paris was in my view a strategic
strike, aiming at polarizing the French and
European public.
The problem for a terrorist group like al-Qaeda
is that its recruitment pool is Muslims, but most
Muslims are not interested in terrorism. Most Muslims
are not even interested in politics, much less political
Islam. France is a country of 66 million, of which
pious protest against the defamation of a religious icon.

It was an attempt to provoke European society into
pogroms against French Muslims, at which point al-
about 5 million is of Muslim heritage. But in

polling, only a third, less than 2 million, say that
they are interested in religion. French Muslims may
Qaeda recruitment would suddenly exhibit some

successes instead of faltering in the face of lively
Beur youth culture (French Arabs playfully call
themselves by this anagram). Ironically, there are
reports that one of the two policemen they killed was a
Muslim.
be the most secular Muslim-heritage population in the

world (ex-Soviet ethnic Muslims often also have
low rates of belief and observance). Many

Muslim immigrants in the post-war period to
France came as laborers and were not literate
people, and their grandchildren are rather distant
from Middle Eastern fundamentalism, pursuing
urban cosmopolitan culture such as rap and rai. In
Paris, where Muslims tend to be better educated
(2015) 1 LAW
Al-Qaeda in Mesopotamia, then led by Abu Musab

al-Zarqawi, deployed this sort of polarization strategy
successfully in Iraq, constantly attacking Shiites and their
holy symbols, and provoking the ethnic cleansing of a
million Sunnis from Baghdad. The polarization
proceeded, with the help of various incarnations of

4
(2015) 1 LAW
Why al-Qaeda attacked Satirists in Paris (Juan Cole)
Daesh (Arabic for ISIL or ISIS, which descends from al-Qaeda

in Mesopotamia). And in the end, the brutal and
genocidal strategy worked, such that Daesh was able
to encompass all of Sunni Arab Iraq, which had
suffered so many Shiite reprisals that they sought the
Does the Quran say its blasphemous to

depict Prophet Muhammad in images?
Notre Dame Prof. Ebrahim Moosa and
Tarek Fatah say No
umbrella of the very group that had deliberately and

systematically provoked the Shiites.
Sharpening the contradictions is the strategy of
sociopaths and totalitarians, aimed at unmooring people
from their ordinary insouciance and preying on them,
mobilizing their energies and wealth for the perverted
purposes of a self-styled great leader.
tarek-fatah-and-blasphemous-in-islam-say-no/
http://tarekfatah.com/does-the-quran-say-its-blasphemous-to-depict-prophet-muhammad-in-images-
This televised interview presents an enlightening

intellectual discussion on whether depiction of
Prophet Mohammed in images amounts to blasphemy
or not. We should thank Sun News for organizing this
interview and for Mr. Tarek Fatah, Founder President,
Canadian Muslim Congress, for posting it on his
website. Both Tarek Fatah and Prof. Ebrahim Mosa
are at one in declaring that there is nothing in either
Koran or in the immediate centuries after Mohammed
which imposes any kind of prohibition on depiction of
Mohammeds images in drawings, paintings, etc.
Actually in Turkey, Iran and India there have been
several paintings and drawings even up to the 15th
century AD or so of the figure of Prophet Mohammed
in various scenarios. Prof. Ebrahim Mosa informs us
that what was especially taken objection to, that too in
the later centuries of Isalmic History, by Islamic
clerics and intelligentsia was not so much as depiction
of images but of any display of irreverence to the
image of the Prophet. And that was in the context and
background of an Islamic Empire already
established or sought to be established. Mr. Tarek
Fatah says that one may be able to understand the ire
of Muslims in general against irreverence to their
Prophet by their own co-religionists and of sanctions
imposed in the religion against such Muslims to some
extent, but it is farfetched to extend this as against the
non-Muslims. Why should non-Muslims, who dont
believe in Allah or Koran, be expected to or
compelled to revere Prophet Mohammed, he
questions. So any mockery of Mohammed by
cartoons, etc. by non-Muslims should be understood
and dealt with by extreme tolerance and respect to
human rights in modern society. Prof. Ebrahim Mosa
also agrees that what might have been valid for, or
expected of, an Islamic Empire cannot be transposed
to the situation of modern nation-states and Muslims
have to behave themselves with more tolerance and
learn the art of peaceful co-existence and respect to
human and civil rights of all human beings
irrespective of religious, national etc. divides. This is
a very interesting and educative video-interview to be
[IMS]
watched by all.
The only effective response to this manipulative

strategy (as Grand Ayatollah Ali Sistani tried to tell the
Iraqi Shiites a decade ago) is to resist the impulse to blame
an entire group for the actions of a few and to refuse to
carry out identity-politics reprisals.
For those who require unrelated people to take

responsibility for those who claim to be their coreligionists (not a demand ever made of Christians), the
al-Azhar Seminary, seat of Sunni Muslim learning and
fatwas, condemned the attack, as did the Arab League that
comprises 22 Muslim-majority states. We have a

model for response to terrorist provocation and
attempts at sharpening the contradictions. It is Norway
after Anders Behring Breivik committed mass murder
of Norwegian leftists for being soft on Islam. The
Norwegian government launched no war on terror.
They tried Breivik in court as a common criminal.
They remained committed to their admirable modern
Norwegian values. (emphasis in original)
Most of France will also remain committed to

French values of the Rights of Man, which they
invented. But an insular and hateful minority will take
advantage of this deliberately polarizing atrocity to push
their own agenda. Europes future depends on
whether the Marine LePens are allowed to

become mainstream. Extremism thrives on other
peoples extremism, and is inexorably defeated by tolerance.
Let me conclude by offering my profound
condolences to the families, friends and fans of our
murdered colleagues at Charlie Hebdo, including
Stephane Charbonnier, Bernard Maris, and
cartoonists Georges Wolinski Jean Cabut, aka
Cabu, and Berbard Verlhac (Tignous), and all the
others. As Charbonnier, known as Charb, said,
I prefer to die standing than to live on my knees.
(emphasis in original)
[Courtesy: Informed Comment.]
*****
*****
5
(2015) 1 LAW
Support those fighting the Religious-Right!
Support those fighting the Religious-Right:
secularism; which allows dissent from religions and the

right to express this dissent. It has had a rich tradition to
mock and caricature powers that be - religious or otherwise.
"There is no way they will make us put down our pens."

The tragic massacre in Paris will undoubtedly give fuel to the traditional
xenophobic far-Right and the danger is an increase in racism,
marginalization and exclusion of people of Muslim descent in Europe
and further. We do not want to witness "anti-Muslim witch hunts". One
way to commemorate this terrible event and memorialize its victims is to
unequivocally defend universal human rights, including the right to
freedom of expression, and they apply to all.
Let us keep this hard won right which cost so many lives in
history, and, alas, still does - as Charlie Hebdo's twelve
dead and numerous wounded demonstrate today.

Marieme Helie Lucas, Algerian Sociologist and Secularism is a
Women's Issue Founder
After the massacre in Charlie Hebdo in Paris

today, January 7, 2015, expressing indignation, as so
many are doing, is not enough.
A quick look at the English-speaking media shows
that whilst many condemn the violence itself, they also assert
Maryam Namazie, Spokesperson of Council of Ex-Muslims of Britain,

One Law for All and Fitnah - Movement for Women's Liberation
Karima Bennoune, Professor and Martin Luther King Jr. Hall Research
Scholar, University of California, Davis School of Law
Harsh Kapoor, South Asia Citizens Web (sacw.net)

Peter Tatchell, Director, Peter Tatchell Foundation
Houzan Mahmoud, Kurdish women's rights activist- London/UK
Ali al-Razi, Ex-Muslim Forum
Anissa Daoudi, Birmingham University, Head of Arabic Section
Chris Moos, Secularist Activist and Researcher
Deeyah Khan, Norwegian Filmmaker and Founder/CEO of Fuuse
Fahima Hashim, Director, Salmmah Women's Resource Centre, Sudan
Fariborz Pooya, Founder, Iranian Secular Society; Co-host, Bread & Roses TV
Fatou Sow, International Director, Women Living Under Muslim Laws
Fiammetta Venner, Writer and Filmmaker
Gita Sahgal, Founder of Centre for Secular Space
Imad Iddine Habib, Founder, the Council of Ex-Muslims of Morocco
Inna Shevchenko, Leader of FEMEN
Julie Bindel, Writer
Kate Smurthwaite, Comedian and Activist
Magdulien Abaida, Libyan Activist, President, Hakki (My Right)
that Charlie Hebdo courted (and maybe deserved) a strong

response from "Muslims". Charlie's regular cartoonists
did not spare Islam, any other religion, nor fanatics

and bigots.
This trend in the media requires our attention.
Apparently secularists, agnostics and atheists must keep silent
and do not deserve the kind of respect that believers are
entitled to; nor can they enjoy free speech to the same degree.
In the name of "respect" of religions and of the religious
sentiments of believers, it is indeed the fanatical religiousRight that is being supported and given centre stage.
Meanwhile, those who are on the forefront of

countering armed fundamentalists are left to their own
devices. It is high time to give these secularists
prominence, to recognise their courage, their political
clarity and to stop labeling them "Islamophobic".
In October 2014, secularists - including atheists,
agnostics and believers from many countries, in
particular many Muslim-majority countries, met in
London to denounce the religious-Right and to
demand being seen as its alternative. It is high time to
learn from their analysis and lived experience.
Organization for Women Rights
Meredith Tax, Centre for Secular Space

Mina Ahadi, International Committees against Stoning and Execution
Nadia El Fani, Tunisian Filmmaker
Nina Sankari, Vice President of Atheist Coalition of Poland
Peter Tatchell, Director, Peter Tatchell Foundation
Ramin Forghani, Founder, the Ex-Muslims of Scotland & Vice-Chair
of the Scottish Secular Society
Safak Pavey, MP for Istanbul, Turkish Parliament

Soad Baba Assa, Founder, Association pour la mixit, l'galit et la lacit
Terry Sanderson, President of the National Secular Society
Waleed Al-Husseini, Palestinian blogger and Founder of the Council
Today's tragic massacre in Paris will undoubtedly give fuel

to the traditional xenophobic far-Right and the immediate
danger is an increase in racism, marginalization and exclusion
of people of Muslim descent in Europe and further. We do not
want to witness "anti-Muslim witch hunts" nor do we
welcome the promotion of "moderate Islamists" by
governments as official political partners. What is needed is
of Ex-Muslims of France
Yasmin Rehman, Women's Rights Advocate

Nira Yuval Davis, Professor & Director, Research Centre on Migration,
Refugees and Belonging, University of East London
Siamak Bahari, Political Activist & Editor of Children First Publication

Sultana Kamal, Bangladeshi Human Rights Activist
Taslima Nasrin, Bangladeshi-born Writer
Tehmina Kazi, Director of British Muslims for Secular Democracy
Laura Guidetti, Marea Italian Feminist Review
Lila Ghobady, Iranian Writer and Filmmaker
Hala Aldosari, Women's Health Researcher & Women's Rights Activist
Codou Bop, Groupe de recherche sur les femmes et les lois au Sngal
Daayiee Abdullah, Imam of Light of Reform Mosque
Zeinabou Hadari, Centre Reines Daura des Ressources pour la promotion,
a straightforward analysis of the political nature of

armed Islamists: they are an extreme-Right political
force, working under the guise of religion and they
aim at political power. They should be combated by
political means and mass mobilisation, not by giving
extra privileges to any religion.
Their persistent demand for the extension of blasphemy
laws around the world is a real danger for all. France has a
long - and now growingly endangered tradition of
le Dveloppement et le Rayonnement de la Femme Niger
Ayesha Imam, researcher, Nigeria
[Courtesy: Lila Ghobady, Iranian Resistance]
*****
6
RELIGIOUS CONVERSION CONTROVERSIES
- K. Pratap Reddy
It is unfortunate that a new set of controversies

on religious conversions is emerging in various
parts of the country. It is a matter of shame that,
while the whole world is advancing towards
intellectual, scientific and technological growth
taking human evolution to celestial levels, some
sections of our society, more particularly those
belonging to the majority, are indulging in such
controversies tending to lead the society and the
country into the medieval period which would
adversely affect our constitutional goal of
INTEGRITY of our Nation. I am sure this Malady
is really being felt by the intellectuals of our civil
society, and are already thinking of some Remedy
to eradicate this Malady.
It cannot be denied that in all efforts of finding a
Now, let us have a glimpse into the historical

advent of Christianity and Islam into our country.
While the Portuguese, Dutch and English
Tradesmen came into India in the 17th century,
the Christian missionary led by Saint Thomas,
bringing the message of Jesus Christ of equality
came into India in the 2nd century itself.
Likewise, while the so-called Islamic rule was
established in the 13th century, Arab traders came
into India in the 6th & 7th centuries bringing the
message of equality, justice and compassion of
Prophet Mohammed. Jawaharlal Nehru in his
celebrated book The Discovery of India in
Chapter VI, Page No. 244 referring to the growth
of Hindu-Muslim culture and Indo-Arab
relationships wrote:
remedy to a malady, it is always necessary to go into the

origin, or cause of the malady. In such process of
There were no invasions, contacts between

India and Arab world grew, by Travel to and fro,
embassies were exchanged
These trade and cultural relations were not
confined to North India. The southern states of
India also participated in them, especially the
Rashtrakutas, on the west coast of India.
This frequent intercourse inevitably led to
Indian getting to know the new Religion, Islam.
Missionaries also came to spread this new faith
and they were welcomed, mosques were
built
There was no objection raised either by the
State or by the people, nor were there any
religions conflicts. It was the old tradition of
India to be tolerant to all faiths and forms of
worship. THUS ISLAM CAME AS A RELIGION TO
tracing the origin or causes of the present malady,

we inevitably come down to the deplorably
inhuman caste system going up to the lowest level of
the concept of UNTOUCHABILITY existing in the
Hindu Religion. We all know the horrible
condition of our UNTHOUCHABLE (also known as
Panchamas) brethren. They were driven to live in
separate habitats and deprived of all civic rights.
They were forced to live on the carcasses of dead
animals. Even if they come to the main village of
upper castes to attend to menial work of the latter,
they were forced to came with a Jhadu (broom
stick) tied to their back in order to satisfy the
inhumanly whimsical belief that the path trodden
by these untouchables (panchamas) was cleansed
by themselves by means of the Jhadu tied to their
back. These are but a few of the inhumanly
uncivilized treatments that our panchama
(untouchable) brothers were subjected to by the
upper class (Brahminical) members of the Hindu
society.
INDIA SEVERAL CENTURIES BEFORE IT CAME AS

A POLITICAL FORCE.
(Emphasis Mine)
It must be understood that our oppressed

untouchable (panchama) brothers were attracted
to the preaching of message of equality and
humanity spread by Christian and Islamic
missionaries and adopted the religions where they
were given equal treatment; either by Christians
or Muslims, as the case maybe. It might be true
that the Christian missionaries have given to our
Courtesy: K. Pratap Reddy, Senior Advocate, is already

introduced to our readers; needless to say, these are his
personal opinions; emphases in bold ours - IMS.
7
(2015) 1 LAW
Relgious Conversion Controversies (K. Pratap Reddy)
The Father of the Nation Mahatma Gandhi

along with his struggle for independence of India
from foreign rule campaigned for abolition of
untouchablity many times undertaking Fast unto
Death. In spite of several such movements the
caste system and also untouchability though in
the name of Schedule Castes is also existing in
spite of the constitutional mandate of abolition of
untouchability.
My humble request to our Sangh Pariwar
brothers is first to undertake a campaign with a
erstwhile untouchables (panchama brethren) free

education, shelter but it is no true to say that the
conversion was by use of force. This is a totally
ignorant assertion by our Sangh Pariwar groups. As
stated above, while the Islamic state or Islamic
rule, as the case maybe, came into India in the
13th century, the English rule came into India
through the East India Company in the 18th
century and directly in the middle of the 19th
century. It must be realized by our Sangh
Pariwar brethren that the conversions of our
erstwhile untouchable (panchama) brethren into
either Christianity or Islam were much earlier to
the establishment of either Islamic rule or the
British rule.
One other aspect, our Sangh Pariwar brethren
who are involving in this present controversy of
reconversion must realize that the conversions of
missionary zeal to ABOLISH the abominable caste

system still prevailing in the Hindu society and not to
indulge in politicalization of this heterogeneous

caste system in the majority community in the
Indian polity.
*****
Hinduism to either into Christianity or Islam are only

from the oppressed members of Hindu religion who
were subjected to inhuman and humiliating treatment
by the upper class (Brahmanical) members of Hindu
religion. It is, sometimes claimed that some
A contra opinion:
Islamic Conquest of India

the bloodiest in History
Ayesha (United States) wrote: the ruthlessness
of muslim invaders [in India] continued for a thousand
years. Will Durant, the famous historian, summed up
as follows: "The Islamic conquest of India is probably the
Muslim kings also converted some Brahmans by

force but at the same time the very same
brahmans and other upper class Hindus claimed
that they got themselves by process of Shuddhi.
One other aspect of this process of
reconversion (being called ghar vapasi) is to
what caste these ghar vapasi people will be added.
Will they once again be added to the same
pancham community or will they be given a
higher status as Brahmins, Kshatariyas or Vysyas,
inasmuch as the caste system is not only continuing
but taking stronger roots in the country in the sociopolitical context of the reservation of seats in
Parliament,
Assemblies,
Panchayat
Raj,
Employment and Educational fields.
It was in this context, the great Saints like
Swamy Dayananda Saraswathy and Guru Nanak
in the west and north, Ramakrishna Paramahamsa
in the East and social reformers like Narayan
guru, Sane guru, Basaveshwar, Subramanya
Bharati and Gurujada Appa Rao, Unnava
Lakshmi Narayana, in the South struggled all
their life for the abolition of castes.
bloodiest story in history. It is a discouraging tale, for its

evident moral is that civilization is a precious good, whose
delicate complex of order and freedom, culture and peace,

can at any moment be overthrown by barbarians invading from
without or multiplying within.
Koenraad Elst the historian, writes: "The

th
Muslim conquests, down to the 16 century, were for the

Hindus a pure struggle of life and death. Entire cities were
burnt down and the populations massacred, with hundreds of

thousands killed in every campaign, and similar numbers
deported as slaves. Every new invader made (often literally)
his hills of Hindus skulls. Thus, the conquest of Afghanistan
in the year 1000 was followed by the annihilation of the
Hindu population; the region is still called the Hindu Kush,
i.e. Hindu slaughter. The Bahmani sultans (1347-1480) in
central India made it a rule to kill 100,000 captives in a single
day, and many more on other occasions. The conquest of the
Vijayanagar Empire in 1564 left the capital plus large areas

of Karnataka depopulated." And so on.
As a contribution to research on the quantity of the

Islamic crimes against humanity, we may mention that
the Indian (subcontinent) population decreased by 80
million between 1000 (conquest of Afghanistan) and
1525 (end of Delhi Sultanate)
Courtesy: http://www.danielpipes.org/
THE MOSLEM CONQUEST OF INDIA

- Will and Ariel Durant
The Mohammedan Conquest of India is probably

the bloodiest story in history. It is a discouraging tale,
Bhimnagar, slaughtered them, pillaged their cities,

destroyed their temples, and carried away the
accumulated treasures of centuries. Returning to
Ghazni he astonished the ambassadors of foreign powers by
displaying jewels and unbored pearls and rubies shining
for its evident moral is that civilization is a precarious

thing, whose delicate complex of order and liberty,
culture and peace may at any time be overthrown
by barbarians invading from without or multiplying
within. The Hindus had allowed their strength to be
wasted in internal division and war; they had adopted
religions like Buddhism and Jainism, which unnerved
them for the tasks of life; they had failed to
organize their forces for the protection of
their frontiers and their capitals, their wealth and their
freedom, from the hordes of Scythians, Huns, Afghans
and Turks hovering about India's boundaries and
waiting for national weakness to let them in. For four
hundred years (600-1000 AD) India invited conquest;
and at last it came. The first Moslem attack was a
passing raid upon Multan, in the western Punjab (664
A.D.) Similar raids occurred at the convenience of
the invaders during the next three centuries, with the
result that the Moslems established themselves in
the Indus valley about the same time that their Arab
co-religionists in the West were fighting the battle of
Tours (732 A.D.) for the mastery of Europe. But the real
Moslem conquest of India did not come till the turn
of the first millennium after Christ. In the year 997 a
Turkish chieftain by the name of Mahmud became
sultan of the little estate of Ghazni, in eastern
Afghanistan. Mahmud knew that his throne was young
and poor, and saw that India, across the border, was
old and rich; the conclusion was obvious. Pretending a
holy zeal for destroying Hindu idolatry, he swept across
the frontier with a force inspired by a pious aspiration
for booty. He met the unprepared Hindus at
like sparks, or like wine congealed with ice, and emeralds like
fresh sprigs of myrtle, and diamonds in size and weight like
pomegranates.
Each winter Mahmud descended into India, filled

his treasure chest with spoils, and amused his men
with full freedom to pillage and kill; each spring he
returned to his capital richer than before.
At Mathura (on the Jumna) he took from the
temple its statues of gold encrusted with precious
stones, and emptied its coffers of a vast quantity of
gold, silver and jewellery; he expressed his admiration
for the architecture of the great shrine, judged that
its duplication would cost one hundred million dinars
and the labour of two hundred years, and then ordered
it to be soaked with naphtha and burnt to the ground.
Six years later he sacked another opulent city of
northern India, Somnath, killed all its fifty thousand
inhabitants, and dragged its wealth to Ghazni. In the end he
became, perhaps, the richest king that history has
ever known. Sometimes he spared the population of the
ravaged cities, and took them home to be sold as slaves; but
so great was the number of such captives that after some
years no one could be found to offer more than a few
shillings for a slave. Before every important engagement
Mahmud knelt in prayer, and asked the blessing of God
upon his arms. He reigned for a third of a century; and
when he died, full of years and honours, Moslem
historians ranked him as the greatest monarch of his
time, and one of the greatest sovereigns of any age.
Seeing the canonization that success had brought to
this magnificent thief, other Moslem rulers profited by
his example, though none succeeded in bettering
his instruction. In 1186 the Ghuri, a Turkish tribe of
Afghanistan, invaded India, captured the city of Delhi,
destroyed its temples, confiscated its wealth, and settled
down in its palaces to establish the Sultanate of Delhi
An extract from Will Durant's 11-volume, Story of

Civilization; Courtesy: Tarek Fatah, President, Canadian
Muslim Congress; he says: The Story of Civilization, by the
husband and wife team of Will and Ariel Durant was written
over a span of more than four decades. It totals four million
words across nearly 10,000 pages. In the first volume (Our
Oriental Heritage, which covers the history of the East through 1933),
Will Durant covers the history of India in chapter six where he
outlines the Muslim invasions of India, describing them as
"probably the bloodiest story in history." Every Muslim from the
Indian subcontinent must read these pages to grasp the reality
that is kept hidden from them in home, school, mosque and
mindset. Read and reflect. Emphases in bold ours - IMS.
an alien despotism fastened upon northern India for three

centuries, and checked only by assassination and revolt.
The first of these bloody sultans, Kutb-ud-Din Aibak,

was a normal specimen of his kind fanatical, ferocious
and merciless. His gifts, as the Mohammedan historian
tells us, were bestowed by hundreds of thousands, and
9
10
The Moslem Conquest of India (Will & Ariel Durant)
his slaughters likewise were by hundreds of thousands. In
the arts, and engaged artists and artisans usually of

Hindu origin to build for them magnificent mosques
and tombs; some of them were scholars, and delighted
in converse with historians, poets and scientists. One
of the greatest scholars of Asia, Alberuni,
accompanied Mahmud of Ghazni to India, and wrote a
scientific survey of India comparable to Pliny's
Natural History and Humboldts Cosmos.
The Moslem historians were almost as numerous as
the generals, and yielded nothing to them in the
enjoyment of bloodshed and war. The Sultans drew from
the people every rupee of tribute that could be exacted
by the ancient art of taxation, as well as by
straightforward robbery; but they stayed in India, spent
their spoils in India, and thereby turned them back into
India's economic life. Nevertheless, their terrorism and
exploitation advanced that weakening of Hindu physique
and morale, which had been begun by an exhausting
climate, an inadequate diet, political disunity, and
pessimistic religions. The usual policy of the Sultans was
clearly sketched by Ala-ud-din, who required his
advisers to draw up rules and regulations for grinding
one victory of this warrior (who had been purchased as a

slave), fifty thousand men came under the collar of slavery,
and the plain became black as pitch with Hindus.
Another sultan, Balban, punished rebels and brigands
by casting them under the feet of elephants, removing their
skins, stuffing these with straw and hanging them from the
gates of Delhi. When some Mongolian habitants who had
settled in Delhi, and had been converted to Islam,

attempted a rising, Sultan Ala-ud-din (the conqueror of
Chitor) had all the males from fifteen to thirty thousand
of them slaughtered in one day.
Sultan Muhammad bin Tughlak acquired the throne
by murdering his father, became a great scholar and an
elegant writer, dabbled in mathematics, physics and
Greek philosophy, surpassed his predecessors in
bloodshed and brutality, fed the flesh of a rebel nephew to
the rebel's wife and children, ruined the country with
reckless inflation, and laid it waste with pillage and
murder till the inhabitants fled to the jungle. He killed so
many Hindus that, in the words of a Moslem historian,
there was constantly in front of his royal pavilion and his
Civil Court a mound of dead bodies and a heap of
corpses, while the sweepers and executioners were
down the Hindus, and for depriving them of that wealth

and property which fosters disaffection and rebellion.
Half of the gross produce of the soil was collected by
the government; native rulers had taken one-sixth. No
wearied out by their work of dragging the victims and

putting them to death in crowds.
In order to found a new capital at Daulatabad he
drove every inhabitant from Delhi and left it a desert;
and hearing that a blind man had stayed behind in Delhi,
he ordered him to be dragged from the old to the new
capital, so that only a leg remained of the wretch when
his last journey was finished. The Sultan complained that
the people did not love him, or recognize his undeviating
justice. He ruled India for a quarter of a century, and
died in bed. His successor, Firoz Shah, invaded Bengal,
Hindu, says a Moslem historian, could hold up his

head, and in their houses no sign of gold or silver...or of any
superfluity was to be seen.... Blows, confinement in the stocks,
imprisonment and chains, were all employed to enforce
payment. When one of his own advisers protested
against this policy, Alauddin answered: Oh, Doctor,
thou art a learned man, but thou hast no experience; I am
an unlettered man, but I have a great deal. Be assured,
then, that the Hindus will never become submissive and
obedient till they are reduced to poverty. I have therefore
given orders that just sufficient shall be left to them from
year to year of corn, milk and curds, but that they shall
not be allowed to accumulate any property.
This is the secret of the political history of modern
India. Weakened by division, it succumbed to invaders;
impoverished by invaders, it lost all power of
resistance, and took refuge in supernatural
consolations; it argued that both mastery and slavery
were superficial delusions, and concluded that
freedom of the body or the nation was hardly worth
defending in so brief a life. The bitter lesson that may
be drawn from this tragedy is that eternal vigilance is
the price of civilization. A nation must love peace, but
keep its powder dry.
(footnotes omitted)
offered a reward for every Hindu head, paid for 180,000 of

them, raided Hindu villages for slaves, and died at the
ripe age of eighty. Sultan Ahmad Shah feasted for three
days whenever the number of defenceless Hindus slain
in his territories in one day reached twenty thousand.
These rulers were often men of ability, and their

followers were gifted with fierce courage and
industry; only so can we understand how they could
have maintained their rule among a hostile people so
overwhelmingly outnumbering them. All of them
were armed with a religion militaristic in operation, but
far superior in its stoical monotheism to any of the
popular cults of India; they concealed its
attractiveness by making the public exercise of the
Hindu religions illegal, and thereby driving them more
deeply into the Hindu soul. Some of these thirsty
despots had culture as well as ability; they patronized
(2015) 1 LAW
*****
10
(2015) 1 LAW
R [On applications of Haney, Kaiyam, Massey & Robinson] v. Secretary of State for Justice [UK-SC]
In James v United Kingdom, the ECtHR found that a

failure properly to progress prisoners towards post-tariff
release breached their article 5(1) rights to liberty under the
(2015) 1 LAW F-1 (UK-SC)
SUPREME COURT OF THE

UNITED KINGDOM AT LONDON
European Convention on Human Rights and made

their continued detention unlawful [1].
The appellants claimed that the Secretary of State
had failed to provide them with a reasonable
opportunity to progress their rehabilitation and
release:
(1) Haney, relying on articles 5 and 14, claimed that
he had been transferred to open prison
conditions too close to the expiry of his tariff
period to enable his immediate release.
(2) Kaiyam, Massey and Robinson, relying on
article 5, claimed that they had not been able to
commence particular rehabilitative treatment
programmes within a reasonable time of their
tariff period expiring.
On appeals from:[2013] EWCA Civ 1587;

[2013] EWHC 3777 (Admin)
Wednesday, 10 December 2014

R (on the applications of Haney,
Kaiyam, and Massey) (Appellants) v
The Secretary of State for Justice (Respondent)
and R (on the application of Robinson) (Appellant) v
The Governor of HMP Whatton and The
Secretary of State for Justice (Respondents)
Citation: (2015) 1 LAW F-1
***
10 December 2014
PRESS SUMMARY
R (on the applications of Haney, Kaiyam, and
Massey) (Appellants) v The Secretary of State for
Justice (Respondent) and R (on the application of
Robinson) (Appellant) v The Governor of HMP
Whatton and The Secretary of State for Justice
(Respondents)
[2014] UKSC 66
JUDGMENT
The Supreme Court (a) unanimously allows Haney and

awarding Haney damages of
500 and awarding Massey damages of 600; (b)
Masseys article 5 appeal,
unanimously dismisses Haneys article 14 appeal and

Kaiyams article 5 appeal; and (c) dismisses the article 5
appeal in the case of Robinson by a majority of 4-1 (Lord
Mance dissenting).
Lord Mance and Lord Hughes give the unanimous
judgment in the appeals of Haney, Kaiyam and
Massey.
Lord Hughes (with whom Lord Neuberger, Lord
Toulson and Lord Hodge agree) gives a separate lead
judgment in the Robinson appeal. Lord Mance
delivers a dissenting judgment.
On appeals from: [2013] EWCA Civ 1587 and [2013]

EWHC 3777 (Admin)
JUSTICES: LORD NEUBERGER (President),

LORD MANCE, LORD HUGHES, LORD
TOULSON and LORD HODGE
BACKGROUND TO THE APPEALS
The appellants received indeterminate prison

sentences comprising (a) a fixed tariff period; and
(b) an indeterminate post-tariff period. Post-tariff
detention was to continue until the appellants satisfied
the Parole Board that that they were no longer a
danger to the public.
The appellants, relying upon the decision of the
European Court of Human Rights (ECtHR) in
James v United Kingdom (2012) 56 EHRR 399,
claimed that their post-tariff detention was unlawful
REASONS FOR THE JUDGMENTS

Haney, Kaiyam and Massey
Lord Mance and Lord Hughes hold that:
(1) The Supreme Court is not bound to follow the

decision of the ECtHR in James v United Kingdom.
The ECtHRs reasoning that a failure properly to
progress prisoners towards post-tariff release
amounted to a breach of their article 5(1) right to
liberty would not be followed. The express wording of
article 5(1) or 5(4) did not create any relevant duty to
provide prisoners with a reasonable opportunity to
progress their rehabilitation and release [18-23], [30-37].
because the Secretary of State had failed to provide them with

a reasonable opportunity to progress their rehabilitation and
release [1].
F-1
(2) However, the overall scheme of article 5 did

impose an implied ancillary duty on the Secretary of
Courtesy: Supreme Court of the United Kingdom.

Emphases in bold ours - IMS.
11
F-2
State to facilitate prisoners rehabilitation and release.

Breach of that duty would not affect the lawfulness of
the detention, but would entitle prisoners to damages
[38-39].
Michaelmas Term
[2014] UKSC 66
On appeals from:[2013] EWCA Civ 1587; [2013]
EWHC 3777 (Admin)
JUDGMENT
R (on the applications of Haney, Kaiyam, and
Massey) (Appellants) v The Secretary of State for
Justice (Respondent)
R (on the application of Robinson) (Appellant) v
The Governor of HMP Whatton and The
Secretary of State for Justice (Respondents)
before
Lord Neuberger, President
Lord Mance
Lord Hughes
Lord Toulson
Lord Hodge
(3) In respect of the appellants in the present case:

(a) Haneys delay in being transferred to open prison
conditions had deprived him, contrary to article 5, of a
reasonable opportunity to demonstrate that he was no
longer a danger to the public, an opportunity which
the Secretary of State himself had said that he

should have [49-50]. However, there had been no
breach of article 14 in discriminating between
pre- and post-tariff prisoners [53-54].
(b) Kaiyams delay in being able to commence various
rehabilitative treatment programmes did not breach his
article 5 rights. He had been provided with a
reasonable opportunity to demonstrate that he

was no longer a risk to the public through
courses on enhanced thinking, drug awareness
and victim awareness but his responses to those
programmes had been poor [59-61].
JUDGMENT GIVEN ON
10 December 2014
Heard on 19, 20 and 21 May 2014
Appellant (Haney)
Hugh Southey QC
Jude Bunting
(c) Masseys delay in being able to commence an

extended
sexual
offenders
treatment
programme until nearly three years after the
expiry of his tariff period (and after the
Secretary of State had provided for a timetable
which was not fulfilled) had deprived him of the
reasonable opportunity to demonstrate that he
was no longer a danger, in breach of article 5
[68-69].
(Instructed by Michael
Purdon Solicitors)
Respondent
James Eadie QC
Hanif Mussa
David Lowe
(Instructed by Treasury
Solicitors)
***
LORD MANCE AND LORD HUGHES:

(with whom Lord Neuberger, Lord
Toulson and Lord Hodge agree)
Robinson
Lord Hughes holds that Robinsons delay in being able
to commence an extended sexual offenders treatment
programme until nearly nine months after the expiry of his
tariff period did not breach his article 5 rights. The
1. The present appeals involve claims by prisoners

sentenced to indeterminate prison sentences (life
or IPP) that they were not sufficiently progressed
during their sentences towards release on or after
the expiry of their tariff periods. The principal
issue is what the Supreme Court should now hold
the law of the United Kingdom to be, taking
account of the judgment of the European Court of
Human Rights (ECtHR) in James, Lee and
Wells v United Kingdom (2012) 56 EHRR 399
(James v UK) disagreeing with the decision of
the House of Lords in R (James, Lee and Wells) v
Secretary of State for Justice [2009] UKHL 22;
[2010] 1 AC 553 (R (James)). The House of
Lords in R (James) held that no breach of article
question was not whether the appellant had been

deprived of access to a particular course, but whether
he had been given a reasonable opportunity to demonstrate
that he was no longer a danger to the public [85], [89-92].
Lord Mance (dissenting) considers that article 5

required that Robinson be given a reasonable degree
of access to the extended sexual offenders treatment
programme, which he had not been given in the
circumstances of the present case [99], [109-111].
References in square brackets are
to paragraphs in the judgment
***
(2015) 1 LAW
12
(2015) 1 LAW
F-3
(c)
Unless its imposition would in the

circumstances be unjust it is required in the
case of those convicted for a second time of a
defined group of very serious violent or sexual
offences, where both offences called for
determinate terms of ten years or more, or their
equivalent: see section 122 of the Legal Aid,
Sentencing and Punishment of Offenders Act
2012 (LASPO).
(d) Between 1997 and April 2005 it was required,
unless in the circumstances its imposition
would be unjust because the offender did not
pose a risk to the public of serious harm, in the
case of a few offenders convicted for the
second time of a restricted group of the most
serious violent or sexual offences: section 109
Powers of Criminal Courts (Sentencing) Act
2000, repealed by section 303 of and Schedule
37 to the Criminal Justice Act 2003. This form
of life sentence was generally known as an
automatic life sentence.
5(1) of the European Convention on Human

Rights (ECHR) was involved in a failure
properly to progress prisoners towards post-tariff
release. The ECtHR in James v UK took a
different view. Correctly, the courts below, from
which the present appeals lie, held themselves
bound by the House of Lords reasoning and
decision. The Supreme Court must now consider
whether and how far to modify its jurisprudence.
Indeterminate prison sentences in English law:
summary
2. Since the abolition of capital punishment in

1965, the most severe form of sentence imposed under
English law has been a sentence of life imprisonment. A
life sentence does not mean imprisonment for the rest of
the defendants natural life; it means a sentence
composed of two parts. The first part is a minimum
term, fixed by the court according to the gravity of the
offence and the circumstances of the offender. The
second is an indefinite term beyond that minimum, in
which period the prisoner may be released, not
unconditionally but on licence, if he is judged no longer
to present an unacceptable risk to the public. In
4. In addition to these forms of life sentence, the

Criminal Justice Act 2003 created from April
2005, until it was abolished by LASPO, the
different form of indeterminate sentence called
Imprisonment for Public Protection (IPP). As is
well known, IPP was available (and for the first
three years was in some circumstances
mandatory) for a much wider class of offences
than was a life sentence. It was, however,
structured in a similar manner to a life sentence,
formed of a minimum term fixed by the court in
accordance with the gravity of the offence and the
circumstances of the offender, to be followed by
an indefinite period with release on licence only
when the prisoner was judged by the Parole
Board no longer to present an unacceptable risk
to the public of serious harm. The terms of
section 28(5) and (6) of the Crime (Sentences)
Act 1997, governing release, apply to IPP
prisoners as they do to life sentence prisoners.
5. As is also well known, and chronicled in both
R (James) and to a lesser extent in James v UK,
the advent of IPP in April 2005 put the prison
administration in England and Wales under an
entirely new strain. Previously there had been
fairly steady numbers of prisoners serving
modern times the decision on release is

committed to the Parole Board, an independent
body correctly treated as a court by the ECtHR.
Release on licence is required by statute when the
Parole Board has directed it, but it may so direct
only when satisfied that it is no longer necessary
for the protection of the public that the prisoner
be confined: sections 28(5) and (6) of the Crime
(Sentences) Act 1997.
3. Such a life sentence may be passed in defined
circumstances only:
(a) It is required by law for those convicted of murder
(a mandatory life sentence).
(b) It is available as a discretionary penalty (a
discretionary life sentence) for a restricted group
of offenders convicted of a few of the most
serious offences known to the law, for which
the maximum sentence available is life
imprisonment, where the gravity of the offence
warrants a very long sentence and where the
risk of grave future harm to the public from the
offender cannot reliably be estimated at the
time of sentencing (R v Hodgson (1967) 52 Cr App
R 113 and R v Chapman [2000] 1 Cr App R 77).
13
F-4
indeterminate periods, namely those serving one

or other of the forms of life sentence set out at
(a), (b) and (d) above. IPP prisoners were also
indeterminate prisoners but their numbers greatly
increased the total, which by 2008 was effectively
doubled.
public protection. It accepted however that the

premise of section 225 and the context in which it
was enacted were that prisoners would be given a
fair chance of rehabilitating themselves; and,
consistently with this, the Ministry of Justices
National
Offender
Management
Service
instruction issued in July 2010 indicated (para
4.1.1) that
The present claimants
6. The four appellants were convicted of various

offences and were sentenced as follows:
ISP [indeterminate sentence prisoner]

sentence plans will aim to identify the risks the
prisoner must reduce and offer the effective and
timely
delivery of properly identified
interventions, having regard to available
resources, so that Parole Board reviews can be
meaningful; the release of ISPs is facilitated
where it is safe to do so; [and] any period of
continued detention beyond tariff is necessary
because the risk of harm remains too high for
release to be appropriate.
(a) Mr Haney was on 13th November 2003 ordered

to serve an automatic life sentence, with a
minimum specified term expiring on 13th
November 2012, the sentence being passed for
robbery committed with others while armed
with sawn-off shot guns.
(b) Mr Robinson was on 2nd October 2006
sentenced to IPP for sexual offences, with a
seven-year minimum term (to which time on
remand counted as usual) expiring on 10th
December 2012.
(c) Mr Massey was on 15th May 2008 sentenced to
IPP for sexual offences, with a minimum term
of two years six months (again allowing for
time on remand) expiring on 11th September
2010.
(d) Mr Kaiyam was on 20th July 2006 sentenced to
IPP with a minimum term of two years and 257
days, expiring on 3rd April 2009.
The instruction also recognised (para 4.8.1) that

In most mandatory lifer cases, a phased release from
closed to open prison is necessary in order to test their
readiness for release into the community on life licence.
In James v UK the ECtHR took a different view

from the House of the purposes of IPP sentences
in the context of the ECHR. It regarded a real
opportunity for rehabilitation [as] a necessary
element of any part of the detention which is to
be justified solely by reference to public
protection and on this basis held that one of the
purposes of IPP sentences was the rehabilitation
of those so sentenced (para 209).
8. Each of the appellants now complains that his
Mr Haneys life sentence was passed under

section 109 of the Powers of Criminal Courts
(Sentencing) Act 2000. The sentences on Mr
Robinson, Mr Massey and Mr Kaiyam were
passed under section 225 of the Criminal Justice
Act 2003.
7. All these sentences were, when passed, outside
the scope of the provisions of section 142(1) of
the Criminal Justice Act 2003 requiring a
sentencing court to have regard to reform and
rehabilitation as an express purpose of
sentencing. As from 14th July 2008, section 142
was amended to require regard to be had to
reform and rehabilitation as an express purpose of
any life or IPP sentence passed under section 225.
In R (James) the House on 6 May 2009 held that,
prior to this amendment, the only purposes of
section 225 were commensurate punishment and
(2015) 1 LAW
progress towards post-tariff release was hampered by

failures relating to his rehabilitation for which the
respondent Secretary of State was responsible. In
summary:
(a) Mr Haney complains under article 5 that he was
only transferred to open prison conditions on
or around 16th July 2012, too close to the
expiry date of his minimum term to allow
release immediately upon such expiry. The
Secretary of State conceded that a systemic
failure (to provide adequately for the increase
in numbers of prisoners serving indeterminate
terms) had led to excessive delay in
transferring him to open conditions, and Lang J
14
(2015) 1 LAW
proceeded on that basis. But both she and the

Court of Appeal dismissed his claim under
article 5 in the light of the Houses decision in
R (James).
(b) Mr Haney also complains under article 14 that
he was discriminated against by a decision of
the prison authorities, taken in October 2011 in
the light of the shortage of available places in
open prisons, to prioritise the movement to
open conditions of those whose tariff period
had already expired. Lang J and the Court of
Appeal dismissed this complaint, as they were
bound to, in the light of the Houses decision in
R (Clift) v Secretary of State for the Home
Department [2006] UKHL 54, [2007] 1 AC
484, notwithstanding the later judgment of the
ECtHR in Clift v United Kingdom (Application
No 7205/07) (13 July 2010), disagreeing with
this decision of the House.
(c) Messrs Robinson and Massey complain that
they were unable to commence an extended
sexual offenders treatment programme
(ESOTP) until, in the case of Robinson, 1st
July 2013, over five years after the course was
first recommended for him and over nine
months after his tariff period expired, and, in
the case of Massey, until May 2013, nearly
three years after it was first recommended and
over three years since his tariff period expired.
The Divisional Court (Richards LJ and Irwin J)
on 4th December 2013 found that the number of
IPP prisoners at the relevant times greatly
exceeded the number of ESOTP places on
courses, and held itself
F-5
(d) Mr Kaiyams complaint under article 5 is not

based on any allegation of systematic failure
by the Secretary of State. It is a complaint
about various decisions and delays which he
says affected him individually and meant that
he was not offered or put on various courses
during the period 2010 to 2013, after his tariff
period expired. Supperstone J and the Court of
Appeal dismissed his claim in the light of R
(James).
Analysis of the duty of the Secretary of State
9. Article 5 of the ECHR reads:

1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty
save in the following cases and in accordance
with a procedure prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a person
for noncompliance with the lawful order
of a court or in order to secure the
fulfilment of any obligation prescribed by
law;
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him
before the competent legal authority on
reasonable suspicion of having committed
an offence or when it is reasonably
considered necessary to prevent his
committing an offence or fleeing after
having done so;
(d) the detention of a minor by lawful order
for the purpose of educational supervision
or his lawful detention for the purpose of
bringing him before the competent legal
authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious
diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to
prevent his effecting an unauthorised
entry into the country or of a person
against whom action is being taken with a
view to deportation or extradition.
satisfied that there is a continuing failure on

the part of the Secretary of State to make
reasonable provision of systems and
resources,
specifically
the
reasonable
provision of ESOTP courses, for the purpose
of allowing IPP prisoners a reasonable
opportunity to demonstrate to the Parole
Board, by the time of the expiry of their tariff
periods or reasonably soon thereafter, that
they are safe to be released. (para 62)
Having dismissed the claims in the light of R

(James) - but stating also that it did not
consider that they would have succeeded under
the principles indicated in James v UK the
Divisional Court certified the cases as suitable
for leapfrog appeal to this Court.
2. Everyone who is arrested shall be informed

promptly, in a language which he understands, of
15
F-6
the reasons for his arrest and of any charge

against him.
3. Everyone arrested or detained in accordance
with the provisions of para 1(c) of this article
shall be brought promptly before a judge or other
officer authorised by law to exercise judicial
power and shall be entitled to trial within a
reasonable time or to release pending trial.
Release may be conditioned by guarantees to
appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take
proceedings by which the lawfulness of his
detention shall be decided speedily by a court
and his release ordered if the detention is not
lawful.
5. Everyone who has been the victim of arrest or
detention in contravention of the provisions of
this article shall have an enforceable right to
compensation.
11. The only possible exception that the House

contemplated was for the (hypothetical) case of
detention continuing for a very lengthy period in
circumstances where the system of review had
completely broken down or ceased to be
effective: per Lord Hope at para 15 and Lord
Brown at para 51. This exception reflected case
law of the ECtHR (to which we will return in
greater detail) to the effect that compliance with
article 5(1)(a) requires more than that the
detention is in compliance with domestic law. As
the European court stated in Weeks v United
Kingdom (1987) 10 EHRR 293, para 42:
"The 'lawfulness' required by the Convention
presupposes not only conformity with domestic
law but also conformity with the purposes of
the deprivation of liberty permitted by subparagraph (a) of article 5(1). Furthermore, the
word 'after' in sub-paragraph (a) does not simply
mean that the detention must follow the
'conviction' in point of time: in addition, the
'detention' must result from, 'follow and depend
upon' or occur 'by virtue of' the 'conviction'. In
short, there must be a sufficient causal
connection between the conviction and the
deprivation of liberty at issue."
10. The cases of R (James) and James v UK

concerned mandatory IPP sentences with tariffs
of respectively two years, 12 months and nine
months, at the expiry of which the three
applicants still remained in their local prisons
without access to recommended rehabilitative
courses. Messrs James, Wells and Lee were only
transferred to first-stage lifer prisons five months,
21 months and 25 months after their respective
tariffs expired. The Divisional Court and Court of
Appeal in R (James) held the Secretary of State to
have been in systemic breach of his public law
duty, and granted a declaration to that effect. In
the House of Lords there was no appeal against
that declaration, but explicit reference was made
to its correctness (see per Lord Hope, para 3).
However the House of Lords dismissed the
claims for breach of articles 5(1) and (4). It held
that continued detention remained lawful until the
Parole Board was satisfied that it is no longer
necessary for the protection of the public that the
prisoner should be confined, as provided by
section 28(6)(b) of the Crime (Sentences) Act
1997 and in accordance with the principles since
considered by this Court in R (Sturnham) v
Parole Board (No 2) [2013] UKSC 47, [2013] 2
AC 254.
(2015) 1 LAW
On that basis, the ECtHR in Weeks went on in

relation to a discretionary life sentence imposed
for the purpose of public protection (para 49):
"The causal link required by sub-paragraph (a)
might eventually be broken if a position were
reached in which a decision not to release or to
re-detain was based on grounds that were
inconsistent with the objectives of the sentencing
court. 'In those circumstances, a detention that
was lawful at the outset would be transformed
into a deprivation of liberty that was arbitrary
and, hence, incompatible with article 5'."
In relation to article 5(4), the House in R (James)

held that article 5(4) required a system providing
for assessment at reasonable intervals which
meets the requirements of procedural fairness:
per Lord Hope at para 21. As such a system
existed on the facts, it held that there was no
breach of article 5(4).
12. The ECtHR took a different view from the
House of Lords on article 5(1). It concluded that
16
(2015) 1 LAW
F-7
article 5(4), by means of regular reviews of the

risk which he presented, once the punitive period
of his sentence had expired.
10. The implications of these judgments were
then reflected in domestic case law. In relation to
automatic life prisoners, in particular, it was
held in R (Noorkoiv) v Secretary of State for the
Home Department [2002] 1 WLR 3284 that
article 5(4) requires a review by the Board of
whether the prisoner should continue to be
detained once the tariff period has expired, and
therefore requires a hearing at such a time that,
whenever possible, those no longer considered
dangerous can be released on or very shortly
after the expiry date. In practice, that meant that
the Board should hold hearings prior to the
expiry of the tariff period. Since Noorkoiv's case
had not been heard until two months after the
expiry of his tariff period, he was therefore the
victim of a violation of article 5(4). That
approach has been followed in the subsequent
case law.
following the expiry of the applicants tariff

periods and until steps were taken to progress
them through the prison system with a view to
providing them with access to appropriate
rehabilitative courses, their detention was
arbitrary and therefore unlawful within the
meaning of article 5(1) of the Convention.
(para 221)
It regarded the complaints under article 5(4)

regarding the failure to provide relevant
courses as raising no separate issue (para 226).
The ECtHR later commented that it had
found the applicants post-tariff detention to
have been arbitrary and therefore in breach of
article 5(1) during the periods in which they were
not progressed in their sentences and has no
access to relevant courses to help them address
the risk they posed to the public. (para 231)
and that
It cannot be assumed that, if the violations
had not occurred, the applicants would not
have been deprived of their liberty. It also
logically follows that once the applicants were
transferred to first stage prisons and had timeous
access to relevant courses, their detention once
again became lawful. (para 244)
14. James v UK has subsequently been applied by

the 4th section of the ECtHR in Dillon v UK
(Application No 32621/11; 4 Nov 2104) and
Thomas v UK (Application No 55863/11; 4 Nov
2014), summarily rejecting the Governments
submission that it had been wrongly decided.
However in both cases the claims of the
applicants failed on the merits.
15. The ECtHRs reasoning in James v UK opens
the possibility, discussed in In re Corey [2013]
UKSC 76, [2014] AC 516, that it was
contemplating that detention could, at least post-tariff,
13. The ECtHR was not concerned with life

sentence prisoners in James v UK, but it is clear
from cases decided under article 5(4) that it
would adopt similar reasoning. As Lord Reed
explained in R (Faulkner) v Secretary of State for
Justice, R (Sturnham) v The Parole Board (No 1)
[2013] UKSC 23 [2013] 2 AC 254, paras 9-10,
the ECtHR held in Thynne, Wilson and Gunnell v
The United Kingdom (1990) 13 EHRR 666 that,
since the need for public protection was likely to
change over time, discretionary life prisoners
whose tariff periods had expired were entitled to
invoke article 5(4):
fluctuate between the lawful and unlawful, depending

upon whether a prisoner serving a sentence of IPP was
being offered appropriate opportunity to progress in his
or her sentence. Not surprisingly, counsel for the
appellants on the present appeal were as keen to

disclaim such an analysis as counsel for the
Secretary of State. But common ground between
9. Since there was a question whether their

continued detention was consistent with the
objectives of the sentencing court, it followed
that they too were entitled under article 5(4) to
have the question determined. The subsequent
judgment in Stafford v United Kingdom (2002)
35 EHRR 1121 confirmed that a mandatory life
prisoner was also entitled to the protection of
counsel in a particular case cannot avoid the need to

address an important point of law, which may arise in
other cases in which counsel may take different
attitudes. In In re Corey, para 62, Lord Mance
pointed out that the ECtHR did not directly

address the apparent logical consequences of its
analysis of article 5(1), when this was questioned
17
F-8
6(1) It is unlawful for a public authority to act

in a way which is incompatible with a
Convention right.
(2) Subsection (1) does not apply to an act if (a) as the result of one or more provisions of
primary legislation, the authority could not
have acted differently; or
(b) in the case of one or more provisions of, or
made under, primary legislation which cannot
be read or given effect in a way which is
compatible with the Convention rights, the
authority was acting so as to give effect to or
enforce those provisions.
18. The Convention Rights are those set out in
Schedule 1 to the Act. It follows from the
wording of the Act that domestic courts in
by the British Government. Instead, it contented

itself with saying simply (para 217) that:
The Court accepts that where an
indeterminate sentence has been imposed on
an individual who was considered by the
sentencing court to pose a significant risk to
the public at large, it would be regrettable if
his release were ordered before that risk could
be reduced to a safe level. However, this does
not appear to be the case here.
It may not have been the case with Messrs James,
Wells and Lee that their release was sought or
ordered before their risk was reduced to a safe
level. But the Supreme Court was informed that
various life or IPP prisoners are now relying upon
James v UK to challenge in the Administrative
Court the legitimacy of their continued detention,
before the Parole Board has expressed itself
satisfied as to their safety for release.
16. In these circumstances, Mr James Eadie QC for
the Secretary of State invites the Supreme Court to
rule on the legal position under United Kingdom
law, and submits that, whatever the position in
interpreting and applying such rights are not bound by

the jurisprudence of the ECtHR, but are bound to take
it into account. Usually, domestic and Strasbourg
jurisprudence march hand in hand, as contemplated by
the mirror principle no more, but certainly no less
(as put by Lord Bingham in R (Ullah) v Special

Adjudicator [2004] UKHL 26, [2004] 2 AC 323,
para 20 or no less, but certainly no more (as put
by Lord Brown in Al-Skeini v Secretary of State
for Defence [2007] UKHL 26, [2008] 1 AC 153,
para 106). But increasingly it has been realised
that situations are not always so simple. The
domestic court may have to decide for itself what
the Convention rights mean, in a context which
the ECtHR has not yet addressed: see eg Rabone
v Pennine Care NHS Foundation Trust [2012]
UKSC 2, [2012] 2 AC 72. More radically, the
Strasbourg, we should declare life and IPP prisoners

continuing detention to be lawful, unless and until the
Parole Board determines such detention to be
unnecessary - subject only to the remote possibility,
identified by the House in R (James) that a
complete breakdown of the parole system might destroy
the causal link between the original sentence of life or
IPP and the continuing detention. We should in short
adhere in this respect to the Houses previous

reasoning and decision in R (James).
17. The logical starting point of this submission
consists in sections 2, 3 and 6 of the Human
Rights Act 1998. These sections read:
2. A court or tribunal determining a question
which has arisen in connection with a
Convention right must take into account any (a) judgment, decision, declaration or advisory
opinion of the European Court of Human
Rights, ..
3(1) So far as it is possible to do so, primary
legislation and subordinate legislation must be
read and given effect in a way which is
compatible with the Convention rights. ..
(2015) 1 LAW
domestic court may conclude that such Strasbourg

authority as exists cannot be supported, and may
decline to follow it in the hope that it may be
reconsidered: R v Horncastle [2009] UKSC 14,
[2010] 2 AC 373.
19. The position was summarised by Lord
Neuberger in Manchester City Corporation v
Pinnock [2010] UKSC 45, [2011] 2 AC 104, as
follows:
48. This Court is not bound to follow every decision of
the European court. Not only would it be impractical to
do so: it would sometimes be inappropriate, as it
would destroy the ability of the court to engage

in the constructive dialogue with the European
18
(2015) 1 LAW
court which is of value to the development of

Convention law (see eg R v Horncastle[2010]
AC 373). Of course, we should usually follow a clear
and constant line of decisions by the European court: R
(Ullah) v Special Adjudicator [2004] 2 AC 323.
But we are not actually bound to do so or (in theory,
at least) to follow a decision of the Grand Chamber.
As Lord Mance pointed out in Doherty v
Birmingham City Council [2009] AC 367, para
126, section 2 of the HRA requires our courts to take
F-9
more than attempts at general guidelines, or to

attach too much weight to his choice of the word
egregious, compared with Lord Neubergers
omission of such a qualification.
22. The starting point, when considering Mr
James Eadie QCs submission, must be the
language of article 5. Article 5 lists the cases in
which a person may, in accordance with a
procedure which must be prescribed by law, be
deprived of his or her liberty. The first (article
5(1)(a)) is lawful detention after conviction by a
competent court. Article 5(4) entitles anyone
detained purportedly pursuant to this or any other
of the listed grounds to take proceedings by
which the lawfulness of his detention shall be
decided speedily by a court and his release
ordered if the detention is not lawful.
23. On the face of it, the express wording of
article 5(1) and of the last ten words of article
5(4) contemplate that any detention not
authorised by article 5(1) should lead to release.
into account European court decisions, not necessarily

to follow them. Where, however, there is a clear
and constant line of decisions whose effect is not

inconsistent with some fundamental substantive
or procedural aspect of our law, and whose
reasoning does not appear to overlook or
misunderstand some argument or point of
principle, we consider that it would be wrong for
this court not to follow that line.
20. More recently in R (Chester) v Secretary of

State for Justice [2013] UKSC 63, [2014] AC
271, para 27, Lord Mance said:
In relation to authority consisting of one or
more simple Chamber decisions, dialogue with
Strasbourg by national courts, including the
Supreme Court, has proved valuable in recent
years. The process enables national courts to
express their concerns and, in an appropriate case
such as R v Horncastle [2010] 2 AC 373, to refuse
On the reasoning of the ECtHR in James v UK, failure

after the tariff period properly to progress a life or IPP
prisoner towards release makes detention during the
period of such failure arbitrary and therefore
unlawful. If that reasoning be adopted, then such
detention is in breach of the express language of

article 5(1)(a), and the prisoner should (in the
eyes of the ECtHR) be entitled to an immediate
order for speedy release under article 5(4). Under
to follow Strasbourg case law in the confidence that the

reasoned expression of a diverging national viewpoint
will lead to a serious review of the position in
Strasbourg. But there are limits to this process,
United Kingdom domestic law, release would however

be impossible, since primary legislation requires such a
prisoner to remain in detention unless and until the
Parole Board is satisfied that this is no longer necessary
for the protection of the public and section 6(2)(a) of the
Human Rights Act 1998 would apply. But, even so, it
would then be open to the prisoner under section 4 of
the Act to seek a declaration of incompatibility if
domestic courts were to interpret the Convention rights
scheduled to the Act in the same way as the ECtHR
interprets the ECHR at the international level.
particularly where the matter has been already to

a Grand Chamber once or, even more so, as in
this case, twice. It would have then to involve some
truly fundamental principle of our law or some most
egregious oversight or misunderstanding before it could
be appropriate for this court to contemplate an outright
refusal to follow Strasbourg authority at the Grand
Chamber level. (emphases ours)
21. The degree of constraint imposed or freedom

allowed by the phrase must take into account is
context specific, and it would be unwise to treat
Lord Neubergers reference to decisions whose
reasoning does not appear to overlook or
misunderstand some argument or point of
principle or Lord Mances reference to some
egregious oversight or misunderstanding as
Considerable importance may therefore attach to

the question whether the reasoning of the ECtHR
in James v UK is followed and adopted
domestically. (emphasis ours)
24. The reasoning in James v UK has, as its
premise, that whether detention is lawful is not
19
F-10
Bouamar, 50, cited above; Aerts v Belgium, 30

July 1998, 46, Reports 1998-V; and Enhorn v
Sweden, Application No 56529/00, 42, ECHR
2005-I).
70. The notion of arbitrariness in the contexts of
sub-paras (b), (d) and (e) also includes an
assessment whether detention was necessary to
achieve the stated aim. The detention of an
individual is such a serious measure that it is
justified only as a last resort where other, less
severe measures have been considered and found
to be insufficient to safeguard the individual or
public interest which might require that the
person concerned be detained (see Witold Litwa,
cited above, 78; Hilda Hafsteinsdttir v Iceland,
Application No 40905/98, 51, 8 June 2004; and
Enhorn, cited above, 44). The principle of
proportionality further dictates that where
detention is to secure the fulfilment of an
obligation provided by law, a balance must be
struck between the importance in a democratic
society of securing the immediate fulfilment of
the obligation in question, and the importance of
the right to liberty (see Vasileva v Denmark,
Application No 52792/99, 37, 25 September
2003). The duration of the detention is a relevant
factor in striking such a balance (ibid, and see also
McVeigh and Others v The United Kingdom,
Applications Nos 8022/77, 8025/77, 8027/77,
Commissions report of 18 March 1981,
Decisions and Reports 25, p 15 at pp 37-38 and
42).
71. The court applies a different approach
towards the principle that there should be no
arbitrariness in cases of detention under article
5(1)(a), where, in the absence of bad faith or one
of the other grounds set out in para 69 above, as
long as the detention follows and has a sufficient
causal connection with a lawful conviction, the
decision to impose a sentence of detention and
the length of that sentence are matters for the
national authorities rather than for the Court
under article 5(1) (see T v The United Kingdom
[GC], Application No 24724/94, 103, 16
December 1999, and also Stafford v The United
Kingdom [GC], Application No 46295/99, 64,
ECHR 2002-IV). (emphases ours)
conclusively decided by the fact that there has

been a valid conviction by the domestic court. In
its previous case law the Court had made clear
that, although the primary requirement of
article 5(1)(a) is that the detention should have a
legal basis in domestic law, the article also
relates to the quality of the law, requiring it to be
compatible with the rule of law, a concept
inherent in all the articles of the Convention:
Stafford v United Kingdom (2002) 35 EHRR
1121, para 63; Amuur v France (1996) 22 EHRR
533, para 50; Saadi v United Kingdom (2008) 47
EHRR 427, para 67; Kafkaris v Cyprus (2008) 49
EHRR 877, para 117; M v Germany (2009) 51
EHRR 976, para 90; see also Radu v Germany
(Application No 20084/07), para 112.
25. In this as in other contexts, the ECHR has not
infrequently resorted to a concept of arbitrariness to
explain what it means by unlawfulness. The natural
meaning of this English word connotes some

quite fundamental shortcoming. But it is also
clear that, when used at the international level, its
sense can depend on the context. Thus, in Saadi v
United Kingdom (2008) 47 EHRR 427, the Grand
Chamber identified a distinction between
arbitrariness in the context of article 5(1)(a) and
in the context of other sub-paragraphs of article
5(1). It said:
69. One general principle established in the
case-law is that detention will be arbitrary where,
despite complying with the letter of national law, there
has been an element of bad faith or deception on the
part of the authorities (see, for example, Bozano v
France, 18 December 1986, Series A no 111,

and onka v Belgium, Application No 51564/99,
ECHR 2002-I). The condition that there be no
arbitrariness further demands that both the order to
detain and the execution of the detention must genuinely
conform with the purpose of the restrictions permitted
by the relevant sub-paragraph of article 5(1) (see
Winterwerp, cited above, 39; Bouamar v

Belgium, 29 February 1988, 50, Series A no 129;
and OHara v The United Kingdom, Application
No 37555/97, 34, ECHR 2001-X).There must in
addition be some relationship between the
ground of permitted deprivation of liberty relied
on and the place and conditions of detention (see
(2015) 1 LAW
26. According to Saadi, the arbitrariness which

might at an international level affect lawfulness under
20
(2015) 1 LAW
F-11
[GC], Application No 11364/03, 76, 9 July

2009). The standard of lawfulness set by the
Convention thus requires that all law be
sufficiently precise to allow the person - if need
be, with appropriate advice - to foresee, to a
degree that is reasonable in the circumstances,
the consequences which a given action may
entail (see Steel and Others v The United
Kingdom, 23 September 1998, 54, Reports 1998VII, and Baranowski v Poland, Application No
28358/95, 52, ECHR 2000-III).
article 5(1) is relatively confined. The main examples
which the European Court gave of situations in

which detention might, although lawful under
domestic law, be unlawful under the Convention,
were:
(a) Detention following upon the unlawful
kidnapping or luring within the domestic
jurisdiction of a person wanted for trial can
render a persons detention following his or her
subsequent conviction unlawful: see the
citation of Bozano v France (1986) 9 EHRR
297 and onka v Belgium (2002) 34 EHRR
1298 in footnote 50 to para 69 of the Courts
judgment in Saadi. Under English common
law a similar result would follow: such conduct
would call for a stay of the criminal
proceedings and the release of the defendant on
the grounds of abuse of process: R v
Horseferry Road Magistrates Court, Ex p
Bennett [1994] 1 AC 42.
(b) The deprivation of liberty must genuinely be
for one of the purposes permitted by article
5(1) and must, in the case of a sentence, retain
a sufficient causal connection with the original
conviction: see eg van Droogenbroeck v
Belgium (1982) 4 EHRR 443, paras 35 and 40
(referring to detention based on grounds that
had no connection with the objectives of the
legislature and the court or on an assessment
that was unreasonable in terms of those
objectives), Weeks v The United Kingdom
(1987) 10 EHRR 293, Kafkaris, para 118 and
the Houses reasoning in R (James), paras 15
and 49.
28. In contrast, the First Section in Zagidulina v

Russia (Application No 11737/06) (02 May 2013)
appears to have deliberately limited itself to
article 5(1)(e), when it stated (para 51) that:
the notion of lawfulness in the context of
article 5(1)(e) of the Convention might have a
broader meaning than in national legislation.
Lawfulness of detention necessarily presumes a
fair and proper procedure, including the
requirement that any measure depriving a
person of his liberty should issue from and be
executed by an appropriate authority and should
not be arbitrary (see Winterwerp, cited above,
45, Johnson v The United Kingdom, 24 October
1997, 60, Reports of Judgments and Decisions
1997-VII, and more recently Venios v Greece,
Application No 33055/08, 48, 5 July 2011 with
further references).
Even in the context of article 5(1)(e), the dictum

seems to have been unnecessary for the decision,
since it is clear from para 61 of the First Sections
judgment that the claimants detention on the
ground that she was of unsound mind, when she
had neither been present in person nor
represented at the hearing ordering such
detention, was not in accordance with a
procedure prescribed by law within the express
language of article 5(1), even if attention was
confined to domestic law. The extent to which the
concept of lawfulness may require a domestic
law authorising detention to meet some higher
international standard of procedural fairness did
not require attention at all.
29. In neither situation covered by points (a) and
(b) mentioned in paragraph 26 above does there
appear domestically to be any difficulty about
27. However, other authority indicates a tendency

on the part of at least some sections of the court
to expand the concept of unlawfulness under
article 5(1). Thus, in M v Germany, para 90, the
fifth section said on 17 December 2009 in a
context where article 5(1)(a) was in issue that:
Quality of the law in this sense implies that
where a national law authorises deprivation of
liberty it must be sufficiently accessible, precise
and foreseeable in its application, in order to
avoid all risk of arbitrariness (see Amuur v
France, 25 June 1996, 50, Reports 1996-III;
Nasrulloyev v Russia, Application No 656/06,
71, 11 October 2007; and Mooren v Germany
21
F-12
accepting that the prisoner should not have been

detained and should be, or have been, released.
That is subject to the important proviso that the
possibility of a break in the chain of causation
envisaged by point (b) is understood - as we
consider that it must and should be in domestic
law - in the remote and restricted sense indicated
by the House in R (James). A requirement that
any law authorising detention should be
sufficiently accessible, precise and foreseeable
(see para 27 above) would probably also be
capable of being accommodated within domestic
law, again provided that it was understood as
directed to situations where the relevant law was
palpably defective. As to the reasoning in
Zagidulina v Russia (para 28 above), the
always assuming that he either surrendered

voluntarily or could be found and rearrested.
31. In In re Corey, paras 63-69 Lord Mance
questioned whether the ECtHR could have meant this.
He identified certain features of its reasoning which
suggest that it did not. We will treat them as
repeated here, without setting them out. However,

if the ECtHR did not mean this, that seems to
undermine the central part of its reasoning - that
detention becomes arbitrary and unlawful under
article 5(1) after the expiry of the tariff period, if
the prisoner is not given the facilities to enable
him to progress towards release. Detention which is
unlawful under the express wording of article 5(1) is, as
we have said, detention from which a person is under
article 5 entitled on the face of it to be released.
32. The central part of the Courts reasoning in
James v UK under article 5(1) finds little if any
support in the previous Strasbourg authority. The
need for a coherent framework for progression
towards release of persons subject to a measure
of preventive detention is mentioned in M v
Germany, at para 129, but in a quite different part
of the judgment from that dealing with the
lawfulness of detention - namely in the context of
considering whether the extension of such a
measure from ten years to an unlimited period
after six years in preventive detention constituted
the introduction of a retrospective penalty. In
Grosskopf v Germany (2010) 53 EHRR 280,
paras 50-52 the Court again expressed concern
about the apparent absence of any special
measures, instruments or institutions to address
the danger presented by persons subject to
preventive detention and to limit the duration of
their detention, but did so purely in the context of
considering whether a sufficient causal
connection existed between the applicants
original conviction and his continuing preventive
detention. If anything, the courts reference to its
concern, coupled with its decision to uphold the
continuing detention as not unreasonable in
terms of the objectives of the preventive
detention order, suggest that the court did not
see the absence of any special measures as
capable of affecting the lawfulness of the
requirement that any deprivation of liberty be in

accordance with a procedure prescribed by law is
general to all the heads covered by article 5(1). It is
directed primarily to domestic law, but, if one

assumes that it may also connote satisfaction of a
certain standard of procedural fairness set at the
international level, the implications of this have
not been worked out in any case law, and it does
not follow that any shortfall in procedural
fairness must lead to immediate release.
30. The present appeal does not in any event concern
procedural fairness. It concerns alleged failures in
the provision of appropriate opportunities to
prisoners to progress towards release from
sentences about the imposition of which, as such,
no complaint is or can be made. In this context,
there is a real difficulty about accepting a
proposition that the Convention rights require a
life or IPP prisoners release, before the Parole
Board is satisfied that his detention is no longer
required for the protection of the public. Not only
would this in the United Kingdom context mean
that primary legislation section 28(6)(b) of the
Crime (Sentences) Act 1997 (para 10 above) was in conflict with the Convention rights. It
would also involve the release of someone whose
safety for release had not been established; and,
as soon as he could be offered appropriate
facilities to make progress towards eventual
release, it would involve re-detaining him Law Animated World, 15 January 2015
(2015) 1 LAW
22
(2015) 1 LAW
F-13
establishes that he is not being duly progressed

towards release, the courts order would redress
the situation. This does not however follow.
Many of the failings revealed by the cases which
have come before the courts to date are simply
incapable of being redressed at the drop of a hat
or wig. Systems failed, due to lack of resources
and facilities, and it takes time to mend such
failures, whatever order a court might make.
Moreover, in a case where the failure was
repaired, as it might be by the time a court came
to consider the case, by the provision of adequate
opportunity to the prisoner, then the court would
be left, on this view of the ECtHR decision, with
detention which had been unlawful for a time but
was no longer.
35. For the reasons which we have given, we do
not think that it is possible to follow the
reasoning of the Fourth Section of the ECtHR in
James v UK. It appears to us to be based on an
over-expanded and inappropriate reading of the
word unlawful in article 5(1)(a), which would
not give rise to a sensible scheme. That does not
however mean that we would revert to the
Houses decision in R (James). The Fourth
Section has underlined the link which should be
recognised between preventive detention and
rehabilitation, and has also concluded that there
should be an individual remedy in damages under
the ECHR for failure to provide prisoners serving
indeterminate sentences with proper means of
progression towards release. The Houses refusal
of a Convention remedy in R (James) was based
on a contrary conclusion that the aim of a life or
IPP sentence does not include rehabilitation, at
least for the purposes of the ECHR, as well as
upon the Houses view that the continuing causal
link between sentence and detention prevented
any breach of article 5.
36. We consider that the Supreme Court should
now accept the Fourth Sections conclusion, that
the purpose of the sentence includes
rehabilitation, in relation to prisoners subject to
life and IPP sentences in respect of whom shorter
tariff periods have been set. We also consider that
detention, so long as the causal connection based

on danger to the public existed.
33. In James v UK the Fourth Section of the
ECtHR did however unequivocally identify the
absence of measures to assist progression through
the prison system as arbitrariness making the
detention unlawful. It treated the situation as
falling within the language of article 5(1)(a),
despite the continuing existence of sufficient
causal link between sentence and detention (see
para 198). On this basis, it had also to identify the
period of detention which was unlawful. It did so
by referring, in its holding, to the detention
following the expiry of their tariff periods and
until steps were taken to progress them through
the prison system. That exposes a problem.
Particularly where a tariff is of a relatively long
period, a prisoners progression towards release
through courses and experience in open
conditions should, where and to the extent
feasible, be facilitated not merely after but also in
advance of the tariff period, so as to keep open
the possibility of release on or shortly after its
expiry. That is indeed Mr Haneys complaint in
the present case. Yet, on the ECtHRs approach,
treating the present issue as falling within the text
of article 5(1)(a), no complaint can apparently
arise until the expiry of the tariff period, and any
complaint can then only arise if the failure to
provide courses, etc continues after the expiry of
the tariff period.
34. The second, much more substantial problem
about the Fourth Sections approach is that
logically it would, if followed in the United
Kingdom, mean, as we have stated, that any
prisoner not being progressed through the system
should be released, and that the Crime
(Sentences) Act 1997 section 28(6)(b) should be
declared incompatible with the Convention rights
insofar as it precludes this. As noted in para 15
above, the ECtHR in para 217 of its judgment
avoided, rather than addressed, this difficulty. Mr
Southey QC for the appellants suggested,
ingeniously, that the difficulty could not arise,
because, as soon as a prisoner gets to court and
23
F-14
by implication at an earlier stage than that

covered by article 5(4), rather than to treat article
5(1)(a) as incorporating it. We consider that a duty
the Supreme Court can and should accept as

implicit in the scheme of article 5 that the state is
under a duty to provide an opportunity reasonable
in all the circumstances for such a prisoner to
rehabilitate himself and to demonstrate that he no
longer presents an unacceptable danger to the
public. But we do not consider that this duty can
be found in the express language of article 5(1).
Treating it as an aspect of the duty to avoid
arbitrariness under article 5(1)(a) has
unacceptable and implausible consequences
which we have already identified. The Grand
Chamber decision in Saadi also remains
important authority that arbitrariness has a
confined meaning, when used as a test of
lawfulness in the context of article 5(1)(a).
to facilitate release can and should therefore be implied

as an ancillary duty - a duty not affecting the lawfulness
of the detention, but sounding in damages if breached.
Such a duty can readily be implied as part of the

overall scheme of article 5, read as a whole, as
suggested in In re Corey.
39. The appropriate remedy for breach of such duty is,
for the reasons explained, not release of the prisoner, for
his detention remains the direct causal consequence of
his indefinite sentence until his risk is judged by the
independent Parole Board to be such as to permit his
release on licence. The appropriate remedy is an award
of damages for legitimate frustration and anxiety, where
such can properly be inferred to have been occasioned.
Except in the rarest cases it will not be possible to

say what might have been the outcome of an
opportunity by way of a prison programme which
was not provided or was provided late. It will
thus not, except in the rarest cases, be possible to
establish any prolongation of detention. Such a
breach is likely to attract relief similar to that
recognised as appropriate under article 5(4) in
frustration/anxiety cases where a Parole Board
hearing has been wrongly delayed: we refer to the
very full analysis of Strasbourg awards in R
(Faulkner) v Secretary of State for Justice, R
(Sturnham) v The Parole Board (No 1) [2013]
UKSC 23, [2013] 2 AC 254, and we note that in
some of them the award needed to reflect not
only delay but also procedural unfairness. It may
be legitimate to infer rather greater frustration in
at least some cases when the point of impending
decision, which may be for release, has been
arrived at, than at the more speculative earlier
stage of delay in the provision of prison
treatment. The round-figure levels of damages
awarded by the ECtHR in James v UK, para 244,
do not appear to us to offer appropriate general
guidance for future cases under the ancillary duty
now recognised. The general approach set out by
Lord Reed at points 10-15 in para 13 of R
(Faulkner) and R (Sturnham) and the detailed
examination of authority later in his judgment
should however provide valuable guidance as to
37. Article 5(4) would be a more satisfactory

home for any duty of the nature identified in the
previous paragraph, if its language covered it
(which it does not). Article 5(4) gives rise to an
ancillary duty on the state, breach of which does not
directly impact on the lawfulness of detention. The
duty is to make available access to judicial review

by a court or here the Parole Board, which will
consider whether the information put before it
justifies continued detention or release. Speedy
access to the Parole Board like reasonable access
to proper courses and facilities represents an
important aspect of a prisoners progression
towards release. But the language of article 5(4)
is in terms confined to access to judicial review
by the Parole Board on the basis of the
information available from time to time. It does
not cover the prior stage of provision of courses
and facilities in prison, which gives rise to the
information necessary on any Parole Board
review.
38. The duty to facilitate the progress of such
prisoners towards release by appropriate courses
and facilities cannot therefore be brought, in our
opinion, within the express language of either
article 5(1)(a) or article 5(4). But it is on any
view closely analogous, at an earlier stage, to the
duty involved under article 5(4), and it is far more
satisfactory to treat it as an analogous duty arising
(2015) 1 LAW
24
(2015) 1 LAW
the appropriate approach to damages in respect of

any such breach of the ancillary duty.
40. This approach will be more satisfactory in result
than that which would, apparently, follow from the
ECtHRs analysis in James v UK. There would be no
F-15
UK with circumstances in which there had been

systemic failures in the United Kingdom, the
ECtHRs decision was based on a careful
individual analysis of each applicants prison
history: see eg paras 218-222.
42. The ECtHR does not however insist at the
risk of detention fluctuating between the legitimate and

illegitimate, no requirement to release before the Parole
Board is satisfied that this would be safe, and no risk
therefore to public safety. But, equally, the prisoner
international level on standards of perfection that would

be unrealistic, bearing in mind the numbers of prisoners
involved and the limits on courses, facilities and
resources in the prison system. Nor should domestic
will be able (a) to complain and to seek

mandatory orders if and when any breach of such
duty occurs and (b) to claim damages in respect
of any period of extended detention or other loss
which he or she can establish (and this could
often prove a very difficult task, bearing in mind
the speculative nature of the exercise) to have
flowed from the failure properly to progress him
or her towards rehabilitation. These rights would
exist - and damages would be recoverable in
respect of any period of extended detention which
could be shown to have resulted after the expiry
of the tariff period - whether the failure occurred
before or after the expiry of the tariff period. The
prisoners rights would not therefore depend upon
showing an overlap between a period during
which such a failure occurred and a period of
increased detention post-tariff, as the ECtHRs
approach in James v UK appears to require.
courts do so. In Hall v The United Kingdom

(Application No 24712/12) (12 November 2013),
the ECtHR was concerned with a complaint by an
IPP prisoner sentenced on 13 June 2006 with
(after appeal) a 30 month tariff expiring on 13
December 2008. Although the ECtHR said that
it appears that there may have been some delay
from around March 2008 [when the Extended
Sex Offenders Treatment Programme - ESOTP
- was identified as a course he should take] until
early 2010 [when he completed that
programme], it passed over this delay with the
comment that it seems that the applicant was
able to access the Cognitive Skills Booster
programme in the meantime (para 33). It appears
that this Booster programme was in fact
undertaken in or around 2008, that he was on 23
February 2009 transferred to HMP Usk in order
to complete the ESOTP and that he in fact
completed the ESOTP in early 2010: paras 10-13.
The ECtHR was therefore prepared to look at the
matter overall, and to accept that no system is
likely to be able to avoid some periods of waiting
and delay, especially for a highly intensive course
such as the ESOTP. Similarly, a delay from 1
March 2012 when transfer to open conditions was
recommended by the Parole Board (or from 20
March 2012 when the Secretary of State accepted
the recommendation, saying that such a transfer
was envisaged in about three months) until July
2012, when transfer actually occurred was not
regarded as unreasonable. Black v The United
Kingdom (Application No 23543/11; 1 July 2014)
was another admissibility decision where the
court had regard to the period of detention as a
whole.
The content of the duty
41. On that basis the question arises in what precise

terms and in particular at what precise level the duty
should be put. As a matter of domestic public law,
complaint may be made in respect of any

systemic failure, any failure to make reasonable
provision for an individual prisoner so egregious
as to satisfy the Wednesbury standard of
unreasonableness or any failure to apply
established policy. The question is whether
liability for breach of article 5 is similarly
limited. In our opinion, it is not. The express rights
conferred by article 5 are individual rights. The
ancillary right which we identify as existing under
article 5 is also a right in favour of each individual
prisoner and its satisfaction or otherwise depends upon
the particular circumstances of the individual case.
Although the ECtHR was concerned in James v

25
F-16
43. We turn to the individual cases, considered in

the light of the ancillary obligation under article 5
which we have identified. Whether there has been
a breach of the duty is a highly fact-sensitive
question in each case.
46. In prison, Haneys progress was a great deal

better than might have been expected. After some
years in HMP Frankland prison he was moved to
HMP Blundeston, which has a therapeutic
community designed to facilitate rehabilitation.
Well before then he had admitted his most recent
offence. After about a year there, the reports on
him were favourable. He was judged to be
confronting his criminal lifestyle. There had been
some adjudications for misbehaviour but the last
was two to three years previously in July 2008 for
possession of drugs, and since then he had
achieved enhanced status as a prisoner. A
sentence plan formulated in March 2010 foresaw
the prospect of onward transfer to an open prison,
as an essential stage in assessing whether the risk
which Haney presented could be managed, first
there and, if successfully there, then afterwards
on licence in the community. Critically, a year
later, in June 2011, the Secretary of State wrote
formally to him approving a transfer to an open
prison for this purpose, and indeed without the
need for a Parole Board assessment upon that
issue. Haney was accepted in principle by a
suitable open prison (HMP Kirklevington
Grange) in the summer of 2011.
47. The proposed transfer did not, however, then
happen. His transfer eventually occurred about a
year later on or about 16 July 2012, and thus not
long before his tariff was due to expire in
November of that year. This was not Haneys
fault. The reason lay in the intervening logjam to
which the introduction of IPP sentences in April
2005 had led, and which is so clearly chronicled
in the judgments of the House of Lords in R
(James). Although Haney is not an IPP prisoner, and
Haney - article 5
44. In November 2003 Haney was 43 years old.

He had previous convictions for robbery,
firearms, dishonesty and violence. On 13
November 2003 he was sentenced for a very
serious armed bank robbery, carried out by
himself and two other masked men armed with
sawn-off shotguns. He had untruthfully denied he
was guilty. At the time he committed this
robbery, Haney was on parole from an earlier
sentence, also for robbery, having not long been
released. In other words, he appears to have been
a professional criminal, committing offences for
high stakes which carried a grave risk to the
public of death or serious injury.
45. He was sentenced to an automatic life
sentence, then required (unless such would be
unjust) by section 109 of the Powers of Criminal
Courts (Sentencing) Act 2000 for a few criminals
convicted for a second time of a small number of
specified grave offences. The minimum term
attached to that sentence was nine years. At that
stage, sentencing practice was to set the minimum
term associated with a life sentence at between
half and two-thirds of what the punitive
determinate term would have been if a life
sentence had not been passed. Generally the
proportion adopted was one half. This was to
reflect the then prevailing arrangements for early
release of long term determinate prisoners, which
could be allowed at half of their term and became
mandatory at two-thirds. Thus, the nine year
minimum term represented a determinate term of
something like 18 years, which would indeed
have been the kind of term to be expected for a
recidivist of Haneys history committing a further
armed robbery on parole and receiving no credit
for admitting what he had done. The nine year
minimum term (or tariff) expired on 13
November 2012.
(2015) 1 LAW
his sentence pre-dated the introduction of the IPP

system, he was a life prisoner competing with other life
prisoners and, importantly, also with IPP prisoners for
resources in the prison service which were, temporarily
at least, greatly under-supplied. In response to the
excess of demand over supply, the prison service

had to introduce a new practice in October 2011,
under which priority was given, amongst
indefinite prisoners of one kind or another, to
those whose tariffs had expired, and then to those
26
(2015) 1 LAW
who were nearest to tariff expiry. A separate

common law challenge to the reasonableness and
lawfulness of that expedient rightly failed before
Lang J in the Administrative Court, for it was a
perfectly sensible and lawful response to the
unanticipated backlog. The common law claims
which then failed are not before this court. A
further challenge is, however, mounted to the
October 2011 policy in this court, invoking article
14 ECHR (discrimination) but as explained below
this must also fail.
48. However, the failure of the challenges to the
October 2011 remedial policy adopted by the
ministry leaves untouched the question whether
there was a failure to meet the requirements set
out in James v UK, and thus a breach of the
ancillary obligation contained in article 5. This
ancillary obligation clearly exists throughout the
prisoners detention, and is separate from any
obligation to release, whether under domestic law
or the Convention. It is geared towards the
prisoner having a reasonable opportunity to
establish that he is safe to release at or within a
reasonable time after the expiry of the tariff
period. A failure before tariff expiry may thus
constitute a breach if it remains uncorrected so
that he is deprived of such reasonable
opportunity, which he ought to have had. Such a
breach may sound in modest damages if the
impact on the prisoner warrants it. It cannot of
itself give rise to a duty to release, for whilst the
prisoner remains unsafe to the public, there is
ample justification under article 5(1)(a) for his
continued detention. The question is accordingly
this: was Haney afforded a reasonable
opportunity to reform himself and (crucially in
his case) to demonstrate that he no longer
presented an unacceptable risk to the public?
49. The answer to this question is, in Haneys
case, given by the letter to him from the Secretary
of State of June 2011. By this letter the Secretary
of State identified what a reasonable opportunity
was for Haney to demonstrate that he was no
longer a danger - that is to say a transfer to open
conditions - and adjudged that he should have
F-17
that opportunity there and then. Unlike the cases

of other appellants, there was no other
opportunity which could be afforded to him to
demonstrate this. That he did not have this
reasonable opportunity was the result of the
systemic failures identified in R (James) and in
James v UK. It is clear that but for those failures,
Haney would have been transferred to open
conditions in or about late Summer 2011. What
he would have made of that opportunity cannot
be known, nor can it be known when or whether
the Parole Board would have adjudged him safe
for release on licence which would endure for the
rest of his life. But that he was deprived of the
reasonable opportunity which the Secretary of
State himself said that he should have is clear.
Worrying as his criminal history is, career
criminals may change course, and the middle
years are ones sometimes characterised by such
change. There could have been no reasonable
claim to actual release on licence before tariff
expiry, even if such is technically possible. But
depending on his response, there might have been
some prospect of release on licence sometime
after tariff expiry in November 2102.
50. It follows that in Haneys case there was a
breach of the ancillary obligation in article 5. The
delay in transfer was of about a year. He would
have known that he could not realistically expect
release at least until after his tariff expired, and it
would not follow that any postponement of
release would follow or, if it did, be of the same
period as the delay. But the delay in transfer until
just before the expiry of the tariff period is sufficient,
applying the principles explained in R (Faulkner
and Sturnham) (No 2) set out in para 39 above, to
justify the inference of legitimate frustration. An
appropriate award is 500.
Haney discrimination
51. We turn to Mr Haneys alternative case that

he was discriminated against, by the decision
taken by the prison authorities in October 2011 to
resolve the crisis arising from the shortage of
course and facilities to progress prisoners towards
release by prioritising the movement to open
27
F-18
prisons of those whose tariff periods had already

expired. Mr Haneys had not. It is not clear what
practical impact this issue could have,
particularly in the light of the ancillary duty to
afford prisoners a reasonable opportunity to
rehabilitate themselves and to demonstrate that
they no longer present an unacceptable danger to
the public, which we have now recognised. To
the extent that there was a continuing systemic
failure, which affected Mr Haney because it
meant that he could not be transferred to open
conditions at a time pre-tariff when this should,
but for such failure, have occurred, the ancillary
duty should afford him a remedy, independently
of any case based on discrimination.
but they appear to us relevant and decisive in the

present context also:
69. The defendant's [the Secretary of States]
response was that he considered the various
options for clearing the backlog and made a
rational decision to prioritise the post-tariff
prisoners, because they were eligible for release
and continued detention could only be justified if
they represented a risk to the public. It was not
feasible to transfer all the ISPs at one go, because
of the need to ensure that sufficient resources
were in place to manage and support ISPs at
open prisons. The defendant denied that he was
applying an inflexible policy; there was
provision for exceptional cases. The defendant
also denied that he was operating an unpublished
policy which conflicted with published policy.
The published policy related to categorisation
and allocation, whereas these were merely
arrangements for clearing the backlog of
transfers.
52. For completeness, however, we consider his

case on discrimination. The question of law is
whether the Supreme Court should recognise the
difference between those whose tariff periods had
and had not expired as a difference of status for
the purposes of article 14 of the ECHR. The
House in R (Clift) v Secretary of State of the
Home Department [2006] UKHL 54, [2007] 1
AC 484 was, in the absence of clear Strasbourg
authority, not prepared to accept the difference
between prisoners serving determinate sentences
over 15 years and life prisoners or prisoners
serving determinate sentences of less than 15
years as a difference in status. The ECtHR in Clift
v The United Kingdom (Application No 7205/07)
took a different view, and expressed itself at one
point (at the end of para 60) in terms which
might, literally read, eliminate any consideration
of status.
53. In the light of the ECtHRs decision, we see
some force in the submission that the difference
between pre and post-tariff prisoners should now
be taken to represent a relevant difference in
status. But we need not determine that finally.
That is because the difference in treatment
appears to us to have been clearly justified on the
basis of the evidence put before and findings
made by the judge. Her findings were in the
context of a complaint at common law that the
difference in treatment was irrational and unfair,
(2015) 1 LAW
Rationality, fairness and

taking into account relevant considerations
70. In my judgment, the defendant's evidence

was cogent and convincing. Mr Mercer said in
his first witness statement:
Prioritisation criteria
2. A system of prioritisation was required to
address the backlog, because it would not be
possible or safe, to transfer all the ISPs awaiting
transfer at the same time. Whilst NOMS aims to
transfer prisoners who are identified as being
part of the backlog into open conditions as soon
as possible, it is extremely important, given the
numbers involved, together with the complexity
of individual cases and the risks and needs which
offenders concerned present, that transfers are
managed with care. Thus it is necessary to
consider both the needs of the prisoners and the
pace at which transfers are operationally
manageable for individual establishments. For
these reasons, the process of identifying and
allocating suitable establishments and effecting
transfers is being phased, with prisoners' cases
being dealt with by PMS in tranches, initially of
50 at a time, since increased to 100, and
potentially increasing still further.
3. For purposes of clearing the backlog, prisoners
whose tariff has expired were considered to be a
(Go to p. 65)
28
(2015) 1 LAW CM & MD, Central Bank of India & Ors. v. CBI SC/ST Employees Assn. & Ors. [IND-SC]
(2015) 1 LAW ISC-1
consequential seniority to the promoted SCs/STs a social

welfare measure per constitutional directives The matter
SUPREME COURT OF INDIA

AT NEW DELHI
regarding reservations in promotions to SCs/STs was

considered by a nine Judge Bench of this Court in
Indra Sawhney [15-11-1992: (1992) Supp 3 SCC 217].
The Court specifically held that the reservation under
Article 16(4) of the Constitution of India is confined
to initial appointment and cannot extend to reservation
in the matters of promotion. In order to nullify its
effect, there was an amendment to Article 16 by
Constitution (Seventy-Seventh Amendment) Act with
effect from 17-06-1995, which inserted Clause 4A
after Clause 4 in Article 16 of the Constitution,
enabling the State to make provisions for reservation
in services under the State in favour of Scheduled
Castes and the Scheduled Tribes. As such, on the
insertion of Clause 4A, the State is now empowered to
make provision for reservation in matter of
promotions as well, in favour of SC and ST wherever
the State is of the opinion that SCs and STs are not
adequately represented in the service under the State.
Nevertheless, it is only an enabling provision which
empowers the State to make any provision for
reservation for SC and ST candidates in the matter of
promotion as well. And then, after the aforesaid
amendment, a question had arisen as to whether a
person in SC/ST category, who gets accelerated
promotion because of reservation, would also get
consequential seniority in the higher post if he gets
that promotion earlier than his senior in general
category. The Court, answering this question in Virpal
Singh Chauhan [(1995) 6 SCC 684], held that such an
employee belonging to SC/ST category on promotion
would not get consequential seniority. This led to
another amendment - the Constitution (Eighty-Fifth
Amendment) Act, 2001 whereby Clause 4A of Article
16 was amended to enable the State for making any
provision for reservation in matters of promotion with
consequential seniority to any class or classes of
posts in the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes which, in
the opinion of the State, are not adequately
represented in the services under the State. The
constitutional position now, due to this amendment, is
that such SC/ST candidates who get the benefit of
accelerated promotion are provided consequential
seniority also. Another significant aspect to be noted
is that this amendment was made retrospectively from
17.06.1995, the date of coming into force of the
original Cl. 4A of Article 16.
- Paras 8-10, pp. ISC-4/5.
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 209 of 2015
(arising out of SLP (C) No. 4385 of 2010)
Date of Judgment: Friday, 9 January 2015

Chairman & Managing Director,
Central Bank of India & Ors.
Appellant(s)
Versus
Central Bank of India SC/ST
Employees Welfare Association
& Ors.
Respondent(s).
WITH
CONTEMPT PETITION (CIVIL) NO. 320 OF 2010
IN
SPECIAL LEVE PETITION (CIVIL) NO. 5046 OF 2010
WITH
CIVIL APPEAL NO. 210 OF 2015
(arising out of Special Leave Petition (Civil) No. 4483 of 2010)
WITH
WITH
AND
Civil Appeal No. of 2015 & Ors. Page 1 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Citation: (2015) 1 LAW ISC-1
CORAM:
J. CHELAMESWAR, J.
A.K. SIKRI, J.
***
Head Notes:
CONSTITUTIONAL LAW Article 16 of the Constitution
and reservations in promotions to the SCs/STs two
constitutional amendments brought to nullify the effect of
two Constitution Bench judgments of the Apex Court one
denying reservations in promotions and the other denying
ISC-1
Courtesy: Supreme Court of India at http://judis.nic.in/;

emphases in bold ours - IMS.
29
ISC-2
CM & MD, Central Bank of India & Ors. v. CBI SC/ST Employees Assn. & Ors. [IND-SC] (2015) 1 LAW
instant case The Union Government issued two office
CONSTITUTIONAL LAW Powers of the State to make

reservations
in
appointments,
promotions
with
consequential seniority under Article 16 of the Constitution
as amended ambit of Judicial Review powers in this
regard There is no dispute about the constitutional
memoranda in regard to promotions in reservations to

the SC/ST employees. The first dated 01-11-1990
clearly mentioned that there is no provision for
reservation for promotions, but directed that insofar as
any vacancies for promotions to SCs/STs are available
the promotions could be awarded as a concession
only. The second Memorandum dated 13-08-1997 also
did not make any specific provision for reservations in
promotions but decided to continue the promotions as
existing till then in consonance with in terms of the
judgment of this Court in Indra Sawhney till, and even
beyond, 15-11-1997, till such time as representation
of each of the above two categories in each cadre
reaches the prescribed percentages of reservation
whereof. That is, the existing provision relating to
reservation in promotion was allowed to continue
beyond 15-11-1997. Also, in matters of promotion
within Group-A posts, which carry an ultimate salary
of 5,700/- per month, there was no provision for any
reservation. The High Court in the impugned judgment
has gone by the lofty ideals enshrined in Articles 15
and 16 of the Constitution as well as the fact that in
these Banks there is no adequate representation of
SC/ST category of officers in Group-IV and above.
However, that can only provide justification for
making a provision of this nature. But, in the absence
of such a provision, the same cannot be read by
overstretching the language of Office Memorandum
dated 13-08-1997. It is for the State to take stock of
the ground realities and take a decision to make
provision for reservation in promotions to the
aforesaid post as well. However, though there is no
reservation in promotion by selection within only
those Group-A posts which carry an ultimate salary of
5,700/- per month, significantly, what follows is that
reservation is provided in promotion by selection qua
those posts which carry an ultimate salary of less than
5,700/- per month (pre-revised) {enhanced to 18,300/now). As a fortiori, the policy of no reservation in the
matter of promotion is applicable only from Scale-VII
and above. Hence, it clearly follows that insofar as
promotion from Scale-I to Scale-II, Scale-II to ScaleIII, Scale-III to Scale-IV, Scale-IV to Scale-V, ScaleV to Scale-VI are concerned, reservation is to be
provided. The appellant Banks, therefore, cannot take
umbrage under the Memorandum to deny reservation
to SC/ST employees while carrying out promotions up
to Scale-VI.
- Paras 31-36, pp. ISC-13/14.
***
position envisaged in Articles 15 and 16, insofar as

these provisions empower the State to take affirmative
action in favour of SC/ST category persons by making
reservations for them in the employment in the Union
or the State (also, public sector/authorities, treated as
State under Article 12). The laudable objective
underlying these provisions is also to be kept in mind
while undertaking any exercise pertaining to the
issues touching upon the reservation of such SC/ST
employees. Further, such a reservation can not only be
made at the entry level but is permissible in the
matters of promotions as wells. At the same time, it is
also to be borne in mind that Clauses 4 and 4A of
Article 16 of the Constitution are only the enabling
provisions which permit the State to make provision
for reservation of these category of persons. Insofar as
making of provisions for reservation in matters of
promotion to any class or classes of post is concerned,
such a provision can be made in favour of SC/ST
category employees if, in the opinion of the State,
they are not adequately represented in services under
the State. Thus, no doubt, power lies with the State to
make a provision, but, at the same time, courts cannot
issue any mandamus to the State to necessarily make
such a provision. It is for the State to act, in a given
situation, and to take such an affirmative action. Of
course, whenever there exists such a provision for
reservation in the matters of recruitment or the
promotion, it would bestow an enforceable right in
favour of persons belonging to SC/ST category and on
failure on the part of any authority to reserve the
posts, while making selections/promotions, the
beneficiaries of these provisions can approach the
Court to get their rights enforced. What is to be
highlighted is that existence of provision for
reservation in the matter of selection or promotion, as
the case may be, is the sine qua non for seeking
mandamus as it is only when such a provision is made
by the State, a right shall accrue in favour of SC/ST
- Para 24, p. ISC-11.
candidates and not otherwise.
CONSTITUTIONAL LAW Office memoranda dated
1.11.1990 and 13.8.1997 issued by the Central Government
to implement reservations in promotions to SCs/STs
purport and scope of those Memoranda and the
applicability and extent of concessions available in the
30
ISC-3
outcome of these appeals would depend upon the

interpretation that is to be accorded to the said
Office Memorandum dated 13-08-1997. As the
Banks are in appeal against the judgment of High
Court of Judicature at Madras rendered on
09-12-2009 whereby number of writ appeals were
disposed of, it can clearly be discerned that
insofar as High Court is concerned its
interpretation to the aforesaid circular has gone in
favour of the SC/ST employees.
4) Before we revert to the fulcrum of the issue
and give our answer thereto, we deem it apposite
to recapitulate in brief the historical facts which
have led to the present lis.
5) As already noted above, the appellant Banks,
which are statutory Banks and Public Sector
Undertakings, have been following the reservation
policy of the Government of India as issued by the
Government from time to time. For doing so, the
Promotion Policy of each of such bank makes
specific provision in this behalf. It is also a matter
of common knowledge that Ministry of Finance,
Government of India is the nodal ministry for
framing policy on reservations for financial
institutions/banks. To given an example, Regulation
1.1 of the promotion policy for officers of UCO
Bank makes such a provision in the following
manner:
JUDGMENT
A.K. SIKRI, J.
1) Leave granted. Impleadment and intervention
applications are allowed.
2) The issue which arises for consideration in
these appeals lies within a narrow campus and is
crisp one, though at the same time it is of seminal
importance for the parties before us. It relates to
the rule of reservation of the Scheduled Castes
(SC) and Scheduled Tribes (ST) in the promotion
in the officer grade/scale in the appellant Banks.
There is no dispute that the appellant Banks,
which are statutory/public sector banks, are
following the applicable guidelines of the Central
Government pertaining to reservation of SC and
ST employees insofar as their promotion from
clerical grade to officer grade is concerned. The
question to be answered is as to whether there is
any reservation in the promotions from one
officer grade/scale to another grade/scale, when
such promotions are made on selection basis. As
per the appellant Banks, there is no rule of
reservation for promotion in the Class A (Class-I)
to the posts/scales having basic salary of more
than 5,700/- and in the relevant instructions,
issued in the form of Office Memoranda, only a
concession is provided in the manner officers
belonging to SC/ST category are to be considered
for promotion. To put it otherwise, the position
taken by the Banks is that there is no rule of
reservation for promotions and the candidature of
these officers belonging to these categories for
promotion is to be considered on the basis of
relaxed standards. The respondents, who are
SC/ST Employees' Unions of the appellant Banks
or individuals belonging to such categories,
dispute the aforesaid stand taken by the Banks.
According to them, the circular issued by the
Central Government expressly provides for such
a reservation.
3) It is interesting to note that for taking their
respective positions both the parties rely upon
O.M. dated 13-08-1997 issued by the Central
Government (which, of course, is to be read along
with other connected office memoranda). Thus,
The Promotion policy for officers in the Bank

has been designed in the context of the
guidelines issued by the Government from time
to time under the Officers Service Regulations.
It will also be relevant to quote hereunder
Regulation 22 of the aforesaid promotion policy.
This Regulation makes the following reading:
22. Concession/Relaxations etc for SC/ST,
Physically Handicapped, Ex-servicemen and
Other categories of officers;
22.1 The guidelines/directives/administrative
instructions issued by the Government of India
from time to time regarding relaxation/
concession/ reservation etc. for SC/ST,
physically handicapped, Ex-serviceman and such
other special categories of officers in the matter
of scale to scale promotions within the Officers'
Grade shall be deemed to be a part of the policy
and given effect to accordingly.
31
ISC-4
in matters of promotion to any class or classes of

posts in the services under the State in favour of
the Scheduled Castes and the Scheduled Tribes
which, in the opinion of the State, are not
adequately represented in the services under the
state.
6) It is an accepted position that identical

promotion policy is framed by each of these
appellant Banks.
7) As per the aforesaid promotion policy,
incorporating the reservation policy framed by
the Central Government in respect of candidates
belonging to SC/ST category, the banks are
according 15% reservation for SC and 7.5%
reservation for ST candidates. It is done at the
initial level of recruitment and also for promotion
in the clerical cadre. Such a reservation is also
provided for promotion from clerical grade to the
lowest rank in the officers grade which is
commonly known as Junior Management Grade
Scale-I (Scale-I). However, when it comes to
promotion from Scale-I to the next scale, which is
known as Middle Management Grade Scale-II
(Scale-II), the Banks have not been making any
reservations while carrying out these promotions.
As per the Banks, it is because of Office
Memorandum No. 38012/6/83-East(SCT) dated
01-11-1990 issued by the Ministry of Personnel,
Public Grievance and Pensions (Department of
Personnel and Training), Government of India
clearly stating that there is no reservation within
Group 'A' posts.
8) The matter regarding reservations in
promotions was considered by a nine Judge
Bench of this Court in Indra Sawhney v. Union of
1
India, which was a judgment rendered on
15-11-1992. The Court specifically held that the
Clause (4) of Article 16 is worded as follows:

4. Nothing in this article shall prevent the State
from making any provision for the reservation of
appointments or posts in favour of any backward
class of citizens which, in the opinion of the
State, is not adequately represented in the
services under the State.
The constitutional position on the insertion of

Clause 4A is that the State is now empowered to
make provision for reservation in matter of
promotions as well, in favour of SC and ST
wherever the State is of the opinion that SCs and
STs are not adequately represented in the service
under the State. Nevertheless, it is only an enabling
provision which empowers the State to make any
provision for reservation for SC and ST candidates in
the matter of promotion as well.
9) In order to complete the historical narration of

facts, it becomes necessary to mention that after
the aforesaid amendment, a question had arisen as
to whether a person in SC or ST category, who
gets accelerated promotion because of reservation
would also get consequential seniority in the
higher post if he gets that promotion earlier than
his senior in general category. The Court
answered this question in the case of Union of
India and Others etc. v. Virpal Singh Chauhan and
2
Others holding that such an employee belonging
reservation under Article 16(4) of the Constitution of

India is confined to initial appointment and cannot
extend to reservation in the matters of promotion. In
order to nullify the effect of the aforesaid dicta,

there was an amendment to Article 16 by
Constitution (Seventy-Seventh Amendment) Act
with effect from 17-06-1995. Vide this
amendment, after Clause 4, Clause 4A was
inserted in Article 16 of the Constitution, which
was couched in the following language:
to SC/ST category on promotion would not get

consequential seniority and his seniority will be
governed by the panel position. This led to
another Constitution amendment and the
Parliament enacted Constitution (Eighty-Fifth
Amendment) Act, 2001 whereby Clause 4A of
Article 16 was amended. The amended Clause 4A
reads as under:
4A. Nothing in this article shall prevent the

State from making any provision for reservation
4A. Nothing in this article shall prevent the

State from making any provision for reservation
(1992) Supp 3 SCC 217
32
(1995) 6 SCC 684
ISC-5
in matters of promotion with consequential

seniority to any class or classes of posts in the
services under the State in favour of the
Scheduled Castes and the Scheduled Tribes
which, in the opinion of the State, are not
adequately represented in the services under the
State.
Memorandum dated 13-08-1997 as the

interpretation of this O.M. is the bone of
contention. As the outcome of these appeals
largely depends on the interpretation of this
Memorandum, we feel apposite to reproduce the
said O.M. dated 13-08-1997 in toto:
10) The constitutional position, as it stands now,

in view of the aforesaid amendment, is that such
SC/ST candidates who get the benefit of
accelerated promotion are provided consequential
seniority as well. This amendment, thus, nullifies
the effect of the judgment of this Court in Virpal
Singh Chauhan (supra). Another significant
aspect which is to be noted is that this
amendment was made retrospectively from
17.06.1995, i.e. the date of coming into force the
original Clause 4A of Article 16.
11) Constitutional validity of Clause 4A of
Article 16 as well as Clause 4B which was also
amended
vide
Eighty-Fifth
Constitution
Amendment, was challenged before this Court
and this challenge was repelled in the case of
No. 36012/18/95-Esst(Res.) Pt:II

GOVERNMENT OF INDIA
Ministry of Personnel Public Grievances and
Pensions, Department of Personnel and Training
North Block, New Delhi
Dated the 13th August, 1997
OFFICE MEMORANDUM
SUBJECT: RESERVATION FOR THE SCs/STs IN
PROMOTION
The undersigned is directed to invite attention to this

Department's OM No. 36012/37/93-Esst. (SCT) dated
19.8.1993 clarifying that the Supreme Court had, in
the Indira Sawhney case, permitted the reservation for
the Scheduled Castes and Scheduled Tribes, in
promotion, to continue for a period of five years from
16.11.1992.
2. Consequent to the Judgment in Indira Sawhney's
case the Constitution was amended by the
Constitution (Seventy seventh Amendment) Act, 1995
and Article 16(4A) was incorporated in the
Constitution. This article enables the State to provide
for reservation in matters of promotion, in favour of
the Scheduled Castes and the Scheduled Tribes,
which in the opinion of the State are not adequately
represented in the Services under the State.
3. In pursuance of Article 16(4A), it has been decided
to continue the Reservation in promotion as at
present, for the Scheduled Castes and the Scheduled
Tribes in the services/posts under the Central
Government beyond 15.11.1997 till such time as the
representation of each of the above two categories in
each cadre reaches the prescribed percentages of
reservation whereafter, the reservation in promotion
shall continue to maintain the representation to the
extent of the prescribed percentages for the respective
categories.
4. All Ministries/Department are requested to urgently
bring these instructions to the notice of all their
attached/subordinate offices as also the Public Sector
Undertakings and Statutory Bodies etc.
Sd/(Y.G. PARANDE)
Director (Reservation)
M. Nagaraj and others v. Union of India and

3
Others. The Court specifically held that these
provisions flow from Article 16(4) and, therefore

do not alter the structure of Article 16(4). Further,
they do not obliterate any of the constitutional
requirement, namely, ceiling limit of 50%
(quantitative limitation), the concept of creamy
layer
(qualitative
exclusion),
the
subclassification between OBCs, on the one hand,
and SCs/STs on the other hand, as held in Indra
Sawhney (supra). The Court, at the same time,
made it clear that the ceiling limit of 50%, the
concept of creamy layer and the compelling
reasons, namely, backwardness, inadequacy of
representation and overall administrative
efficiency are the constitutional requirements
without which the structure of equality of
opportunity in Article 16 would collapse.
12) After the amendment in Article 16 of the
Constitution, with incorporation of Clause 4A
therein, the Government of India issued Office
3
(2006) 8 SCC 212

33
ISC-6
various grades/scales/cadres in respect of UCO

Bank as well as Central Bank of India and found
that there was hardly any representation in the
higher scales, what to talk of adequate
representation. The figures given in respect of
Central Bank of India are noted in para 22 of the
impugned judgment, stating as under:
Impugned Judgment
13) The respondents Associations representing

SC and ST employees had filed writ petitions in
the High Court of Madras submitting that in spite
of there being a clear policy of reservation even
for promotion from one category of officer to the
higher category of officers, the appellant Banks
had not been making any provision for such
reservations while carrying out the promotions.
Mandamus was sought seeking directions against
the Bank to specify such reservation to SC/ST
officers as per the promotion policy for officers.
The learned Single Judge of the High Court
dismissed the writ petitions holding that Article
16(4A) was only an enabling provision which
permits the State to make provisions for
reservation insofar as promotions are concerned.
However, in the instant case, no such provision
was made. No material was produced by the writ
petitioners which could demonstrate any such
specific provision for promotion.
14) The writ petitioners challenged said order by
filing writ appeals before the Division Bench.
The Division Bench has taken a contrary view. A
perusal of the judgment of the Division Bench
would spell out that it has gone by the spirit
behind Articles 15 and 16 of the Constitution
which are in the nature of affirmative actions that
can be taken by the State in providing
reservations for the socially and educationally
backward people and that includes SC and ST
classes. It has pointed out that Article 16(4) is
specifically designed to give a due share in the
State power to those who have remained out of it
mainly on account of their social, educational,
economic backwardness as reservationaffords
such classes of citizens a golden opportunity to
serve the nation and thus gain security, status,
comparative affluence and influence in decision
making process. It was with this spirit in mind
Clause 4A was inserted introducing an enabling
provision for providing reservation in the matter
of promotion as well. The High Court thereafter
took note of the statistics that was placed on
record to show the strength of SC/ST officers in
22. ......A consolidated statement for the

promotions from the year 1997 to 2008 in
MMG:IIIIV:, SMG: IV-V; SMG V-VI; TMG
VI-TMG VII would depict a bleak picture
regarding the entire aspect since least or no
presentation for SC/ST could be seen glaringly.
As per these calculations for the total promotions
of 20 posts, only one SC candidate got
promotion in the year 2007 and for a total
promotions of 171, within these categories only
nine SC candidates got promotion. In promotions
effected for the years 1997 and 2002,
respectively for 19 posts and six posts, no SC/ST
candidate was offered promotion. In the year
1999, for a total number of 126 posts, only one
SC candidate was given promotion. Likewise, for
a whopping 308 numbered of promotions in the
year2006 a meager 36 candidates of SC/ST were
promoted.
The Court also noticed almost identical feature in

UCO Bank giving the following details :
23. ....As per the scale wise representation of
SC/ST officers as on 31.3.2008 in the UCOBank,
in Scale IV posts there is a short fall of 50 SC
officers and 31 ST officers in Scale V posts,
there is a short fall of 10 SC officers and 7 ST
officers; in Scale VI, there is a short fall of 5 SC
officers and 2 ST officers and in Scale VII posts,
there is a short fall of 3 SC officers and one ST
officer.
15) Office Memorandum dated 13-08-1997 has

been read in the light of the aforesaid
constitutional spirit as well as inadequate
representation of SC/ST category officers in the
Banks holding that the mandate of the said O.M.
was to provide for reservation.
16) While holding so, the High Court also
repelled the contention of the Banks predicated
on Article 335 of the Constitution on the basis of
which it was contended that introduction of rule
34
of reservation in promotion would reduce the

efficiency of administration of Banks. The Court
specifically took note of Constitution EightySecond Amendment which was made effective
from 08-09-2000 and provides that nothing in this
Article shall prevent in making any provision in
favour of the members of the Scheduled Castes
and Scheduled Tribes for relaxation in qualifying
marks in any examination or lowering the
standards of evaluation, for reservation in matters
of promotion to any class or classes of services or
posts in connection with the affairs of the Union
or of a State. In the opinion of the High Court,
when Constitution has given such extra protection
to the under privileged communities so as to
enjoy equal opportunities as guaranteed by the
Constitution, the Banks are not justified in
sleeping over the matter providing reservations in
promotions for a decade with no good reasons to
offer.
17) The position taken by both the parties
remains the same before us as well. According to
the Banks, vide O.M. dated 13-08-1997 it has
been decided to continue the reservation in
promotion asat present, for the Scheduled Castes
and
the
Scheduled
Tribes
in
the
services/posts............ It is, thus, argued that this
O.M. did not make any reservation in the matter
of promotion but whatever was existing earlier
has been continued. M/s. C.S. Vaidyanathan and
Raju Ramachandran, learned Senior Advocates,
who argued for these Banks laid strong emphasis
on the aforesaid language employed in the O.M.
and submitted that only existing position
continued and the position which was existing
was that there was no specific provision for
reservation. The only provision which existed
was judging the candidature of SC/ST candidates
for promotion in Class A (Class I) service
drawing more than basic salary of 5,700/-, to
apply relaxed standards. It was submitted that
such a provision existed in O.M. dated 01-111990. It was pointed that in para 2 of this O.M. a
mention was made about the concession which
was to be given to the officers belonging to these
categories and in para 3 it was amply clarified
ISC-7
that there is no reservation in promotion by

selection. Paras 2and 3 of O.M. dated 01-11-1990
read as under:
2. Though in the OM cited above it has been
clearly mentioned that in promotion by selection
within Class I (now Group A) to posts which
carry an ultimate salary of Rs. 2000/- per month
or less (since revised to Rs. 5700/-) the
Scheduled Castes and Scheduled Tribes will be
given concession namely those scheduled
Castes and Scheduled Tribes who are senior
enough in the zone of consideration for
promotion so as to be within the number of
vacancies for which select list has to be drawn
up, would be included in that list provided they
are not considered unfit for promotion, doubts
have been expressed in certain quarters as to
whether the concession given herein above is a
reservation or a concession.
3. It is hereby clarified that in promotion by
selection within group A posts which carry an
ultimate salary of Rs. 5700/- p.m. there is no
reservation.
18) It was argued that a conjoint reading of the

aforesaid two circulars, namely, O.M. dated
01-11-1990 and 13-08-1997 would manifest that
the provision was made for concession and not
reservation in the matter of promotion. Reliance
was placed on two judgments of this Court where
distinction between concession and reservation is
explained lucidly:
(i) National Federation of S.B.I. and Others v.
4
Union of India and Others

15. In 1987, the Government of India issued the
7th Edn. of the said Brochure in which para 9.2,
corresponding to the one quoted above, reads as
follows:
MHA OM No. 1/9/69. Estt.(SCT) dated 26-3-70
and Deptt. of Personnel & AR OM No. 1/10/74Estt. (SCT) dated 23-12-1974
9.2 Promotion by selection method.
(a) Promotions by selection within Group A
(Class-I).
In promotions by selection to posts within Group
A (Class I) which carry an ultimate salary of Rs
4
35
(1995) 3 SCC 532

ISC-8
2000 per month, or less, (Rs 2250 per month or

less in the revised scale) there is no reservation,
but the Scheduled Castes and Scheduled Tribes
officers, who are senior enough in the zone of
consideration for promotion so as to be within
the number of vacancies for which the select list
has been drawn up, would be included in that list
provided they are not considered unfit for
promotion. Their position in the select list would,
however, be the same as assigned to them by the
Departmental Promotion Committee on the basis
of their record of service. They would not be
given for this purpose, one grading higher than
the grading otherwise assignable to them on the
basis of their record of service.
In order to improve the chances of Scheduled
Castes and Scheduled Tribes officers for
selection to the higher categories of posts in
Group A (Class I).
(i) Scheduled Castes/Scheduled Tribes officers in
Group A (Class I) Services/Posts should be
provided
with
more
opportunities
for
institutional training and for attending
seminars/symposia/conferences.
Advantage
would also be taken of the training facilities
available at the Lal Bahadur Shastri National
Academy of Administration, Mussoorie,
National Police Academy, Hyderabad, Indian
Institute of Public Administration, New Delhi,
the Administrative Staff College, Hyderabad etc.
and
(ii) It would be the special responsibility of the
immediate superior officers of the Scheduled
Castes/Scheduled Tribes officers in Class I to
give advice and guidance to the latter to improve
the quality of their work.
..
promotions within Class I. Nor does the

Memorandum dated 26-3-1970 provide for such
reservation. The idea is self-evident. While the
rule of reservation is made applicable to the
lower categories, viz., Classes II, III and IV (to
the extent specified in the said Memorandums),
no such reservation was thought advisable in the
matter of promotions within Class I. Instead of
reservation, a concession was provided, the
concession explained hereinabove. It is this fact
which has been reiterated, affirmed and clarified
in the subsequent letters of the Finance Ministry.
It is thus clear that the letters of the Ministry of
Finance dated 30-5-1981 and the subsequent
ones do not amend or modify the Office
Memorandum dated 26-3-1970 but merely explain
it. They make explicit what is implicit in it.
So is the rendering of para 9.2 in the 7th Edn. In
the Brochure. What all they say is that the rule of
reservation does not apply to promotions within
Class I (i.e., promotions to be made on the basis
of selection to posts which carry an ultimate
salary of Rs 2250 per month or less in the revised
scale) but a concession in terms of para 2 of the
Memorandum dated 26-3-1970 is provided in
that behalf. It cannot, therefore, be said that
either the letters of the Ministry of Finance or the
rendering of para 9.2 in the 7th Edn. of the
Brochure is inconsistent with the Memorandum
dated 26-3-1970 or that they are contrary to the
orders of the Government.
.
31. For the above reasons, we hold that in the
matter of promotion by selection to posts within
Class I which carry an ultimate salary of Rs 2250
in the revised scale of pay per month or less,
there is no reservation in favour of Scheduled
Castes/Scheduled Tribes but they are entitled to
the concession contained in para 2 of the Office
Memorandum dated 26-3-1970 issued by the
Ministry of Home Affairs. The concession is that
those Scheduled Castes/Scheduled Tribes
officers who are senior enough in the zone of
the number of vacancies for which the select list
has to be drawn up will be included in the select
list provided they are not considered unfit for
promotion. [This rule has been explained in the
body of the judgment by giving an illustration,
which it is not necessary to repeat here.] The
19. We are unable to agree with the learned

counsel. It is admitted on all hands that so far as
promotions within Class I are concerned with
which alone the Memorandum dated 26-3-1970
deals there are no orders of the Government
of India applying the rule of reservation. We
have referred hereinbefore to the earlier
Memorandum dated 11-7-1968 (which in turn
refers to a yet earlier Memorandum dated 8-111963). Those earlier Memorandums provide for
reservation in Classes II, III and IV but not for
promotion to Class I and not at any rate to
36
position of such candidates included in the select
list would, however, be the same as is assigned
to them by the Departmental Promotion
Committee on the basis of their record of service.
The said candidates would not be entitled, for the
purpose of the said selection, one grading higher
than the grading otherwise assignable to them on
the basis of their record of service. This is also
the purport of para 9 of the Brochure insofar as it
deals with promotions within Class I.
him/her for appointment without going through

the selection process.
19) Learned counsel appearing for respondents,

including Dr. Krishan Singh Chauhan, Mr. E.C.
Vidya Sagar, Mr. A. Subba Rao, Mr. Satyajit A.
Desai and Mr. C.K. Chandrasekhar, Advocates,
placed strong reliance on the reasons given by the
High Court in support of its verdict projecting
dismal state of affairs virtually no representation
of the SC/ST employees in the officers category,
particularly, scale IV and above.
20) It was also argued by these respondents that
after the impugned judgment of the Division
Bench allowing writ appeals of these
respondents, on 14-01-2010 and 01-02-2010, the
Union
Government
had
directed
the
implementation of the impugned High Court
judgment. The Bank has filed the SLP, thereafter.
Their present stand that there will be no
reservation but only concession by considering
officers who are senior enough to be within the
zone and are not declared unfit, is misleading. In
fact, a Bill was passed in both the Houses of the
Parliament by the previous Government to grant
reservations in promotions at all levels, (i.e. 117th
Constitutional Amendment), which had lapsed
subsequently. It was argued that the Union
Government cannot take a different stand now.
21) The claim of the Banks that grant of
reservation in promotion from Scale-I level
onwards would affect efficiency, was also refuted
by contending that the officers belonging to
SC/ST have been promoted only on the basis of
their own merit/performance. It was submitted
that the State cannot act contrary to
Constitutional provisions. It was submitted that
the decision dated 10-03-1995 in National
Federation of S.B.I. (supra) and relied by the
Banks related to pre-77th Amendment, which
came to be passed on 17-06-1995. As per them,
the decision in M. Nagaraj (supra) answers the
issues raised by the Banks. Pointed reference was
made to the 117th Amendment Bill, which was
taken judicial notice of in Himachal Pradesh
(ii) Pragjyotish Gaonlia Bank (Now known as

Assam Gramin Vikash Bank) and Another
5
v. Brijlal Dass
24. Having carefully considered the submissions
made on behalf of the respective parties, we are
inclined to agree with Mr Mehta that the
provision relating to reservation posts extracted
hereinabove, contained in the Circular dated
10-6-1997, has been wrongly interpreted by the
Division Bench of the High Court. The said
condition is in the nature of a concession as was
contemplated in the Circular dated 9-11-1994,
issued by NABARD in order to give an
opportunity to a Scheduled Caste or Scheduled
Tribe candidate to be automatically appointed, if
he came within the number of vacancies
available. It was a concession to enable such a
candidate to avoid the process of selection,
which all the other candidates were required to
undergo.
25. The said provision has been very elaborately
explained by a three-Judge Bench of this Court
in National Federation of SBI v. Union of India,
(1995) 3 SCC 532 . As has been explained in the
said judgment, the zone of consideration is the
list of selected candidates chosen in order of
seniority to be considered for the purpose of
filling up the available vacancies and merely by
coming within the zone of consideration a
Scheduled Caste or Scheduled Tribe candidate
would not be entitled to automatic selection. The
concession relating to reservation does not mean
that any of the vacant posts were required to be
kept reserved for such Scheduled Caste or
Scheduled Tribe candidate. It is only when such
a candidate came within the number of vacancies
that such a concession would be applicable to
5
ISC-9
Scheduled Tribes Employees Federation and

another v. Himachal Pradesh Samanaya Varg
(2009) 3 SCC 323

37
ISC-10
Karamchari Kalayan Mahasangh and others.
and prevaricated from 26-4-2010 till date. In

spite of the requisite data being available, the
policy of reservation already adopted by the
State has not been implemented. We, therefore,
do not agree with Dr Dhavan that the applicants
are seeking a mandamus to adopt a policy in
reservation. From the above narration, it is
evident that the applicants want the State to
implement its own decisions. The prayer is:
Direct the respondent/State Government to
decide the case in time-bound manner on the
basis of data already available/submitted to
the Cabinet Sub-Committee on 25-4-2011
within a period of one month and; Further
direct stay on all promotions pending decision
taken in this case.
34. The final excuse offered by the State for not
granting the aforesaid relief is that the State now
awaits the finalisation of the 117th Constitution
Amendment. We decline to accept the reasons
put forward for not honouring the statement
solemnly made to this Court on 26-4-2010. This
Court has been more than considerate to the
requests made by the State for extension of time.
This last excuse about awaiting the finalisation
of
the
proposed
Hundred-seventeenth
Constitutional Amendment is the proverbial last
straw on the camels back. As stated earlier, the
proposed 117th Constitutional Amendment would
not adversely affect the merits of the claim (sic)
of the petitioner for grant of promotion with
consequential seniority. By the aforesaid proposed
Amendment, the existing Article 16 cl.(4-A) is to
be substituted by the following clause (4-A)
16. (4-A) Notwithstanding anything contained
elsewhere in the Constitution, the Scheduled
Castes and the Scheduled Tribes notified
under Article 341 and Article 342,
respectively, shall be deemed to be backward
and nothing in this article or in Article 335
shall prevent the State from making any
provision for reservation in matters of
promotions, with consequential seniority, to
any class or classes of posts in the services
under the State in favour of the Scheduled
Castes and the Scheduled Tribes to the extent
of the percentage of reservation provided to
the Scheduled Castes and the Scheduled
Tribes in the services of the State.
Attention was drawn to paras 32 to 34 of the said

judgment, which are as under:
32. Here, we would like to allude to the words
of Lord Denning, in Rondel v. Worsley (1967) 1

QB 443 about the conduct expected of an
advocate:
As an advocate he is a minister of justice
equally with the Judge. I say all he
honourably can because his duty is not only to
his client. He has a duty to the court which is
paramount. It is a mistake to suppose that he is
the mouthpiece of his client to say what he
wants: or his tool to do what he directs. He is
none of these things. He owes allegiance to a
higher cause. It is the cause of truth and
justice. He must not consciously misstate the
facts. He must not knowingly conceal the
truth. He must not unjustly make a charge of
fraud, that is, without evidence to support it.
He must produce all the relevant authorities,
even those that are against him. He must see
that his client discloses, if ordered, the
relevant documents, even those that are fatal
to his case. He must disregard the most
specific instructions of his client, if they
conflicts with his duty to the court. The code
which requires a barrister to do all this is not
a code of law. It is the code of honour. (QB p.
502) [Courts emphasis]
In our opinion, the aforesaid dicta of Lord

Denning is an apt exposition of the very high
standard of moral, ethical and professional
conduct expected to be maintained by the
members of legal profession. We expect no less
of an advocate/counsel in this country.
33. Here, in this case, on 26-4-2010 a statement
was made on behalf of the State of H.P. that the
State intends to collect more details with regard
to representation of the SCs/STs and to pass
appropriate orders within a reasonable time i.e.
approximately within three months after
collecting the necessary details and datas.
Having very deftly avoided a decision on merits
in SLP (C) No. 30143 of 2009, the State has
totally failed to live up to the solemn statement
made to this Court. It has hedged and hemmed
6
(2013) 10 SCC 308
38
22) Much reliance was also placed on a recent

decision of this Court in the case Rohtas
as State under Article 12 of the Constitution). The

laudable objective underlying these provisions is
also to be kept in mind while undertaking any
exercise pertaining to the issues touching upon
the reservation of such SC/ST employees.
Further, such a reservation can not only be made
at the entry level but is permissible in the matters
of promotions as wells. At the same time, it is
also to be borne in mind that Clauses 4 and 4A of
Article 16 of the Constitution are only the
enabling provisions which permit the State to
make provision for reservation of these category
of persons. Insofar as making of provisions for
reservation in matters of promotion to any class
or classes of post is concerned, such a provision
can be made in favour of SC/ST category
employees if, in the opinion of the State, they are
not adequately represented in services under the
State. Thus, no doubt, power lies with the State to
make a provision, but, at the same time, courts
cannot issue any mandamus to the State to
necessarily make such a provision. It is for the
State to act, in a given situation, and to take such
an affirmative action. Of course, whenever there
exists such a provision for reservation in the
matters of recruitment or the promotion, it would
bestow an enforceable right in favour of persons
belonging to SC/ST category and on failure on
the part of any authority to reserve the posts,
while
making
selections/promotions,
the
beneficiaries of these provisions can approach the
Court to get their rights enforced. What is to be
highlighted is that existence of provision for
reservation in the matter of selection or
promotion, as the case may be, is the sine qua
non for seeking mandamus as it is only when
such a provision is made by the State, a right
shall accrue in favour of SC/ST candidates and
not otherwise.
25) It is not in dispute that the rule of reservation
is followed for promotions from clerical grade to
the lowest rank in the officer grade. The question,
however, is as to whether there is any provision
for reservation when promotion from a particular
rank in the officer grade is to be made to the next
Bhankhar and Others v. Union of India and

7
Another, on the basis of which it was contended
that the reliance of the Banks in that case on O.M.

dated 22.07.1997 was totally misplaced as,
inasmuch as, in this case the said O.M. is held to
be bad in law as per the discussion contained in
the following paragraphs:
9. We are in respectful agreement with the
decision in UT, Chandigarh v. Kuldeep Singh,
(1997) 9 SCC 199 and approve the same.
Ordinarily, we would have sent the matter to the
regular Bench for disposal of the matters but
having regard to the nature of controversy and
the fact that the Central Administrative Tribunal,
Delhi (for short the Tribunal) has followed S.
Vinod Kumar v. Union of India, (1996) 6 SCC
580 which is not good law and resultantly the
1997 OM is also illegal, in our view, the agony
of the appellants need not be prolonged as they
are entitled to the reliefs.
10. Consequently, the civil appeals are allowed.
The impugned order is set aside. The 1997 OM is
declared illegal. The respondents are directed to
modify
the
results
in
the
Section
Officers/Stenographers (Grade B/Grade I)
Limited Departmental Competitive Examination,
1996 by providing for reservation and extend all
consequential reliefs to the appellants, if not
granted so far. No costs.
23) Before discussing the main issue involved, it

would be in the fitness of things to iron out some
of the creases surrounding the main issue. In fact,
this exercise would facilitate understanding the
precise tenor of the issue that needs to be
addressed and answered.
24) In the first instance, we make it clear that
there is no dispute about the constitutional
position envisaged in Articles 15 and 16, insofar
as these provisions empower the State to take
affirmative action in favour of SC/ST category
persons by making reservations for them in the
employment in the Union or the State (or for that
matter, public sector/authorities which are treated
7
ISC-11
(2014) 8 SCC 872

39
ISC-12
(c) This OM specifically clears the doubt that

the aforesaid provision is only a concession
and not reservation in favour of SC/ST
candidates, inasmuch as para 3 of the OM
states that It is hereby clarified that in
promotion by selection within Group-A post,
which carry ultimate salary of 5,700/- per
month, there is no reservation. It is clear
from the above that insofar as Office
Memorandum dated 1.11.1990 is concerned,
there was no provision for reservation made in
favour of SC/ST candidates in promotion by
selection within Group-A posts carrying an
ultimate salary of 5,700 per month.
28) No doubt, this Office Memorandum was
issued in the year 1990, that is much before
amendment in Article 16 of the Constitution,
which was carried out in the year 1995 by
inserting Clause 4A. However, as already pointed
out above, Clause 4A is an enabling provision
which empowers the State to make reservations
in the matter of promotions as well as in favour of
SC/ST employees. There was no such provision
till 1.11.1990 in the matter of promotion by
selection within Group-A post which carry an
ultimate salary of 5,700/- per month.
29) Having understood this, we come to Office
Memoradum dated 13.8.1997 to find out as to
whether this Memorandum makes any provision
for reservations in the matter of promotion in
favour of SC/ST employees, inasmuch as no
other Office Memorandum or Circular or Rule,
etc. is produced on record for this purpose.
30) We have already noted above that a nine
Judge Bench decision of this Court in Indra
Sawhney (supra) held that Clause 4 of Article 16
does not cover the cases of promotion, meaning
thereby, as per the said clause no reservation in
favour of SC/ST persons in the matter of
promotions is permissible. It is to nullify the
effect of this dicta in the said judgment that
Clause 4A was inserted in Article 16 by
Constitution's Seventy-Seventh Amendment with
effect from 17-06-1995. However, it is also a
matter of record that in Indra Sawhney's case
(supra), this Court had also clarified that
rank in the said grade, namely, from Scale-I to

Scale-II, Scale-II to Scale-III and so on.
26) While considering this question, we have to
keep in mind that reservation policy of the Central
Government is applicable to the appellant Banks. It is
the common case of both the parties. In fact, as
already noted above, there is a specific provision
to this effect in the promotion policies framed by
the appellant Banks.
27) Next thing which is to be kept in mind is the
two office memoranda, one dated 1.11.1990 and
the other dated 13.8.1997, which are referred to
by the counsel for the parties. We have already
reproduced the aforesaid two office memoranda.
Insofar as, Office Memorandum dated 1.11.1990
is concerned, a bare reading of this provision
would reflect the following two aspects:
(a) In promotion by selection within Class-I
(Group-A) post, the SC/ST candidates are to
be given 'concession'.
(b) This concession is available to those SC/ST
employees who are senior enough in the
zone of consideration for promotion so as to
be within the number of vacancies for which
select list has to be drawn up.
Thus, first requirement is that such SC/ST
candidates who come within the zone of
consideration for promotion are senior enough
to be within the number of vacancies. Once
they come within the aforesaid zone of
consideration, they have to be included in the
list, provided they are not considered unfit for
promotion. It clearly follows from the above
that once they come under the zone of
the number of vacancies for which select list
has to be drawn up, for such SC/ST employees
the only embargo to deprive them of
promotion is when they are found unfit for
promotion. For other officers in general
category, depending upon the rule of
promotion, there may be much stricter criteria
based on comparative merit or selection by
merit, etc. However, in case of such senior
enough SC/ST candidates, the criteria appears
to be seniority, subject to fitness.
40
ISC-13
reservation. On a conjoint reading of these two

Office Memorandums, in the absence of any
other provision or Rule evidencing such a
reservation in the matter of promotions, it cannot
reservation for SC/STs in promotion would

continue for a period of five years from
16-11-1992. What it meant was that if there is a
provision of reservation made in the matter of
promotions, notwithstanding the dicta in the said
case that such a reservation is not permissible,
those provisions were allowed to continue for a
period of five years from 16-11-1992. Thereafter,
before the expiry of five years, constitutional
provision was incorporated in the form of Clause
4A by making provision for reservation in the
matter of promotions as well. These facts are
taken note of in first two paras of Office
Memorandum dated 13-08-1997. Thereafter, in
the 3rd para of the said Memorandum, it is
provided:
be said that there was reservation in promotion within

Group-A posts upto the ultimate salary of 5,700/- per
month. The High Court in the impugned judgment has
gone by the lofty ideals enshrined in Articles 15 and 16
of the Constitution as well as the fact that in these Banks
there is no adequate representation of SC/ST category
of officers in Group-IV and above. That may be so. It
can only provide justification for making a

provision of this nature. However, in the absence of
such a provision, same cannot be read by overstretching
the language of Office Memorandum dated 13-08-1997.
It is for the State to take stock of the ground

realities and take a decision as to whether it is
necessary to make provision for reservation in
promotions to the aforesaid post as well.
33) Having said so, one other aspect which has to
be necessarily addressed to at this stage calls for
our attention. This aspect, which we are going to
point out now, has been totally glossed over by
the learned Single Judge as well as the Division
Bench of the High Court in their respective
judgments.
34) It is provided in Office Memorandum dated
01-11-1970, and we have repeatedly stated above,
that there is no reservation in promotion by
selection within only those Group-A posts which
carry an ultimate salary of 5,700/- per month.
In such cases, it is only concession that applies.
We have accepted the contention of the appellant
Banks in this behalf, as per the discussion
contained hereinabove. Significantly, what
follows is that reservation is provided in
promotion by selection qua those posts which
carry an ultimate salary of less than 5,700/- per
month (pre-revised).
35) The Department of Public Enterprises had
issued an Office Memorandum dated 08-11-2004
as to the salary limit of 5,700/- mentioned for
the purposes of reservation as 18,300/- (5th
Central Pay Commission) and in the case of Public
Sector Undertakings who are following Industrial
3. In pursuance of Article 16(4A), it has been

decided to continue the Reservation in promotion
as at present, for the Scheduled Castes and the
Scheduled Tribes in the services/posts under the
Central Government beyond 15.11.1997 till such
time as the representation of each of the above
two categories in each cadre reaches the
prescribed percentages of reservation whereafter,
the reservation in promotion shall continue to
maintain the representation to the extent of the
prescribed percentages for the respective
categories.
31) What is decided is to continue the reservation in

promotion, which was prevalent at that time, for the
SC/ST employees, which was to continue in terms
of the judgment of this Court in Indra Sawhney
(supra) till 15-11-1997, even beyond 15-11-1997,
till such time as the representation of each of the
above two categories in each cadre reaches the
prescribed percentages of reservation whereof. It
is, thus, crystal clear from a bare reading of this
para that the existing provision relating to
reservation in promotion was allowed to continue
beyond 15-11-1997. Thus, this Memorandum did
not make any new provision for reservation in
promotion in favour of SC/ST employees.
32) We have already noticed above that in

matters of promotion within Group-A posts,
which carry an ultimate salary of 5,700/- per
month, there was no provision for any
41
ISC-14
Dearness Allowance (IDA) pattern, the monetary

ceiling was fixed as 20,800/- (from 01-01-1996,
i.e. 5th Central Pay Commission). The said pay
ceiling is achieved in the appellant Banks only
when an officer reaches Scale-VII. As a fortiori,
the policy of no reservation in the matter of
promotion is applicable only from Scale-VII and
above. It, therefore, clearly follows that insofar as
AN APPEAL
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promotion from Scale-I to Scale-II, Scale-II to Scale-III,

Scale-III to Scale-IV, Scale-IV to Scale-V, Scale-V to
Scale-VI are concerned, reservation is to be provided.
The appellant Banks, therefore, cannot take umbrage
under the aforesaid Memorandum and deny reservation
in favour of SC/ST employees while carrying out
promotions up to to Scale-VI.
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36) Upshot of the aforesaid discussion would be

to allow these appeals partly. While setting aside
the impugned judgment of the High Court to the
extent it holds that Office Memorandum dated
13-08-1997 makes a provision for reservation, it
is clarified that at present there is no provision for
reservation in promotion by selection only in
respect of those posts which carry an ultimate
salary of 5,700/- per month (revised to
18,300/- by 5th Central Pay Commission and
20,800/- per month in respect of those Public
Sector Undertakings following IDA pattern). Qua
appellant Banks, that would be in respect of
Scale-VII and above. Therefore, to carry out
promotions from Scale-I upwards up to Scale-VI,
reservation in promotion in favour of SC/ST
employees has to be given. It would have the
effect of allowing the writ petitions filed by the
respondents/unions partly with directions to the
appellant Banks to make provision for
reservations while carrying out promotions from
Scale-I to Scale-II and upward up to Scale-VI.
37) In view of the above, Contempt Petition
(Civil) No. 320 of 2010 is disposed of with
directions to the appellant Banks to carry out the
promotions by adopting the procedure mentioned
in this judgment.
38) In the peculiar facts of this case, we leave the
parties to bear their own costs.
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42
(2015) 1 LAW
Sunil Bharti Mittal v. Central Bureau of Investigation [IND-SC]
The said order issuing summons was appealed against

on the ground that (1) the said persons cannot be
deemed as alter ego of the said companies which is
the reverse of the existing alter ego principle; and
(2) vicarious liability does not attach to a person in
criminal proceedings unless there be a specific
statutory provision to that extent. The Court opined
that the principle which is laid down is to the effect
that the criminal intent of the alter ego of the
company, that is the personal group of persons that
guide the business of the company, would be imputed
to the company/corporation. The legal proposition laid
down is that if the person or group of persons who
control the affairs of the company commit an offence
with a criminal intent, their criminality can be
imputed to the company as well as they are alter ego
of the company. In the present case, however, this
principle is applied in an exactly reverse scenario.
Here, company is the accused person and the learned
Special Magistrate has observed in the impugned
order that since the appellants represent the directing
mind and will of each company, their state of mind is
the state of mind of the company and, therefore, on
this premise, acts of the company is attributed and
imputed to the appellants. It is difficult to accept it as
the correct principle of law. this proposition would
run contrary to the principle of vicarious liability
detailing the circumstances under which a director of
- Paras 35-36, p. ISC-31.
a company can be held liable.
(2015) 1 LAW ISC-15
SUPREME COURT OF INDIA

AT NEW DELHI
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 34 of 2015
(arising out of Special Leave Petition (Crl.) No. 2961 of 2013)
Date of Judgment: Friday, 9 January 2015

SUNIL BHARTI MITTAL
Appellant(s)
Central Bureau of Investigation
Respondent(s).
Versus
WITH
CRIMINAL APPEAL NO. 35 OF 2015
(arising out of Special Leave Petition (Crl.) No. 3161 of 2013)
AND
CRIMINAL APPEAL NOS. 36-37 OF 2015
(arising out of Special Leave Petition (Crl.) No. 3326-3327 of 2013)
Citation: (2015) 1 LAW ISC-15
CORAM:
H.L. DATTU, CJI.

MADAN B. LOKUR, J.
A.K. SIKRI, J.
***
Head Notes:
CRIMINAL LAW Principle of vicarious liability whether

applies in criminal law proceedings held that minus
specific statutory provision to that extent vicarious liability
does not lie on corporate personnel No doubt, a
CRIMINAL LAW Principle of vicarious liability whether

applies in criminal law proceedings whether responsible
top officers of the company can be considered alter ego of
the companies accused the position in the instant case
discussed In the instant case, subsequent to the
corporate entity is an artificial person which acts

through its officers, directors, managing director,
chairman etc. If such a company commits an offence
involving mens rea, it would normally be the intent
and action of that individual who would act on behalf
of the company. It would be more so, when the
criminal act is that of conspiracy. However, at the
same time, it is the cardinal principle of criminal
jurisprudence that there is no vicarious liability unless
the statute specifically provides so. Thus, an
individual who has perpetrated the commission of an
offence on behalf of a company can be made accused,
along with the company, if there is sufficient evidence
of his active role coupled with criminal intent. Second
situation in which he can be implicated is in those
cases where the statutory regime itself attracts the
doctrine of vicarious liability, by specifically
Supreme Court directives in the 2G Spectrum Scam

case, a case was registered by the CBI against three
companies and a public servant and the accused
together with charge sheet and other records produced
before the Special Judge who took cognizance of the
case but in the specific circumstances of the case also
added the Chairman and Managing Directors of
respective companies in person observing that they
are the human agencies through which the companies
committed this fraud and also in their responsible
position are alter egos of the said companies, and
issued summons for them to appear before the Court.
ISC-15
Courtesy: Supreme Court of India at http://judis.nic.in/;

emphases in bold ours - IMS.
43
ISC-16
incorporating such a provision. When the company is

the offender, vicarious liability of the Directors cannot
be imputed automatically, in the absence of any
statutory provision to this effect. - Paras 37-39, pp. ISC-31.
sheet can be summoned at the stage of taking

cognizance under Section 190 of the Code. There is
no question of applicability of Section 319 of the
Code at this stage. It is also trite that even if a person
is not named as an accused by the police in the final
report submitted, the Court would be justified in
taking cognizance of the offence and to summon the
accused if it feels that the evidence and material
collected during investigation justifies prosecution of
the accused. Thus, the Magistrate is empowered to
issue process against some other person, who has not
been charge-sheeted, but there has to be sufficient
material in the police report showing his involvement.
In that case, the Magistrate is empowered to ignore
the conclusion arrived at by the investigating officer
and apply his mind independently on the facts
emerging from the investigation and take cognizance
of the case. At the same time, it is not permissible at
this stage to consider any material other than that
collected by the investigating officer. On the other
hand, S 204 of the Code deals with the issue of
process, if in the opinion of the Magistrate taking
cognizance of an offence, there is sufficient ground
for proceeding. This Section relates to commencement
of a criminal proceeding. If the Magistrate taking
cognizance of a case, upon a consideration of the
materials before him, thinks that there is a prima facie
case for proceeding in respect of an offence, he shall
issue process against the accused. A wide discretion
has been given as to grant or refusal of process and it
must be judicially exercised. A person ought not to be
dragged into Court merely because a complaint has
been filed. If a prima facie case has been made out,
the Magistrate ought to issue process and it cannot be
refused merely because he thinks that it is unlikely to
result in a conviction. the words sufficient grounds
for proceeding appearing in the Section are of
immense importance - these words amply suggest
that an opinion is to be formed only after due
application of mind that there is sufficient basis for
proceeding against the said accused and formation of
such an opinion is to be stated in the order itself. The
order is liable to be set aside if no reason is given
therein while coming to the conclusion that there is
prima facie case against accused, though the order
need not contain detailed reasons. A fortiori, the order
would be bad in law if the reason given turns out to be
- Paras 42-47, pp. ISC-34/36.
ex facie incorrect.
CRIMINAL LAW Magistrate powers under the criminal

procedure code to take cognizance, add new persons even
not mentioned in the charge sheet and issue process
Sections 190, 200-203 and 319 of the Code held it is
within the powers of the Magistrate but subject to proper
application of mind and on the basis of minimum evidence
in the material on record and such adding new accused has
to be a reasoned order in the specific circumstances of a
case The expression taking cognizance has not
been defined in the Code. However, when the

Magistrate applies his mind for proceeding under
Sections 200-203 of the Code, he is said to have taken
cognizance of an offence. This legal position is
explained by this Court earlier: the word
(cognizance) is of indefinite import. It merely means
become aware of: and when used with reference to a
court or a Judge, it connoted to take notice of
judicially. It indicates the point when a court or a
Magistrate takes judicial notice of an offence with a
view to initiating proceedings in respect of such
offence said to have been committed by someone.
Taking Cognizance does not involve any formal
action of any kind. It occurs as soon as a Magistrate
applies his mind to the suspected commission of an
offence.... Sine Qua Non for taking cognizance of the
offence is the application of mind by the Magistrate
and his satisfaction that the allegations, if proved,
would constitute an offence. It is, therefore,
imperative that on a complaint or on a police report,
the Magistrate is bound to consider the question as to
whether the same discloses commission of an offence
and is required to form such an opinion in this respect.
When he does so and decides to issue process, he shall
be said to have taken cognizance. At the stage of
taking cognizance, the only consideration before the
Court remains to consider judiciously whether the
material on which the prosecution proposes to
prosecute the accused brings out a prima facie case or
not. Cognizance of an offence and prosecution of an
offender are two different things. Section 190 of the
Code empowered taking cognizance of an offence and
not to deal with offenders. Therefore, cognizance can
be taken even if offender is not known or named when
the complaint is filed or FIR registered. Their names
may transpire during investigation or afterwards.
Person who has not joined as accused in the chargeLaw Animated World, 15 January 2015
(2015) 1 LAW
***
44
(2015) 1 LAW
ISC-17
the Central Vigilance Commission, which was

forwarded to the Director, CBI vide letter dated
12.10.2009 and the report of the CAG, who have
prima facie found serious irregularities in the
grant of licences to 122 applicants, majority of
whom are said to be ineligible, the blatant
violation of the terms and conditions of licences
and huge loss to the public exchequer running
into several thousand crores. The CBI should
also probe how licences were granted to large
number of ineligible applicants and who was
responsible for the same and why the TRAI and
the DoT did not take action against those
licensees who sold their stakes/equities for many
thousand crores and also against those who failed
to fulfill roll out obligations and comply with
other conditions of licence.
b. The CBI shall, if it has already not registered
first information report in the context of the
alleged irregularities committed in the grant of
licences from 2001 to 2006-2007, now register a
case and conduct thorough investigation with
particular emphasis on the loss caused to the
public exchequer and corresponding gain to the
licensees/service providers and also on the issue
of allowing use of dual/alternate technology by
some service providers even before the decision
was made public vide press release dated
19.10.2007.
JUDGMENT
A.K. SIKRI, J.
1. Leave granted.
Introduction:
2. In the year 2008, during the tenure of the then
Minister of Telecommunications, Unified Access
Services Licenses (UASL) were granted. After
sometime, an information was disclosed to the
Central Bureau of Investigation (CBI) alleging
various forms of irregularities committed in
connection with the grant of the said UASL
which resulted in huge losses to the public
exchequer. On the basis of such source
information, the CBI registered a case bearing RC
DAI 2009 A 0045 on 21st October, 2009. It is
now widely known as 2G Spectrum Scam Case. The
case was registered against unknown officers of
the Department of Telecommunications (DOT) as
well as unknown private persons and companies.
3. While the investigation into the said case was
still on, a writ petition was filed by an NGO
known as Center for Public Interest Litigation
(CPIL) before the High Court of Delhi seeking
directions for a Court monitored investigation.
Apprehension of the petitioner was that without
such a monitoring by the Court, there may not be
a fair and impartial investigation. Delhi High
Court dismissed the petition.
4. Challenging the order of the Delhi High Court,
CPIL filed Special Leave Petition before this
Court under Article 136 of the Constitution of
India. At that time, another petitioner, Dr.
Subramanian Swamy, directly approached the
Supreme Court by way of a writ petition under
Article 32 of the Constitution of India seeking
almost the same reliefs on similar kinds of
allegations. Leave was granted in the said SLP,
converting it into a civil appeal. Said civil appeal
and writ petition were taken up together for
analogous hearing. On 16th December, 2010, a
detailed interim order was passed in the civil
appeal inter alia giving the following directions:
5. Thereafter, detailed judgment was passed by

the Bench of this Court in the aforesaid
proceedings on 2nd February, 2012 which is
reported as Centre for Public Interest Litigation &
1
Ors. v. Union of India & Ors. The Court allowed
the appeal as well as the writ petition, holding
that spectrum licences were illegally granted to
the beneficiaries at the cost of the nation. The
Court accordingly cancelled the licences granted
to the private respondents on or after 10.01.2008
and issued certain directions for grant of fresh
licences and allocation of spectrum in 2G Band.
It was also specifically clarified that the
observations in the said judgment would not, in
any manner, affect the pending investigation by
the CBI, Directorate of Enforcement and other
agencies or cause prejudice to those who are
a. The CBI shall conduct thorough investigation

into various issues highlighted in the report of
45
(2012) 3 SCC 1 = (2012) 1 LAW ISC-57

ISC-18
facing prosecution in the cases registered by the

CBI or who may face prosecution on the basis of
charge-sheet(s) which may be filed by the CBI in
future. The Court also made it clear that the
Special Judge, CBI would decide the matter
uninfluenced by the judgment dated February 02,
2012. Thereafter, order dated 11.04.2011 was
passed in that very appeal, making its intention
manifest that this Court would be monitoring the
investigation by CBI in larger public interest.
Special Court was set up for trial of the 2G case
and a Senior Advocate was nominated as the
Special Public Prosecutor by the Court itself, who
also agreed with his appointment in that capacity.
The Court also made it clear that no other Court
would stay or impede trial conducted by the
Special Court and the aggrieved person could
approach this Court for any grievance. In the
present proceedings, we are not concerned with
the subject matter of the said trial. However, the
aforesaid narrative became necessary to point out
that present proceedings triggered as a result of
order dated 16.12.2010 vide which the Court
directed CBI to register a case and conduct the
inquiry in connection with alleged irregularities
in grant of licences from 2001 to 2006-2007 as
well. Further, as would be noticed later, the
investigation pertaining to this period also is
being monitored by the Supreme Court and the
learned counsel for all the parties were at ad idem
that challenge to the impugned order is to be
entertained by this Court only under Article 136
of the Constitution, though while entertaining
these appeals, the Court would bear in mind the
parameters of Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to
as the Code).
Mr. Shyamal Ghosh, the then Secretary

(Telecom), Mr. J.R. Gupta, the then Deputy
Director General (VAS) and three Cellular
Companies viz. M/s Bharti Cellular Limited, M/s
Hutchison Max Telecom (P) Limited and M/s
Sterling Cellular Limited. After registering the
said RC, the CBI started investigation into the
allegations contained therein. As already pointed
out above, since the matter was being monitored
by this Court, progress reports of investigation
were filed from time to time in sealed envelopes.
On 29th November, 2012, after perusing certain
documents presented in a sealed cover, this Court
directed the CBI to take action in accordance with
the views expressed by it on the issue of
prosecution of public servants and the companies
in connection with the said case. The precise
nature of this order can be seen from the actual
language thereof which is reproduced hereunder:
At the commencement of hearing in connection
with CBI Case No. RC DAI 2011 A 0024, Shri
K.K. Venugopal, learned senior counsel
appearing for the Central Bureau of Investigation
placed before the Court a sealed envelope, which
was opened in the Court.
We have perused the papers contained in the
sealed envelope and are of the view that the CBI
shall take action in accordance with the views
expressed by the Director, CBI on the issue of
prosecution of public servants and the companies
in connection with the said case.
The report produced by Shri Venugopal shall be
put in sealed cover and handed over to the
counsel instructing Shri Venugopal. The needful
has been done.
List the case on 05.12.2012.
To be taken up at 3.30 P.M.
7. On completion of the investigation, chargesheet was filed by the CBI in the Court of Shri
O.P. Saini, the learned Special Judge, on 21st
December, 2012.
8. Before proceeding further, it would be prudent
to mention in brief the case set up by the CBI in
the charge-sheet to have the flavour of the
prosecution case. Though we are not much
concerned about the merits of the allegations in
The Instant Proceedings : Factual Narration
6. The CBI registered another RC being RC DAI

2011 A 0024 on 17th November, 2011 with regard
to alleged irregularities in grant of additional
spectrum in the year 2002 during the tenure of
late Shri Pramod Mahajan as Minister of
Communications. In this RC, apart from Shri
Pramod Mahajan, others who were named were
(2015) 1 LAW
46
(2015) 1 LAW
ISC-19
in service areas like Delhi and Mumbai for

another 24-30 months. The Committee also
recommended to levy incremental charges for
additional spectrum. However, on 31.01.2002, a
note was put up by Mr. J.R. Gupta mentioning
therein that a consensus had emerged after
discussion that additional spectrum to the extent
of 1.8 MHz (paired) beyond 6.2 MHz in 1800
MHz band might be released on case to case
coordination basis to the Operators by charging
additional 1% of revenue after customer base of
4-5 lacs was reached. On this note, Mr. Shyamal
Ghosh agreed to the reduced subscriber base from
9 lacs to 4/5 lacs for allocation of additional
spectrum and recommended to allocate additional
spectrum beyond 6.2 MHz up to 10 MHz by
charging only additional 1% of AGR. This note
was approved by the then Minister of
Communications and Information Technology on
the same day i.e. 31.01.2002 itself. It resulted in
issuance and circulation of General Order on
01.02.2002 to all Cellular Mobile Telecom
Service (CMTS) Operators. As per the allegations
in the FIR, the accused public servants entered
into a criminal conspiracy with the accused
beneficiary companies in taking the aforesaid
decision which caused undue cumulative
pecuniary advantage of Rs. 846.44 crores to the
beneficiary companies and corresponding loss to
the Government Exchequer, by charging an
additional 1% AGR only for allotting additional
spectrum from 6.2 MHz upto 10 MHz (paired)
instead of charging 2% AGR, as per the existing
norms.
10. Thus, the allegation, in nutshell, is for grant
of additional spectrum by lowering the condition
of 9 lacs subscribers to 4/5 lacs subscribers, by
only charging additional 1% AGR instead of
charging additional 2% AGR which has caused
losses to the Government Revenue. It is further
the case of the prosecution that this was the result
of conspiracy hatched between Mr. Shyamal
Ghosh and the then Minister as well as the
accused Cellular Operator Companies. The
decision was taken in haste on 31st January, 2002
itself inasmuch as note was prepared by Mr. J.R.
these proceedings, a brief account thereof will

facilitate in understanding the background
leading to the roping in of the appellants in these
proceedings. During monitoring of the
investigation of CBI Case No. RC-DAI-2009-A0045 (2G Spectrum Case), this Court vide its
order dated 16.12.2010 directed CBI to
investigate the irregularities committed in the
grant of licences from 2001 to 2007 with partial
emphasis on the loss caused to the public
exchequer and corresponding gain to the
Licensees/Service Providers. Accordingly, in
compliance to the said order, a Preliminary
Enquiry vide No. PE-DAI-2011-A-0001 was
registered on 04.01.2011 at CBI, ACB, New
Delhi. During inquiry of the said PE, it was learnt
from reliable sources that vide a decision dated
31.01.2002 of the then MoC&IT, on the
recommendation of certain DoT officers, the
allocation of additional spectrum beyond 6.2
MHz upto 10 MHz (paired) was approved
wherein only 1% additional revenue share was
charged thereby causing revenue loss to
Government exchequer.
9. As pointed above, on the basis of the outcome
of the aforesaid inquiry, a regular case was
registered on 17.11.2011 for the offences
punishable under Sections 120-B IPC r/w 13 (2)
and 13 (1)(d) of the Prevention of Corruption
Act, 1988 (for short, 'PC Act'). It was against Mr.
Shyamal Ghosh, Mr. J.R. Gupta and the three
Cellular Companies, names whereof have already
been mentioned above. The main allegation is
that additional spectrum beyond 6.2 MHz up to
10 MHz (paired) was approved at an additional
revenue share at the rate of 1% only, meaning
thereby the said additional revenue should have
been at a higher rate. As per the investigation,
Cellular Operators Association of India (COAI)
had made a request to DoT, in the year 2001, for
allocating additional spectrum particularly in
Delhi and Mumbai service areas. On this,
Technical Committee was constituted which gave
its report on 21.11.2001 recommending therein
that 6.2 MHz spectrum was sufficient for a
subscriber based out of about 9 lacs per operator
47
ISC-20
Gupta on that day which was agreed to by Mr.

Shyamal Ghosh and thereafter approved by the
Minister on the same day. On that basis, circular
was issued on the very next day i.e. on
01.02.2002. As per the charge-sheet, investigation
could be attributed and imputed to them. On this
premise, the Special Judge felt that there was

enough material on record to proceed against
these three persons as well. Thus, while taking
cognizance of the case, he decided to issue
summons not only to the four accused named in
the charge-sheet but the aforesaid three persons
as well.
13. Two of the aforesaid three persons are before
us in these appeals. Feeling aggrieved, they have
challenged the order insofar as it proceeds to
implicate them as accused persons in the said
charge-sheet.
14. Before proceeding to record the submissions
of the learned counsel for the appellants as well
as the counsel opposite, it becomes necessary to
take note of the brief order dated 19th March,
2013, as this order was read and re-read time and
again by each counsel with an attempt to give
their own interpretation to the same. Therefore,
we deem it apposite to reproduce the said order in
its entirety as it would facilitate understanding the
arguments of counsel on either side, with more
clarity. The impugned order dated 19th March,
2003 reads as under:
has also revealed that all this was done in haste to help
M/s Bharti Cellular Limited which had come out with
Initial Public Offer (IPO) that was opened and it was
not getting good response from the public as it had
remained under-subscribed. The moment such a
decision of allocating additional spectrum was taken on
31.01.2002, on the very next day, the issue got oversubscribed.
(emphasis ours)
11. It would be pertinent to mention that in the

charge-sheet filed, Mr. J.R. Gupta was not made
accused as no material of any conspiracy or being
a part of decision is attributed to him. In this
charge-sheet, CBI named Mr. Shyamal Ghosh
and the aforesaid three companies namely M/s
Bharti Cellular Limited, M/s Hutchison Max
Telecom (P) Limited and M/s Sterling Cellular
Limited as the accused persons in respect of
offences under Section 13(2) read with 13(1)(d)
of the PC Act and allied offences.
The Impugned Order
12. The matter was taken up by the Special Judge

on 19th March, 2013 for the purposes of issuance
of summons to the accused persons in the said
charge-sheet (CC No.101/12). The learned
Special Judge passed orders dated 19th March,
2013 recording his satisfaction to the effect that
there was enough incriminating material on
record to proceed against the accused persons. At
the same time, the learned Special Judge also
found that Mr. Sunil Bharti Mittal was Chairmancum-Managing Director of Bharti Cellular
Limited, Mr. Asim Ghosh was Managing
Director of Hutchison Max Telecom (P) Limited
and Mr. Ravi Ruia was a Director in Sterling
Cellular Limited, who used to chair the meetings
of its Board. According to him, in that capacity,
these persons, prima facie, could be treated as
controlling the affairs of the respective companies
and represent the directing mind and will of each
company. They were, thus, alter ego of their
I have heard the arguments at the bar and have

carefully gone through the file and relevant case
law.
2. It is submitted by the learned PP that accused
Shyamal Ghosh was a public servant, who has
since retired. It is further submitted that
remaining three accused are companies, namely
M/s Bharti Cellular Limited, M/s Hutchison Max
Telecom (P) Limited and M/s Sterling Cellular
Limited. It is further submitted that there is
enough incriminating material on record against
the accused persons and, as such, they may be
proceeded against, as per law.
3. I have carefully gone through the copy of FIR,
charge-sheet, statement of witnesses and
documents on record. On the perusal of the
record, I am satisfied that there is enough
incriminating material on record to proceed
against the accused persons.
4. I also find at the relevant time, Sh. Sunil
Bharti Mittal was Chairman-cum-Managing
Director of Bharti Cellular Limited, Sh. Asim
respective companies and the acts of the companies

(2015) 1 LAW
48
(2015) 1 LAW
Ghosh was Managing Director of Hutchison Max

Telecom (P) Limited and Sh. Ravi Ruia was a
Director in Sterling Cellular Limited, who used
to chair the meetings of its board. In that
capacity, they were/are, prima facie, in control of
affairs of the respective companies. As such,
they represent the directing mind and will of
each company and their state of mind is the state
of mind of the companies. They are/were alter
ego of their respective companies. In this fact
situation, the acts of the companies are to be
attributed and imputed to them. Consequently,
I find enough material on record to proceed
against them also.
5. Accordingly, I take cognizance of the case.
Issue summons to all seven accused for
11.04.2013.
ISC-21
impugned order was in two parts. Paras 1 to 3

pertain to the charge-sheet which was filed by the
CBI naming four accused persons namely,
Mr. Shyamal Ghosh and the three Cellular
Companies. This fact is noted in para 2. He
pointed out that in respect of these four accused
persons named in the charge-sheet, after going
through the copy of the FIR, charge-sheet,
statement of witnesses and documents on record,
the learned Judge was satisfied that there was
enough incriminating material on record to
proceed against them. However, in the second
part of the order, which was contained in para 4,
the Court also found that the three persons
(including the two appellants) were, prima facie,
controlling the affairs of the said three companies
and, therefore, they represented the directing
mind and will of each company. On that basis,
these three persons are treated as alter ego of
their respective companies and in the opinion of
the learned Special Judge, the acts of the
companies are to be attributed and imputed to
them. That was the reason given by the Special
Judge finding enough material to proceed against
them also which resulted in issuing of summons
against these three persons including the
appellant.
18. The neat submission of Mr. Salve was that the
aforesaid reason given by the learned Special
Judge was clearly erroneous in law. Expanding
this argument, he submitted that principle of
alter ego has always been applied in reverse,
inasmuch as general principle is that the acts of
individual, who is in control of the affairs of a
company and is a directing mind, are attributed to
the company, inasmuch as whenever such a
person, who is controlling the affairs of the
company, is made an accused, on the application
of the principle of alter ego, the company can
also be implicated as accused person. It is on the
well recognized principle that company does not
act of its own but through its Directors/Officers
and when such Directors/Officers act on behalf of
the company, the company is also held liable for
those acts on the application of principal
agent principle. He submitted that it has never
15. It will also be pertinent to mention that the

appellants were not implicated as accused persons
in the charge-sheet. As discussed in some details
at the appropriate stage, Mr. Mittal was
interrogated but in the opinion of CBI, no case
was made out against him. Mr. Ravi Ruia was not
even summoned during investigation.
The Arguments : Appellants
16. M/s Harish Salve and Fali Nariman, learned

senior counsel, argued the case on behalf of the
appellant Sunil Bharti Mittal in an attempt to take
him out of the clutches of the impugned order.
Mr. K.V. Viswanathan, learned senior counsel,
led the attack to the said order on behalf of the
appellant Ravi Ruia. Their onslaught was tried to
be blunted by Mr. K.K. Venugopal, learned
senior counsel appearing for the CBI. Challenge
of the appellants was also sought to be thwarted
by Mr. Prashant Bhushan, learned counsel
appearing for CPIL, and Mr. Sunil Malhotra,
counsel who argued on behalf of Telecom
Watchdog, which has filed the appeal arising out
of SLP (Crl.) Nos. 3326-3327/2013 challenging
another order of the even date namely 19th March,
2013 passed by the Special Judge whereby
protest application filed by this appellant has
been dismissed.
17. Leading the attack from the front, Mr. Harish
Salve opened his submission by arguing that the
49
ISC-22
29. In this regard, it would be useful to advert to

the observations made by a three-Judge Bench of
this Court in S.M.S. Pharmaceuticals (2005)8
SCC 89 (SCC p. 98, para 8):
been a case where for the act of the company, an

individual is made accused, unless there is a
categorical provision in the statute making such a
person vicariously liable or there is enough
material to attribute the alleged acts of criminality
to the said person. For his aforesaid submissions,
he placed heavy reliance upon the decision of this
Court in Iridium India Telecom Ltd. v. Motorola
2
Inc. He further submitted that merely on the
basis of the appellant's status in the company, it
could not be presumed that it is the appellant who
became a party to the alleged conspiracy, as was
held in Maharashtra State Electricity Distribution
3
Co. Ltd. v. Datar Switchgear Ltd. in the following
manner:
27. A bare perusal of the complaint shows
that the gravamen of the allegation is that a
fabricated document containing the offending
endorsement was tendered in evidence before
the Arbitral Tribunal on behalf of MSEB by
Accused 6, who was in charge of Shirpur
Section. It is evident from the afore extracted
paragraphs of the complaint that other accused
have been named in the complaint because,
according to the complainant, MSEB, Accused
1 was acting under their control and
management. It bears repetition that the only
averment made against Appellant 2 is that
Appellant 1 i.e. MSEB was acting under the
control and management of Appellant 2 along
with other three accused. There is no denying
the fact that Appellant 2 happened to be the
Chairman of MSEB at the relevant time but it
is a settled proposition of law that one cannot
draw a presumption that a Chairman of a
company is responsible for all acts committed
by or on behalf of the company. In the entire
body of the complaint there is no allegation
that Appellant 2 had personally participated in
the arbitration proceedings or was monitoring
them in his capacity as the Chairman of MSEB
and it was at his instance that the subject
interpolation was made in Ext. C-64.
8. There is no universal rule that a

Director of a company is in charge of its
everyday affairs. We have discussed about the
position of a Director in a company in order
to illustrate the point that there is no magic as
such in a particular word, be it Director,
manager or secretary. It all depends upon the
respective roles assigned to the officers in a
company. A company may have managers or
secretaries for different departments, which
means, it may have more than one manager or
secretary.
Mr. Salve also referred to the following

observations in S.K. Alagh v. State of U.P.4:
12. The short question which arises for
consideration is as to whether the complaint
petition, even if given face value and taken to be
correct in its entirety, disclosed an offence as
against the appellant under Section 406 of the
Penal Code.
.
19. As, admittedly, drafts were drawn in the
name of the Company, even if the appellant was
its Managing Director, he cannot be said to have
committed an offence under Section 406 of the
Penal Code. If and when a statute contemplates
creation of such a legal fiction, it provides
specifically therefor. In absence of any provision
laid down under the statute, a Director of a
Company or an employee cannot be held to be
vicariously liable for any offence committed by
the Company itself. (See Sabitha Ramamurthy v.
R.B.S. Channabasavaradhya, (2006) 10 SCC 581.)
Reliance was also placed on the decision in the

case of Aneeta Hada v. Godfather Travels & Tours
5
(P) Ltd. , with
particular emphasis on the
following passage:
32. We have referred to the aforesaid authorities
to highlight that the company can have criminal
liability and further, if a group of persons that
2
3
(2011) 1 SCC 74
(2010) 10 SCC 479
(2015) 1 LAW
50
(2008) 5 SCC 662

(2012) 5 SCC 661
(2015) 1 LAW
guide the business of the companies have the

criminal intent, that would be imputed to the
body corporate. In this backdrop, Section 141 of
the Act has to be understood. The said provision
clearly stipulates that when a person which is a
company commits an offence, then certain
categories of persons in charge as well as the
company would be deemed to be liable for the
offences under Section 138. Thus, the statutory
intendment is absolutely plain. As is perceptible,
the provision makes the functionaries and the
companies to be liable and that is by deeming
fiction. A deeming fiction has its own
signification.
ISC-23
for interrogation by the CBI which would show

that there is no material against him at all. His
name is not even mentioned in the charge-sheet.
He painstakingly pleaded that in the absence of
any material reflected even in the charge-sheet,
this appellant would be handicapped in making
any submission for his discharge at the stage of
framing charges. As the appellant was implicated
involving the principle of vicarious liability,
which is not applicable and erroneously referred
to, he had no option but to file the present appeal
for quashing of the notice of cognizance against
him. Mr. Viswanathan in support of his
submission referred certain judgments, which we
shall discuss at the appropriate stage.
19. In addition to the above, another submission

of Mr. Salve was that in the present case, role of
the appellant was specifically looked into and
investigated by the CBI and an opinion was
formed that there was no material to implicate
him. Since the appellant was consciously omitted
from the array of the accused persons after
thorough discussions and deliberations by the
investigating agency at the appropriate level, and
it was specifically so stated in the charge-sheet
itself, in a situation like this even if the learned
Judge wanted to differ from the investigating
agency and decided to take cognizance against
the appellant, he should have given valid reasons
for proceeding against the appellant which could
include his opinion that there was sufficient
material against the appellant to be proceeded
against. However, reasons given in the impugned
order, according to the learned senior counsel, are
totally extraneous amounting to wrong approach
in law.
20. His further submission was that even at a later
stage if any evidence surfaces against the
appellant, the Court is not powerless as any
person can be summoned as accused under
Section 319 of the Code at any stage of the trial.
21. Mr. Viswanathan who appeared for the
appellant Mr. Ravi Ruia, while adopting the
aforesaid arguments and reiterating them briefly,
tried to canvass another feature peculiar to in the
case of his client Mr. Ravi Ruia. The learned
counsel pointed out that he was not even called
The Arguments: Respondents
22. Mr. K. K. Venugopal, learned senior counsel

appearing for the CBI, refuted the aforesaid
submissions in strongest possible manner. He
referred to the various portions of the chargesheet where allegations against the accused
persons are stated and outcome of the
investigation revealed. His endeavour was to
demonstrate the manner in which the decision
was taken, resulting into huge loss to the
Government Exchequer and, prima facie, it was
established that such a decision was taken to help
the accused Telecom Companies. He argued that
once the companies are charged with mens rea
offences, they require guilty mind as these are not
strict liability offences. However, the companies
would act through their Directors/Officers only
and the mens rea/guilty mind would be of those
persons who are controlling the affairs of the
companies. He referred to the counter affidavit
filed by the CBI which, in summary form,
mentions the role of different persons including
the manner in which note was put up by Mr. J.R.
Gupta; the changes that were made by Mr.
Shyamal Ghosh to the said note allegedly to
benefit the companies; and the manner in which it
was approved by the Minister. This affidavit also
mentions that there is evidence on record to show
that the appellant Mr. Sunil Mittal had met late
Shri Pramod Mahajan during 2001-2002 for
51
ISC-24
competent court, according to the ordinary

procedure prescribed by law. Therefore, the
question which we have to decide in the present
case is whether the administrative hierarchy of
officers in CBI, in the present case, have
performed their duties in a proper and honest
manner.
getting allocated additional spectrum beyond 6.2

MHz for tele-service area of his company. There
was also evidence of meetings between the
appellant and Mr. Shyamal Ghosh for the same
purpose during the same period which would
constitute the circumstantial evidence to
implicate these persons. The thrust of his
2. Kishun Singh v. State of Bihar7
submission, thus, is that it is the human agency in the

accused companies who was responsible as it was a mens
rea offence and such an agency/person has to be the top
person, going by the circumstantial evidence.
13. The question then is whether de hors

Section 319 of the Code, can similar power be
traced to any other provision in the Code or can
such power be implied from the scheme of the
Code? We have already pointed out earlier the
two alternative modes in which the Criminal
Law can be set in motion; by the filing of
information with the police under Section 154 of
the Code or upon receipt of a complaint or
information by a Magistrate. The former would
lead to investigation by the police and may
culminate in a police report under Section 173 of
the Code on the basis whereof cognizance may
be taken by the Magistrate under Section
190(1)(b) of the Code. In the latter case, the
Magistrate may either order investigation by the
police under Section 156(3) of the Code or
himself hold an inquiry under Section 202 before
taking cognizance of the offence under Section
190(1)(a) or (c), as the case may be, read with
Section 204 of the Code. Once the Magistrate
takes cognizance of the offence he may proceed
to try the offender (except where the case is
transferred under Section 191) or commit him for
trial under Section 209 of the Code if the offence
is triable exclusively by a Court of Session. As
pointed out earlier cognizance is taken of the
offence and not the offender. This Court in
Therefore, even if in the charge-sheet, names of

these appellants were not included, the Special
Judge was within his powers to look into the
matter in its entirety as the charge-sheet along
with documents spanning over 25000 pages was
submitted to him.
23. Mr. Venugopal joined issue on the
interpretation given by the appellants to the
impugned order. According to him, the order
could not be bifurcated into two parts. Para 3 of
the order wherein the Special Judge has observed
that he had perused the FIR, charge-sheet,
statement of witnesses and documents on record
was relatable to the three individuals, including
the two appellants as well. He even submitted
that in the absence of individual accused persons,
who were in charge of the affairs of the three
accused companies, it may become difficult to
proceed against the accused companies alone as it
was a mens rea offence. He also relied upon the
following judgments to support the impugned
order, with the plea that the trial court was
invested with requisite powers to summon the
appellants:
1. M.C. Mehta (Taj Corridor scam) v. Union of India6
Raghubans Dubey v. State of Bihar (1967) 2 SCR 423

stated that once cognizance of an offence is taken it
becomes the Courts duty to find out who the offenders
really are and if the Court finds that apart from the
persons sent up by the police some other persons are
involved, it is its duty to proceed against those persons
by summoning them because the summoning of the
additional accused is part of the proceeding initiated by
its taking cognizance of an offence. Even after the
30. At the outset, we may state that this Court

has repeatedly emphasised in the above
judgments that in Supreme Court monitored cases this
Court is concerned with ensuring proper and honest
performance of its duty by CBI and that this Court is
not concerned with the merits of the accusations

in investigation, which are to be determined at
the trial on the filing of the charge-sheet in the
6
present Code came into force, the legal position

has not undergone a change; on the contrary the
7
(2007) 1 SCC 110
(2015) 1 LAW
52
(1993) 2 SCC 16
(2015) 1 LAW
ratio of Dubey case was affirmed in Hareram

Satpathy v. Tikaram Agarwala (1978) 4 SCC 58.
Thus far there is no difficulty.
Accused 3 (Appellant 1 herein); Yon Jung Yung,

Vice-President and Chief Executive Officer,
Samsung Corporation, was impleaded as
Accused 4 (Appellant 2 herein); Dong Kwon
Byon, ex-Managing Director, Samsung, Dubai,
was impleaded as Accused 5 (Appellant 4
herein); S.C. Baek, ex-Financial Advisor,
Samsung, Dubai, was impleaded as Accused 6;
Sky Impex Ltd. was impleaded as Accused 7;
and the Chairman of Sky Impex Ltd. was
impleaded as Accused 8.
..
21. In order to support the aforesaid primary
contention, it was also emphasised, that
Appellants 1 to 4 are all foreign citizens,
whereas, Appellant 5 is a foreign company
incorporated in Dubai. Appellant 1, we are told,
was Chairman and Director of Samsung, South
Korea. It is contended that he has had nothing to
do with Samsung, Dubai. We are informed that
he lives in South Korea. Appellant 2, we are
informed, was a former Vice-Chairman and CEO
of Samsung, South Korea. He also has had
nothing to do with Samsung, Dubai. He too lives
in South Korea.
..
3. Dharam Pal v. State of Haryana8

40. In that view of the matter, we have no
hesitation in agreeing with the views expressed
in Kishun Singh case (1993) 2 SCC 16 that the
Sessions Court has jurisdiction on committal of a case to
it, to take cognizance of the offences of the persons not
named as offenders but whose complicity in the case
would be evident from the materials available on record.
Hence, even without recording evidence, upon

committal under Section 209, the Sessions Judge
may summon those persons shown in column 2
of the police report to stand trial along with those
already named therein.
41. We are also unable to accept Mr Dave's
submission that the Sessions Court would have
no alternative, but to wait till the stage under
Section 319 CrPC was reached, before
proceeding against the persons against whom a
prima facie case was made out from the
materials contained in the case papers sent by the
learned Magistrate while committing the case to
the Court of Session.
24. He also referred to the decision in the case of
54. The fourth contention advanced at the hands

of the learned counsel for the appellants was
aimed at demonstrating; firstly, that the charges,
as have been depicted in the summoning order,
were not made out; secondly, that the appellants
herein were functionaries of a company, and
therefore, per se could not be made vicariously
liable for offences emerging out of actions
allegedly taken in furtherance of the discharge of
their responsibilities towards the company; and
thirdly, that none of the appellants had any
concern whatsoever (even as functionaries of the
company concerned), with the allegations
levelled by the complainant.
.
Lee Kun Hee, President, Samsung Corpn., South

9
Korea v. State of Uttar Pradesh wherein this Court
has set down the limits of High Court's power

under Section 482 of the Code to interfere with
summoning orders passed by the trial court, as
follows:
10. JCE Consultancy filed a criminal complaint
(Complaint No. 30 of 2005) under Sections 403,
405, 415, 418, 420 and 423 read with Sections
120-B and 34 of the Penal Code, 1860 before the
VIIth Additional Chief Judicial Magistrate,
Ghaziabad. In the complaint filed by Shaikh
Allauddin Pakir Maiddin, the sole proprietor of
JCE Consultancy, Samsung, Dubai, was
impleaded as Accused 1 (Appellant 5 herein);
Byung Woo Lee, Managing Director of
Samsung, Dubai, was impleaded as Accused 2
(Appellant 3 herein); Lee Kun Hee, President,
Samsung Corporation, was impleaded as
8
9
ISC-25
57. In paras 24 to 30, this Court in Iridium India

Telecom Ltd. case (2011) 1 SCC 74 noticed the
facts pertaining to the controversy, and the
emerging legal technicalities canvassed at the
hands of the appellants. In paras 31 to 37, this
Court recorded the response thereto, at the behest
of the accused. Thereupon, this Court in Iridium
India Telecom Ltd. case made the following
(2014) 3 SCC 306

(2012) 3 SCC 132
53
ISC-26
observations in para 38: (SCC p. 89) 38. We

have considered the submissions made by the
learned Senior Counsel. A bare perusal of the
submissions would be sufficient to amply
demonstrate that this cannot be said to be an
open and shut case for either of the parties.
There is much to be said on both sides. The
entire scenario painted by both the sides is
circumscribed by ifs and buts. A mere reading
of the 1992 PPM would not be sufficient to
conclude that the entire information has been
given to the prospective investors. Similarly,
merely because there may have been some gaps
in the information provided in the PPM would
not be sufficient to conclude that the respondents
have made deliberate misrepresentations. In such
circumstances, we have to examine whether it
was appropriate for the High Court to exercise its
jurisdiction under Section 482 CrPC to quash the
proceedings at the stage when the Magistrate had
merely issued process against the respondents.
.
28. The High Court committed a manifest error

in disposing of the petition filed by the appellants
under Section 482 of the Code without even
adverting to the basic facts which were placed
before it for its consideration.
29. It is true that the Court in exercise of its
jurisdiction under Section 482 of the Code of
Criminal Procedure cannot go into the truth or
otherwise of the allegations and appreciate the
evidence if any available on record. Normally,
the High Court would not intervene in the
criminal proceedings at the preliminary
stage/when the investigation/enquiry is pending.
30. Interference by the High Court in exercise of
its jurisdiction under Section 482 of the Code of
Criminal Procedure can only be where a clear
case for such interference is made out. Frequent
and uncalled for interference even at the
preliminary stage by the High Court may result
in causing obstruction in the progress of the
inquiry in a criminal case which may not be in
the public interest. But at the same time the High
Court cannot refuse to exercise its jurisdiction if
the interest of justice so required where the
allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of
which no fair-minded and informed observer can
ever reach a just and proper conclusion as to the
existence of sufficient grounds for proceeding. In
such cases refusal to exercise the jurisdiction
may equally result in injustice more particularly
in cases where the complainant sets the criminal
law in motion with a view to exert pressure and
harass the persons arrayed as accused in the
complaint.
63. As of now we are satisfied, that the factual
foundation/background of the acts of omission
and commission presented by the complainant is
specific and categorical. We are also satisfied
that the allegations levelled by the complainant,
fully incorporate all the basic facts which are
necessary to make out the offences whereunder
the impugned summoning order dated 12-1-2005
has been passed. The instant controversy does
not suffer from any of the impairments referred
in Iridium India Telecom Ltd. case. Accordingly,
we leave it open to the appellants to canvass the
legal issues, as were canvassed before us, before
the trial court. After the rival parties have led
their evidence the trial court will return its
59. While dealing with the various judgments

rendered by this Court on the subject reference
was also made to the decision in M.N. Ojha v.
Alok Kumar Srivastav (2009) 9 SCC 682 . In
M.N. Ojha case similar views as in Bhajan Lal
case 1992 Supp (1) SCC 335 came to be
recorded in the following words (M.N. Ojha case,
SCC pp. 686-88, paras 25 & 27-30):
25. Had the learned SDJM applied his mind to
the facts and circumstances and sequence of
events and as well as the documents filed by the
complainant himself along with the complaint,
surely he would have dismissed the complaint.
He would have realised that the complaint was
only a counterblast to the FIR lodged by the
Bank against the complainant and others with
regard to the same transaction.
..
27. The case on hand is a classic illustration of
non-application of mind by the learned
Magistrate. The learned Magistrate did not
scrutinise even the contents of the complaint,
leave aside the material documents available on
record. The learned Magistrate truly was a silent
spectator at the time of recording of preliminary
evidence before summoning the appellants.
(2015) 1 LAW
54
(2015) 1 LAW
finding thereon in accordance with law without

being influenced by any observations made on
the merits of the controversy hereinabove, or
hereafter.
..
ISC-27
position projected by the rival parties before us.

The culpability (if at all) would emerge only
after evidence is adduced by the rival parties
before the trial court. The only conclusion that
needs to be drawn at the present juncture is that
even on the basis of the last submission
canvassed on behalf of the appellants it is not
possible to quash the summoning order at this
stage. In the aforesaid view of the matter, it is
left open to the appellants to raise their
objections, if they are so advised, before the trial
court. The trial court shall, as it ought to,
adjudicate upon the same in consonance with law
after allowing the rival parties to lead evidence to
substantiate their respective positions.
71. It was also the contention of the learned

counsel for the respondents, that the civil
liability, in the instant case, was raised as against
the eventual purchaser of the goods/product
(Samsung, Dubai), in lieu of the goods/product
supplied by the complainant JCE Consultancy,
which had passed onto the purchasers under the
agreement dated 1-12-2001. Accordingly, the
civil liability was only raised as against
Samsung, Dubai. However, insofar as the
criminal liability is concerned, Samsung, Dubai
being one of the subsidiary companies of
Samsung, South Korea, it was allegedly under
the overall control exercised by Samsung, South
Korea. Samsung, South Korea, according to the
complainant, was instrumental in the eventual
decision taken by Samsung, Dubai to deny the
passing of the reciprocal monetary consideration
for the goods supplied under the agreement dated
1-12-2001. This, according to the respondents,
has been the categorical stance of JCE
Consultancy in the criminal complaint, as also, in
the pre-summoning evidence recorded before the
VIIth Additional Chief Judicial Magistrate,
Ghaziabad under Section 200 of the Code of
Criminal Procedure.
72. These allegations made by JCE Consultancy,
are supported by documents furnished to the
summoning court. The aforesaid factual position
has also been endorsed by Sky Impex Ltd. before
this Court. According to the learned counsel for
the respondents, the culpability of the appellants
before this Court, in a series of similar actions,
clearly emerges even from documents placed on
record of the instant case by Sky Impex Ltd. As
such, it is submitted, that the respondents have
per se repudiated all the submissions advanced
on behalf of the appellant, obviously subject to
the evidence which rival parties will be at liberty
to adduce before the trial court.
25. He concluded his submission by reiterating

that when it was a case of circumstantial evidence
which appeared on record in abundance, the trial
court was right in summoning the appellants and
in fact, judgment in Keshav Mahindra v. State of
10
M.P. fully supported the impugned order. On
the other hand, decision in Iridium India Telecom
Ltd. (supra) had no application to the facts of this
case.
26. Mr. Prashant Bhushan, appearing for
intervenor, highlighted the role of the appellant
Mr. Sunil Bharti Mittal from the records and
particularly the extract of file noting which inter
alia contained the views of the Superintendent of
Police. He, thus, submitted that this constituted
sufficient material to proceed against him and
since it was only a summoning order, the
appellants were free to seek discharge before the
trial court. Submissions of Mr. Sunil Malhotra,
Advocate, were also on the same lines.
The Arguments: Appellants' Rejonder
27. Mr. Fali Nariman argued in rejoinder on the

lines submissions were made by Mr. Salve, and in
the process lucidly expanded those submissions.
Emphasising that position in law with regard to
vicarious liability was that there is no such
vicarious liability in criminal law unless
something is imputed or there is a specific
statutory provision creating criminal vicarious
74. It would not be appropriate for us to delve

into the culpability of the appellants at the
present juncture on the basis of the factual
10
55
(1996) 6 SCC 129

ISC-28
erroneous and contrary to records. He tried to

project that it was a conspiracy of major level
with sole intention to benefit the accused
companies at the cost of the public exchequer and
for this purpose, criminal conspiracy was hatched
up between them. However, we make it clear at
this juncture itself that this part of the submission
is beyond the scope of the present appeals
inasmuch as even according to the learned
counsel for the appellants that the aforesaid is not
made the basis of the order while implicating the
appellants herein. Insofar as four persons who
were made accused in the charge-sheet by the
CBI is concerned, they are concededly not before
us as their summoning order has not been
challenged. Therefore, we deem it unnecessary to
go into this question, which position was even
conceded by all the counsel appearing before us.
29. The fulcrum of the issue before us is the
validity of that part of impugned order vide which
the two appellants who were not named in the
charge sheet, have been summoned by the Special
Judge, for the reasons given therein.
liability. He pointed out that in para 4 of the

impugned order, the learned Special Judge has
not gone into the facts but did so taking shelter
under a legal cover, but went wrong in applying
an ex facie incorrect non- existing legal principle.
Our Analysis of the Subject Matter
28. We have given our serious consideration to

all the submissions made before us and fully
conscious of the importance of the matter as well.
At the outset, we would like to point out that
detailed submissions were made on the nature of
the charges, and in the process, learned counsel
for the appellants tried to trivialize the matter by
stating that what was decided was only a policy
decision of the Government to allocate additional
spectrum by charging 1% additional AGR i.e.
from 4% to 5%; benefit thereof was extended to
all Cellular Operating Companies including Pubic
Sector Companies like MTNL and BSNL etc.
and, therefore, there cannot be a criminal intent
behind it. Mr. Salve as well as Mr. Nariman took
pains in showing various portions of the counter
affidavit filed by the CBI to show that the
appellant was left out and not made accused after
due deliberations and argued that it was not a
case of erroneous omission by CBI. It was also
argued at length that the allegations were in the
domain of the policy decision taken by the
Government to charge 4% of AGRwhereas it was
realised much later in the year 2010 when the
TRAI has passed orders that it should have been
5% AGR. According to them, it was merely a
bona fide policy decision which could not be
subject matter of criminal proceedings, in the
absence of intent of criminality therein. More so,
when benefit of the said decision was not
confined to the appellant's company, namely M/s
Bharti Cellular Limited, but was extended to all
others as well including public sector telecom
companies like MTNL and BSNL. Therefore,
there cannot be a criminal intent behind such a
decision. Mr. K.K. Venugopal and others,
appearing for the other side, had tried to
demonstrate that the aforesaid submission of the
learned counsel for the appellant was totally
(2015) 1 LAW
(i) Dissecting the Impugned Order:
30. In the first instance, we make it clear that

there is no denying the legal position that even when a
person is not named in the charge sheet as an accused
person, the trial court has adequate powers to summon
such a non-named person as well, if the trial court finds
that the charge sheet and the documents/material placed
along with the charge-sheet disclose sufficient prima
facie material to proceed against such a person as well.
Kishun Singh (supra) and Dharam Pal (supra) are
the direct decisions on this aspect. However, in

the present case, the question is not as to whether
there is sufficient material against the appellants
filed in the trial court to proceed against them.
Whether such a material is there or not is not
reflected from the impugned order as that aspect
is not even gone into. The learned Special Judge
has not stated in the order that after examining
the relevant documents, including statement of
witnesses, he is satisfied that there is sufficient
against the appellants as well. On reading of the
impugned order which is already extracted
56
(2015) 1 LAW
ISC-29
31. It is on this basis alone that the Special Judge

records that in this fact situation, the acts of
companies are to be attributed and imputed to
them.
verbatim, it is very clear that in para 2 of the

order, the learned Special Judge discusses the
submissions of the Public Prosecutor in respect of
the persons who are made accused in the chargesheet. Insofar as charge-sheet is concerned, it has
named Mr. Shyamal Ghosh, who was the public
servant and other three accused persons are the
corporate entities. Submission of the learned
Public Prosecutor is recorded in this para that
there is enough incriminating material on record
against them and they be proceeded against, as
per law. Immediately thereafter in para 3, the
learned Special Judge records his satisfaction on
the perusal of the records namely FIR, chargesheet, statement of witnesses and documents and
states that he is satisfied that there is enough
against the accused persons. Para 3 is clearly
relatable to para 2. Here, the accused persons
referred to are those four persons whose names
are mentioned in para 2. Obviously, till that stage,
appellants were not the accused persons as they
are not named as such in the charge-sheet. After
recording his satisfaction qua the four said
accused persons, discussion about other three
individuals (including the two appellants) starts
from para 4 where the Special Judge also finds
and refers to the positions which these three
persons hold/held in the three companies
respectively. In para 4, the learned Special Judge
does not mention about any incriminating
material against them in the statement of
witnesses or documents etc. On the other hand,
the reason for summoning these persons and
proceeding against them are specifically ascribed
in this para which, prima facie, are:
i) These persons were/are in the control of
affairs of the respective companies.
ii) Because of their controlling position, they
represent the directing mind and will of each
company.
iii) State of mind of these persons is the state of
mind of the companies. Thus, they are
described as alter ego of their respective
companies.
(ii) Principle of alter ego, as applied
32. The moot question is whether the aforesaid

proposition, to proceed against the appellants is
backed by law? In order to find the answer, let us
scan through the case law that was cited during
the arguments.
33. First case which needs to be discussed is
Iridium India (supra). Before we discuss the facts
of this case, it would be relevant to point out that
the question as to whether a company could be
prosecuted for an offence which requires mens
rea had been earlier referred to in a Constitution
Bench of five Judges in the case of Standard
11
Chartered Bank v. Directorate of Enforcement.
The Constitution Bench had held that a company
can be prosecuted and convicted for an offence
which requires a minimum sentence of
imprisonment. In para 8 of the judgment, the
Constitution Bench clarified that the Bench is not
expressing any opinion on the question whether a
corporation could be attributed with requisite
mens rea to prove the guilt. Para 8 reads as under:
8. It is only in a case requiring mens rea, a
question arises whether a corporation could be
attributed with requisite mens rea to prove the
guilt. But as we are not concerned with this
question in these proceedings, we do not express
any opinion on that issue.
34. In Iridium India (supra), the aforesaid

question fell directly for consideration, namely,
whether a company could be prosecuted for an offence
which requires mens rea and discussed this aspect at
length, taking note of the law that prevails in

America and England on this issue. For our
benefit, we will reproduce paras 59, 60, 61, 62,
63 and 64 herein:
59. The courts in England have emphatically
rejected the notion that a body corporate could
not commit a criminal offence which was an
11
57
(2005) 4 SCC 530

ISC-30
outcome of an act of will needing a particular

state of mind. The aforesaid notion has been
rejected by adopting the doctrine of attribution
and imputation. In other words, the criminal
intent of the alter ego of the company/body
corporate i.e. the person or group of persons that
guide the business of the company, would be
imputed to the corporation.
60. It may be appropriate at this stage to notice
the observations made by MacNaghten, J. in
Director of Public Prosecutions v. Kent and
Sussex Contractors Ltd. 1972 AC 153: (AC p.
156):
A body corporate is a person to whom,
amongst the various attributes it may have, there
should be imputed the attribute of a mind capable
of knowing and forming an intention indeed it
is much too late in the day to suggest the
contrary. It can only know or form an intention
through its human agents, but circumstances may
be such that the knowledge of the agent must be
imputed to the body corporate. Counsel for the
respondents says that, although a body corporate
may be capable of having an intention, it is not
capable of having a criminal intention. In this
particular case the intention was the intention to
deceive. If, as in this case, the responsible agent
of a body corporate puts forward a document
knowing it to be false and intending that it
should deceive, I apprehend, according to the
authorities that Viscount Caldecote, L.C.J., has
cited, his knowledge and intention must be
imputed to the body corporate.
61. The principle has been reiterated by Lord
Denning in Bolton (H.L.) (Engg.) Co. Ltd. v. T.J.
Graham & Sons Ltd. in the following words:
(AC p. 172):
A company may in many ways be likened to a
human body. They have a brain and a nerve
centre which controls what they do. They also
have hands which hold the tools and act in
accordance with directions from the centre.
Some of the people in the company are mere
servants and agents who are nothing more than
hands to do the work and cannot be said to
represent the mind or will. Others are directors
and managers who represent the directing mind
and will of the company, and control what they
do. The state of mind of these managers is the
(2015) 1 LAW
state of mind of the company and is treated by

the law as such. So you will find that in cases
where the law requires personal fault as a
condition of liability in tort, the fault of the
manager will be the personal fault of the
company. That is made clear in Lord Haldanes
speech in Lennards Carrying Co. Ltd. v. Asiatic
Petroleum Co. Ltd. (AC at pp. 713, 714). So also
in the criminal law, in cases where the law
requires a guilty mind as a condition of a
criminal offence, the guilty mind of the directors
or the managers will render the company
themselves guilty.
62. The aforesaid principle has been firmly
established in England since the decision of the
House of Lords in Tesco Supermarkets Ltd. v.
Nattrass. In stating the principle of corporate
liability for criminal offences, Lord Reid made
the following statement of law: (AC p. 170 E-G)
I must start by considering the nature of the
personality which by a fiction the law
attributes to a corporation. A living person
has a mind which can have knowledge or
intention or be negligent and he has hands to
carry out his intentions. A corporation has
none of these: it must act through living
persons, though not always one or the same
person. Then the person who acts is not
speaking or acting for the company. He is
acting as the company and his mind which
directs his acts is the mind of the company.
There is no question of the company being
vicariously liable. He is not acting as a
servant, representative, agent or delegate. He
is an embodiment of the company or, one
could say, he hears and speaks through the
persona of the company, within his
appropriate sphere, and his mind is the mind
of the company. If it is a guilty mind then that
guilt is the guilt of the company. It must be a
question of law whether, once the facts have
been ascertained, a person in doing particular
things is to be regarded as the company or
merely as the companys servant or agent. In
that case any liability of the company can
only be a statutory or vicarious liability.
63. From the above it becomes evident that a
corporation is virtually in the same position as
any individual and may be convicted of common
law as well as statutory offences including those
58
(2015) 1 LAW
requiring mens rea. The criminal liability of a

corporation would arise when an offence is
committed in relation to the business of the
corporation by a person or body of persons in
control of its affairs. In such circumstances, it
would be necessary to ascertain that the degree
and control of the person or body of persons is so
intense that a corporation may be said to think
and act through the person or the body of
persons. The position of law on this issue in
Canada is almost the same. Mens rea is attributed
to corporations on the principle of alter ego of
the company.
64. So far as India is concerned, the legal
position has been clearly stated by the
Constitution Bench judgment of this Court in
Standard Chartered Bank v. Directorate of
Enforcement (2005) 4 SCC 530 . On a detailed
consideration of the entire body of case laws in
this country as well as other jurisdictions, it has
been observed as follows (SCC p. 541, para 6):
6. There is no dispute that a company is
liable to be prosecuted and punished for
criminal offences. Although there are earlier
authorities to the effect that corporations
cannot commit a crime, the generally
accepted modern rule is that except for such
crimes as a corporation is held incapable of
committing by reason of the fact that they
involve personal malicious intent, a
corporation may be subject to indictment or
other criminal process, although the criminal
act is committed through its agents.
ISC-31
mind and will of each company, their state of

mind is the state of mind of the company and,
therefore, on this premise, acts of the company is
attributed and imputed to the appellants. It is
difficult to accept it as the correct principle of law. As
demonstrated hereinafter, this proposition would run
contrary to the principle of vicarious liability detailing
the circumstances under which a direction (sic - director)
of a company can be held liable. (emphases ours)
(iii) Circumstances when Director/Person in charge

of the affairs of the company can also be prosecuted,
when the company is an accused person:
37. No doubt, a corporate entity is an artificial

person which acts through its officers, directors,
managing director, chairman etc. If such a
company commits an offence involving mens rea,
it would normally be the intent and action of that
individual who would act on behalf of the
company. It would be more so, when the criminal
act is that of conspiracy. However, at the same
time, it is the cardinal principle of criminal
jurisprudence that there is no vicarious liability unless
the statute specifically provides so.
38. Thus, an individual who has perpetrated the

commission of an offence on behalf of a company can be
made accused, along with the company, if there is
sufficient evidence of his active role coupled with
criminal intent. Second situation in which he can be
implicated is in those cases where the statutory regime
itself attracts the doctrine of vicarious liability, by
specifically incorporating such a provision. (emphases ours)
35. It is abundantly clear from the above that the
39. When the company is the offender, vicarious

liability of the Directors cannot be imputed
automatically, in the absence of any statutory provision
to this effect. One such example is Section 141 of
principle which is laid down is to the effect that the

criminal intent of the alter ego of the company, that is
the personal group of persons that guide the business of
the
company,
would
be
imputed
to
the
company/corporation. The legal proposition that is
laid down in the aforesaid judgment is that if the
person or group of persons who control the affairs of
the company commit an offence with a criminal intent,
their criminality can be imputed to the company as well
as they are alter ego of the company.
the Negotiable Instruments Act, 1881. In Aneeta

Hada (supra), the Court noted that if a group of
persons that guide the business of the company
have the criminal intent, that would be imputed to
the body corporate and it is in this backdrop,
Section 141 of the Negotiable Instruments Act
has to be understood. Such a position is,
therefore, because of statutory intendment
making it a deeming fiction. Here also, the
principle of alter ego, was applied only in one
direction namely where a group of persons that
36. In the present case, however, this principle is

applied in an exactly reverse scenario. Here, company
is the accused person and the learned Special
Magistrate has observed in the impugned order
that since the appellants represent the directing
59
ISC-32
have acted with care and caution and his

negligence would be a positive proof of his
intention to commit the offence. We are however
unable to agree with this somewhat broad
statement of the law. In the absence of a charge
of conspiracy the mere fact that the appellant
happened to be the Chairman of the Committee
would not make him criminally liable in a
vicarious sense for items 2 to 4. There is no
evidence either direct or circumstantial to show
that apart from approving the purchase of
fertilisers he knew that the firms from which the
fertilisers were purchased did not exist. Similar is
the case with the other two items. Indeed, if the
Chairman was to be made liable then all
members of the Committee viz. Tehsildar and
other nominated members, would be equally
liable because all of them participated in the
deliberations of the meetings of the Committee, a
conclusion which has not even been suggested
by the prosecution. As Chairman of the Sangh
the appellant had to deal with a large variety of
matters and it would not be humanly possible for
him to analyse and go into the details of every
small matter in order to find out whether there
has been any criminal breach of trust. In fact, the
hero of the entire show seems to be A-3 who had
so stage-managed the drama as to shield his guilt
and bring the appellant in the forefront. But that
by itself would not be conclusive evidence
against the appellant. There is nothing to show
that A-3 had either directly or indirectly
informed the appellant regarding the illegal
purchase of fertilisers or the missing of the five
oil engines which came to light much later
during the course of the audit. Far from proving
the intention the prosecution has failed to prove
that the appellant had any knowledge of
defalcation of Items 2 to 4. In fact, so far as item
3 is concerned, even Mr Phadke conceded that
there is no direct evidence to connect the
appellant.
guide the business had criminal intent, that is to

be imputed to the body corporate and not the vice
versa. Otherwise, there has to be a specific act
attributed to the Director or any other person
allegedly in control and management of the
company, to the effect that such a person was
responsible for the acts committed by or on
behalf of the company. This very principle is
elaborated in various other judgments. We have
already taken note of Maharashtra State Electricity
Distribution Co. Ltd. (supra) and S.K. Alagh
(supra). Few other judgments reiterating this
principle are the following:
1. Jethsur Surangbhai v. State of Gujarat12
9. With due respect what the High Court seems
to have missed is that in a case like this where
there was serious defalcation of the properties of
the Sangh, unless the prosecution proved that
there was a close cohesion and collusion between
all the accused which formed the subject matter
of a conspiracy, it would be difficult to prove the
dual charges particularly against the appellant
(A-1). The charge of conspiracy having failed,
the most material and integral part of the
prosecution story against the appellant
disappears. The only ground on the basis of
which the High Court has convicted him is that
as he was the Chairman of the Managing
Committee, he must be held to be vicariously
liable for any order given or misappropriation
committed by the other accused. The High Court,
however, has not referred to the concept of
vicarious liability but the findings of the High
Court seem to indicate that this was the central
idea in the mind of the High Court for convicting
the appellant. In a criminal case of such a serious
nature mens rea cannot be excluded and once the
charge of conspiracy failed the onus lay on the
prosecution to prove affirmatively that the appellant
was directly and personally connected with acts or
omissions pertaining to Items 2, 3 and 4. It is
2. Sham Sunder v. State of Haryana13
conceded by Mr Phadke that no such direct

evidence is forthcoming and he tried to argue
that as the appellant was Chairman of the Sangh
and used to sign papers and approve various
tenders, even as a matter of routine he should
12
9. But we are concerned with a criminal liability

under penal provision and not a civil liability.
The penal provision must be strictly construed in
the first place. Secondly, there is no vicarious
13
(1984) Supp. SCC 207
(2015) 1 LAW
60
(1989) 4 SCC 630
(2015) 1 LAW
ISC-33
liability in criminal law unless the statute takes that also

within its fold. Section 10 does not provide for
company and responsible to it, all the ingredients

laid down under the statute must be fulfilled. A
such liability. It does not make all the partners

liable for the offence whether they do business or
not.
legal fiction must be confined to the object and purport

for which it has been created. (emphases ours)
6. Sharon Michael v. State of T.N.17
14
3. Hira Lal Hari Lal Bhagwati v. CBI
16. The first information report contains details

of the terms of contract entered into by and
between the parties as also the mode and manner
in which they were implemented. Allegations
have been made against the appellants in relation
to execution of the contract. No case of criminal
misconduct on their part has been made out
before the formation of the contract. There is
30. In our view, under the penal law, there is no

concept of vicarious liability unless the said statute
covers the same within its ambit. In the instant case,
the said law which prevails in the field i.e. the

Customs Act, 1962 the appellants have been
thereinunder wholly discharged and the GCS
granted immunity from prosecution.
4. Maksud Saiyed v. State of Gujarat15
13. Where a jurisdiction is exercised on a
complaint petition filed in terms of Section
156(3) or Section 200 of the Code of Criminal
Procedure, the Magistrate is required to apply his
mind. The Penal Code does not contain any
provision for attaching vicarious liability on the
part of the Managing Director or the Directors of
the Company when the accused is the Company.
The learned Magistrate failed to pose unto
himself the correct question viz. as to whether
the complaint petition, even if given face value
and taken to be correct in its entirety, would lead
to the conclusion that the respondents herein
were personally liable for any offence. The Bank
nothing to show that the appellants herein who hold

different positions in the appellant Company made any
representation in their personal capacities and, thus,
they cannot be made vicariously liable only because they
are employees of the Company. {Courts emphases}
7. Keki Hormusji Gharda v. Mehervan Rustom Irani18

16. We have noticed hereinbefore that despite
of the said road being under construction, the
first respondent went to the police station thrice.
He, therefore, was not obstructed from going to
the police station. In fact, a firm action had been
taken by the authorities. The workers were asked
not to do any work on the road. We, therefore,
fail to appreciate that how, in a situation of this
nature, the Managing Director and the Directors
of the Company as also the Architect can be said
to have committed an offence under Section 341
IPC.
17. The Penal Code, 1860 save and except in some
is a body corporate. Vicarious liability of the Managing

Director and Director would arise provided any
provision exists in that behalf in the statute. Statutes
indisputably must contain provision fixing such

vicarious liabilities. Even for the said purpose, it
is obligatory on the part of the complainant to
make requisite allegations which would attract
the provisions constituting vicarious liability.
5. R. Kalyani v. Janak C. Mehta16
32. Allegations contained in the FIR are for
commission of offences under a general statute.
matters does not contemplate any vicarious liability on

the part of a person. Commission of an offence by
raising a legal fiction or by creating a vicarious liability
in terms of the provisions of a statute must be expressly
stated. The Managing Director or the Directors of
the Company, thus, cannot be said to have

committed an offence only because they are
holders of offices. The learned Additional Chief
Metropolitan Magistrate, therefore, in our
opinion, was not correct in issuing summons
without taking into consideration this aspect of
the matter. The Managing Director and the
Directors of the Company should not have been
summoned only because some allegations were
made against the Company. (emphasis ours)
A vicarious liability can be fastened only by reason of a

provision of a statute and not otherwise. For the said
purpose, a legal fiction has to be created. Even under a
special statute when the vicarious criminal

liability is fastened on a person on the premise
that he was in charge of the affairs of the
14
(2003) 5 SCC 257

(2008) 5 SCC 668
16
(2009) 1 SCC 516
17
15
18
61
(2009) 3 SCC 375

(2009) 6 SCC 475
ISC-34
18. In Pepsi Foods Ltd. v. Special Judicial

Magistrate (1998) 5 SCC 749 this Court held as
under (SCC p. 760, para 28):
28. Summoning of an accused in a criminal
case is a serious matter. Criminal law cannot be
set into motion as a matter of course. It is not that
the complainant has to bring only two
witnesses to support his allegations in the
complaint to have the criminal law set into
motion. The order of the Magistrate summoning
(2015) 1 LAW
40. It is stated at the cost of repetition that in the

present case, while issuing summons against the
appellants, the Special Magistrate has taken
shelter under a so-called legal principle, which
has turned out to be incorrect in law. He has not
recorded his satisfaction by mentioning the role
played by the appellants which would bring them
within criminal net. In this behalf, it would be apt
to note that the following observations of this
Court in the case of GHCL Employees Stock
19
Option Trust v. India Infoline Ltd. :
19. In the order issuing summons, the learned

Magistrate has not recorded his satisfaction
about the prima facie case as against
Respondents 2 to 7 and the role played by
them in the capacity of Managing Director,
Company Secretary or Directors which is sine
qua non for initiating criminal action against
them. (Thermax Ltd. v. K.M. Johny followed)
21. In the instant case the High Court has

correctly noted that issuance of summons
against Respondents 2 to 7 is illegal and
amounts to abuse of process of law. The order
of the High Court, therefore, needs no
interference by this Court.
41. We have already mentioned above that even
if the CBI did not implicate the appellants, if
there was/is sufficient material on record to
proceed against these persons as well, the Special
Judge is duly empowered to take cognizance
against these persons as well. Under Section 190
of the Code, any Magistrate of first class (and in
those cases where Magistrate of the second class
is specially empowered to do so) may take
cognizance of any offence under the following
three eventualities:
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a police report of such facts; and
(c) upon information received from any person
other than a police officer, or upon his own
knowledge, that such offence has been
committed.
42. This Section which is the starting section of
Chapter XIV is subject to the provisions of the
said Chapter. The expression taking cognizance
has not been defined in the Code. However, when
the Magistrate applies his mind for proceeding
under Sections 200-203 of the Code, he is said to
have taken cognizance of an offence. This legal
position is explained by this Court in S.K. Sinha,
Chief Enforcement Officer v. Videocon International
20
Ltd & Ors. in the following words:
19
20
the accused must reflect that he has applied his mind

to the facts of the case and the law applicable
thereto. He has to examine the nature of allegations
made in the complaint and the evidence both oral
and documentary in support thereof and would that
be sufficient for the complainant to succeed in
bringing charge home to the accused. It is not that
the Magistrate is a silent spectator at the time of
recording
of
preliminary
evidence
before
summoning of the accused. The Magistrate has to
carefully scrutinise the evidence brought on

record and may even himself put questions to
the complainant and his witnesses to elicit
answers to find out the truthfulness of the
allegations or otherwise and then examine if
any offence is prima facie committed by all
or any of the accused. (emphases ours)
19. Even as regards the availability of the
remedy of filing an application for discharge, the
same would not mean that although the
allegations made in the complaint petition even if
given face value and taken to be correct in its
entirety, do not disclose an offence or it is found
to be otherwise an abuse of the process of the
court, still the High Court would refuse to
exercise its discretionary jurisdiction under
Section 482 of the Code of Criminal Procedure.
(2013) 4 SCC 505
62
(2008) 2 SCC 492
(2015) 1 LAW
ISC-35
21
19. The expression cognizance has not been

defined in the Code. But the word
(cognizance) is of indefinite import. It has no
esoteric or mystic significance in criminal law.
It merely means become aware of: and when
used with reference to a court or a Judge, it
connoted to take notice of judicially. It
indicates the point when a court or a
Magistrate takes judicial notice of an offence
with a view to initiating proceedings in respect
of such offence said to have been committed
by someone.
20. Taking Cognizance does not involve any
formal action of any kind. It occurs as soon as
a Magistrate applies his mind to the suspected
commission of an offence....
Sine Qua Non for taking cognizance of the
offence is the application of mind by the
Magistrate and his satisfaction that the
allegations, if proved, would constitute an
offence. It is, therefore, imperative that on a
complaint or on a police report, the Magistrate is
bound to consider the question as to whether the
same discloses commission of an offence and is
required to form such an opinion in this respect.
When he does so and decides to issue process, he
shall be said to have taken cognizance. At the
stage of taking cognizance, the only consideration
before the Court remains to consider judiciously
whether the material on which the prosecution
proposes to prosecute the accused brings out a
prima facie case or not.
State of Delhi ). It is also trite that even if a
person is not named as an accused by the police

in the final report submitted, the Court would be
justified in taking cognizance of the offence and
to summon the accused if it feels that the
evidence and material collected during
investigation justifies prosecution of the accused
(See Union of India v. Prakash P. Hinduja and
22
another ). Thus, the Magistrate is empowered to
issue process against some other person, who has not
been charge-sheeted, but there has to be sufficient
material in the police report showing his involvement.
In that case, the Magistrate is empowered to

ignore the conclusion arrived at by the
investigating officer and apply his mind
independently on the facts emerging from the
investigation and take cognizance of the case. At
the same time, it is not permissible at this stage to
consider any material other than that collected by
the investigating officer.
(emphasis ours)
45. On the other hand, Section 204 of the Code
deals with the issue of process, if in the opinion
of the Magistrate taking cognizance of an
offence, there is sufficient ground for proceeding.
This Section relates to commencement of a
criminal proceeding. If the Magistrate taking
cognizance of a case (it may be the Magistrate
receiving the complaint or to whom it has been
transferred under Section 192), upon a
consideration of the materials before him (i.e., the
complaint, examination of the complainant and
his witnesses if present, or report of inquiry, if
any), thinks that there is a prima facie case for
proceeding in respect of an offence, he shall issue
process against the accused.
46. A wide discretion has been given as to grant or
43. Cognizance of an offence and prosecution of an

offender are two different things. Section 190 of the
Code empowered taking cognizance of an offence
and not to deal with offenders. Therefore,
cognizance can be taken even if offender is not
known or named when the complaint is filed or
FIR registered. Their names may transpire during
investigation or afterwards. (emphasis ours)
44. Person who has not joined as accused in the
charge-sheet can be summoned at the stage of
taking cognizance under Section 190 of the Code.
There is no question of applicability of Section
319 of the Code at this stage (See SWIL Ltd. v.
refusal of process and it must be judicially exercised. A

person ought not to be dragged into Court merely
because a complaint has been filed. If a prima facie
case has been made out, the Magistrate ought to

issue process and it cannot be refused merely because
he thinks that it is unlikely to result in a conviction.
21
22
63
(2001) 6 SCC 670

(2003) 6 SCC 195
ISC-36
47. However, the words sufficient grounds for
surfaces in the form of evidence, the Special

Judge shall be at liberty to exercise his powers
under Section 319 of the Code to rope in the
appellants by passing appropriate orders in
accordance with law at that stage.
proceeding appearing in the Section are of immense

importance. It is these words which amply suggest
that an opinion is to be formed only after due

application of mind that there is sufficient basis
for proceeding against the said accused and
formation of such an opinion is to be stated in the
order itself. The order is liable to be set aside if
no reason is given therein while coming to the
conclusion that there is prima facie case against
accused, though the order need not contain
detailed reasons. A fortiori, the order would be bad
***
ITEM NO. 1A
COURT NO. 1
SECTION II
(For Judgment)
SUPREMECOURTOFINDIA
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO. 34 OF 2015
@ Petition for Special Leave to Appeal (Crl.) No. 2961 of 2013
Sunil Mittal .. Appellant(s)
vs.
Central Bureau of Investigation ..Respondent(s)
WITH
in law if the reason given turns out to be ex facie

incorrect.
(emphases ours)
48. However, there has to be a proper satisfaction

in this behalf which should be duly recorded by
the Special Judge on the basis of material on
record. No such exercise is done. In this scenario,
having regard to the aforesaid aspects coupled
with the legal position explained above, it is
difficult to sustain the impugned order dated
19.03.2013 in its present form insofar as it relates
to implicating the appellants and summoning
them as accused persons. The appeals arising out
of SLP (Crl.) No. 2961 of 2013 and SLP (Crl.)
No. 3161 of 2013 filed by Mr. Sunil Bharti Mittal
and Ravi Ruia respectively are, accordingly,
allowed and order summoning these appellants is
set aside. The appeals arising out of SLP (Crl.)
Nos. 3326-3327 of 2013 filed by Telecom
Watchdog are dismissed.
CRIMINAL APPEAL NO. 35 of 2015 (@ SLP(Crl.) No. 3161 of 2013

CRIMINAL APPEAL NOs.36-37 of 2015 (@ SLP(Crl.) Nos. 3326-3327
of 2013)
DATE : 09.01.2015 These matters were called on for

pronouncement of judgment today.
For Appellant(s) Mr. Harish Salve, Sr. Adv.
Mr. Fali S. Nariman, Sr. Adv.
Mr. Amit Desai, Sr. Adv.
Mr. Percival Billimonia, Adv.
Mr. Sidharth Agarwal, Adv.
Mr. Kamal Shankar, Adv.
Mr. Atul N, Adv.
Mr. Manpreet Lamba, Adv.
Mr. Gautam , Adv.
Mr. Utkarsh Saxena, Adv.
Mr. Utkarsh Saxena, Adv.
For Respondent(s) Ms. Pinky anand, ASG
Mr. Gopal Sankaranarayanan, Adv.
Mr. Rajesh Ranjan, Adv.
Mr. Balendu Shekhar, Adv.
Mr. B.V. Balram Das, Adv.
Ms. Meenakshi Grover, Adv.
Mr. Rohit Bhat, Adv.
Mr.D.S. Mehara, Adv.
Hon'ble Mr. Justice A.K. Sikri pronounced the judgment of the
Bench comprising Hon'ble the Chief Justice, Hon'ble Mr. Justice
Madan B. Lokur and His Lordship.
Leave granted.
The appeals arising out of SLP(Crl.) No. 2961 of 2013 and 3161
of 2013 are allowed. The appeals arising out of SLP(Crl.) Nos.
3326-3327 of 2013 are dismissed.
[ Charanjeet Kaur ]
[ Vinod Kulvi ]
Court Master
Asstt. Registrar
EPILOGUE
49. While parting, we make it clear that since on

an erroneous presumption in law, the Special
Magistrate has issued the summons to the
appellants, it will always be open to the Special
Magistrate to undertake the exercise of going
through the material on record and on that basis,
if he is satisfied that there is enough incriminating
material on record to proceed against the
appellants as well, he may pass appropriate orders
in this behalf. We also make it clear that even if
at this stage, no such prima facie material is
found, but during the trial, sufficient
incriminating material against these appellants
(2015) 1 LAW
[Signed reportable judgment

is placed on the file]
*****
64
(2015) 1 LAW
F-19
( Carried from p. 28 )
higher priority than pre-tariff prisoners because

they have served the punitive part of their
sentence and progression through their sentences
is now entirely focused on reducing their risk to
the point where the Parole Board determines that
they may be safety released. The decision was
taken to prioritise post tariff prisoners over pre
tariff prisoners because the earliest pre tariff
prisoners can be released is at tariff expiry. The
view was taken that the further away from tariff
expiry a prisoners is, the less likely it is that they
would be prejudiced by a non-immediate transfer
to open conditions after the Secretary of State's
approval.
4. When considering how to prioritise pre-tariff
prisoners, considerations included:
i. the need to ensure fair treatment between
prisoners, including that prisoners who were
often difficult to place (such as sex offenders)
were not disadvantaged compared to those with
less complex needs;
ii. to take account of the length of time for which
prisoners had waited for transfer;
iii. to take account of the amount of time
remaining prior to tariff expiry;
iv. to provide a transparent system so that
prisoners could be given reasonable estimate as
to when they were likely to move;
v. to set up a system that was straightforward and
would avoid complex and resource intensive
administration; and
vi. to permit exceptional circumstances to be
considered on request in individual cases.
5. Among pre-tariff prisoners, it was decided,
after considering various alternative means of
prioritisation, that the fairest solution was to
prioritise prisoners in orders of proximity to
tariff expiry. This solution also had the benefit of
being transparent, straightforward and practical.
There were a number of prisoners approaching
tariff expiry and we considered these prisoners to
be of the highest priority and wanted to ensure
that the criteria did not allow them to be
leapfrogged by other prisoners. Prisoners who
had a year or two to go until their tariff expiry
would have plenty of time to utilise open
conditions to demonstrate to the Parole Board a
reduction in risk even if there was a delay in
transferring them.
6. Consideration was given to other way of

prioritising pre tariff prisoners, such as proximity
to next parole review; individual circumstances;
length of tariff; and date of Secretary of State
approval; but these options would disadvantage
many prisoners who were approaching their tariff
expiry date, leading to anomalous and unfair
treatment:
i. Proximity to parole review date: Once a pretariff prisoner is approved for open conditions by
the Secretary of State their parole review will
take place on tariff expiry. Therefore there is not
much difference between prioritisation using
next parole review or tariff expiry date.
However, parole reviews can be subject to delay
for a number of reasons including late
submission of reports; awaiting completion of
offending behaviour work; or availability of
panel members or witnesses. Parole reviews may
also be deferred whereas tariff expiry dates
remain the same. In cases where there is a delay
or a deferral, prisoners placement on the list
would have to be revised to take account of the
new timetable. As parole review dates vary from
one prisoner to the next in this manner, a waiting
list organised by reference to this would be
extremely fluid and the result of this would be
that prisoner's positions on the waiting list would
be subject to continual change. Re-consideration
and prioritisation of each case would have to be
repeated on an unacceptably frequent basis as
ISPs were added to, or removed from the list, or
otherwise reprioritised following deferral or
delay. It would, therefore, be impossible to give
a meaningful estimate of the likely period a
prisoner would have to wait for transfer. We
therefore believe that this solution would be
unfair, as well as lacking in transparency and
being difficult to manage.
ii. Length of tariff was considered to be
irrelevant to the prioritisation process as it has no
bearing on the Secretary of State's approval for a
transfer to open conditions, which is based on
risk pertaining at the time rather than either of
these factors. The Secretary of State's decision to
allow an ISP to transfer to open conditions is the
earliest point at which this progressive move can
take place.
iii. Considering each case individually on its
merits: Consideration was also given to
65
F-20
prioritising each prisoner's position on a case by

case basis rather than using specific criteria. It
was decided that this would have been extremely
time consuming and resource intensive, as well
as making it hard to ensure fairness. It would
have involved very difficult judgments about the
relative merits of each case against all other case.
In addition, fresh judgments would have been
required about each case in the backlog every
time a new case came through where a prisoner
had been approved for transfer to open prison by
the Secretary of State. Having said that,
notwithstanding the prioritisation criterion
outlined above, exceptional circumstances are
considered upon request, and are reviewed on an
individual basis.
amount of referrals made to PMS each month

and will continue to monitor progress.
10. At the beginning of the new process, there
were around 300 post-tariff ISPs located in
closed conditions awaiting transfer to open. At
the beginning of December 2011 this figure had
risen to 405 however as at 30 June this figure had
fallen to 243. The current list of post tariff
prisoners contains those who have been approved
by the Secretary of State for a move to open
conditions from late May 2012 onwards. The
average waiting time for post tariff prisoners
was, prior to the implementation of the central
process in October 2011, around eight to nine
months; this has been reduced to around three to
four months now. The original backlog of post
tariff prisoners has been virtually cleared and the
majority have either now transferred to open
conditions or are unable to transfer due to
medical reasons, imminent parole hearings,
courses or re-categorisation to category C. The
Secretary of State has approved 927 ISPs (both
pre and post tariff) for open conditions between
the months of October 2011 and June 2012. The
number of ISPs being released continues to rise
with 173 releases in the first quarter of 2012.
This is in comparison with 543 releases during
the whole of 2011, 258 in 2010 and 195 in 2009.
11. Turning to the rate at which ISPs are
transferred under this exercise, at present the
policy remains to refer a minimum of one
tranche per month to PMS for action. The
estimate of the rate at which the backlog will be
reduced was based on the assumption that PMS
would be able to organise a transfer for all
prisoners in the tranche within a month of
submission. We have been monitoring progress
carefully and have reviewed this arrangement on
a regular basis; if more that 50 prisoners could be
safely transferred per month then more would be
referred. That has now been reviewed and,
beginning in March 2012, we increased the
number of referrals to PMS each month to 100
prisoners; in May 2012, over 200 prisoners were
transferred. As at 20 June, 914 post tariff
prisoners had transferred under the central
process. We will continue to monitor progress
carefully and review this arrangement on a
regular basis; if more than 100 prisoners can be
iv. Date of Secretary of State approval:

Prioritising pre tariff prisoners in this way would
mean that prisoners who were approaching tariff
expiry could be leapfrogged by other prisoners
who were not approaching tariff expiry but who
had been approved by the Secretary of State for
transfer earlier. This was considered to be unfair
to those prisoners approaching tariff expiry who
could potentially be released on tariff. ISPs who
had been approved for their transfers earlier but
whose tariff expiry date was further away had
not yet reached the point where they could be
considered for release and would not be
disadvantaged by waiting longer for a move.
7. Therefore, although NOMS accepts that the
criterion of proximity to tariff expiry is not
sensitive to some individual factors it was
considered to be the fairest, most transparent and
most practical means of establishing an order in
which to transfer pre tariff ISPs to open
conditions.
Implementation of the October 2011 policy
.
9. We reviewed the approach we were planning
to take with pre-tariff prisoners early in 2012 in
light of progress made with transferring post
tariff prisoners and began the process of referring
pre tariff prisoners to PMS for transfer on 3 July.
Prioritisation of pre-tariff prisoners is determined
by proximity to tariff expiry date; the closer to
tariff expiry a prisoners is the higher will be the
priority to transfer them. We have increased the
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66
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F-21
of 211 prisoners during the course of May 2012.

When we did so, however, we began to receive
telephone calls from a number of open
establishments raising concerns about the
increased number of ISPs that they were being
required to receive. In particular, concern was
raised at the increase in initial Offender
Management (OM) work on reception into open
prisoners and whether these prisons were able to
provide reassurance that all relevant OM work
was being undertaken.
4. As a result, we decided to reduce the rate of
moves to a target of 150 per month from June
onwards. This decision was reached on the basis
of the anecdotal evidence available to PMS
which indicated that this was the maximum rate
at which establishments could safely manage
prisoners without putting the public at risk. This
rate was maintained through November with the
effect that the backlog was cleared by the end of
August 2012.
73. I am satisfied, on this evidence, that the
Defendant carefully considered all available
options, took into account all relevant
considerations, and reached a rational
conclusion. I consider it is important to bear in
mind that this was a temporary arrangement,
which lasted for only about 10 months. From the
end of August 2012, when the backlog was
cleared, the transfers of post-tariff and pre-tariff
prisoners were being processed at the same rate.
The strategy achieved the desired result within a
reasonable timescale. Prioritisation of post-tariff
prisoners was rational and fair because they were
already eligible for release, and administrative
delay might result in a prisoner being detained
when he should be free, in breach of both article
5 and arguably his article 8 rights (considered in
more detail below). As Buxton LJ said in
Noorkoiv, at para 25, the post-tariff prisoners
were at least presumptively detained unlawfully
and the legality of their detention was subject to
article 5(4) ECHR. In my view, there was a
pressing need for the Defendant to address their
position. The way in which the Defendant
prioritised pre-tariff prisoners, according to their
tariff expiry date, was also rational and fair,
bearing in mind the significance of the tariff
expiry for prisoners.
74. The only other alternative immediately
available, namely, ceasing the transfer of
safely transferred per month, as was the case in

May 2012, then more be referred.
71. Mr Read added, at paras 28 and 29 of his
statement:
28. In respect of individual prisoners, it is
important to progress at the right pace. This
means ensuring that any ISP sent to open
conditions can be managed safely and given
appropriate support to help make the
progression from restrictive, closed conditions
to relaxed, open conditions, often after a long
time in custody. In respect of the overall prison
population, our primary responsibility is to
protect the public. Any measures which resulted
in large waves of ISPs being moved into open
conditions in an unmanaged way could result in
an increase in prisoners absconding and
seriously undermine what we are looking to
achieve. In addition, NOMS must be mindful of
the needs of determinate sentence prisoners,
some of whom benefit from a period in an open
prison before release, even though their release
is not contingent on the direction of the Parole
Board.
29. I believe that NOMS made a good response
to the problems associated with the lack of
movement for ISPs into the open estate. We
have taken back central control of the
management for ISPs so that they are moved in
a transparent and fair way; we have increased
the rate of transfers from approximately 50 per
month to approximately 150 per month over the
past 5 months and will continue at this rate for
the immediate future; and we are increasing
capacity significantly to allow more opportunity
for ISPs to move.
72. Mr Hay, Head of PMS, said in his second
witness statement, at paras 3 and 4:
3. It became clear to us in early 2012 that the
initial rate of transfer was not having the desired
effect as the rate of movement was not keeping
pace with the number of new ISPs being
approved for Category D conditions. From
February 2012, PMS therefore increased the
transfer rate to a target of 100 per month and
this was maintained or surpassed through to the
end of April 2012. With a view to clearing the
backlog as rapidly as could safely be achieved,
PMS decided to establish whether there was a
tipping point beyond which open establishments
found it difficult to manage. We moved a total
67
F-22
determinate prisoners and thus increasing the

number of ISPs transferred, would have resulted
in unacceptable pressures on the management of
the prisoners in open prisons, as described in the
evidence.
75. It may well have been desirable for the
Defendant to have changed the policy in relation
to ROTL at an earlier date, so as to make ISPs
eligible for ROTL from closed conditions, but I
cannot find any basis upon which to hold that he
acted unlawfully in not doing so sooner. The
Defendant's decision, and the timescale within
which the change of policy was implemented,
was a lawful exercise of his discretion.
56. For these offences a combination of

determinate and IPP sentences were passed, but
the lead sentence was IPP for the robbery, with a
minimum term of three years. Allowing for time
spent on remand, this period expired on either 3
or 5 April 2009.
57. Initially Kaiyam was classified as a category
B prisoner in the four-level system employed
throughout the prison service. In June 2008 (just
on two years after sentence) he was reduced in
category to C. However, his behaviour in prison
was very poor. He was disciplined on no less than
23 occasions for offences which included
disobedience, assault, drugs and the possession of
mobile telephone parts. The latter is particularly
serious in prison, since it not only has security
implications but involves the possession of a very
important item of prison currency and power. In
January 2009, as a result of his misbehaviour,
Kaiyam was reverted to the higher security
category B. Later, also as a result of his
misbehaviour, and following an assessment at
HMP
Dovegate
(which
has
extensive
rehabilitation experience) as being involved in the
drug subculture, he was transferred to a high
security prison at HMP Long Lartin in January
2010.
58. In the meantime, efforts had been made to
provide him with appropriate rehabilitative
courses. There were regular sentencing planning
meetings at which there was discussion as to how
best to progress him. He completed a six week
Enhanced Thinking Skills (ETS) course in July
2008. He also completed a drug awareness course
in July 2008 and a victim awareness course in
October 2008. He was assessed as having made
some progress on the ETS course, but there was
doubt about his ability to carry the lessons into
practice, and about his honesty, self-control in
prison and drug use. Once he was placed at HMP
Long Lartin, he was at a prison where the priority
is security and rehabilitative courses are
comparatively few. He nevertheless had the
benefit of continuing one-to-one anger
management consultations with his Offender
54. In the light of this evidence and the judges

findings, we do not consider that the Secretary of
States policy can realistically be regarded as
anything other than a proportionate and realistic
reaction to the crisis with which the prison system
was faced. We would reject Mr Haneys
complaint under article 14 accordingly.
Kaiyam
55. Kaiyam (formerly Fish) was born in February
1981. By 2006 (aged 25) he had accumulated
convictions for a variety of offences, including
robbery (four different offences) possession of
firearms and several cases of assault. He had been
sent to prison and released on licence, but had
broken the terms of his licence and so had been
recalled. He was a regular abuser of a variety of
drugs and of alcohol and an habitual dealer in
cannabis. On 20 July 2006 he was sentenced for
two groups of offences. First, he hi-jacked a
valuable car, intending to sell it to finance his
drug use. The car was being driven by a young
woman alone, whom he ejected, apparently
bruising her in the process. He drove dangerously
when chased by the police, and repeated this the
following day in a different car when en route to
try to sell the stolen vehicle. Secondly, and when
on bail for these offences, he arranged to supply
drugs to others, but was spotted by the police in a
car; further dangerous driving followed until he
crashed the car; a gun and ammunition were
found in it, which it seems had been brought to
the meeting by his intended purchasers.
(2015) 1 LAW
68
(2015) 1 LAW
F-23
contrary there were courses provided and

completed, regular planning meetings throughout
and efforts made to find appropriate rehabilitative
work for him, and, latterly, to transfer him to that
end. The complaint made on his behalf was of
delays in applying acceptable systems to him.
The principal complaint was that it took the
prison authorities too long to think of the SCP
course. That course or its predecessor (Cognitive
Self Change Programme or CSCP) had been
available in HMP Long Lartin throughout his
time there. It was further said that time was
wasted considering a CALM course when he had
been assessed early on as unsuitable for it since,
although he had been prone to lose self control in
prison, his offences were not characterised by
such loss. Similarly it was said that there had
been mistakes made in considering him for an
intensive drug course (FOCUS) when he was
unsuitable for it, rather than for the differently
emphasised PASRO targeted on those who
misused drugs in prison. Lastly it was said that
there was delay and muddle in the efforts which
were undoubtedly made to find a prison to which
he could be transferred away from HMP Long
Lartin. Time spent considering a transfer to HMP
Garth was particularly criticised because HMP
Garth did not offer SCP.
60. The careful witness statement of Mr
Dennehy, the prison service manager who
reviewed the history after the issue of
proceedings, accepted that there had been
regrettable delays at some points in it. It is no
doubt the case that the prison system could have
achieved what would have been, for Kaiyam, a
more extensive provision of courses, for example
if the possibility of an SCP course had been
identified sooner than it was. However, to say
that more extensive coursework could have been
made available to him is a very long way from
saying that he has not been provided with a
reasonable opportunity to rehabilitate himself and
to demonstrate that he no longer presented an
unacceptable risk of serious harm to the public,
and thus that there has occurred a breach of the
implied ancillary obligation in article 5. Article 5
Manager, which lasted for more than two years

from July 2009 to October 2011, until they came
to an end when the officer concerned moved on.
Although there were few courses available at
HMP Long Lartin, there were regular sentencing
planning meetings in May 2010, June 2011,
August 2012 and October 2012. His behaviour
underwent a significant improvement. The most
suitable course for him was considered to be a
Prison Addressing Substance Abuse (PASRO)
course, with further anger management work.
HMP Long Lartin does not offer either kind of
course. Efforts were made to find a prison which
did have such courses and which could accept
him, but without success. At one stage, a transfer
was planned and would have taken place but for
the fact that he was accused of a further
disciplinary offence in May 2011, which as a
matter of general practice normally means that
the prisoner must remain where he is until the
accusation is resolved. In the end, this particular
allegation (of assault on an officer) was not
proceeded with, but only because the officer who
made it fell ill and could not continue. In October
2012 a new managing officer suggested a
different course, known as the Self Change
Programme (SCP) in addition to PASRO, and
by December 2012 the former was begun, being
available in HMP Long Lartin. In the meantime,
his tariff had expired in April 2009. As at the
time of the hearing before this court, he had been
transferred to HMP Lindholme, categorised as
C, and was undertaking a course which had
replaced PASRO, namely the Building Skills for
Recovery Programme (BSR).
59. Kaiyam disclaimed any complaint of the
systemic failure, such as had been evident in the
James cases. There was no question of his being
left in limbo without sentencing planning and
without any attempt to provide an opportunity to
rehabilitate himself. Nor was there any question
of his being left for an unconscionable time in a
local prison without access to any courses. The
logjam which the introduction of IPP sentencing
had occasioned after April 2005 was not
suggested to have had any impact on him. On the
69
F-24
does not create an obligation to maximise the

coursework or other provision made to the
prisoner, nor does it entitle the court to substitute,
with hindsight, its own view of the quality of the
management of a single prisoner and to
characterise as arbitrary detention (in the
particular sense of James v UK) any case which it
concludes might have been better managed. It
requires that an opportunity must be afforded to
the prisoner which is reasonable in all the
circumstances, taking into account, among all
those circumstances, his history and prognosis,
the risks he presents, the competing needs of
other prisoners, the resources available and the
use which has been made of such rehabilitative
opportunity as there has been. It is plain that
Kaiyam was not denied a fair or reasonable
opportunity to rehabilitate himself or to
demonstrate that his risk is acceptable. In the
three years of his minimum term he was provided
with courses in enhanced thinking, drug
awareness and victim awareness. Sadly, his
response was poor, there was doubt about his
honesty, and his behaviour in prison attracted the
many disciplinary adjudications mentioned
above, all of which demonstrated that the risk he
presented was far from removed. The transfer to
HMP Long Lartin somewhat reduced the
availability of rehabilitative courses, but there
will inevitably be differences between prisons
which can give emphasis to rehabilitation and
those where the priority is security. It was his
own misbehaviour which led to his transfer there,
over a year after the expiry of his minimum term.
The consequence was that PASRO, which was
the course judged, plainly bona fide, as that most
suitable for him, was not available. Even without
PASRO, there was sustained one to one anger
management work for over a year after transfer to
HMP Long Lartin. Even if, with the benefit of
hindsight, consideration of CALM and FOCUS
courses involved some misjudgement, it was
perfectly understandable. He very plainly had
anger problems, whether or not his index offences
were the result of loss of temper, and he very
plainly had a drug-use and drug-supply
(2015) 1 LAW
background. The advice to take an SCP course

was plainly a sensible expedient, given that
transfer to a place where the first choice PASRO
was available had proved unavailable despite
considerable efforts. Once it was identified, SCP
was begun within about two months. The
attempts to find a transfer were clearly persisted
in; they were complicated by Kaiyams wish to
be in a prison near to his family, by the pending
adjudication in May 2011 and by a parole
window in Spring-Summer 2012, quite apart
from the competing needs of other prisoners in a
large prison population. His case does not begin
to approach the kind of failure of provision
considered and chronicled in R (James). He was
afforded reasonable opportunity to rehabilitate himself
and to demonstrate that he was no longer a risk to the
public, but did not do either. There was no breach in his
case of the ancillary obligation under article 5.
Massey
61. Geoffrey Massey is now 55 (born October

1959). He has been convicted from time to time
of offences which include robbery with a knife,
burglary and benefit fraud. For the first of these
offences he was sent to prison at the age of 20 for
three years. He appears to have worked from time
to time, chiefly as a driver, and latterly as a train
guard. He was married for approximately twenty
years from the early 1980s until separation in
2001. He has been a heavy abuser of drink for
many years and was assessed by a psychiatrist at
the time of his most recent sentence as meeting
the criteria for alcohol dependence.
62. He also had, before the present convictions,
two previous sex-related offences. In 1986 he was
convicted of indecent assault of an 18 year old
male passenger in his taxi. The allegation was
that he had lured the young man to a secluded
spot by telling him that his girlfriend had been
injured, and that he there locked him in the car
and masturbated him against his will, afterwards
obtaining a signed promise to tell no-one. Massey
denies that these were the facts. In 2005 he was
convicted of using threatening/harassing words.
63. He was then convicted in May 2008 of a total
of five sexual assaults on four unrelated young
70
(2015) 1 LAW
men, committed over an extended period, the first

in 1992 and the last in 2005. The first victim was
a 12 year old boy who had run away from home.
The second offence, in about 1998-2000,
involved promising to find a job for a learningdisabled 17 year old and engineering an
opportunity to persuade him that a test involving
masturbation was required. The third and fourth
counts involved an attempt to masturbate a work
experience boy of 15 when Massey was a train
guard. The last offence consisted of an assault
over clothing against a 22 year old whom Massey
had previously pestered with some hundreds of
text messages. All the victims were either young
or vulnerable. In each case he manipulated them
to create an opportunity to molest them. All were
significantly affected by what Massey did. He
pleaded guilty to three counts and was convicted
of the other two, which he continues to deny. The
sentence passed was imprisonment for public
protection with a minimum term of two and a half
years. Allowing for time on remand to count in
the usual way, that minimum term expired in
September 2010.
64. Massey gave a detailed self-history at the
time of his conviction. His account of his own
sexuality appears to be confusing. He attributes
his offences to alleged multiple homosexual
abuse from the age of seven onwards, involving,
he has asserted, a family friend, a schoolteacher
and later, when he was an adult, two unconnected
clergymen. Since the details given have not
always been consistent, there may be some room
for doubt about what occurred. His own account
of his offending against the young men has
involved, more than once, the perhaps surprising
suggestion that he committed the offences
because he wanted to see what his own abusers
had got out of the experience.
F-25
cognitive skills booster course and a proofreading course with a view to post-release
employment. He is a well behaved prisoner, and
has taken on leadership roles as Activities Coordinator, organising games and events, and as
editor of the Prison Magazine. In July 2010 a
long and thoughtful Structured Assessment of
Risk and Need (SARN) report was prepared
upon him by a forensic psychologist. It recorded
some progress in recognising his pattern of sexual
thoughts and fantasies and towards a degree of
victim empathy. On the other hand, concern was
noted that he asserted that he now had no sexual
thoughts about teenage males, which was
unlikely since sexual interests are hard to change.
There had been an apparently dramatic shift in his
attitude towards his offending in a very short time
as a consequence of the CSOTP, whereas the
view was taken that three decades of behaviour
and interests were unlikely to be reversed by
a single programme. The SARN report
recommended assessment to see whether the
ESOTP would be suitable, as well as suggesting
the likely desirability of a following Better Lives
Booster (BLB) programme and a PCL-R
assessment for psychopathy to inform
responsivity. In due course the Offender Manager
concurred and offered tight suggested licence
terms for release when it occurred.
66. Shortly after the SARN, the National
Offender Management Service wrote formally to
Massey in October 2010, accepting its
recommendations. Whilst cautioning him that the
Secretary of State could not guarantee to place
him on the specific courses recommended, given
the limits on resources, the letter formally set the
time for his Parole Board review at 24 months,
and set out a timetable on which this was based,
namely two months for the PCL-R assessment, 10
months to complete ESOTP including
assessment and waiting list, six months for the
BLB, again including assessment and waiting list,
and six months afterwards for post-programme
testing and the completion of reports. That would
have meant a Parole Board hearing in or about
65. Massey was placed on the Enhanced Thinking

Skills (ETS) programme which he completed in
April 2009. He then completed the Core Sexual
Offender Treatment Programme (CSOTP) in
November of the same year. In addition, he has
completed an alcohol awareness course, a
71
F-26
June 2012, already nearly two years beyond the

expiry of his short minimum term or tariff.
67. Assessment for ESOTP followed in April
2011, and it was at this stage that he completed
the Cognitive Skills Booster (CSB) programme.
In the meantime the Parole Board had recorded in
March 2012 that the ESOTP could only be
completed in closed conditions. There was,
however, no place on the ESOTP for him until
May 2013. It is apparent that the wait for ESOTP
was attributable to excess of demand over supply
and to the need to make difficult choices about
who to prioritise. It was not until September 2013
that he completed the ESOTP and subsequently
was afforded further behavioural work known as
the Wheel of Life.
68. Has Massey been denied a reasonable opportunity
the Secretary of State by the formal letter of

October 2010 effectively defined what was
regarded as a reasonable opportunity for Massey
to build on the partial progress which he had
made and to demonstrate (if he could) that he was
safe to release, namely over a two-year period.
Neither this timetable nor anything approximating
to it was honoured. Instead, it was not until after
that period had come and gone that he was able to
begin the ESOTP, and the letter shows that even
if this produced a successful outcome, a further
year or thereabouts was contemplated. We
conclude that in Masseys case there was a failure
to provide him with the opportunity to try to
demonstrate that he was safe for release which
the Secretary of State regarded as reasonable. The
assessment for ESOTP was in Spring 2011. If
there had been a plentiful supply of places he
might have been on it by about Autumn of that
year, but no real complaint could have been made
merely because this kind of course was not
immediately available; if it had been provided in
or about Spring 2012, there would we conclude
have been no breach. There is thus an
unacceptable delay of about a year, and all post
tariff. The inference of legitimate frustration is
justified and that period calls for an award of
damages. Given that it was post tariff we assess it
at 600.
to reform himself and to demonstrate by or within a

reasonable time after tariff expiry that he is no longer a
danger? It is apparent that the less than two and a
half years of his tariff (somewhat shortened, properly,
by time spent on remand awaiting trial and sentence) was
as well furnished with offender-behaviour work

as one could reasonably expect. He first
completed the ETS course, which is a frequent if
not conventional first step, and he was placed on
the CSOTP within his comparatively short tariff
period. He completed the CSOTP in November
2009, and since it is a six month course it would
appear that he must have been placed on it almost
immediately after completing the ETS in April of
that year. The SARN report which first mooted
the ESOTP was in July 2010, so that there could
never have been any prospect of his being both
assessed for, and completing, the ESOTP by the
time of his tariff expiry in September 2010. The
chronology illustrates the fact that if standard,
intensive, course work such as the CSOTP does
not succeed and if lack of risk is not
demonstrated at the end of it, it will be inevitable
that a prisoner with this kind of tariff period will
pass the end of the tariff without being able to be
offered every course which the system has.
69. However, it is important to note that, no doubt
mindful of the comparative brevity of his tariff,
(2015) 1 LAW
Robinson
70. There is a difference of opinion between

members of the court as to the appropriate
disposition of Robinsons appeal. But before
explaining the difference in separate judgments,
we can set out the facts about which there is no
dispute.
71. Andrew Robinson is now 53 (born November
1961). The papers before this court do not include
his formal record of convictions, but their gist is
reasonably clear. In the background are
convictions between 1977 (aged 15-16) and 1981
(aged 19-20) which consist of four offences of
arson (two pairs), seven offences of theft and two
of criminal damage. Thereafter and from at least
his mid-twenties, he has been a repetitive sex
72
(2015) 1 LAW
F-27
alcoholic single father with learning difficulties

and his young daughter (N). Robinson was
repeatedly warned by the Police to keep away but
did not do so. He groomed the family, giving the
father money for drink. He committed a series of
offences of digital and attempted penile
penetration of this girl when she was 13; they
were committed in her home while her father
slept downstairs. He was found to be in
possession of a CS gas canister and of a DVD of
teenage girls engaged in ballet and yoga. He was
convicted also of breach of the SOPO. On this
last occasion he was sentenced, on 2 October
2006, to imprisonment for public protection, with
a minimum term of seven years. Allowing for
time on remand to count in the usual way, that
minimum term (tariff) expired in December
2012.
76. Robinson has never admitted that he committed the
offender. He says that he has never had a

cohabiting relationship with an adult woman.
72. In about 1988 (aged 26-27) he was convicted
of unlawful sexual intercourse with a girl of 15
(C). He asserted that he was protecting her
from her father whom he said was violent. The
sentence was a conditional discharge. The sexual
relationship seems to have continued afterwards
for a few years during which time he lived with
C, now just past 16.
73. When this relationship was ended by the girl,
Robinson befriended a mother who was a
passenger on a bus he drove, and who had a
teenage daughter (K). In due course he
committed sexual offences against K when she
was 14. Subsequently he befriended a second
mother, who was alcoholic, and who had a
daughter (L). At around this time he began a
sexual relationship with a young woman of 19
who had learning difficulties, and she gave birth
to his daughter. Social services became
concerned about the relationship and intervened
on the young womans behalf. Robinson then
abused L, aged 14; subsequently he has said that
he did this as an act of revenge against the social
workers. In 1998 he was prosecuted for the
offences against both K and L and sentenced to
15 months imprisonment.
74. On his release he obtained a job driving
schoolchildren to an afterschool club, dishonestly
concealing his conviction in order to do so. He
indecently assaulted a 12 year old girl whom he
met in this way. He was sentenced to six months
imprisonment, and it would appear that
subsequently a Sexual Offences Prevention Order
(SOPO) was made in an effort to restrict his
contact with teenage girls.
75. In breach of this Order, he befriended two
further vulnerable families. The first consisted of
a single mother with three young children. He
took on decorating at their house, arranging to be
there when the children came home from school.
In due course he was found to have made a video
recording of one of the little girls in her night
clothes. The second family consisted of an
offences for which he was last sentenced, which are

much the most serious of which he has been convicted.
He asserts that he was set up by the police and that N
was bullied into giving false evidence against him.
Denial of offending is an obvious impediment to
therapeutic treatment but need not be a bar to it.
Robinson was provided with treatment on the

basis of the earlier, albeit less serious, offences,
which he admitted. In the first year of his
sentence he completed the cognitive behaviour
programme ETS, which is designed to confront
offenders with what leads to their criminal
behaviour and to help them address it. In 2008 he
completed the Core Sexual Offenders Treatment
Programme (CSOTP). This is a sustained
course consisting of some 90 sessions at the rate
of three or four per week over a period of six to
eight months. Targeted specifically at sexual
offending, it is designed to challenge thinking
patterns which lead to sex offending and to the
offenders justification for it, to help prisoners to
see things from the perspective of the victim, and
to devise strategies to avoid being in positions of
temptation in future.
77. In July 2008 a long psychologists report
(Structured Assessement of Risk and Need or
SARN) recorded the position after this work
73
F-28
was suitable for the extended sexual offences

treatment programme (ESOTP). This latter
course is designed for only nine prisoners at a
time. It lasts for about six months and involves 74
sessions plus some individual work, at roughly
three per week. Each such course needs a staff of
four, one supervisor who must be a chartered
psychologist, plus three facilitators (officers,
group workers or forensic psychologists in
training and preferably a mixture of disciplines).
Each such team can deliver only one such course
per year, no doubt because of the members other
commitments. The ESOTP can be provided at
only a limited number of prisons specialising in
sexual offenders; the judgment of the Divisional
Court records at para 7 that over the relevant
period it was available at some ten such prisons.
79. The recommendation for consideration of an
ESOTP was consistent with published Prison
Service indicia of the courses which are likely to
be suitable for different prisoners. The prison
service runs a variety of programmes for sexual
offenders. They include, as well as the CSOTP, a
Rolling
Sexual
Offenders
Treatment
Programme (for those presenting mild risk),
Becoming New Me, Better Lives Booster,
Healthy Sexual Functioning (now replaced by
the Healthy Sex Programme), Adapted Better
Lives Booster (for those with intellectual
difficulties), and the ESOTP. Reference to the
ESOTP may be justified, inter alia, by an
assessment of high or very high risk and, more
particularly, by severe grievance thinking, severe
sexual entitlement thinking and severe lack of
intimacy. Robinson fitted those criteria, although
less obviously others, and, since the risk
remained after completion of the CSOTP, ESOTP
was a justified suggestion. There was and is a
substantial waiting list for the ESOTP, as also for
other programmes. Apart from life or IPP
prisoners, there are numbers of determinate
sentence sexual offenders, who are likewise
recommended for this programme in the hope
that they will not present an unacceptable risk to
the public when their release is mandatory, under
the Criminal Justice Act 2003, at the half way
had been done. The author was able to identify

some encouraging signs. Robinson had begun to
see the possible relevance of his own childhood
abuse when in care as a teenager, although he
described it as affectionate. He was able to
suggest not offering to drive teenagers as a way
of avoiding temptation. He said that he was now
aware of the harm his conduct had caused and
that he now realised that he was not in a
relationship with his victim, since they were too
young. He appeared to have made some progress
in self-esteem and in recognising his strong desire
for intimacy. His behaviour in prison was
generally good. On the other hand, there was
considerable cause for concern. Although at the
conclusion of the CSOTP, his scores on
assessment of child abuse supportive beliefs had
been adjudged to be below the threshold for
treatment, the psychologist found that he
continued to harbour such beliefs; for example he
believed that whereas rape was a sexual offence,
other offences contain more affection and care.
He was deeply suspicious of those trying to help
him; he reported them as twisting what he said
and he said that he would be very wary of any
further such course. He remained very angry
about the social workers who had dealt with his
daughter and offered such resentment as a
justification for some of his offences. While he
said that the cause of his offending was inability
to relate to adults, his history demonstrated that
he was adept at gaining the confidence of the
parents whose children he abused. Manipulative
behaviour and his sense of grievance were
reported to have impeded his progress. He
continued to deny the more serious offences, and
for that matter all or some of the arson offences.
The wing staff reported a tendency to manipulative
behaviour, surreptitiously encouraging others to
complain. The various risk measurement tests
applied to him all concluded that the risk to the
public remained high.
78.
This
report
concluded
with
the
recommendation that there should be a full
psychopathy assessment (PCL-R) and that, so
long as that did not provide contra-indications, he
(2015) 1 LAW
74
(2015) 1 LAW
stage in their sentences. The ESOTP in particular

is clearly very resource-intensive.
F-29
given to those who were determinate sentence

prisoners within six months of release and to
those longest past the end of their minimum
terms.
82. The Divisional Court examined the national
evidence relating to the availability of the
ESOTP. It concluded that there was overall
under-provision of this course and accordingly a
breach of the Secretary of States public law duty.
There was no appeal against that finding, which
must be accepted. It is not, however, to be taken
as meaning that the Secretary of State is under an
obligation to provide an ESOTP to every prisoner
for whom it may be suggested, and the court said
no such thing. Nor does it mean that the court
took the view that, assuming that James v UK fell
to be applied rather than R (James), there had
been the kind of breach of article 5 which the
Strasbourg court identified; on the contrary, the
Divisional Court specifically adverted to the
opportunities which Robinson had had to
demonstrate his safety and rejected the assertion
of breach of article 5.
83. Accepting that there was a national shortfall
in the provision of ESOTP courses, the question
under article 5 remains: did the Secretary of State
afford Robinson a reasonable opportunity to
reform himself and to demonstrate to the Parole
Board, by the time of tariff expiry or within a
reasonable time thereafter, that he no longer
presented an unacceptable risk to the public? On
the answer to this question, different members of
the court take different views, which are therefore
set out in separate judgments.
80. Robinson was moved to HMP Whatton,

which specialises in sexual offenders, in February
2010. The PCL-R psychopathy test, involving
nine hours of interviews, was conducted in
February/March 2011. Although he was showing
limited signs of accepting that the children were
victims, the assessment of him was not
encouraging. He was found to see himself as a
victim, the manipulative behaviour was noted,
and he was recorded as asserting that he had not
harmed the children but was only seeking a
relationship with them. Nevertheless, the
foregoing apart, he did not display psychopathic
traits; he was comparatively controlled and his
offences were planned rather than impulsive.
There was no psychopathy-based obstacle to
participation in the ESOTP. A final assessment of
suitability for the ESOTP followed in April 2012,
undertaken by the Deputy Treatment Manager for
the programme. She pointed out that the ESOTP
would not address his sexual interest in teenage
girls, but could and would target his feelings of
inadequacy, his lack of adult relationships and his
marked distrust of others. She observed that he
might yet need also a Healthy Sexual Functioning
course, which does directly address unsuitable
sexual interests. In the end, an ESOTP became
available for him only in July 2013, when he was
specially transferred to HMP Risley which could
provide it earlier than HMP Whatton. By this
time, his minimum term of seven years had
recently expired in December 2012.
Outcome
81. The evidence from HMP Whatton, the

specialist prison for sexual offenders, makes it
clear that the delay was caused by excess of
demand over supply. The prison authorities were
operating on a budget set by the Ministry in a
time of general national financial stringency,
although course provision targeted at sexual
offending cost just under 1m per year at that
prison alone. They were obliged to prioritise
amongst those who had been assessed as suitable
for the ESOTP. As between them, priority was
84. In the result, the appeals of Haney and

Massey should be allowed, and there should be
awards of 500 for Haney and of 600 for
Massey, reflecting in each case the inference of
justifiable frustration and anxiety. The appeals of
Kaiyam and, and in the light of the opinion of the
majority set out in their separate judgment, of
Robinson must be dismissed. The findings in the
two cases of Haney and Massey of breach of the
duty ancillary to article 5 are a further regrettable
75
F-30
consequence of the manner in which the seriously

flawed system of Imprisonment for Public
Protection came to be introduced without
sufficient funding to cope with it. It was a system
subsequently reformed and it has since been
altogether removed from the sentencing regime
provided by statute for courts charged with the
trial of criminal cases.
order from the complaint made by Robinson.

Whereas the prisoners James, Lee and Wells in
James v UK were left for a long time to languish
in local prisons with no sentence planning and no
rehabilitative work at all, no little effort was
made with Robinson, who was provided with
successive courses and had ample opportunity to
change himself and to demonstrate that he was no
longer a predatory sexual offender. The ETS and
CSOTP courses with which he was provided
supplied ample reasonable opportunity to do so.
The latter in particular lasted six months or more
and involved three or four sessions per week.
Unfortunately, what was demonstrated was that
Robinson remained a serious risk, since the initial
scores for child abuse supportive beliefs proved
false positives, and he remained manipulative,
mistrustful and denying his principal offences,
seeing himself as the real victim
87. It was contended on behalf of Robinson that
the Parole Board had recommended an ESOTP
in March 2010 and again in December 2012. As a
matter of accuracy, on neither occasion did it do
so, although on both occasions it recorded the
extant proposal for such a course which had been
made within the Prison Service. The Parole Board
decision of March 2010 was that Robinson was
not suitable for transfer to an open prison. It
included the following:
***
LORD HUGHES: (with whom Lord Neuberger,
Lord Toulson and Lord Hodge agree)
85. This separate judgment addresses the

appropriate disposition of appeal by Robinson,
the one matter left outstanding by the main
judgment delivered by Lord Mance and Lord
Hughes. The facts have been set out in paras 7083 of the main judgment. The critical question
identified in para 83 is whether the Secretary of
State afforded Robinson a reasonable opportunity
to reform himself and to demonstrate to the
Parole Board, by the time of tariff expiry or
within a reasonable time thereafter, that he no
longer presented an unacceptable risk to the
public. This critical question must not be
transmuted into the different question, namely did
the Secretary of State make reasonable provision
for a particular course which might have been
relevant to Robinson? Once the right question is
identified, the answer given by the Divisional
Court is plainly correct. It should in passing be
made clear that the Divisional Court was not
basing its conclusion upon doubts about what was
meant in James v UK by characterising the
detention as arbitrary. On the contrary, it was
assuming for the sake of addressing the question
that in the particular sense there used the
detention would be arbitrary if a breach of the
duty there identified was established, and it was
contrasting the kind of wholesale failing found in
James with the kind of delays identified in the
cases before it.
86. The breach of the ancillary obligation under
article 5, which the Strasbourg court identified in
James v UK involved a wholesale failure to
address rehabilitation. It was of a quite different
(2015) 1 LAW
There are a number of risk assessments in the

dossier. OGRS 3 assesses the risk of reconviction
as 14% at 12 months and 25% at 24 months.
OASys assesses the risk of general and violent
offending as low with a very high risk of harm to
children in the community. RM2000 assesses Mr
Robinson as posing a very high risk of sexual
reconviction and the SARN concluded that he
has a high level of dynamic risk as a result of
having strongly characteristic risk factors in the
sexual interests, offence supportive attitudes and
relationship domains. Specific risk factors
include having offence related sexual interests,
child abuse supportive beliefs, suspicious, angry
and vengeful attitudes and not having an intimate
relationship.
Mr Robinson's dossier states that he is a standard
prisoner on the IEP, although for much of his
76
(2015) 1 LAW
sentence he has been enhanced. He has

completed ETS and the core SOTP, although the
latter was on the basis of admissions to previous
convictions. Mr Robinson maintains his
innocence of the index offences, stating that he
was set up by the Police. The post programme
report from the SOTP indicates that some
progress was made but the report writer notes
that Mr Robinson could be manipulative in a
group, still held child abuse supportive beliefs
and that his suspicious thinking (against staff)
had impacted upon his development. It was
recommended that Mr Robinson complete the
ESOTP in order to address his interest in
pubescent girls and that a full psychopathy
assessment be completed.
The panel noted that whilst he is willing to do
further offending behaviour work, denial of the
index offences may make it difficult to transfer
Mr Robinson to an appropriate establishment to
undertake ESOTP and that as a result completion
of this sentence plan target remains extant.
F-31
89. The strongest part of Robinsons claim under

article 5 is no doubt the passage of time after the
psychologists report of July 2008 before the
ESOTP was begun in July 2013. But given that
his tariff was not due to expire until December
2012, there could have been very little complaint
before at least the Secretary of State recognised
the course as an objective in August 2010, and
perhaps not until well after that. Moreover in the
meantime, in March 2011, still well before the
expiry of his tariff, there had been the further
detailed PCL-R sessions. These were of course
principally assessment rather than therapy, but
they provided ample opportunity over nine hours
to demonstrate that there had been a change, or at
least encouraging understanding of the true nature
of what he had done. Sadly, what those sessions
revealed was that he still saw himself as the
victim, denied his principal offences, believed
that he had not harmed any of the children and
remained manipulative. There could be no clearer
demonstration of the risk he continued to present.
There has certainly been considerably greater
delay in putting him onto the even more intensive
ESOTP than one would choose to see in an ideal
prison management system, but that is not the
same as saying that he has not had a fair
opportunity to reform himself or to demonstrate
that he is no longer a danger. Despite the delay he
was able to begin the ESOTP quite shortly after
the expiry of his tariff.
90. There is a great danger, in considering
Robinsons case, of classifying the ESOTP as the
acid test by which alone he could demonstrate his
safety for release. Even if it were, it would not
mean that he had not had reasonable opportunity
to demonstrate this already. But it was not. The
fact that the psychological recommendation that
Robinson should take part in this programme did
not have spoken conditions attached to it, does
not mean that it was the only way in which he
could demonstrate his safety. It was in fact
neither a necessary nor a sufficient means of
doing so. It was not sufficient since it is not
designed to address the offenders sexual interest
in pre-pubescent girls; even if made available, it
88. The Boards written reasons were duly sent to

Robinson by the Secretary of State who added
that the next reference to the Board would be
shortly before tariff expiry, to allow for
completion of the ESOTP if assessed as suitable
and a full psychopathy assessment [and] to
further assess your outstanding risk factors. That
was by no means to make completion of the
ESOTP a condition of future consideration of
release, still less to lay down a timetable for it, as
was done in the case of Massey. If a case were to
arise in which the Parole Board made it, in effect,
a condition of consideration for release that a
particular piece of behavioural work be
undertaken, that would no doubt be relevant to
the question of whether the prisoner was
thereafter afforded a reasonable opportunity to
rehabilitate himself and to demonstrate absence
of risk. Even then, such a Parole Board decision
would not mean that the prisoner had not had
reasonable opportunity before then, nor would it
necessarily justify prioritising that prisoner over
others for scarce resource-intensive courses.
However, this was not in any event Robinsons
case.
77
F-32
prisoners and a welcome arrow in the quiver for

the case of those who prove very difficult to
change. To hold that a delay (including an
unacceptable delay) in providing it constitutes a
breach of article 5, via the ancillary duty
recognised, would be likely to have the perverse
effect of discouraging the prison service from
providing it at all, and/or of discouraging
recommendations for courses unless and until
they are known to be shortly available, and/or of
discouraging the prison service from devising and
suggesting new forms of programme, especially
if they are extremely expensive, as clearly the
ESOTP is. All these effects would be an
impediment to individualised prisoner assessment
and management, and to eventual rehabilitation
of those for whom it is possible.
would have been only part of the possible

programmes which Robinson might have needed
in the absence of his accepting that his behaviour,
which he continued to characterise as innocent
victimhood, was in fact a considerable danger to
children, and in the absence of his recognition
that it needed to alter. It was not necessary,
because by this time he had had ample
confrontation with his failings, and if he had
recognised them and shown real willingness to
change, for example in the course of the nine
hours of interviews for the PCL-R assessment,
then there may well have been no occasion for six
months of ESOTP work.
91. The concomitant danger lies in treating
Robinsons case as if the ancillary duty under
article 5 involves a positive duty on the prison
service in England and Wales to furnish an
ESOTP course. That is not the law, and there is
nothing in James v UK which entitles any court to
go so far. Indeed, if it were, it would presumably
follow that any other European country which
imposes any form of indefinite sentence would be
under a similar duty to provide either it or its
equivalent. The responsibility for deciding what
form of rehabilitative assistance is to be afforded
to the prisoner must rest with the individual State,
providing that the minimum standard is met of a
reasonable opportunity to him to demonstrate his
safety. The availability of limited resources,
particularly at a time of the kind of national
financial stringency which characterised the years
of delay in Robinsons case (2008-2013) is an
unavoidable factor. The Core Sex Offenders
Treatment Programme (CSOTP) administered
in the prisons of England and Wales is of
considerable intensity and makes extensive
psychological demands on those offenders who
take part in it. It is very likely that if it stood by
itself it would meet the duty contemplated by
James v UK and even more likely that it would do
so if coupled, as it is, with the EST, BLB, HSP
and other programmes, which are available.
There is no legal obligation to provide an ESOTP
course in the first place. It is simply one possible
way of tackling recalcitrant attitudes in some
(2015) 1 LAW
92. Coursework is important and may succeed,

but it holds no guarantees. In order for
Robinsons article 5 ancillary duty claim to
succeed, that duty would have to go beyond the
duty to afford an indeterminate prisoner a
reasonable opportunity to reform himself and to
demonstrate, by or within a reasonable time after
tariff expiry, that he is no longer a danger. It
would have to be a duty to provide, or at least to
take reasonable steps to provide, within such time
frame, any specific coursework for which the
prisoner has been judged eligible. That is not the
content of the duty.
93. This conclusion is illuminated by the decision
of the ECtHR in Hall v UK (Application No
24712/12, referred to at para 42 above). Like
Robinson, Hall had completed the ETS and then
the CSOTP courses but remained a risk and was
recommended for further work in the form of the
ESOTP. Halls recommendation was in March
2008, and he experienced the same unavailability
as did Robinson, at much the same time and
doubtless for the same reasons. The delay in
finding a place on the ESOTP in Halls case was
certainly not as long as it was in the case of
Robinson, but the delay has to be put in the
context of his tariff, which at 30 months, was less
than a third as long as Robinsons. Halls was a
78
(2015) 1 LAW
F-33
thinking and provide further opportunities to

develop his intimacy skills.
Upon completion of this, to re-assess the extent of
Mr Robinsons suspicious thinking and the
appropriateness of further treatment for his sexual
interest in pubescent girls.
Conclusion:
I recommend that Mr Robinson is moved to an
establishment where he can access the Extended
SOTP and continue working on his risk factors for
future sexual offending.
The psychologists combined recommendations that
Robinson undertake a PCL-R followed by an ESOTP
were both therefore unconditional.
plainer case, as the threshold decision of

inadmissibility by the Strasbourg court
demonstrates. He had undertaken some other
courses, which Robinson had not, such as victim
awareness and alcohol awareness and when, after
the ESOTP, concerns remained, he had been
provided with the Better Lives Booster. But the
essential point is that the court was satisfied that
he had (beyond argument) been provided with a
reasonable opportunity to rehabilitate himself by
courses throughout his detention, and this despite
the delay in finding space on the ESOTP for
some eighteen months after it was recommended,
which had had the result that he was not able to
complete it until he had served more than a year
beyond his tariff of 30 months, that is to say
getting on for half as long again (see para 33).
96. The Administrative Court further found (para 6)

that The ESOTP became a formal sentence objective
by at least February 2009. The psychologists
recommendation was referred to without demur in the
Parole Boards reports dated 31 March 2010 and 8
November 2012, the latter confirming expressly that
it is acknowledged that all parties accept ESOTP to
be necessary.
***
LORD MANCE:
94. I have the misfortune to differ from Lord
Hughes and the majority on the disposition of
Robinsons appeal. The basic facts are set out in
paras 71-83 of the joint judgment written with
Lord Hughes. The test is whether Robinson was
supplied with a reasonable opportunity to
demonstrate that he was no longer a risk.
95. It was of the nature of his offending that he
received a sentence involving a relatively long tariff
period which expired on 10 December 2012. It was
of the nature of his character and propensities that,
despite some encouraging signs, he remained in
identified respects a high risk after completing the
CSOTP in 2008. The psychologists report dated 9
July 2008 made a recommendation in the body of
her report, that a full psychopathy assessment
[PCL-R] is competed prior to Mr Robinson
undertaking any further treatment (para 4.6), but
ended the report with unqualified recommendations
and a conclusion dealing exclusively with the
ESOTP as follows:
97. The Administrative Court further noted that

ESOTP courses are courses which
many sex offenders serving an IPP need to
complete before they can have any realistic
prospect of demonstrating to the Parole Board that
they are safe for release. (para 59)
This is borne out by the Ministry of Justices
publication Suitability for Accredited Interventions
(June 2010), which tabulates such a course as a
requirement for all high or very high risk offenders, as
well as for one category of medium risk offender with
three or four domains of strong treatment need (p 42).
It adds (p 43):
Some offenders, particularly high-risk offenders,
are likely to attend more than one SOTP so that
their combination of dynamic risk factors can be
fully addressed. (Eg a high risk offender with both
offence supportive attitudes and grievance thinking
would likely need to attend both Core and
Extended SOTPs).
98. The Administrative Court had no hesitation about
finding the Secretary of State in breach of the public
law duty accepted in R (James). As Lord Hope there
said, it was and is implicit in the legislative scheme
for IPPs that the Secretary of State would make
provision which allowed IPP prisoners a reasonable
opportunity to demonstrate to the Parole Board that
7. Recommendations for continued risk management

My recommendations are as follows:
To successfully complete the Extended SOTP in
order to address outstanding treatment needs in
offence supportive attitudes and suspicious
79
F-34
(11 May 2004) the court had held (para 66) that even
a delay of six months in the admission of the applicant
to a custodial clinic could not be regarded as
acceptable in the absence of evidence of an
exceptional and unforeseen situation on the part of the
authorities.
101. In the present case, the Administrative Court
also noted that the public law duty was only to make
reasonable provision of services and resources for
the relevant purpose and was not an absolute one
(para 55). It went on:
59. It is clear from the factual circumstances of the
claimants' own cases, and from the general
evidence we have summarised concerning systems
and resources, that a serious problem still exists in
relation to the provision of ESOTP courses which
many sex offenders serving an IPP need to
complete before they can have any realistic
prospect of demonstrating to the Parole Board that
they are safe for release. The delays experienced by
these two claimants are troubling in themselves.
Despite pressure over a lengthy period, neither
claimant managed to get admitted to an ESOTP
course until after the expiry of his tariff period (in
Mr Massey's case, almost three years after its
expiry); and since, after completion of the course,
each of them has to wait for a substantial further
period until their next Parole Board review, their
first reasonable opportunity to demonstrate to the
Parole Board that they are safe to be released will
come long after the expiry of their tariffs.
60. It is clear that the claimants' experience is far
from exceptional. The evidence summarised at
paras 34ff. above shows that the number of IPP
prisoners with a requirement for an ESOTP greatly
exceeds the number of placements available on
ESOTP courses and that many such prisoners are
failing to get onto courses until after the expiry of
their tariff periods. In some cases the delay can no
doubt be explained by reasons specific to the
individual prisoner, but the under-provision of
courses appears to us to be the primary reason for
delay and to be accurately described as a systemic
problem. Nor is there any immediate prospect of
improvement. On the contrary, we have noted at
para 45 above that at HMP Whatton demand for
places on ESOTP courses is set to rise as the
provision of places has fallen.
61. We understand the tight financial situation
across the entire prison estate and the difficulty of
allocating limited resources between a range of
they should be released, and that, on the facts of

those cases, he failed deplorably in that public law
duty in that he failed to provide the systems and
resources that prisoners serving those sentences
needed to demonstrate to the Parole Board by the time
of the expiry of their tariff periods, or reasonably soon
thereafter, that it was no longer necessary for the
protection of the public that they should remain in
detention: [2010] 1 AC 553, para 3.
99. In summary, a legislative scheme like that for

IPPs must allow a reasonable opportunity to
demonstrate safety, and must be accompanied by
reasonable systems and resources to enable offenders
to change and develop so as to be able to demonstrate
that they are now safe and to achieve release by the
tariff expiry date or reasonably soon thereafter. I
stress the word reasonable, since it is clear that a
realistic and flexible approach should be taken
regarding prison resources and the specialist, timeintensive and costly nature of some courses provided
in prison: see also paras 100-101 below. But, as an
element of this duty, there should in my opinion be a
reasonable degree of access for IPP prisoners to the
ESOTPs which many prisoners will need before they
can hope to show that they are now safe. That is the
consequence of the scheme itself, under which it was
otherwise inevitable (and entirely predictable) that
prisoners would (as has happened) languish in gaol
long after the tariff periods set by reference to the
seriousness of their actual offending. It is a
consequence of the rehabilitative purpose which must
in this context be accepted as having always attached
in the light of the provisions of the ECHR to an IPP
sentence: see paras 205-209 of the European Court of
Human Rights judgment in James v UK, as well as
paras 7 and 36 above.
100. The European Court of Human Rights further
observed in James v UK, para 194 that: for reasons
linked to the efficient management of public funds, a
certain friction between available and required
treatment and facilities is inevitable and must be
regarded as acceptable and a reasonable balance
must be struck between the competing interests
involved. But it added that in striking this balance,
particular weight should be given to the applicants
right to liberty, bearing in mind that a significant
delay in access to treatment is likely to result in a
prolongation of the detention and noted that in
Brand v The Netherlands (Application No 49902/99)
(2015) 1 LAW
80
(2015) 1 LAW
competing demands. But the duty is to make

reasonable provision, and that duty plainly requires
sufficient resources to be made available for its
fulfilment.
62. In conclusion, we are satisfied that there is a
continuing failure on the part of the Secretary of
State to make reasonable provision of systems and
resources, specifically the reasonable provision of
ESOTP courses, for the purpose of allowing IPP
prisoners a reasonable opportunity to demonstrate
to the Parole Board, by the time of the expiry of
their tariff periods or reasonably soon thereafter,
that they are safe to be released. In this respect the
Secretary of State is in continuing breach of the R
(James) public law duty.
102. When it came to considering whether there had
been a breach of article 5, the Administrative Court
was in an odd position. The European Court of
Human Rights had in James v UK disagreed with the
reasoning and conclusions of the House of Lords in R
(James), but the Administrative Court remained
bound by R (James) and, moreover, the European
Courts own reasoning, based on arbitrariness and
consequent
unlawfulness,
presented
obvious
problems, which have been addressed in the main
judgment written by Lord Hughes and myself.
103. In these circumstances, the Administrative Court
reasoned as follows:
78. We have held in relation to issue (1) that the
Secretary of State is in continuing breach of the R
(James) public law duty. That breach, however, is
less serious than the deplorable default that was
of such concern to the House of Lords in R
(James). Yet even the factual circumstances under
consideration in R (James) were regarded by the
House of Lords as falling far short of a situation
rendering continued detention arbitrary and
unlawful under article 5(1). Thus, applying the
approach laid down by the House of Lords, it is
clear that the circumstances of the present case
come nowhere near to rendering the claimants'
continued detention arbitrary for the purposes of
article 5(1).
79. Although the ECtHR in R (James) (Strasbourg)
differed from the House of Lords in finding
arbitrariness on the facts of that case, the default in
the present case is again less serious. The ECtHR
laid stress on the complete failure to progress the
applicants through the prison system with a view to
providing them with access to appropriate
rehabilitative courses. In the case of each of the
F-35
present claimants, by contrast, a great deal was

done to progress them through the system and to
provide them with access to appropriate
rehabilitative courses. The one real failure was in
providing them with timely access to the ESOTP.
Whilst that was an important failure, given the
practical importance of the ESOTP for their ability
to satisfy the Parole Board of their safety for
release, it was in our judgment insufficient to
render their detention arbitrary even on the
approach that the ECtHR took in applying the
concept of arbitrariness in R (James) (Strasbourg).
104. The first paragraph, loyally applying R (James),

cannot stand in the light of our judgment on the
present appeal. The second paragraph appears, clearly
and not surprisingly, to have been influenced by the
oddity in the present context of reasoning based on
arbitrary detention, which, again in the light of our
judgment on this appeal, is no longer an issue.
105. In reality, a conclusion that there was no breach
of the ancillary duty which we have identified in our
judgment on this appeal, cannot stand with a finding clearly correct on the facts of this case - that the
Secretary of State was in breach of the public law duty
to make reasonable provision of systems and
resources for the purpose of allowing not merely
Massey, but also Robinson a reasonable opportunity
to demonstrate to the Parole Board, by the time of the
expiry of his tariff period on 10 December 2012 or
reasonably soon thereafter that he was safe to be
released: see para 62 of the Administrative Courts
judgment, quoted above.
106. The majority disagree with this conclusion, and

in para 91 (above) advance the following
propositions:
(a) There is no legal obligation to provide an
ESOTP course in the first place;
(b) if [there] were, it would presumably follow that
any other European country which imposes any
form of indefinite sentence would be under a
similar duty to provide either it or its equivalent;
(c) to hold that a delay in providing it constitutes
a breach of article 5, via the ancillary duty
recognised, would be likely to have the perverse
effect of discouraging the prison service from
providing it at all, and/or of discouraging
recommendations for courses and/or of
discouraging the prison service from devising
and suggesting new forms of programme,
especially if they are extremely expensive.
81
F-36
108. Turning to the facts of this particular case, as the
107. As to these propositions:
Administrative Court noted in para 31, and adverted

to again in para 59, also quoted above, the successful
completion of an ESOTP programme would not itself
lead to release. Before any question of release, there
would need to be further work, which the Secretary of
State in a programme set in April 2012 put as lasting a
further 16 months.
(a) No-one suggests that there is an absolute

obligation to provide an ESOTP course. But it
may be identified as appropriate in a particular
case by psychiatric or other professionals and
then be required in conjunction with a system
of indefinite detention which would otherwise
mean that a particular prisoner would remain in
gaol long past the expiry of his or her tariff
date, without hope of release, perhaps for ever.
I do not see how a contrary proposition is
reconcilable with the ECtHRs approach in
James v UK and much other Strasbourg
authority, including Hall v UK.
Quite apart from this, since the prison service
in fact operates a system which provides and
holds out the prospect of undertaking ESOTP
courses as part of a process of promoting
progress towards release, it seems to me
incumbent on the state to resource and operate
it efficiently, in a way which enables all
prisoners who prison service professionals
conclude should have such a course to have a
fair opportunity of undertaking one within a
reasonable time frame.
(b) This proposition assumes information about
other European countries, which we do not
have. It is commonly believed that British
sentencing is comparatively more rigorous that
that in most other European countries, though
that must for present purposes also be regarded
as an anecdotal statement. For all that we
know, indefinite detention may be a rarity - the
English experience certainly suggests that other
European countries might have been wise to
avoid it. Those like Germany (and I believe
Austria and Switzerland) which do have a form
of indefinite detention (Sicherungsverwahrung)
- which has at least in its original form, also
occupied the time of the ECtHR - may well
have equivalent courses to ESOTP. We cannot
assume the contrary.
(c) This is another proposition which I regard as
speculative. I question how many of the
psychiatrists and other professionals and staff
who work in our prison service think in this
way. If they do, there may well also be
incentives in the form of prisoners ability to
complain to the ECtHR if they are detained
indefinitely without access to courses which
would very likely be required if they are to
progress through the system towards release.
(2015) 1 LAW
109. In the upshot, Robinson only commenced an

ESOTP in July 2013, some eight months after expiry of his
tariff, the ESOTP would last for some six months, and then
he would have to do further work lasting around 16
months. His release was not going to occur for around two
and a half years after the expiry of his seven year tariff
period. In my opinion, that involved a breach of the
ancillary duty. It was far in excess of any delay arising
from the inevitable and acceptable friction between
available and required treatment which the European
Court of Human Rights acknowledged would also exist in
James v UK, para 194. This is clear both from the
Administrative Courts conclusions on breach of the
public law duty in this case and from the European
Court of Human Rights reference to Brand v The
Netherlands in James v UK, para 194.
110. Each case must turn on its own facts, and the
case of Hall v UK, cited by Lord Hughes, involved
shorter delays - with regard to the provision of an
ESOTP, a delay of at most about 18 months from
March 2008 when an ESOTP was identified as
appropriate to some time, probably, in autumn 2009
when the six to eight month course must have been
commenced (judgment, paras 8 and 13). The
applicants detention had been coupled over the
course of the time spent in detention with regular
access to a wide range of courses designed to assist
him in addressing his offending behaviour and
demonstrating a reduction of his risk to the
satisfaction of the Parole Board (Hall v UK, para 33)
and it had also been complicated by a continuing
series of minor offences committed in prison (Hall v
UK, paras 7, 18 and 19).
111. In my opinion, therefore, Robinson is entitled to

succeed in his complaint about delays in the Secretary of
States performance of the ancillary duty which we have
recognised and so to recover a modest award of damages,
of at least the same amount as, and probably
higher than, Haney has received, to compensate
for the inevitable frustration and anxiety which he
thereby suffered.
*****
82
THE ZIETGEIST MOVEMENT : A NEW TRAIN OF THOUGHT

renewable methods that are conducive to single
structures or small areas find the same systems
logic regarding combination. These localized
systems could also, if need be, connect back into
the larger, base-load systems as well, revealing a
total, mixed medium integrated network.
A common example today is the use of single
structure solar panels, such as for home use.
While the efficiency of these panels is still
improving, coupled with imposed cost limitations
as per the investment/profit mechanism of the
market, most people utilizing these solar power
systems are only able to compliment their home's
electricity use rather than gain 100% utilization.
(For example, most systems are applied to power
the home during the day, while pulling power
from the regional base-load grid at night.) This
kind of approach that seeks to maximize localized
possibilities first, before resorting to larger scale
energy use, in a system approach, is the key to
practical energy abundance, efficiency and
sustainability.
To understand the relevance of this more
thoroughly, let's expand the example of household
solar array application to it possible theoretical
potential. In 2011, the average annual electricity
consumption for a U.S. residential utility
(household) customer was 11,280 kWh.681 Given
114,800,000 households in 2010,682 this means
1295 TWh/yr was used. Total electrical energy
consumption in 2012 for the USA was
3,886,400,000 MWh/yr.683 This equates to 3,886
TWh/yr. This means 33% of all electric consumption
occurred in people's homes, with the vast majority of
that energy coming from fossil fuel power stations.
PART III: A NEW TRAIN OF THOUGHT

(13) POST-SCARCITY TRENDS,
CAPACITY AND EFFICIENCY
CARRYING CAPACITY
(3) Energy
(b) Small Scale & Total Mixed-Use Systems
The prior section described the vast potential

of large-scale, base-load renewable energy
harnessing. Wind, solar, water/hydro and
geothermal have all shown that they are capable,
individually, of meeting or vastly exceeding the
current 0.55 ZJ annual global energy consumption
at this time.
The true question is how are such methods to be
intelligently put into practice. Given the regional
limitations coupled with other native issues such
as intermittency, the real design initiative to create
a workable combination of such means is needed.
Such a systems approach is the real solution,
harmonizing an optimized fraction of each of
those renewables to achieve global, total use
abundance.
For example, it is not inconceivable to imagine a
series of man-made floating islands off select coastlines
which are designed to possibly harness, at once, wind,
solar, thermal difference, wave, tidal and ocean currents
all at the same time and in the same general

area. Such energy islands would then pipe their harvest
back to land for human use. Various combinations
could also be applied to land-based systems as well,
such as constructing wind/solar combinations to
compliment the fact that often wind is more
present at night, while solar is more present
during the day.
Likewise, creative ingenuity with respect to
how we can intelligently combine various
methods also extends to what we could consider
localized energy harnessing. Smaller scale
681
Source: eia.gov (http://www.eia.gov/tools/faqs/faq.

cfm?id=97&t=3)
682
Source: Total Number of U.S. Households (http://www.
statisticbrain.com/u-s-household-statistics/)
683
Source: List of countries by electricity consumption
(http://en.wikipedia.org/wiki/List_of_countries_by_elec
tricity_consumption)
Courtesy: http://www.thezeitgeistmovement.com/; slightly

edited; continued from the Law Animated World,
31 December 2014 issue; emphases in bold ours - IMS.
83
84
The Zeitgeist Movement: A New Train of Thought
If all households in the United States were

able to power themselves for electricity using
solar panels alone, localized energy utilization
that is simply wasted at this time, the base-load
stress reduction would be dramatic. Contrary to
popular belief, as of 2013 this is a real possibility given
population much more rapidly. In the case of solar
arrays for home power generation, given the

incredible capacity it has to alleviate base-load
energy stress which would, today, further reduce
emissions and fossil fuel pollution, it is a very
unfortunate circumstance this technology and its
685
application is subject to the whims of the market.
the state of solar cell efficiency and storage

684
technology. The problem is that the current
If we survey the commercial expense of an

average solar array as of 2013, an average home
using 11,280 kWh a month would require about
30 panels, with a solar cell efficiency of about 915% and a night time battery system. This would
cost well over $20,000.686 Such an expense is
unaffordable for the vast majority of the world,
even though the basic materials used in traditional
PV systems are simple and abundant, along with
ever-increasing manufacturing ease.
Likewise, it is equally as disappointing to
notice how modern home construction has made
little to no use of other basic, localized renewable
methods that can further facilitate the real world
capacity to bring all households (not only in the
USA but the in the world) to a place of energy
independence.
Noting the power of solar, other nearly
universal applications also apply. Small wind
energy industry is not prepared for such

efficiency and consumer solar systems available
suffer from high financial expense as a result of
limited mass production, competition and a lack
social initiative to forward advancement.
It worth stating here that the financial system
and its price oriented mechanisms exist as
barriers to ubiquitous and optimized household
solar development in the broad view (along every
other developing technology after a certain point
of proven efficacy). While defenders of
capitalism argue that the process of investment-tomarket of an in-demand good generally reduces
the cost of that good over time, making it more
available to those who could not afford it before,
it is forgotten that the entire process is a
contrivance.
If price and profit were removed from the system,
focusing only on the technology and its statistical merit,
both at the current time and its longer term

efficiency trends (future improvements), proper
685
It is worth mentioning once again that all business

establishments perpetuate themselves mostly by the
markets they have created prior. A new invention that
can interfere with the existing income infrastructure of a
given business is often subject to influences that slow or
even suppress that income interfering technology. While
many see this kind of behavior as a form of
corruption, the truth of the matter is that the very
mechanism of bringing a given good to the market is
subject to imposed financial limitations which achieve
the same goal. For example, if the new good cannot be
considered profitable during the course of its
development, regardless of its true merit, it will be
hindered. The extremely slow pace of renewable
energies on the whole, even though the principle of
most means has been understood for hundreds of years,
is a direct result of monetary investment or lack thereof
and the more efficient a technology, the less profit will
be realized in the long-term.
686
Source: Off-Grid System Cost Guide (http://www. whole
salesolar.com/StartHere/OFFGRIDBallparkCost.html)
resource allocation strategies and research could be

employed to bring promising technology to the
684
While the current state of CPV solar efficiency, as of

2013 is 44.7% [http://www.soitec.com/en/news/pressreleases/world-record-solar-cell-1373/], with consumer
available products averaging only about 18% [http://
sroeco.com/solar/most-efficient-solar-panels],
more
advance methods are suggesting upwards of 80%.
[http://www.extremetech.com/extreme/168811-newnano-material-could-boost-solar-panel-efficiency-ashigh-as-80] Likewise, battery storage for household use
has been advancing via emerging graphene super
capacitors [http://www.gizmag.com/graphene-basedsupercapacitor/28579/] which can charge faster, last
many times longer than conventional batteries and are
less polluting and take up less space. Another advancing
battery technology is termed the LMB, as developed by
Donald Sadoway and MIT.
(2015) 1 LAW
84
(2015) 1 LAW
85
harvesting systems687 and geothermal heating and

cooling
technology,688
combined
with
architectural design making better use of natural
light and heat/cool preservation efficiency,689
there is a spectrum of design adjustments which could
engineered floors691 and sidewalks,692 streets

which can generate power as automobiles cross
over them693 and train rail systems which can also
capture energy from passing train cars through
pressure.694 Aerospace engineer Haim Abramovich
has stated that a stretch of road less than a mile long,
make apartments and houses not only self-sufficient, but

more ecologically sustainable. Coupling this with
four lanes wide, and trafficked by about 1,000 vehicles

per hour can create about 0.4 megawatts of power,
695
enough to power 600 homes.
use-reuse designs for water preservation, along

with other approaches to optimize energy/
resource efficiency, it is clear that our current
Other theoretical applications extend to pretty

much anything that engages pressure or action,
including minor vibrations. For example, there
are projects working to harness the seemingly
small-scale energy production; such as texting on a
methods are enormously wasteful when compared to the

possibilities.
Extending outwards to city infrastructure, we

see the same failures almost everywhere with
respect to such applied systems. For example, an
enormous amount of energy is used in the process
of transportation. While the electric vehicle has
proven viable for full global use, even though
lobbying efforts and other market limitations
have continued to keep its application well
behind the gasoline powered norm, many systembased
methods
also
go
unharnessed.
Apart from a general necessity to reorganize
urban environments to be more conducive to
convenient mass transit networks, removing the
need for numerous autonomous vehicles, simply
re-harnessing the powered movements of all
transport mediums could dramatically alleviate
energy pressures.
A technology called piezoelectric,690 which is
able to convert pressure and mechanical energy
into electricity, is an excellent example of an
energy reuse method with great potential.
Existing applications have included power
generation by people walking on piezo
cell phone in a effort to charge the phone while the

696 697
phone is simply being touched or moved;
applications to harvest energy from airflow from
698
airplanes;
and even an electric car that uses piezo
699
tech, in part, to charge itself as it travels.
691
Reference: Energy-Generating Floors to Power Tokyo

Subways
(http://inhabitat.com/tokyo-subway-stations-getpiezoelectric-floors/)
692
Reference: Six Sidewalks That Work While You Walk

(http://www.treehugger.com/clean-technology/six-sidewalksthat-work-while-you-walk.html)
693
Reference: Israel Highway Equipped With Pilot

Piezoelectric Generator System (http://www.green
optimistic.com/2009/10/06/israel-piezoelectric-highway/#.
UmHNTmRDp94)
694
Reference: New Piezoelectric Railways Harvest Energy

From
Passing
Trains
(http://inhabitat.com/new-
695
Reference: Under Highway Piezoelectric Generators

Could Provide Power to Propel Electric Cars (http://
piezoelectric-railways-harvest-energy-from-passing-trains/)
www.greenprophet.com/2010/09/piezoelectric-generatorselectric-cars/)
696
Reference: Piezoelectric kinetic energy harvester for

mobile phones (http://www.energyharvestingjournal. com/
articles/piezoelectric-kinetic-energy-harvester-for-mobilephones-00002142.asp?sessionid=1)
687
Example: Saving Energy in West Michigan Honeywell

Wind Turbine (http://www.freepowerwindturbines.
com/honeywell_wind_turbine.html)
688
Reference: Geothermal Heat Pumps (http://energy.gov/
energysaver/articles/geothermal-heat-pumps)
689
A design approach called passive solar is a good
design example. [http://en.wikipedia.org/wiki/
Passive_solar_building_design]
690
Reference: thefreedictionary.com
(http://www.thefreedictionary.com/piezoelectric)
697
Reference: Cisco's Laura Ipsen: Smart grid success

requires infotech, energy tech savvy (http://www.
smartplanet.com/blog/science-scope/charge-your-phone-bytyping-on-it/8797)
698
Reference: Harvesting energy from vehicle air flow

using piezoelectrics (http://www.gizmag.com/ harnessingvehicle-air-flow-energy/13414/)
699
Reference: P-Eco Electric Concept Vehicle Powered by

Piezoelectricity (http://psipunk.com/p-eco-electric-conceptvehicle-powered-by-piezoelectricity/)
85
86
If we think about the enormous mechanical

energy wasted by vehicle transport modes and
high traffic walking centers such as downtown
streets, the potential of that possible regenerated
energy is quite substantial. It is this type
of systems thinking that is needed in order
maintain sustainability, while actively pursuing a
global energy abundance.
the idea of an abundance of automobiles would

perhaps imply, based on the current property
oriented framework, that every human being on
the planet should then own a private automobile.
Put bluntly, this is the wrong perspective and an
outgrowth of a non-synergetic conditioning which is
common to the market system's reinforcement of
property as value. From the standpoint of
efficiency and sustainability it is extremely wasteful
to employ 'one automobile per person' due to the fact
that a person actually only drives, on average, only
about 5% of the time. Otherwise, the automobile
(4) Material Production/Access
Unlike the prior three sub-sections, which

have taken only existing, established methods
into consideration with respect to humanity's
potential to achieve an abundance700 of each
given focus, this section will necessarily be
approached differently.
The problem with creating a basis for an
overall material abundance extrapolation in a
similar manner, taking into account general raw
materials, is that the level of industrial revision
needed to embrace the high degree of efficiency
sought, is radically different from current
traditional practices. In other words, we cannot
definitively extrapolate in the same way, using an
existing, singular process or genre technology in
order to draw such a conclusion about the level of
productivity possible on the whole.
This is because the true abundance-generating
sits in parking lots, driveways and the like.

In the city of Los Angeles, California
about 1,977,803 automobiles are reported as in
use as of 2009.702 In abstraction, based on this
use-time average of 5%, only 98,890 automobiles
would actually be needed to meet the transport
time needs of the current use demand, assuming a
sharing system. In other words, in principle, only
98,890 automobiles would be needed to meet the
transport needs of 1,977,803 people.
Furthermore, for the sake of argument, with all
other modes of public transport ignored and with
the entire population of Los Angeles (3.9 million
people)703 needing to be mobile for 5% a month,
only 195,000 automobiles would be needed, in
abstraction, to meet the average use time of 3.9
million people.
Likewise, in the United States in 2008, it was
recorded that 236.4 million consumer vehicles
were being used. With a U.S. population of 313
million, using the 5% use statistic once again, it
would take 15.6 million automobiles to meet use
demand. That is an 83% decrease in automobile
output to meet the needs of all Americans (a
32.4% increase in use or access based on total
population), in theory.
Of course, please note that it is well
acknowledged here that such an extrapolation is
efficiency mechanism is to be found in the large- scale

system orientation, taking
into account the
synergy present between the sustainability laws inherent
to the natural world and the level of efficiency
incorporated within the entire societal operation.
For example, today there are over one billion

automobiles in the world.701 From a narrow view,
700
As will be explained more so in this section, the

abundance state sought has to do with use-time and
access, not outright property. An access society is very
different from a propertied one in many profound ways,
especially when it comes to sustainability, values and
human behavior itself. Food, energy and water already
assume an access state since such items are perishable
or part of an continuum that separates it from physical
good ownership as we traditionally think of it.
701
Source: Number Of Cars Worldwide Surpasses 1 Billion; Can
702
Source: The City of Los Angeles Transportation Profile

(http://www.gu.se/digitalAssets/1344/1344071_city-ofla-transportation-profile.pdf)
703
Source: United States Census Bureau, 2013
(http://www.census.gov/)
The World Handle This Many Wheels? (http://www.

huffingtonpost.ca/2011/08/23/car-population_n_934291.html)
(2015) 1 LAW
86
(2015) 1 LAW
merely for speculation as obviously many other

complicating factors come into play in real life
that would adjust this equation greatly. The point
here is to give the reader a sense of synergy. What
should be pointed out is the noted increase in
high degree of scarcity, as an abundance focused
society would eventually mean less labor-forincome, less turnover and less profit on the
whole. If society woke up tomorrow to a world
where 50% of the human job market was automated
and where all food, energy and basic goods could be
made available without a price tag due to increased
efficiency, needless to say the job market and
monetary economy as we know it would collapse.
efficiency, where substantially fewer automobiles are

needed to meet the transport needs of substantially
more people, due to a system-based, synergetic
reorientation (in this case, a car sharing system).
Again, this is not to dismiss the need for

improved urban or public transport, nor does it
address the importance of an automobile's
design.704 At the root of this issue is really the
subject of transportation itself, the reasons why
people need such mobility, and how the
environment is designed to cater for (or bypass)
such needs. This is an enormous, dynamic subject
to consider.
Also, let it be stated upfront that no matter
what real or assumed efficiencies may exist in
real life, the goal of seeking post-scarcity, as both
a means to relieve human suffering and as a
method to adapt to truly efficient and hence
sustainable practices, is without debate as a
critical point of focus for an expanding society. It
could be well argued that only a perverse society
Value Shift
In order to think properly about the state of our

productive capacity to produce life-supporting
and standard of living improving goods today, we
need to first rationally separate human needs
from human wants, with the priority of meeting needs
first.
While this distinction may appear like a
controversial opinion to many, in a world where
now 46% of the total wealth is owned by 1% of the
705
population;
in a world where roughly 1 billion do
706
not get basic nutrition;
in a world where 1.1 billion
people live without clean drinking water and 2.6 billion
707
people lack adequate sanitation;
in a world where
708
100 million people do not have shelter;
in a world
where 3 billion live on less than $2.50 a day709 and in a
world where 1.2 billion do not even have

electricity710 perhaps our priorities as a global
would willfully choose to persevere with a system that

knowingly preserves scarcity for profit and
establishment preservation when it is intellectually clear
that such a condition is no longer needed and hence
705
Source: 46 per cent global wealth owned by richest 1

per cent: Credit Suisse (http://profit.ndtv.com/news/
economy/article-46-per-cent-global-wealth-owned-byrichest-1-per-cent-credit-suisse-369109)
706
Source: U.N.: One billion worldwide face starvation
any such related human suffering resulting is also

no longer needed.
As argued prior, the market economy is not just a
response to a scarcity-based worldview, it is also
a preserver of it. The market structurally requires a
704
87
(http://www.cnn.com/2009/WORLD/europe/11/15/un.hunger/)
707
Source: Water Crisis: Towards a way to impove the

situation (http://www.worldwatercouncil.org/
library/archives/water-crisis/)
708
Source: An estimated 100 million people worldwide are
homeless. Source: United Nations Commission on
Human Rights, 2005. (http://www.homelessworldcup.
org/content/homelessness-statistics)
709
Source: Causes of Poverty
(http://www.globalissues.org/issue/2/causes-of-poverty)
710
Source: Heres why 1.2 billion people still dont have
access to electricity (http://www.washingtonpost.com/
blogs/wonkblog/wp/2013/05/29/heres-why-1-2-billionpeople-still-dont-have-access-to-electricity/)
Many other influences and outcomes can arise to the

effect of increasing efficiency in such a context. For
example, with about 1.2 million deaths occurring annually from
automobile accidents, many design initiatives to assist future
safety could dramatically alter that reality. The use of sensor
rigged, driverless cars, which are now a reality, could end such
deaths immediately. Given about 50 million auto accidents
worldwide each year, the result is not only saved lives,

but saved medical expenses, insurance claims, lawsuits,
data entry, resources, time, the toil of stress and grief
that result from injury or death, and a massive array of
other alleviations.
87
88
(2015) 1 LAW
civilization need to be addressed with respect to

the true maintenance of what we might
questionably term civilization. The truth is, this
Therefore, part of this value shift will be

undoing the sociological damage done by the
psychology inherent to market-based living. A
priority is not a mere poetic gesture; it is a public health

711
requirement.
relatively high standard of living can be made available

for all human beings assuming, in part, a basic,
responsible value shift away from our troubling patterns
of wasteful, frivolous acquisition. It is important to
The process of our physical and psychological

evolution has created human needs. Not meeting
these virtually empirical needs results in a
destabilizing spectrum of physical, mental and
social disorders. Human wants, on the other hand,
are cultural manifestations that have undergone
enormous, subjective change over time, revealing
something of an arbitrary nature, in truth. Now,
this isn't to say neurotic attachments can't
manifest into wants, so much so that they start to
take the role of needs, emotionally. However, that
is still mostly a cultural condition.
Sadly, again, the market does not separate needs
from wants in its basic psychology, which is why
scarcity arguments can be extended infinitely in
defense of its existence and hence the proposed
need to have a competitive, trade-based society,
no matter the degree of abundance that can be
achieved. This has arguably created a type of
neurosis, in fact, where people assume having
restate that the materialism we endure as a society

today is a direct response to the economic need to
keep money circulating as much as possible. The
role of business as we know it is either to service
people's existing wants/needs or to invent them in
the hope people will conform by showing new
demand.
A new widget put forward by the market is
only as viable as the interest of others to purchase
it and the use of advertising and marketing has
been very influential in creating a culture which
sees ownership and acquisition as a sign of social
status.712 This directly assists the need to keep
high levels of consumerism in play as GDP and
employment are directly related to this pressure.
Again, the less interest there is to consume, the
less economic growth and hence less demand for
jobs. This slows the existing state of a market
economy and creates a systemic loss of wellbeing
for many.
It can be well-argued that a culture which has
infinite wants and more and more is a virtue or

even a driver of human progress itself.
Of course, infinite possibilities are certainly

a reality in many ways, as society cannot predict
what technology will materialize many years
down the line as influences change and
preferences change. However, infinite possibility
is about vulnerability and creativity, while still
being strategic and intelligent about resource
management and use. This is not the same as
infinite wants, which sees the human being as
insatiable and indiscriminate.
711
decided that acquisition and expansion is the path of

progress/success, promoting constant consumption and
seemingly infinite economic growth, is going to
eventually hit the limits of sustainability on a finite
713
planet. In clear terms, this trend is one of disorder.
Social success and progress can only mean, in

part, finding balance with the habitat and the other
human beings who share the habitat. Sadly, the
market system's entire premise contradicts this
sustainable value, as the mechanism of economic
unfolding does not reward conservation and the

Social stability is directly correlated to public health. For
example, social inequality can, as it often does, manifest as
violent behavior, civil protest and even war, just as poor
sanitation and poverty stricken areas can bring disease that could
spread to areas which do have good sanitation, yet cause
infection (perhaps even an epidemic). Easing economic
stress and improving public health is a global imperative for true
safety.
712
713
88
See the essay Value System Disorder.

Source: Ongoing global biodiversity loss and the need to
move beyond protected areas: a review of the technical
and practical shortcomings of protected areas on land
and sea (http://www.int-res.com/articles/theme/
m434p251.pdf)
(2015) 1 LAW
reduction of consumption in a direct sense. Put

another way, the market is a scarcity-based
structural approach that paradoxically seeks
increased levels of consumption to operate
efficiently.
So, an analysis of our material capacity to
bring common goods into a post-scarcity
abundance to exceed the needs of all humans on
Earth cannot be discussed without also
understanding necessary, sustainability oriented
revisions which will substantially reduce our
resource-use footprint at the same time.
In short, the new industrial design approach is
to deliberately increase the performance, per
unit, of how we use our resources, seeking to
always move along the route of doing more with
less. Within this logic, as noted, a series of
pressure
alleviations
toward
increased
sustainability and production simplification/
efficiency would occur.
The intent and need to do something to gain

income for survival persists regardless of our
modern reality that society may not need
everyone to participate in the economic process.
In a NLRBE, the idea of everyone being required
to produce or sell something is viewed as
counterproductive
given
the
trends
of
ephemeralization and the necessity of now
orienting society toward sustainability.
2) Production targeting social classes is removed.
Social stratification, which is a natural
consequence of market capitalism, creates the
need to produce a spectrum of qualities for a
given good genre.715 This spectrum is not based
on utility or having variation of a good as per the
personal needs/interests of individuals. Rather,
each quality standard is intended to be purchased
by (or made affordable to) a given income
class.
This creates poor quality goods to meet
affordability requirements of lower income
consumers and hence generates unnecessary
waste. In this new strategically sustainable model,
no good is created to be cheap by relative
standards simply because it fits lower class
demographic buying patterns. In a NLRBE, there
is no lower class demographic.
3) Inefficiency inherent to the competitive practice
is removed.
Competition between businesses produces four
basic forms of unnecessary inefficiency and
hence resulting waste:
Efficiency Amplifiers
We will call these efficiency amplifiers and

the following list presents examples of needed
structural economic and social changes which
assist this optimized efficiency.
1) The pressure for employment for income or
earning a living is removed.
In the market model, everyone is structurally
coerced to engage some form of trade for
survival, whether it is trading labor for a wage or
creating a product to distribute for profit.714 This
overall pressure, while often touted as an incentive
mechanism for social progress, actually reduces
overall efficiency greatly, as it does creativity and
innovation as well. This creates a spectrum of
(a) Proprietary incompatibility of related goods

components (lack of standardization)
resource and time waste since the interest in

income generation and the pressure to produce is
often absent existing demand.
714
89
715
The only two exceptions to this are either to go live

outside of the civilization itself which, due to property
laws, is essentially impossible, or to obtain enough
wealth to begin with via the market or inheritance where
there is no need for further trade for survival. The latter,
of course, is not open to all in a market economy of any
kind.
89
All goods created assume a class relationship. The

spectrum could range from the type of extreme poor
production found at a 99 Cent store where one could
purchase a plastic watch which has little integrity, vs an
extreme luxury item which can only be afforded by the
most wealthy in the world. Thorstein Veblen inspired
the term Veblen Good due to his observation of
prestige generated from extremely high priced goods,
which transcend utility. http://www.investopedia.com/
terms/v/veblen-good.asp.
90

(b) Wasteful multiplicity of goods by competing
businesses of the same genre
(c) Incentivized good weakness to encourage
turnover (planned obsolescence)
(d) Inherent good weakness due to seeking cost
efficiency (intrinsic obsolescence)
production of their phone version without this

upgrade, an immediate state of obsolescence is
produced, resulting in less optimized products,
which could have been avoided if the producers
had been working together, as an industrial
whole, rather than hiding progress and
competing.
While it may be argued also that it is only
through price and the patterns of consumer
interest that the knowing of what is in demand
or not can be obtained, the truth of the matter is
that communication could be made more readily
between the design mechanism and the
consuming public as well.716 This bypasses the
price-demand acceptance/rejection technique
that is also wasteful as well since it requires
production to occur, in many cases, before the
actual demand is fully understood.
As a final point, a globally interlinked, shared
With respect to (a), in a sustainable economy

there would exist a universal standardization of all
related genre components wherever possible. In 1801,
a man named Eli Whitney was perhaps the first to
apply standardization in an impacting way. He
produced muskets, and during his time there was
no way to interchange the parts of different
muskets, even though they were the same overall
design. If a musket part broke, the whole gun was
useless. Whitney developed tools to do this and
after 1801, all parts were full interchangeable.
While most would assume this common sense
idea to be prolific across the global industrial
community today, the perpetuation of proprietary
components by companies that want the
consumer to re-purchase any such needed
component from them directly, ignoring the
possibility of compatibility with other producers,
creates not only great waste but also great
inconvenience.
Similarly, with respect to (b), a wasteful
data, non-competitive oriented design/production

system would also further facilitate the ability to
foreshadow component feature improvement over time.
This means industry would be able to understand

what changes are coming based on progressive
trends and design more efficiently, in anticipation
of those looming changes.
Regarding (c), or what has been termed
planned obsolescence, the interest to see products fail
multiplicity of genre goods by competing businesses is

generated at all times in the current model. While less
obvious to many, the general competitive nature of
the market keeps new ideas invisible from competitors
during development. Then, a good is produced for
or be less optimized to motivate repeat purchases of the

same basic good would no longer be incentivized. The
practice of deliberately designed obsolescence

has been a hidden part of the industrial approach
since the mid-20th Century when interest in
creating economic growth was high.717
In a NLRBE, this interest is removed as there
is no market incentive to pursue repeat purchases
and therefore more optimized efficiency,
durability and sustainability strategies can be
applied.
purchase that likely has some overall improvement

of a given feature. Once that feature is on the
market, it is then acknowledged and assessed by
competing businesses and the race to continue
improvement moves forward, back and forth.
While many argue this creative warfare is a
driving force of development/innovation of a
given product or purpose, the negative and
unnecessary consequence is the rapid, wasteful
physical obsolescence inherent to each cycle of
output. In other words, if a notable cell phone
feature improvement is obtained by one
company, on the heels of a major release by
another company that has already started mass
(2015) 1 LAW
(to be continued)
716
717
90
This will be discussed in the essay The Industrial

Government.
Reference: Ending the Depression Through Planned
Obsolescence, Bernard London, 1932.
91
(2015) 1 LAW
UNEXPECTED CHALLENGES OF SOLAR POWER
- Adam Hashian
Another challenge has to do with how transactions to

purchase solar panels are structured. Most solar panel
installations are a one-time transaction where a customer pays
for the panels, equipment and the installation. The company
delivers these products, then either installs the panels
themselves or hires independent installers. it is often
unclear who will pay for maintenance when the solar panels
break down. Many companies have little financial
capacity to bring repair technicians out to remote

locations years later to service panels since most
are struggling to make money as it is. Customers are
often not in a position to pay much extra for maintenance
Hospitals, schools, and businesses cannot afford to
continue pouring money into solar systems that
unexpectedly break down after two years, when they
were supposed to work for twenty years
Also wasted are the high hopes and expectations of
the people who purchased the products. Because solar
In an ideal world, it would be an affordable and

practical solution for new electrical generation
installations in developing nations to be fueled by lowcarbon sources, such as solar, wind, and hydropower.
Solar seems perfect for nations with lots of sun
exposure, and no efficient way of bringing the
traditional electric grid to remote locations. However,
there are many unexpected challenges with solar
electrification that entrepreneurs are learning
about while doing business in these developing
nations, including installation and maintenance,
infrastructure, and financing. Installation and
maintenance, in particular, is often underemphasized, but it is just as important as the other
challenges that make solar-powered electrification
a tricky prospect.
panels can be a novel technology in remote areas, if one person

in a small village has a negative experience with solar, it is
likely that others in the village will dismiss it. For
these reasons it is especially important for like-minded
entrepreneurs to share successful strategies and business
models to tackle the problem of remote rural electrification
and maintenance.
there are some success stories in the field such

as Devergy, and Bboxx that have done a commendable
job addressing installation and maintenance issues.
Devergy operates by training dedicated workers to
service a village-wide micro-grid consisting of a few
solar panels. Most entire village installations are not
more than one kilowatt. Devergy installs smart meters and
One major hurdle for installing solar panels is the

lack of skilled workers to do the job. Customers for solar
panel installations could range from hospitals requiring over
20 kilowatts of power to small villages needing less than 500
watts to power the entire village. Some training is
the villagers pay for their usage via mobile money. They
essentially operate like a modern utility company. Another
necessary to understand the complexities of these

systems. This problem is being approached in a few
different ways. Some companies are hiring and
training dedicated installation crews to travel around
vast areas doing the work. the United Nations
Development Program (UNDP) is stepping in to help.
Recently, in Mali, the UNDP paid for the training of female
wonderful company, Bboxx, uses extensive tracking

and monitoring on all of their products to ensure safe
delivery and operation for years. These companies show
that despite the financial and logistical challenges, it is possible
to build installation and maintenance into a successful
business model. Bboxx, like other successful companies,
provide ample training to locals so that the community

can be involved. With better means of sharing best
solar technicians to perform installation, maintenance, and

service for their entire village. Not only does this solve one
of the difficult problems with solar installations, but the
training also provides an economic boost for the entire village.
practices and effective models, hopefully future solar

companies operating in the developing world can avoid prior
mistakes and more efficiently extend access to power to the
people they are serving.
Courtesy: World Economic Forum & Adam Hashian, dated

02-1-2015; edited excerpts; emphases in bold ours - IMS.
*****
91
92
Law Animated World {15 January 2015}
Postal Reg. No. HD/1098/2014-16
I HAVE A WHITE ROSE TO TEND

- Jos Mart*
CULTIVO UNA ROSA
BLANCA... (Verso XXXIX)
If you do not fight, at least have the decency to respect those who do.
I'M SO FRIGHTFULLY UNHAPPY

DE MI DESDICHA
ESPANTOSA...
(Verso XXXIII)
De mi desdicha espantosa
Siento, oh estrellas, que muero:
Yo quiero vivir, yo quiero
Ver a una mujer hermosa.
El cabello, como un casco,
Le corona el rostro bello:
Brilla su negro cabello
Como un sable de Damasco.
Aqulla?... Pues pon la hiel
Del mundo entero en un haz,
Y tllala en cuerpo, y haz
Un alma entera de hiel!
Esta?... Pues esta infeliz
Lleva escarpines rosados,
Y los labios colorados,
Y la cara de barniz.
El alma lgubre grita:
'Mujer, maldita mujer!'
No s yo quin pueda ser
Entre las dos la maldita!
***
YO NO PUEDO
OLVIDAR NUNCA...
(Verso XIV)
Yo no puedo olvidar nunca
La maanita de otoo
En que le sali un retoo
A la pobre rama trunca.
La maanita en que, en vano,
Junto a la estufa apagada,
Una nia enamorada
Le tendi al viejo la mano.
I have a white rose to tend

In July as in January;
I give it to the true friend
Who offers his frank hand to me.
And for the cruel one whose
blows
Break the heart by which I live,
Thistle nor thorn do I give:
For him, too, I have a white rose.
Cultivo una rosa blanca,

En julio como en enero,
Para el amigo sincero
Que me da su mano franca.
Y para el cruel que me
arranca
El corazn con que vivo,
Cardo ni oruga cultivo:
Cultivo la rosa blanca.
I'm so frightfully unhappy,

I feel, oh stars, I am dying!:
I want to live, and I'm sighing
A beauteous woman to see.
Like a helmet, her headdress
A beautiful face protects:
Her black hair the light reflects
Like the sword of Damascus.
***
I Who Live Though I Have Died

(Verse XXVI)
XXVI-YO QUE VIVO
AUNQUE ME HE MUERTO...
What of that one? Well, find all

The world's gall, and then enmesh,
Cover it in so much flesh,
And you have a soul that's all gall!
Yo que vivo, aunque me he muerto,

Soy un gran descubridor,
Porque anoche he descubierto
La medicina de amor.
Cuando al peso de la cruz
El hombre morir resuelve,
Sale a hacer bien, lo hace, y vuelve
Como de un bao de luz.
Well, this one? What a disgrace!

The creature red slippers wears,
Paints her lips red if she cares,
And puts on a barnished face.
The sorrowful soul then screamed:
Damn you, woman, twice damn you!'
I know not which of the two
The more accursed should be deemed!
I who live though I have died,

Claim a great discovery,
For last night I verified
Love is the best remedy.
When weighed by the cross,
a man
Resolves to die for the right;
He does all the good he can,
And returns bathed in the light.
***
If You've Seen A Mount Of Sea Foam

(Verse V)
***
I'll Never Forget, I Vow
SI VES UN MONTE DE
ESPUMAS... (Verso V)
(Verse XIV)
Si ves un monte de espumas,

Es mi verso lo que ves,
Mi verso es un monte, y es
Un abanico de plumas.
Mi verso es como un pual
Que por el puo echa flor:
Mi verso es un surtidor
Que da un agua de coral.
Mi verso es de un verde claro
Y de un carmn encendido:
Mi verso es un ciervo herido
Que busca en el monte amparo.
Mi verso al valiente agrada:
Mi verso, breve y sincero,
Es del vigor del acero
Conque se funde la espada.
I'll never forget, I vow,

That fall morning long ago,
When I saw a new leaf grow
Upon the old withered bow.
That dear morning when for naught,
By a stove whose flame had died,
A girl in love stood beside
An old man, and his hand sought.
[*Jos Julin Mart Prez (January 28, 1853 - May 19, 1895) is
a Cuban national hero, sometimes called the Apostle of Cuban
Revolution, an important figure in Latin American literature; was
a poet, an essayist, a revolutionary philosopher, a translator, a
professor, a publisher and a political theorist, an all-in-one
combination.]
If you've seen a mount of sea foam,

It is my verse you have seen:
My verse a mountain has been
And a feathered fan become.
My verse is like a dagger
At whose hilt a flower grows:
My verse is a fount which flows
With a sparkling coral water.
My verse is a gentle green
And also a flaming red:
My verse is a deer wounded
Seeking forest cover unseen.
My verse is brief and sincere,
And to the brave will appeal:
With all the strength of the steel
With which the sword will appear.
*****
*****
Owned, Printed and Published by I. Balamani, 6-3-1243/156, M.S. Makta, Opposite Raj Bhavan,
Hyderabad - 500082; Editor: I. Mallikarjuna Sharma; Ph: 23300284; E-mail: mani.bal44@gmail.com
andprinted at Pragati Offset Pvt. Ltd., Red Hills, Hyderabad-500 004 {Ph: 23304835, 23380000}
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Volume 11: Part 1

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THE WORLD BOWS IN REVERENCE

Give me those eyes of yours

World leaders pay tributes to Charlie Hebdo martyrs

Courtesy: UN cartoonists for peace

French President, Angela Merkel, Abbas (Palestine)

Wholeheartedly with Charlie Hebdo

BLACK PEOPLES GRAND JURY INDICTS DARREN WILSON !

McCulloch made the insinuation that Brown, not

Black Peoples Grand Jury Indicts Cop for

A Black Peoples Grand Jury in St. Louis,

exercise in self-determination, a collective response to a

Most importantly, the Black Peoples Grand Jury

wasnt Wilsons decision to leave Browns uncovered

so huge and so disproportionately Black that one out of

rewarded for his crime with almost one million

The Mass Black Incarceration State, erected in

structures designed to ensnare masses of Blacks.)

Black Peoples Grand Juries can be part of the

Courtesy: Glen Ford, BAR Executive Editor, dated

Law Animated World, 15 January 2015

WE MUST ALL TRY TO BE A CHARLIE EVERYDAY !

thirteen adults in a school in Peshawar last

The murders today in Paris are not a result of

Islamism politics as religion, religion as politics.

Allahu Akbar! the killers shouted in the street

Courtesy: George Packer & www.newyorker.com, dated

immediately condemned the attack on Charlie Hebdo, in

Law Animated World, 15 January 2015

Why al-Qaeda attacked Satirists in Paris (Juan Cole)

and more religious, the vast majority reject violence

tones of anguish particular to those whose deepest

be careful, thoughtful, and tailored to particular

Al-Qaeda wants to mentally colonize French

can get non-Muslim French to be beastly to

how more of them might come to consider Mustapha

the responses have to be different, with higher

Sharpening Contradictions: Why

The horrific murder of the editor, cartoonists

pious protest against the defamation of a religious icon.

about 5 million is of Muslim heritage. But in

Qaeda recruitment would suddenly exhibit some

be the most secular Muslim-heritage population in the

low rates of belief and observance). Many

Al-Qaeda in Mesopotamia, then led by Abu Musab

proceeded, with the help of various incarnations of

Why al-Qaeda attacked Satirists in Paris (Juan Cole)

Daesh (Arabic for ISIL or ISIS, which descends from al-Qaeda

Does the Quran say its blasphemous to

umbrella of the very group that had deliberately and

This televised interview presents an enlightening

The only effective response to this manipulative

For those who require unrelated people to take

comprises 22 Muslim-majority states. We have a

Most of France will also remain committed to