Know the ‘POSH’ Law. Author Divya Gurnay. Advocate, Punjab and Haryana High Court.

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POSH as an acronym stands for ‘Prevention of Sexual Harassment’. The law is ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013’. This Act defines the duties of an employer in making a workplace gender sensitive. It involves creation and implementation of a policy for effectively safeguarding women at workplace against sexual harassment.

The legislation of this Act first and foremost vindicates the fact that sexual harassment is and has been a workplace reality. The Act mandates every organisation to form an ‘Internal Complaints Committee’ (ICC) to handle complaints regarding sexual harassment. It calls for submission of an annual report to the district magistrate, by an organisation, on efforts made by it in following the directions set by this act.

To make employees aware on what all amounts to sexual harassment as per the act, ‘gender sensitisation’ training of employees is necessitated by this law, and it can best be done by organising lectures, seminars, workshops and distribution of educative material. Regular feedback mechanisms need being established, to ensure that all concerned have rightly understood the spirit of POSH law. This can be best done by well-designed post training feedback forms or/and regular online tests on this subject.

Training of ICC, to be able to carry out an unbiased investigation within the stipulated time is important. The Act’s implementation is ensured through requirement for an annual compliance report to be submitted to DM, as well as penalties for non-compliance to be as heavy as revocation of license of the employer.  There is always a second side to the story. Misuse of this law by women to harass or blackmail their fellow employee or the employer cannot be totally ruled out. In this light, the law also provides for action against malicious complainants.

The POSH law is a potential social disrupter. It has the power to diminish the inherent patriarchy that Indian society is plagued with. The working men and women of India should be forced to go through an awakening campaign, towards equal dignity of both genders, permeating into their homes as well as life outside work.  This is the mandate of POSH law over and above the compliance of employers to procedural requirements.

Indian POSH laws are not gender neutral, as they only protect women and do not recognise that men too could be victims of sexual harassment. Apart from this, the law is generally progressive and at par with international requirements.

Although, women were provided protection at workplace, under ‘Vishakha Guidelines’,  the POSH law has a wider scope. It protects all women at workplace, including permanent, ad-hoc employees, daily wagers, contract workers, probationers, trainees, interns, job seekers, job applicants, casual visitors, volunteers, and even those whose services stand terminated. Thus, any woman who happens to be at a workplace, if subjected to sexual harassment, is protected by this law, and the employer is liable to take action against the culprit. Workplace now includes all places that the employee visits in the course of work including  the complete workplace infrastructure, transportation used for work related travel, lodging provided to the employee, the home of the employer if he is working from there, and all places visited by an employee in the course of work, including training and social events etc.

In a patriarchal society like India, gender biased behaviours of men often go unchecked and uncorrected. For example some men think that it is their duty to police social interactions of women, at home and workplace, to the extent of them deciding how women should dress, speak or conduct themselves. As a result, male employees do not realise when they have crossed the line and female employees do not realise, where they can draw the line. 

As defined by POSH, sexual harassment is any unwelcome behaviour of a man towards a woman, which emerges from gender biased prejudices. Making a sexually coloured comment about a female colleague, in her presence, or even in her absence, if objected to by the lady, would amount to sexual harassment, no matter how harmless it may seem.

It is also very important in a healthy workplace, for both men and women to look at each other as persons, rather than through the gender lens. Women also must remember, before making any allegation, that every allegation has serious consequences, in terms of reputation of the man, his career and his family life.  Defamation claims against the complaining women, if her claim of sexual harassment is malafide, also needs to be considered by a complainant. Thus both men and women employees, equally need to be gender sensitised, and motivated towards a responsible workplace behaviour.

© Divya Gurnay, BA (Hons.), MA, LL.B, PG Human Rights, LL.M.

Advocate, Punjab and Haryana High courts, Chandigarh.

For the benefit of Students and Practitioners of Law, the important provisions of the Act are reproduced below.

Extracted from the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) ACT, 2013 [Act No. 14 of 2013]

Section 2 (a).  “Aggrieved woman” means.-  

i.                 in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;

ii.                ii.  in relation to a dwelling place or house,  a woman of any age who is employed in such a dwelling place or house;

Section 2 (f). “Employee” means a person employed at a workplace for any work on regular, temporary, ad-hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co- worker, a contract worker, probationer, trainee, apprentice or called by any other such name;

Section 2 (n). “Sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely–

i.                 Physical contact and advances; or

ii.                A demand or request for sexual favours; or

iii.               Making sexually coloured remarks; or

iv.               Showing pornography; or

v.                Any other unwelcome physical, verbal or non-verbal conduct of sexual nature:

Section 2 (o). “Workplace” includes.–

i.                 any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or  a co-operative society;

ii.                Any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non -governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;

iii.               Hospitals or nursing homes;

iv.               Any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

v.                Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey;

vi.               A dwelling place or a house;

vii.             vii “Unorganized sector” in relation to  a workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.

Section 3. Prevention of sexual harassment :–

a.  No woman shall be subjected to sexual harassment at any workplace.

b.  The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment.–

        i.            Implied or explicit promise of preferential treatment in her employment; or

        ii.           Implied or explicit threat of detrimental treatment in her employment; or

iii.               Implied or explicit threat about her present or future employment status; or

iv.                Interference with her work or creating an intimidating or offensive or hostile work environment for  her; or

v.                Humiliating treatment likely to affect her health or safety.

Constitution of Internal Committee

Section 4. Constitution of Internal Committee.– a.  Every employer of a workplace shall,  by an order in writing, constitute  a Committee to be known as the “Internal Committee”: Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub- divisional level, the Internal Committee shall be constituted at all administrative units or offices. b.  The Internal Committee shall consist of the following members to be nominated by the employer, namely: i.  a Presiding Officer who shall be  a woman employed at a senior level at workplace from amongst the employees: Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub section (1): Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organization; ii.  not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge; iii. one member from amongst non-Governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment: Provided that at least one-half of the total Members so nominated shall be women. c. The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer. d. The Member appointed from amongst the non -Governmental organizations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed. e.  Where the Presiding Officer or any Member of the internal Committee. i.  contravenes the provisions of Section 16; or ii.  has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or iii.  has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or iv.  has so abused his position as to render his continuance in office prejudicial to the public interest, such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.

Section 9. Complaint of sexual harassment. a.  Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within  a period of three months from the date of last incident: Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing: Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in-writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period. b.  Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

Section 10. Conciliation. a.  The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under Section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation:  Provided that no monetary settlement shall be made as a basis of conciliation.

Section 12. Action during pendency of inquiry:

a)  During the pendency of an inquiry, on  a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to: 

i.  transfer the aggrieved woman or the respondent to any other workplace; or

ii.  grant leave to the aggrieved woman up to a period of three months; or

iii.  grant such other relief to the aggrieved woman as may be prescribed. b. The leave granted   to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.

Section 13. Inquiry report.

a)  On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties…

d) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.

Section 14. Punishment for false or malicious complaint and false evidence. a.  Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub section (1) or subsection (2) of Section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed: Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section: Provided further that the malicious intent on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended. b.  Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the pro visions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.

Section 16. Prohibition of publication or making known contents of complaint and inquiry proceedings.- Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 2005), the contents of the complaint made under Section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:

 Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.

Section 19. Duties of employer.- Every employer shall:

a.  provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;

 b.  display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under subsection (1) of Section 4; c.  organize workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;

 d.  provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;

 e.  assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;

 f. make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub section (1) of Section 9;

 g.  provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code(45 of 1860) or any other law for the time being in force; h.  cause to initiate action, under the Indian Penal Code,1860 (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

 i. treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;

 j. monitor the timely submission of reports by the Internal Committee.

Section 26. Penalty for noncompliance with provisions of Act.

a.  Where the employer fails to.  

i.  constitute an Internal Committee under sub section (1) of Section 4;

 ii.  take action under Sections 13, 14 and 22; and

iii.  contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder,

  he shall be punishable with fine which may extend to fifty thousand rupees.

b. If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to:

i. twice the punishment, which  might have been imposed on  a first conviction, subject to the punishment being maximum provided for the same offence: Provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;

ii. cancellation, of his licence or withdrawal, or non -renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.

IT IS NOW LEGALLY SAFE TO BE GOOD SAMARITANS. by Advocate Divya Gurnay, LL.B, LL.M.

The Motor Vehicles Act of 1988 has been amended recently, with an emphasis on improving road safety in India through legal reforms. 

It comes at an apt time since UN has declared 2011-2020 as the decade of road safety. Though India had signed the ‘Brasilia Declaration on Road Safety’ in 2015 and committed to reducing road accidents and fatalities by half, so far the progress was slow. 

The new amendment  introduces various provisions in this context, including a fourfold increase in compensation for hit and run victims, a substantial increase in penalties for over speeding, drunken driving, driving without license, not wearing seat-belt etc. 

Not drawing to the side of the road to let an emergency vehicle such as an ambulance or fire service vehicle pass, can land a person in jail for six months, along with being fined. In case a juvenile commits an offence under this law, the guardian of such juvenile or owner of the vehicle is likely to be penalised and punished.

Other than enhanced penalties for misconduct on road, a big highlight of amendments is the creation of a provision for the protection of ‘Good Samaritans’. 

A Good Samaritan, as per the law, is a person who voluntarily gives emergency care or assistance to an accident victim, or transports such a victim to the hospital. Such a person acts without expectation of any reward or compensation.

We have all seen numerous videos on social media, of road accidents where an injured victim keeps writhing in pain on the road, begging for help, while onlookers and by-standers watch mutely, instead of helping the victim. 

In India, about 1.49 lakh people die every year due to road accidents. Shockingly, 50% of those who have thus died, could have been saved, if only some Good Samaritan had taken them to a medical facility within an hour of the accident.

 The first 60 minutes after an accident, called ‘golden hour’ in medical terminology, are crucial in determining whether an accident victim will survive or not. Research shows that 50% accident victims are most likely to survive, if they get medical aid in this golden hour.

 In a country where high population, over strained resources, inadequate infrastructure and bad roads, mean that it is too late by the time an ambulance or police vehicle reaches the accident site, the role of the by-standers is more crucial than we think.

Sadly, the Indian by-stander in a road accident is known more for inhuman apathy than a willingness to help. The reasons for this, as observed by the Supreme Court in 2016, are fear of police harassment, fear of being caught in a protracted legal process, and having to appear in courts multiple times. 

Fear of being forced to pay for the initial hospital expenses when dropping off the victim there, fear of being accused as the cause of the accident or for negligence while trying to help the victim, are also among the causes for apathy. 

In the absence of legislation in this regard, the apex court had laid down laws to protect those, who voluntarily help an accident victim, however the awareness and implementation of these legal directions was highly inadequate. 

The recent amendment to the Motor Vehicles Act of 1988 has introduced Section 134A to protect Good Samaritans from any civil or criminal liability, for actions taken by them while trying to save an accident victim’s life.

 A glaring deficiency in the legislation has thus been corrected. This should act as an impetus for helpful citizens to render timely help to accident victims. Further, the amendment provides that the, Central Government will make a scheme for the cashless treatment of victims of the accident during the golden hour.

  As a practicing advocate, I am confident that this amendment, will have long lasting and positive effects on our society.

By Advocate Divya Gurnay, BA (Hons.), MA, PG Human Rights, LL.B, LL.M.
©All copyrights reserved with author Divya Gurnay.

TRIBUNALISATION or TRIVIALISATION of HIGH COURTS ?! By Advocate Divya Gurnay, LL.B, LL.M.

TRIBUNALISATION or TRIVIALISATION of HIGH COURTS ?!

By Advocate Divya Gurnay, LL.B., LL.M.

The High Courts hold a prime position and great importance in the justice delivery system of India. Contrary to what most people believe, the high courts are not subordinate to the Supreme Court, except for appellate powers. The Supreme Court itself has recognised this in its 2004 judgement of Tirupati Balaji Developers Pvt. Ltd. and Others. vs. State of Bihar and Others. High Courts have wider powers than the Supreme Court to issue prerogative writs. They also have power of superintendence over subordinate courts which the Supreme Court does not. However, the powers of high courts have been shrinking consistently because of legislative interference, by setting up quasi-judicial tribunals to take over traditional high court jurisdiction, in many areas of law.

Originally, there was no provision for tribunals in the Constitution of India. In 1976, the Indira Gandhi led government brought in the 42^nd amendment which, along with other provisions, introduced Articles 323A and 323B, to provide for setting up of Tribunals. Article 323 A provides for setting up administrative tribunals and 323B for tribunals to deal with other matters. This laid the ground for dilution of the jurisdiction of high courts.

Today, we have a plethora of tribunals that have replaced high courts, as courts of first instance. Now, litigants are forced to go to different tribunals for cases related to recruitment and service of government employees, Taxes such as GST,  Environment, Rent, Armed Forces, Company matters, SEBI, Electricity, Consumer Protection, Competition laws, Airports, Foreign Exchange, Cyber laws, Debt recovery, Motor Accidents claims, National Highways, Railway Claims etc. Many of these tribunals have appellate tribunals as well. The stated aim of creating so many tribunals was to create easier access to justice for the common person, however, the actual aim of tribunals is to reduce the writ of high courts, and increase the control of executive over judiciary. Thus, the effect of setting up of tribunals has been the opposite of stated aim of setting them up. The tribunals have failed to live up to their stated aims for many reasons, some of which I am going to elaborate on.

Lack of Independence and Constitutional Safeguards:

The sitting High Court judges enjoy certain constitutional safeguards to protect their independence, such as security of tenure and remuneration, removal only by impeachment, and over all immunity from interference by executive. The retired judges and bureaucrats posted as members of tribunals, have no such safeguards. Their tenure is at the mercy of the government that has appointed them. Since the government is itself a litigant in many of the matters that come before tribunals, their decisions may be questionable.

Justice is Further Delayed:

It was originally envisaged under the 42^nd Amendment of the Constitution in 1976 that appeals from tribunals would not go to High Courts, but to the Supreme Court. This provision was struck down as unconstitutional in 1997 by the Supreme Court in the case of L. Chandra Kumar vs. Union of India. Now tribunals and appellate tribunals have become additional steps in the hierarchy of justice, as their appeals nearly always come to High Courts.

The lowest rung are denied justice:

The economically weakest are the ones who suffer more in their quest for justice in an already convoluted justice system. The cost of litigation goes up due to hiring lawyers for multiple levels of litigation, and the litigants having to travel to different cities, to appear before tribunals and appellate tribunals, and then to the high courts. The financially weak litigants decide to forego appeal against a decision of the tribunal, as they do not have the means to appeal, even though at times, their cases have merit, and in the first go itself, they would have got justice in the High Court, which they are now reaching as the second or third forum for justice.. For example, the class D employees who go to Administrative tribunals seeking regularisation from ad-hoc status, are less likely to get a favourable order from the tribunal, though they may have had a high chance of getting it from the High Court, which is not afraid of reprimanding and summoning the highest officials and office bearers of the State, to answer for the injustice meted out to the employees of the lowest rung. It is these very litigants, who no longer reach the High Courts as they become disheartened by an unfavourable order of the Tribunal and mistakenly believe that perhaps their case has no merit at all.

Failure to Achieve Aims:

Tribunals were created with the aims of giving speedier justice to litigants, at less cost and with experts to adjudicate upon the matter at hand, so as to reduce pendency in courts. The burden of the high courts has not reduced significantly either as tribunals also have a large pendency of cases, and since the appeals from tribunals still go to the High Courts, it only delays justice. The initial idea of tribunal benches comprising of experts only, is not strictly adhered to. Judges who have never dealt with a branch of law in their judicial career, are at times made chairpersons of a tribunal which is not their area of expertise. Non-judicial members too, are picked from amongst those who are within the sphere of favour, of the incumbent appointing government.

Tribunals Already Shutting Down:

Himachal Pradesh has recently abolished its state administrative tribunal as most cases ended up going to the high court in appeal. The Odisha government too is abolishing its state administrative tribunal, as the very objective of the institution to give quick justice to employees could not be achieved. Tens of thousands of cases lie pending before such tribunals in different states. The central administrative tribunal, (CAT) is not faring too well either, as the Minister of State for Personnel, Mr. Jitendra Singh recently admitted that more than 50,000 cases are pending in in the 17 branches of CAT alone.

Law Commission Assessment:

The 272^nd report of the Law Commission in 2017 assessed the framework of tribunals in India. In reply to a reference made by the Supreme Court, the commission observed that the high pendency in these tribunals indicates the objective of setting them up has not been achieved. It acknowledged that the selection of members is not always impartial, and involvement of government in appointing them should be curbed as government is itself a litigant in most cases.

In conclusion, if justice is to be served to the common man, the judicial machinery needs to be strengthened rather than being diluted. Instead of giving away powers of High Courts to quasi-judicial tribunals, more High Courts need to be set up, and more judges need to be appointed to take effective care of the huge pendency of cases. The need of the hour is creation of specialised divisions in high courts for service law, tax, company law, environmental disputes etc., rather than setting up tribunals. To ensure the appointment of competent judges, a national level exam to select judicial officers, to occupy the benches of higher judiciary of the country, needs to be put in place. This exam must not be conducted by the Ministry of Law, but under the review and purview of the Supreme Court of India, in order to curtail the influence of executive in the appointments and working of judiciary. This is the best possible solution to replace the collegium system of appointment of judges, allegedly marred with aunty uncle syndrome. This would be a service to the nation. If high courts keep losing their strength and status to Legislature and Executive controlled Tribunals, India’s justice delivery system will be the principal loser, and common man the ultimate sufferer.

By Advocate Divya Gurnay, BA (Hons.), M.A., PG Human Rights, LL.B., LL.M.

© All copyrights reserved with author Divya Gurnay

WHOM DOES CHANDIGARH BELONG TO ? @ Advocate Divya Gurnay

A conundrum, that two States and a Union Territory, and the government of India have not been able to solve for more than half a century, lies before the Judiciary now. The million dollar question  is ‘Whether Chandigarh is the capital of Punjab or Haryana, or is it the capital of both Punjab and Haryana, or neither of them’ ?

It appears that no one has an answer, as there seems to be no law, rule or legal notification which confers the official status of capital upon Chandigarh. That is why, the two judge bench of Punjab and Haryana High Court, confronted with this question, has sought concrete answers to it from Punjab as well as Haryana via the Advocate Generals of both the states. The counsels for the states of Punjab, Haryana, and the U.T. of Chandigarh, have all been given time by the honourable court, to produce a legally admissible document to establish the status of the UT as a capital.

Here, it would be prudent to have a brief peep, in to the birth and history of Chandigarh. In 1952, Chandigarh was made the capital of post-independent, undivided Indian Punjab, via ‘The Capital of Punjab (Development and Regulations) Act 1952’.

Interestingly though, from 1st November, 1966, when the ‘Punjab Re-organisation Act 1966’ was enforced, the state of Punjab as referred to in the 1952 law, ceased to exist. The old state of Punjab was now divided into four new territories, which were, the state of Haryana, the state of Punjab, UT of Chandigarh, and UT of Himachal Pradesh.  Later in the year 1971, Himachal was conferred the status of a  state.

Chandigarh, under the 1966 act was not made a part of any state, nor was it officially designated as the capital of any of them. Punjab, although continues to claim that Chandigarh belongs to it, a claim bitterly contended by Haryana. Now after five decades, the Punjab and Haryana High Court, finds itself facing a cul-de-sac situation over the issue, and have, as a result once again raised the question,“Whom does Chandigarh belong to?”

The case which has forced the judiciary to come to ask this question pertains to an Advocate, who sought reservation in the superior judicial services examinations of Punjab as well as Haryana.  Advocate in question, a resident of Chandigarh, the city claimed to be their capital, by both Haryana and Punjab, had applied for the  judicial posts under reserved category classification. In this case, both states have refused to consider the said candidate in the reserved category, on grounds that the reservation was only meant for residents of the concerned states, and the petitioner is an outsider.

While current law states that the residents of one state cannot claim a right to reservation in another state, the outcome of the case now hinges upon one question alone, that is Chandigarh a part of Punjab or Haryana, or both, or neither of them,and if any of these contentions is correct, which one is that?” 

The petitioner’s case is ‘unique’, because Chandigarh does not have a judicial cadre of its own, and as a result, judges from Punjab and Haryana Judiciary are posted in the session courts of Chandigarh. In fact, for a law professional  who hopes to serve his home territory of Chandigarh as a Judge, the only way to do so is to join the judicial cadre of either of the two states, and then get posted to Chandigarh District Courts.

There is a similar situation in the Higher Judiciary as swell. The judges of the High Court of Punjab and Haryana have mostly lived and worked their entire lives in the UT of Chandigarh. They have residence proofs of the UT, yet, in the High Court, there is no quota for UT. There is however, a 40:60 division of quota, between the States of Haryana and Punjab.

The question that arises is, for the sake of reservation, is Chandigarh to be treated as a part of Punjab and Haryana, or both, or none, or is it that a citizen of Chandigarh is going to be put at a disadvantage, by denying him the reservation due to him. 

Who does the land of Chandigarh belong to, and to whom do its people belong. If neither State wants to claim the people of Chandigarh as their own, then on what basis do they claim the territory as their own, and on what basis they send officers of their state cadres to administer Chandigarh, whereas Chandigarh should by default have AGMUT cadre officers alone, and should ideally have its own judicial cadre as well? 

The larger question is, whether this whole tug-of-war between Punjab and Haryana is political drama, enacted again and again for pure political gains, even at the cost of residents of Chandigarh? 

It is worth considering as to  after all, what is the meaning of capital, and why is it being claimed by both Punjab and Haryana, whereas, their governments literally sit in rented accommodations, rented by the UT to them?

As per the dictionary, a capital is a city designated as legislative seat by the government, simply meaning that a capital is a city in which the Government is located, and it does not have to be an integral territorial part of the concerned state.

For example, with the reorganization of Andhra Pradesh in 2014, Hyderabad was made the common capital of both states, Andhra Pradesh as well as Telangana,  however, Hyderabad no longer remained territorially within Andhra Pradesh. The provision for a common capital was only for ten years, in which period Andhra Pradesh is expected to build and shift its capital, to the new city of Amravati. 

Thus a capital is where the lawmakers of a State meet. A capital may be within the territory of a State or not. An example of this is Mc Leod Ganj, in Himachal Pradesh, which is Indian territory, but still recognized as the capital of the Tibetan state in exile, and thus colloquially called ‘Little Lhasa’. There are other examples around the world also, which show that a territory need not belong to a state or a province in order to house its capital. In Japan, the city of Ishigaki situated in Okinawa territory of Japan is the seat of two governments, of Yaeyama and Taketomi. It is however not a part of either of these territories.

It is also worth considering, that the physical territory of Chandigarh is neither owned  by Punjab, nor Haryana. Chandigarh is not even supposed to be governed by their rules, as an administrative unit. It is administered by the Central Government, by virtue of it being the territory of the Union of India,. The Punjab Re-organisation Act of 1966 specifically states, that Chandigarh may have its own laws, and till then adopt the laws of either state, as and where it chooses. But ironically, Chandigarh is outsourcing, most of its rule books from Punjab.

It is pertinently worth mentioning again here that  Chandigarh, Himachal, Punjab and Haryana were all carved out of a larger erstwhile Punjab in 1966, , and  the citizens of Chandigarh are basically the same people who lived in this territory before 1966. Also that Punjab and Haryana both, now have no territorial rights upon Chandigarh. This can be gauged from the fact that both states are officially meant to pay a certain rent for buildings housing their secretariats, as well as other buildings,  that they are using. This is reflected in the Annual Audit of the Union Territory of Chandigarh.

Thus, it appears that it is the practice of the legislatures of both the states meeting in Chandigarh that makes it their Capital. However, in absence of any law which makes Chandigarh a Capital, the placement of the legislatures of both States in Chandigarh is a 'favor or service' extended by the UT to the states, not a claim or territorial right.

So whom does Chandigarh belong to, is a million dollar question with unpredictable future ramifications for the residents of Chandigarh, especially the young residents who seek admissions and jobs in the institutions as well as the governments of Punjab and Haryana. This is especially important for those who seek jobs in the judiciary as Chandigarh does not have its own judicial cadre. 

It is all the more important in the light of the fact that there is no ‘All India Judicial Cadre’, even though it was envisioned under Article 312 of the Constitution, and in 1955 the Honorable Supreme Court of India, had directed that an ‘All India Judicial Service’ be set up. The judiciary needs to decide, whether at least for the purpose of Judicial Services, the residents of Chandigarh, will or will not get a ‘judicious treatment’, for joining Judicial services of Punjab and Haryana.

The residents of Chandigarh are now waiting with bated breath, to get a conclusive answer to the question that,‘Whom does Chandigarh belong to, and what is the status of its people viz-a-viz state services.

By Advocate Divya Gurnay, M.A., LL.B., LL.M.
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