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Achieve the mandate of aatmanirbhar and go local for mining in Goa

Need for immediate resolution of stalemate on issues of mining in Goa.

Aruna Sharma

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Mining in Goa has reached a stalemate and this stalemate needs to be resolved. It is very important to do a sort of SWOT analysis of what is local for the state of Goa to have sustainable growth heading towards surplus and continue to contribute to the state GDP.

Goa with its 15 Lac population, its major income resources are tourism and mining and these can be complementary to each other and need not to be at logger heads with each other and that is where the beauty lies in the policy making that we are able to strike a balance between the two. At this point of time, Goa is having double whammy. The COVID 19 had adverse impact on tourists visiting Goa and the closure of mines has dimmed the chances of the State to contribute to the vision of five trillion economy of the country. Mining came to a grinding halt in Goa from 16th March 2018 after the Supreme Court quashed 2nd renewal of 88 mining leases and imposed ban on entire mining operation.

 The issues of concern to be immediately resolved are as follows:

1. The concerns of Environmentalists

2. Geographical Location & Geological emplacements

3. Mining & allied activities challenges

4. Legal interpretation of the two major acts Goa Daman Diu Abolition and Declaration as mining lease act 1987 which is commonly known as Abolition Act 1987 and the MMDR Act 2015 and its amendment of 2020 to be read along with the court directions,

5. The impact on Economy due to non-resolution of stalemate on the employment, lowering of income and that of state GDP

6. How to restart by consistent and credible holistic approach to boost the economy of Goa and Unlocking stalemate

 1 . The concerns of environmentalists:

The concerns of environmentalists can easily be addressed as adopting appropriate technology and methodology, mining can be very environment friendly. That can be insisted upon and monitored. A well laid out plan with bench marking to ensure that during mining operations the environment protection measures are adhered to, a systematic dedicated arrangements of dumping of waste and reclamation of land post mining to be a part of agreement between the miners and the State.

 In 2015, when Supreme Court has given a verdict that dumping outside lease area is not allowed unless the provisions in the Rules and Acts are made available as that had been an age old practice of Goa iron ore mining as the lease hold area of Goa iron ore mining is very small. On an average the lease areas are about 70-75 acres as compared to much larger lease areas greater 100 hectare in other parts of India. This brought in challenge of re-handling of this waste material disposed over the mineralized zone and adds to the cost of production. Thus a clear arrangement of dumping of waste is to be laid and executed.

Goa did have a history of environment friendly mining and notable good practices were demonstrated at international forums as well. ISO 14001 Standards and independent Mineral Foundation of Goa were early start ups. Thus, miners of Goa are coconscious of the issue and with a well laid out plan with bench marks have endeavor to achieve the same. These norms will ensure that mining do not cause harm to the locality and to the beauty of Goa and yet add to the economy.

2. Geographical location & geological emplacements

Goa has been trying to find a place in international markets, mostly to Japan, China, South Korea and Europe. The nature of its Geographical location and its geology, that is a low grade hematite ore, that works very well to blend with higher grades sourced elsewhere by major steel producers and thereby enable Goa to compete internationally,

Goa is well-known for its iron and manganese ores. Bauxite and laterite are the other minerals produced in the State. Resources of major minerals in Goa as per National Mineral Inventory published by IBM as on 1.4.2015 are as follows:

In Goa iron-ore is mostly low grade siliceous in nature with iron contents ranging from 50%-58%Fe, Alumina & Silica combined varies from 10-12% & mostly occurs in powdery form. As such Goa has inferior quality of iron ore deposits.

It is important to understand the business model of Goa mining industry and how it is different from business model of rest of India. The five parameters, to compare the Goa mining industry, are:

 • Quality and quantity of the ore,

• Strip ratio,

• Requirement of beneficiation facility,

• Transportation methodology and

 • Product portfolio.

The First parameter is “quality and the quantity”. The total geological resource base for iron ore of Goa is to the tune of 1.45 billion ton, out of which almost 82% is hematite ore and rest 18% is magnetite ore. Bulk of the magnetite deposits however within protected areas(WLS). This corresponds to almost 5% of total India’s hematite resource, other states like Odisha contributes almost 37%, Jharkhand 24% and Chhattisgarh 22% and Karnataka 11%.

On the quality front, Goa iron ore the Fe ranges from 50%-58% (Average grade is 54-55%Fe), Alumina plus Silica will be around 10-12% , inherent moisture will be in the tune of 10% and it’s mostly powdery ore. Goa has inferior quality of iron ore deposits as compared to other major iron ore producing states of India.

Second parameter is Strip Ratio, in general strip ratio means in removing 1 ton of ore how much waste needs to be removed. So for the Goa iron ore mining the strip ratio is as high as 1:4, compared to other states like Jharkhand, Odisha which is like 1:2.5 max and for Karnataka it’s 1:3 max. Higher the steep ratio results in higher cost of production.

On Third parameter is a requirement of beneficiation and value addition as the ore is of inferior quality in Goa and cannot be sold directly by dry screening and sizing, it requires wet beneficiation. Infact, out of total capacity of wet beneficiation in the country, around 50% lies in Goa region. However, even after beneficiation 3-4% Fe enhancement of Fe Grade, 20-25% reduction in alumina and 30-35% reduction in silica is possible and then there is a loss of recovery that 30-35% loss as per tailings. So this again adds to the cost of production as more percentage of wet beneficiation need to be done to make the product sellable in the market.

On the Fourth parameter that is transportation Goa have inbuilt advantage with an evolved system as compared to the other states of India. Goa has one of the lowest transportation cost per ton from pit head to the port due to well managed river navigation system. Geographically and strategically Goa is located on the western coast that has added advantage of the ports for export. The cost of transportation in terms of freight to South Korea, Japan and China is only $10- 11 i.e. Rs 800/- as compared to the nearest steel mill in the neighbouring state being Rs1500-1800/- per ton.

The Fifth parameter is the product portfolio, what product sending in the market. Product of mines of Goa is 56-57% Fe, silica 5-6% and alumina 4.2 to 4.5%. Thus, it caters to specific market as the requirements. Goa is producing very low grade product mix. If you see the analysis that is published in mineral year book almost 80% of Goan iron production is below to 60% Fe as against rest of India that produce 80% with 60% Fe content.

This raises the question as to then where is the market for this low Fe content iron ore? Definitely there are no takers in domestic market but Goan ores are more export oriented, bringing in precious foreign exchange. This export would contribute approximately 30% of the state GDP.

3. Mining and allied activities challenges

Mining in Goa today was synonymous with iron ore mining which is completely in Private Sector. It has long cherished history of systematic & scientific mining and won various accolades from different government regulatory bodies like IBM, DGMS etc. The exemplary Reclamation & Rehabilitation of mined-out area carried out in some of mines in Goa has attracted the attention of the mining world not in India but also in overseas and used to be referred by experts on different platforms.

However the low quality of Iron-ores coupled with more removal of waste rocks for every tone of ore production (excessive stripping ratio) & comparatively higher transportation charge to iron & steel plants with respect to iron-ores mine of other jurisdictions like Karnataka, Odisha etc made it economically unviable to compete in domestic markets and thereby leaving no option other than to look for overseas markets. Thus Iron-ores produced from Goa has been exported to various countries like Japan, South Korea & China etc. The export of Iron-ores from Goa is also in tune with National Mineral Policy 2019.

It is stated under Para 6.1 of NMP2019 that thrust will be given to extraction of mineral resources in which the country is well endowed so that the needs of domestic industry are fully met keeping in mind both present and future needs, while at the same time fulfilling the demand of external markets for such minerals, so as to enhance domestic economic and social well-being.

Before suspension of Mining Activities in the State of Goa in the year 2012, it was reported that 332 Mining Leases were valid for Iron and Manganese ore. Out of these 332 leases, 118 mining leases were in operation (About 90 mines).

The Production of Iron and Manganese ore before suspension of mining operations is shown in following Tables:

 In the year 2010-11 and 2011-12 the contribution of mining to State GDP was about 20% and 17% respectively, which has dropped to almost negligible during 2013-14.

The status of Iron ore mining leases in Goa & production from the year 2015 till the complete ban imposed by the Supreme court vide it order dated 7th February 2018 was as under:

It is estimated that Mining industry in Goa was employing over 60,000 persons directly and another 250,000 persons indirectly. About 30% of State’s population depends on mining and allied activities.

Challenges of Mining Allied Activities

• Nevertheless the iron-ore mining in Goa is beset with the following issues;

• Dumping of waste rocks/ overburden outside the leasehold as the leasehold area mostly being less than 100 hectares,

• Transportation of Ironores from mine head to nearest jetty points by tippers causing excessive burden on existing public transport infrastructure,

• Centralized location of Beneficiation plants catering the needs of multiples leaseholds leading to complexity in accounting for production from individual leaseholds

• To carry-out mining operation on the basis of Power of Attorney in the background of Mineral Concession Rules 2016

The above issues need to be resolved to avoid further complication in future. There is need for technolegal audit of the entire flow process of mining operation to find out the likely aberration so that suitable remedial measures are taken in advance to avoid knee jerk reaction.

4. Legal interpretation of the two major related acts Goa Daman Diu Abolition and Declaration as mining lease act 1987 which is commonly known as Abolition Act 1987 and the MMDR Act 2015 and its amendment of 2020 to be read along with the court directions

History of Mining in State of Goa at a Glance

• 1941-53: Erstwhile Portuguese Government granted most mining concessions under Mining colonial laws 1906 (not granted under MMDR Act of 1957)

• 1961: Goa becomes part of Union of India

• 1963: Mines and Minerals (Regulation and Development) Act, 1957, extended to Goa Daman and Diu

• 1975, (10th March)the Controller of Mining Leases for India issued notices to every mining concessionaire under the Mining Leases (Modification of Terms) Rules 1956.

• MMRDA excludes power to modify leases granted before October 25, 1949

• 1966 – 1983: Aggrieved concessionaires moved the Bombay High Court, Goa Bench and by judgment dated 29.09.1983, Bombay High Court restrained the Union of India from treating concessions as mining leases.

• Attempts to modify leases fail. High Court notes that no modification can be done as concessions principally not granted under MMDR Act.

• 1987: Parliament abolishes concessions, introduces leases in Goa, Daman & Diu under MMRDA that was notified on May 23, 1987 – Termed as Abolition Act (GBA)

 • 1987: Appointed date indicated in GBA reads retrospective from Dec 20, 1961

• 1987: Miners challenge the Act before High Court. Interim relief granted threafter.

 • 1997 High Court abolishes the challenge to the virus of the GBA, however, holds the Act and the recovery of dues prospectively

• HC judgment thereafter challenged in Supreme Court of India through SLPs

• 1998: SC’s 3-Judge bench passes interim order permitting mining operations and restricts any recovery of royalties retrospectively

 • 2006/2007 –337 apply for renewals in the stipulated time. Workings permitted under deeming provision as in rest of India.

• 2012 – 1st Suspension of Mining Operations

• 2014 – Hon’ble SC permits mining operations. Caps Production capacity to 20 Million tons & Introduces concept of Iron Ore fund (before the advent of DMF to follow thereafter).

• •2014/2015 – Goa Government grants second renewal to 88 (out of 409) leases before ordinance introduced in January 12, 2015.

 • 2015: NGO challenges renewal orders of the State Government.

• 2018: SC’s 2-Judge Bench quash 88 Mining leases which were granted second renewal by Goa Government in 2015.

 • 16th March 2018 onwards Mining activity comes to a halt.

• 2018-19 – State Government pitches to the Central Government to remove the impasse created by harmonizing the Abolition Act & MMDR Act. Interventions filed in the SC, including by Ministry of Mines indicating vested rights of Miners in Goa cases.

 • 30th January 2020: In a partial relief, SC permits extracted ores prior to Mid March 2018 to be transported.

Dr. Aruna Sharma has served as Secretary, Govt. of India. She is a Development Economist and served as Secretary, Ministry of Steel; Secretary, Electronics and Panchayati Raj. She also held charge of Rural Development and Panchayati Raj in Madhya Pradesh state government. She conceived and launched governance software like Samagra, now operational in 10 states and coordinated for Direct Benefit Transfer. She was member in 5 member high level committee of RBI for deepening digital payments.

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Policy & Politics

Real estate: Green shoots visible in Gurugram and Bengaluru markets

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India’s residential real estate segment is witnessing a decisive return of serious enquiries, which are now at 50% of pre-Covid-19 levels in the top cities. Recovery is fastest in Bengaluru, where current enquiries have reached 70% of the January-February period, followed by Gurugram with nearly 65%.

Despite site visits far from the previous levels, the sitevisit-to-closure conversion rate has increased considerably as only serious buyers are venturing out, with casual window shoppers fairly dormant currently. Hyderabad now sees an average of 15% site visits converting to sales, against 8% in the pre-COVID-19 period. Gurgaon, with just 4-5% conversions earlier, is now clocking in at 8-10%. Other cities report similar trends.

 In terms of the preferred budget range, homes priced between INR 40 Lakh to INR 1.25 Crore now attract a major chunk of the postCOVID-19 buyer enquiries. Bengaluru, Chennai, Ghaziabad and Noida are seeing maximum traction for homes in the under-INR 1 Crore budget. Gurgaon is seeing maximum enquiries for properties priced from INR 75 lakh to INR 1.25 Crore, for flat sizes 1,400- 1,600 sq. ft. built-up area.

 MMR is witnessing enquiries for homes priced within INR 60 lakh to INR 1.2 Crore, for property sizes between 400-800 sq. ft. carpet area.

 In terms of property configurations, 2BHKs and 3BHKs are in highest demand. While buyers in Bengaluru, Gurgaon, Hyderabad, Kolkata and Noida are more inclined towards 3BHKs and upwards, MMR sees a higher preference for 2 BHKs over the previous 1BHK.

Notable City-specific Trends

 Bengaluru

In the last 3 months, enquiries for larger homes have increased up to 40% with property seekers predominantly scouting for 3BHKs (avg. 1,800 sq. ft. built-up area) as against the previously-preferred 2 BHKs. The current buyers are largely working couples with children, most currently pursuing the WFH and e-learning options. Most of these buyers will settle for peripheral locations to secure bigger homes and a better lifestyle at more affordable prices.

Most buyers prefer gated communities with all amenities.

East and South Bengaluru seeing rising queries for properties sized 1,800- 2,500 sq. ft. built-up area, led by IT professionals and business owners looking for larger spaces. 

 Gurugram

Property enquiries are presently at 65% of preCOVID-19 levels.

Site visits are back to pre-COVID-19 levels with a sharp increase in conversion ratios – from nearly 5% earlier to 10% now.

 Maximum enquiries for properties priced b/w INR 75 lakh – INR 1.25 Crores of sizes 1,400 – 1,600 sq. ft. built-up area, largely from end-users. Affordable properties are seeing some traction – 30% demand for affordable housing is from investors, 70% from endusers.

High demand for 2 and 3 BHKs in full-fledged housing societies.

 Overall sales volumes have reached 60% of preCOVID levels.

Noida and Ghaziabad

Predominantly, serious end-user enquiries have increased to 40% of preCOVID-19 levels, site visits are increasing steadily.

Maximum enquiries for properties priced b/w INR 40 lakh – INR 80 Lakh in Ghaziabad and INR 50 Lakh – INR 1.2 Crore in Noida, of sizes 1,500 – 2,500 sq. ft. built-up area. Most buyers are IT/ITeS employees, Govt. officials and retired Govt. personnel.

Most buyers are looking for 3 or 4 BHKs, as opposed to the previously-preferred 2 BHKs. People with constrained budgets are seeking 2 BHK + study (2.5) of 1,200 sq. ft. built-up area.

 July alone saw more than half the number of sales recorded between April and June.

 Property sizes now a deal maker; most buyers now prefer gated communities with all amenities, demand for independent homes has reduced.

MMR  

Site visits were back to nearly 50% of pre-COVID-19 levels towards Julyend, from predominantly serious buyers.

Besides RTMI properties, under-construction homes with completion timelines between 6 months to 1 year are in high demand, provided developers sweeten the deals.

Properties priced b/w INR 60 lakh to INR 1.2 Crore of sizes 400 to 800 sq. ft. carpet area in highest demand. Buyers aged b/w 30-35 years currently living on rent have the highest purchase inclination.

Some buyers are upgrading from 1 BHK to 2 BHKs. July alone witnessed ~40% number of sales seen in the April-June period

Pune

 Property enquiries have reached up to nearly 50% of pre-COVID-19 levels.

Site visits increasing steadily, with higher conversions – from 9-10% on an average earlier to nearly 12% now.

INR 40 lakh to INR 80 Lakh is the sweet spot budget range for properties sized b/w 560 sq. ft. to 900 sq. ft. carpet area. 2BHKs continue to be the Holy Grail.

Interestingly, ultra-luxury homes priced b/w INR 2.5 Cr to INR 4.5 Cr sized b/w 1,200 – 2,000 sq. ft. carpet area are also seeing some traction.

Since Pune has limited RTM unsold stock, there is good demand for under construction projects by branded developers.

 Sales volumes are more than 40% of pre-COVID-19 levels.

Hyderabad

Site visits have reached 40% of pre-COVID-19 levels, with higher conversions – from 8% on an average earlier to nearly 15% now.

Hyderabad continues to see higher demand for 3BHKs, usually priced b/w INR 80 lakh to INR 1 Crore with avg. sizes 1,500-1,600 sq. ft. built-up area.

Increasing demand for villas priced >INR 2 Crore on which buyers are negotiating hard.

Since Hyderabad has almost negligible RTM unsold stock, there is good demand for under construction projects.

Besides IT/ITeS professionals, increased demand from doctors, lawyers and pharma professionals.

Gated communities with all amenities still the highest draw.

Prashant Thakur, is Director and HOD (Research) at ANAROCK.

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Policy & Politics

Kerala watches political battles with a sense of déjà vu

Vinod Mathew

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They say politics is about swings and roundabouts. They also say what goes around, comes around. Both sayings hold good for what is happening in the Kerala political spectrum these days.  In the run-up to the 2016 Assembly elections, the last Left front had gone all out with a barrage of corruption allegations against the UDF government, leading the charge with a slew of controversial decisions taken by the UDF government, for which they coined a term from rubber cultivation. It was “kadum vettu” or slaughter tapping, the objective being harvesting as much latex as possible with least concern for the longevity of the rubber tree. An apt paradigm, as this mode of tapping is taken up when the time has come for replantation.

The UDF, led by Opposition leader Ramesh Chennithala, did not quite have to wait for the slaughter tapping period or the last year of its governance to mount counter attacks against the LDF. The Opposition leader in particular has been leading his typical brand of crusade against a series of misguided decisions by the CPM-led government. Though Chief Minister Pinarayi Vijayan has made a point to ridicule Chennithala and get applause from his fans by dismissing outright allegations, a closer look reveals remedial measures being taken as well.  

 The recent personal attack on Chennithala by CPI (M) state secretary Kodiyeri Balakrishnan immediately after a party state secretariat meeting late last month suggests worry lines have emerged in the party about its government’s image taking a beating. He said Chennithala wears the RSS hat and that he was the RSS sarsanghchalak in Congress. Following media reports about CPI(M) politburo member S Ramachandran Pillai’s dalliance with the RSS during his high school days, SRP came out with the clarification that he was indeed with the RSS till he was 15 years old but became a Communist party member when he turned 18. Chennithala’s response was that his four decades in public life was an open book and he did not require a certificate from the CPI(M) secretary regarding his DNA.

 It is yet another matter that any RSS link is still seen as a political liability in Kerala at a time when the BJP has a near-total sway over most of the country. Yet, both UDF and LDF trade charges against each other for maintaining a secret electoral alliance with the BJP. Even as the state political architecture continues to be governed by these boundaries, there seems to be no dearth of scams that keep popping with predictable frequency.

 Therefore, it was with a clear plan that Chennithala began picking on the LDF government’s misdemeanours, one after the other. While it has always been the chief minister’s position that these salvos from the Opposition were of no consequence, that is getting to be a zero sum game as the corrective measures being taken are getting noticed by the public. So much so that even staunch Left supporters are finding it difficult to turn a blind eye to these setbacks. Result: Pinarayi Vijayan is finding it increasingly difficult to dismiss allegations raised against his government by the Opposition leader.

The most recent issue raised by the Opposition leader is the unilateral manner in which the Chief Minister has granted special favours to PwC allowing to set up a backdoor office in the state secretariat, based on the recommendation of the State Transport Secretary. Chennithala kept volleying questions at CM, pressuring him to come clean on why the state government was sold on having PwC Private Ltd as a smokescreen and sign up Hess AG Switzerland as technology partner with a majority stake to build electric buses jointly with Kerala Automobiles Ltd.  

It was a meeting chaired by the Chief Secretary on February 17, with five PwC representatives in attendance against three from the state government and two from Hess, apart from a Swiss national of Kerala origin who brought together the potential partners to the negotiating table that gave an inkling on what was being planned.  

 Excerpts from the minutes of the meeting:

The project envisages the exports of electric buses/ cars to Australia and other overseas destinations through Cochin and Vizhinjam ports, thus making Kerala an electric vehicle hub.

After detailed deliberations, and presentations, the meeting directed the PriceWaterHouseCoopers (PwC) to submit the Detailed Project Report (DPR) by the end of March 2020. In the meantime, Kerala Automobiles Ltd. (KAL) can import chassis and start homologation works for approval of Automotive Research Association Of India (ARAI) to avoid delay. It was also proposed to sign MoU by the end of April 2020 after following all the required formalities.

 Following the ruckus raised by the Opposition, the state government said it had discontinued the services of PwC from the E-mobility project on July 18. But no such decision has been taken on Hess.  

“The cost that the state exchequer, struggling each month to pay it salaries and pensions, is phenomenal, as the CM keeps bringing in one international consultancy after the other. The `back-door’ office of PwC is being run by four `specialists’ and each one of them is being given a monthly remuneration in excess of Rs 3 lakh per month, more than what the Chief Secretary of the state is paid. All this cost is being borne to sanctify the entry of the Swiss electric vehicle manufacturer without a global tendering. It is clear there has been an underhand deal, giving rise to natural questions regarding kickbacks in the Rs 4,500-crore deal for 3,000 buses. Pinarayi Vijayan cannot keep saying I should not raise such corruption charges during the Covid-19 pandemic,” says Chennithala.

Chennithala has also been leveraging charges regarding the absence of transparency and propriety in the PwC-Hess deal to keep raising the lack of veracity and logic behind the LDF signing a two-year, Rs 8 crore consultancy deal in the second half of 2020 with KPMG for Rebuild Kerala, a project envisaged almost two years ago after the first floods ravaged the state in August 2018. It was first claimed KPMG was rendering its services free of charge but somehow all that changed and the CM had no qualms about hiring the MNC at a hefty fee when the LDF government had less than a year to complete its term.

Chennithala has also been voluble in non-stop demand for the resignation of Vijayan, right from the days he caught the government between a rock and a hard place on the unauthorised transfer of personal health data of thousands of unsuspecting citizens of the state to the New York-based data analytics company Sprinklr, with Keralite Ragy Thomas, its founder and CEO.

The state government defended the decision to rope in Sprinklr when a specific study on Kerala by John Hopkins University, Princeton University painted a scary picture of 80 lakh Covid-19 infections in April and data needed to be generated. But the Centre was severely critical of the state government, citing breach of the citizen’s basic right to privacy. It was a huge win for Chennithala as the issue also began shedding light on many such forays by the state IT department and IT secretary M Sivasankar.

 Later, when Sivasankar get embroiled in the gold smuggling case due to his difficult-to-explain links primarily with second accused Swapna Prabha Suresh and by extension with first accused Sarith P S and fourth accused Sandeep Nair, it gave credence to Chennitala’s allegations about the CM going out of the way to protect the proactive role played his principal private secretary in the Sprinklr issue.

 Chennithala says the Pinarayi government is aiming to execute its version of slaughter tapping with the Dream Kerala project, pegged to be LDF›s development plank for the 2021 Assembly elections. One sure fire candidate would be the Rs 63,941-crore Silverline project connecting Thiruvananthapuram and Kasargod with a 532-km high speed rail corridor. Yet another one likely to be featured alongside would be the Rs 1,548-crore K-FON (Kerala fibre optic network) project. This is apart from the controversial E-mobility project that plans to manufacture 3,000 electric buses for the state transport at a cost of Rs 4,500 crore with Hess AG as majority partner. And Chennithala has started picking holes in each one.

Consider some of the controversies flagged by Chennithala, which have got the LDF government backtracking:

October 2018: The LDF government, facing heat from Chennithala-led opposition or its decision to issue licences to private companies to set up distilleries and breweries in Kannur, Palakkad and Ernakulam, calls off the plan.

November, 2019: College students Alan Shuhaib and Thaha Fasal were booked under UAPA by Kerala police for alleged Maoist links. Following persistent criticism by the Opposition, spearheaded by Chennithala, the CM in February 2020 requested MHA to refer back the case from NIA to Kerala police. In retrospect, the state police had better things to do like tracking terror links flourishing on huge volumes of contraband gold smuggled in most of 2019 and early part of 2020.

June 2020:  People of the state were jolted out of their April-May lockdown inactivity with astronomical electricity bills from the state utility. The CM initially chose to ignore the public outcry justifying the bill. Once the Opposition started raising the decibel level about a cashless government looting the public, it was forced to climb down on June 18, the CM said up to said up to 50 per cent of the additional charge would be underwritten.

It is in this backdrop, the persistent line of questioning by Chennithala gains credibility, going beyond Vijayan’s initially successful strategy of belittling and thus diminishing the gravitas of issues raised by labelling him politically naive and harbouring ambitions of grabbing the chief minister’s chair.  It is this game plan belittling the persona of the one bearing news that is backfiring now, almost like a jammed gun with the used shell not ejecting properly.

All this would not have been a walk in the park as there have always been many voices trying to drown out each other from the Congress camp.

Evidently, Pinarayi Vijayan was trying to leverage this inherent party weakness while brushing aside the Opposition leader›s charges in the early days. Clearly, Chennithala has been mindful of this all along.

 In sum, there could not have been a more ill-advised move than the attack mounted by CPI(M) state secretary against Chennithala. Not only did it boomerang, forcing senior politburo member SRP to clarify his foray into the RSS before seeing light, in this case red, it gave the Opposition a moral victory. Because, the message that came across loud and clear was that Chennithala had managed to rattle the comrades with his dogged single-mindedness. And that is almost as bad as showing your hand to the opponent a game of poker.

Vinod Mathew is a senior journalist based in Kochi.

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Policy & Politics

Nature blooms amidst Covid-19 pandemic: Lessons and notes

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Living within the four walls of my home, with so much chaos worldwide, I have discovered a silver lining that keeps me going during this Global Pandemic. Dolphins have been spotted in the canals of Venice, and the chirping of birds has returned to the cities. The majestic Himalayas can now be seen all the way from Jalandhar, and the Delhi sky looks as blue as ever. Nature is prospering and blooming without human interference.

Seeing how nature has healed itself is undeniable evidence of the negative and immediate impact humans have on the environment. As lockdown restrictions ease globally, and we return to their lives, albeit with the ‘new normal’, I believe that are valuable lessons we can take forward from these times, about how to reduce our environmental footprint. With numerous countries under some form of lockdown, human travel has drastically reduced. This has had a positive impact on reducing air pollution. For example, pollution levels in Delhi had come down by around 79% during the initial phase of the lockdown. To maintain this air quality, we must try our best to travel by vehicle when only absolutely necessary, and to opt for greener transportation methods like cycles or carpooling. Spending more time at home during lockdown led to an increase and greater awareness of household waste. People were acutely aware of the amount of waste they were generating, and many took steps to reduce this waste. To carry this habit forward into our lives, postlockdown, we must continue to be cognisant of the waste we produce and how we can take steps to reduce this. For example, instead of throwing away leftover food, we can reuse it the next day to create a new preparation. For food that is no longer edible, it can be composted at home. This helps convert the food into organic fertiliser, reducing methane emissions from landfills and lowering our carbon footprint. Another step to reduce waste is to avoid plastic packaged food. The packaging adds to non-biodegradable waste, and the food is a less healthy alternative than fresh food cooked at home. In some way or the other, nature is giving us a taste of its own medicine. Nature has healed itself while all of us are locked within the boundaries of our homes. We are trapped indoors whereas the plants and animals are thriving outside. We are being punished for all the damage that we created. Everyone, including me, is eager to return to a semblance of life as it was. But if there’s one lesson we’ve learned from lockdown, it is that we can clean up the earth through our conscious choices and actions. Though there has been a positive impact on the environment due to the lockdown, there is fear that once people start travelling again or go back to doing what they have been doing, all the positive impact will also disappear.

 Covid-19 has given us the opportunity to watch the planet heal from behind our windows. Together, I hope we can sustain these practises even after quarantine, so that this silver lining continues long after the virus is eradicated.

Inaayat Passi writes on environment & nature.

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Policy & Politics

Medical negligence, liability of hospitals and civil framework

Medical negligence arises when there is a failure on the part of medical professional to take adequate care and as a result it causes a harm or injury to the patient. It is to be noted here that, every treatment does not lead to success and every treatment does not save the life of patient. Any failure in curing the disease or saving the life will not be treated as negligence on the part of medical professionals.

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In good olden days medical profession was considered as a noble profession. This is because the medical professionals were considered as equivalent to or next to god and their relation with patient is guided by compassion and altruism. The sole aim of medical profession was to cure and alleviate the sufferings of patients. Therefore, compared to many other profession, medical profession receives a high respect from the society and also certain immunities under law. It is believed that, being service oriented and without any profit motive whatever a medical professionals will perform during treatment is for the welfare of patients. Therefore, in olden times common law tradition provided an immunity to medical professionals and patients were not permitted to file a complaint against a medical professional in connection with his service.

The changes in professional values and; developments in the medical science and technology; and the societal values have significantly damaged the value of doctor patient relationship. Here the term medical professional indicates not only doctors but also includes nursing staffs, paramedical staffs, pharmacist, and hospital administration as the case may be. There is change in the fiduciary relationship (i.e. based on trust) between medical professionals and patients. Whenever anything goes wrong while treatment on account of the act of doctors or other medical professional’s patients starts thinking about a legal recourse against it. So also there is an increase in malpractices among some of the medical professionals. All these has given rise to the development of law relating to medical negligence.

Medical Negligence

Negligence arises when a person fails to take adequate care and thereby causes an injury to another. It is the duty of every individual to take adequate care while doing an act, therefore any failure to take such care and thereby causes an injury to another, it is his responsibility to compensate the loss suffered by such inured person. Here unlike criminal law, the bad intention to cause injury is not necessary, therefore, even if the person does not intended to cause a harm or injury through his action, still he will be liable to indemnify the loss. In the words of Baron Alderson, ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do’.

 Medical negligence arises when there is a failure on the part of medical professional to take adequate care and as a result it causes a harm or injury to the patient. It is to be noted here that, every treatment does not lead to success and every treatment dos not save the life of patient. Any failure in curing the disease or saving the life will not be treated as negligence on the part of medical professionals. In order to qualify an act of medical professional as medical negligence, it is essential to establish that: a) there was a legal duty on the part of alleged medical professional; b) this duty is towards the patient in dispute; c) there is a breach of that legal duty; and d) as a result of such breach of duty, the patient suffered an injury or the death occurred.

Legal Frameworks

 The idea of imposing liability for medical negligence is not a new concept though it has developed in the last few centuries. One can find certain rules and principles dealing to medical negligence in the 4000 years old Code of Hammurabi developed by Babylon King Hammurabi. Similar instances can be found in ancient Hindu Vedic texts such as Charaka Samhita; Manusmriti; Arthashastra; Yajnavlkya’s Smriti; etc. Even other popular religious traditions such as in Islamic law, Christianity, Judaism, etc. also contains certain references which imposes an obligation to doctors to do no harm to the patients. Though very little legal obligations where there at that time in connection with medical negligence, one striking feature is that, the liability was criminal in nature rather than a civil obligation. In modern times, the legal framework dealing with medical negligence can be broadly classified in to three: a) Civil Law Framework; b) Criminal Law Framework; and c) Professional Misconduct.

Civil Law Frameworks

The civil law framework in India dealing with medical negligence includes actions under law of torts (i.e. Tort of medical negligence); actions under Consumer Protection Act (i.e. Deficiency in medical service); and actions under Indian Contract law (i.e. Breach of contract).

 Tort of Medical Negligence Tort of medical negligence is a tort in which a medical professional (defendant) fails to take adequate care while providing his service to a patient (plaintiff) and which results injury to such patient. In other words an act or omission which causes a breach of duty to take care by a medical professional and thereby causes injury to a patient is termed as tort of medical negligence. In order to consider an act as tort of medical negligence the following ingredients has to be established; a) A legal duty to exercise due care; b) Duty must be owed by the Medical Professional; c) Breach of Duty; and d) Breach resulted in injury to the Patient.

In the case of Dr. L. B Joshi  (1969), the Hon’ble Supreme Court of India has explained that, a medical professional has the following duties towards a patient such as: Duty of care in deciding whether to undertake the case; Duty of care in deciding what treatment to give; and Duty of care in the administration of that treatment. Therefore breach of any one of or all of these duties can be considered as a case of tort of medical negligence.

The moot problem in medical negligence cases is the determination of violation or breach of duty on the part of a medical professional. The popular Bolam test (1957) is considered as an effective principle for the determination of breach of duty on the part of medical professionals. According to this test, if a medical professional had adopted a practice that is considered as ‘proper’ by a reasonable body of medical professionals who are skilled in that particular field, the medical professional in question will not be held negligent only because it resulted in injury to the patient. In other words if the medical professional in question has exercised reasonable skill and care like any other medical professional of his field in the given circumstance, then whatever injury or harm caused to the patient is not to be considered as because of negligence on the part of such professional. In 1997, Bolitho test has developed for determining the breach of duty by medical professionals, in India the judiciary still favours the Bolam test.

 The burden of proof for establishing breach of duty is always lies on the shoulder of patients. The principle of res ipsa loquitor (things speaks for itself) is an exception to this general rule. In cases where res ipsa loquitor the patient/ plaintiff will be excused from establishing the breach of duty on the part medical professionals. This principle applies in cases where the injury results only if there is a negligence, in such cases Court will presume there is a breach of duty on part of concerned medical professionals. Cases like forgetting mops, surgical instruments, scissors etc. in the stomach of patient during surgery are the best examples for the application of this principle.

 It is to be noted that there are cases in which doctors or other medical professionals may be negligent in providing their service, but their negligence may not be the sole reason for the loss suffered by the patient. The patient may also contribute for the loss suffered by him. In such circumstances medical professionals will be liable only to the extent of loss occurred due to his negligence by the application of the principle of contributory negligence. The judiciary will determine the percentage of loss caused by the act of negligence of medical professional and will determine the liability accordingly. When there is a failure on the part of patient to give the doctor accurate medical history; failure to cooperate with his doctor in carrying out all reasonable and proper instruction; refusal to take the suggested treatment; leaving the hospital against the doctors advise; and failure to seek further medical assistance if symptoms persist, etc. are some of the common instances for the application of contributory negligence. Deficiency in Medical Service

 Medical negligence can be considered as a deficiency in medical service under the Consumer Protection Act, 1986. Deficiency in relation to medical service means any fault, imperfection shortcoming or inadequacy in the quality, nature and manner of performance of which is required to be maintained by or under any law for time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to medical service. Therefore all the medical negligence cases can be brought under the definition of deficiency in medical service and patient can claim remedy under Consumer Protection Act. It is to be noted here both medical negligence and deficiency in service are used interchangeably for indicating the same thing, yet there is a difference between these two terminologies. To constitute a deficiency in medical service, a simple breach of duty with or without injury is sufficient, if the breach results in damage, then such deficiency would amount to tort of medical negligence also.

The application of Consumer Protection Act in cases of medical negligence had a long disputed history. First of all the question was whether a patient can be treated as a consumer under the Consumer Protection Act. This question was finally settled affirmatively by National Consumer Commission in the case of Vasantha P. Nair (1992). The next dispute was with respect to inclusion of medical service under the purview of the Act. The Consumer Protection Act, 1986 provides a wide definition for the term ‘service’, however it failed to mention the medical service. This issue was finally affirmatively settled by Hon’ble Supreme Court in the case of V. P. Shantha (1996). One important thing to be noted here that the new Consumer Protection Act, 2019, also failed to provide a specific mentioning about medical service under the definition of ‘service’ in the Act. Since the new Act follows the philosophy and the provisions related to service and deficiency of 1986 Act, the above mentioned judicial settlements hopefully will apply under the new Act.

 Breach of Contract

A medical professional when accepts a patient to provide treatment, there arise a contractual relationship between such professional and the patient. Therefore, when a medical negligence occurs, the patient can consider it as a breach of contract and claim remedies for breach of contract under the Indian Contract Act, 1872. However, considering the long delay and other ancillary expenses patients are generally reluctant to prefer a case under this head. Considering the need for urgent disposal and inexpensive nature, patients are more in favour of a complaint under CPA in cases of medical negligence. Sometimes patients will prefer both tort of medical negligence and deficiency in service actions together. However, after the introduction CPA, 2019, in the absence of a clause talking about application of other laws in relation to consumer disputes, how far filing of actions under both tort and CPA for the same negligence is doubtful. In all these civil law frameworks, in cases where there is a medical negligence, the medical professional is liable to compensate the loss suffered by the patient. While determining the compensation amount the concerned court will take into account both physical injury and mental injury suffered by the patient, wherein the court will count both economic as well as non-economic loss incurred by the patient. In the case of Dr. Kunal Saha (2013), Supreme Court has granted 5.96 crore rupees as compensation, which is the highest ever compensation awarded in a medical negligence case in India

Criminal Law Framework

 In India, the criminal law framework dealing with negligent acts of medical professionals are covered under Indian Penal Code, 1860. It provides four specific offences which are directly dealing with the act of negligence on the part of medical professionals. They are Section 336, 337, 338 and Section 304A. As per Section 336 whenever a medical professional does any act so rashly or negligently so as to endanger life of patient or the personal safety of patients it will amount to an offence. Such medical professional shall be punished with imprisonment up to 3 months or a fine up to 200 rupees or with both.

 When the medical professional causes hurt to any patient by doing any act so rashly or negligently as to endanger life of patient or the personal safety of patients, it will amount to an offence under Section 337 and he shall be punished with imprisonment up to 6 months or a fine up to rupees 500 or with both. If the negligent act of a medical professional causes grievous hurt to the patient it would be considered as an offence under Section 338 of IPC and he shall be punished with imprisonment up to 2 years or a fine up to rupees 1000 or with both. In case patient dies due to the negligent act of medical professional it would be an offence under Section 304A and he shall be punished with imprisonment up to 2 years or a fine or with both.

 It is to be noted here that, for the conviction of a medical professional for an alleged criminal offence, the standard should be a proof of recklessness and deliberate wrong doing. Therefore, to convict, a medical professional, the prosecution has to come out with a case of high degree of negligence on the part of such professional. Therefore a mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The Indian judiciary has clearly laid in number of cases that while imposing criminal negligence and its liability to a medical professional, there should be a proof of high degree of negligence or recklessness. The Court has also laid down several guidelines to deal with criminal medical negligence cases against medical professionals in cases like Dr. Suresh Guptha (2004) and Jacob Mathew (2005).

 Professional Misconduct

 The commission of negligence by medical professionals would amounts to a professional misconduct on the part of medical professionals as per the Medical Code of Ethics, 2002 adopted by Medical Council of India. If the negligence is successfully established on part of a doctor, then the disciplinary committee can either issue a warning, suspension from the registered list or dismiss form the said list.

Liability of Hospitals and State Governments

Generally a question arises in most of the medical negligence cases is that the liability of hospitals for the negligence committed by their doctors and other medical staffs. In number of cases like Ms Neha Kumari (2003); Savita Garg (2004); etc., the Indian judiciary has categorically established that the Hospitals are vicariously liable for the negligence of their doctors and other staffs. Also in cases like V. Krishnakumar (2015); Savitri Devi (2019); etc., the State Governments were also held vicariously responsible for the medical negligence’s occurred in Government hospitals.

 A review of all these shows that, in India, for the protection of rights of patients in cases of medical negligence, there is a well-established legal framework. By understanding the pros and corns of these frameworks the patient can take action against medical negligence cases. It is to be noted here that, though there is a wellestablished legal framework for dealing with medical negligence cases, it is not a Damocles sword hanging on medical professionals. Medical professionals are free to continue with their solemn duty of curing the diseases and alleviating the suffering of patients. However, they are supposed to take adequate and reasonable care while providing their service. Compared to many other developed nations health care system in India is at its top most position, this is due to our learned medical professionals also. So one can reasonably expect the cases of medical negligence will decrease tremendously in future.

Dr. Aneesh Pillai, School of Legal Studies Cochin University of Science and Technology.

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Policy & Politics

Cross-border data transfers: (In)Adequate protection?

Rahul Chaudhary, Jayashree Parihar & Aastha Saxena

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“Data is the New Oil, the New Gold”. If there is one thing which unites businesses all over the world, it is, above all else, their collection, use, processing or storage of personal/financial data of clients, consumers, service providers and business associates.

 Across the nations , data protection laws have changed remarkably over the past two decades. Now more than ever, an individual’s digital existence is a common phenomenon. Our reliance on smartphones, laptops and wearable technology has increased manifold and payment through online digital modes, is a way of life. At an individual level, there is a huge amount of personal data that is being shared, collected, and stored online on the pretext of making our online existence customized and therefore, comfortable. Due to this boom in digital space and economy, one of the most frequent concerns to arise is regarding the ‘adequacy’ of protection of our personal data.

Generally speaking, personal data is any data or set of data which can be used to identify a person directly or indirectly. This would include one’s name, characteristics, personality traits, appearance etc. which may not necessarily be closely guarded. However, certain other types of data, such as those relating to one’s religious or political belief, health, or private life would be closely guarded as their dissemination, or knowledge could have significant impact on a person or may be treated with greater care simply by virtue of their sensitive nature. With varying legal systems and societal standards, all jurisdictions have their own definition of what type of data should be categorised as ‘Sensitive Personal Data’ or be put in a special category of personal data (‘SPD’) requiring a relatively higher level of regulation or protection.

In the digital economy space businesses are global, requiring cross-border transfer of personal data. It is imperative that each business must understand the common basic principles pertaining to data protection and privacy laws regulating the legal environment of the jurisdictions within which such business operates or transacts. At a high level, jurisdictions having dedicated data protection law usually permit crossborder transfer of personal data on five broad principles – adequacy, informed consent, contractual necessity, interests of data subjects or other persons, and overriding legal or state functions.

The principle of adequacy requires that data can be transferred across national borders only if the receiving nation or territory offers sufficient protection for data under its own laws, which is comparable to or, at the very least complies with the minimum protection accorded in the transferor state.

The last few weeks have been particularly busy for the data protection activists and businesses alike, as both find themselves grappling with the issues resurrected by the ruling of the Court of Justice of European Union (‘CJEU’), European Union’s highest court, in the much-awaited case of Data Protection Commissioner v. Facebook Ireland Limited, Maximillian Schrems (usually known as the ‘Schrems II’) wherein the legal basis of international transfer and processing of personal data between the EU and the United States of America (‘USA’) was tested for the second time.

European privacy laws [previously the Data Protection Directive – Directive 95/46/EC (‘Directive’), and now the General Data Protection Regulation (‘GDPR’)] permit free flow of personal data within the EU. Cross-border transfer of personal data to non-EU country is also permitted provided the personal data enjoys ‘adequate’ level of protection in such country which is essentially ‘equivalent’ to that within the EU. USA came up with a set of guidelines or principles to be followed by businesses receiving data from EU known as the EU-US Safe Harbour framework (‘Safe Harbour framework’). Vide order dated July 26, 2000, the European Commission accepted the adequacy of Safe Harbour framework. This resulted in free flow of personal data from EU to USA provided the entity receiving the personal data was compliant with the privacy principles contained in Safe Harbour framework.

 In 2013, Edward Snowden publicly disclosed that intelligence agencies in USA have wide access to the personal data of EU users being collected by the electronic communication/service providers in USA. Following these revelations regarding the invasive surveillance mechanisms employed by authorities in USA, questions were raised about the integrity of the Safe Harbour framework and the adequacy of protection provided by it.

In the year 2015 an Austrian national, ‘Maximillian Schrems’ approached the Irish Data Protection Commissioner (‘DPC’) claiming that the Safe Harbour framework did not guarantee the requisite level of data protection mandated under the Data Protection Directive, the EU’s data protection law in force at the time, and thus, data collected by Facebook Ireland Limited from EU residents must not be transferred to servers of Facebook Inc. in USA, as it violated the guaranteed rights of EU residents. The DPC ruled that it was bound by the Order dated July 26, 2000 passed by the European Commissioner; the Safe Harbour framework provided adequate protection; and, rejected the complaint as “frivolous and vexatious”. The matter travelled up to the CJEU which gave its decision in this case of Maximillian Schrems v. Data Protection Commissioner, which came to famously be known as the ‘Schrems I’ case, in the year 2015. The CJEU also observed that “legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life” as guaranteed under the Charter of Fundamental Rights of the European Union (‘CFR’). The CJEU held that a third country such as the USA must provide an “essentially equivalent” level of protection, that the decision of the DPC was invalid and that the protection pursuant to the Safe Harbour framework was inadequate.

Soon thereafter, USA negotiated with EU to come up with another framework referred to as the EU-US Privacy Shield framework (‘Privacy Shield’) for providing adequate protection to data so that the companies in the USA can resume engaging in crossborder transfer of data on a self-certification basis. European Commission’s Decision 2016/1250/EC of July 12, 2016 approved the Privacy Shield as providing ‘adequate’/’equivalent’ protection.

Since the Privacy Shield had failed to address the core issues pertaining to conflict of laws in USA with the fundamental right to respect for private life as guaranteed under the CFR of EU, the issue related to adequacy of protection granted by the Privacy Shield again travelled to the CJEU on account of a lawsuit filed by Irish DPC against Facebook Ireland Limited and Maximillian Schrems. However, this time, the touchstone to judge the adequacy of the data protection was GDPR which replaced and repealed the Directive in the year 2018. On July 16, 2020, the CJEU issued a judgment declaring invalid the European Commission’s Decision of July 12, 2016 on the adequacy of the Privacy Shield. The CJEU, amongst other things, declared the Privacy Shield as an invalid mechanism for transferring personal data, due to the limitations on its protection from the domestic law of USA which allow indiscriminate access to public authorities in USA to the EU data transferred there. It observed that though the Commission had held in its adequacy ruling that the authorities in USA would be bound by the limitation principles under the EU law, the laws of USA do not “grant data subjects actionable rights before the courts against the US authorities. Therefore, the Privacy Shield cannot ensure a level of protection essentially equivalent to that arising from the Charter contrary to the requirement in Article 45(2)(a) of the GDPR that a finding of equivalence depends, inter alia, on whether data subjects whose personal data are being transferred to the third country in question have effective and enforceable rights.” The CJEU thereby declared that the Privacy Shield cannot be used as the legal basis for transferring personal data to USA where the recipient is subject to parting with such data as per its surveillance laws.

Back at home, the Supreme Court of India in the year 2018 had also given a ruling recognising the need to bridle the powers of the government while handling data of its citizens. It was noted that “informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well.” To guard against such dangers, the Court recognised that “a careful and sensitive balance between individual interests and legitimate concerns of the state” needs to be achieved. In the past couple of months, lack of adequate protection has also been a growing concern. The Indian Government’s recent ban on several Chinese applications including TikTok, UC Browser and BeautyPlus was also due to breach of users’ data privacy. India under its current laws in the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 also recognises the requirement of adequate protection for cross-border transfer of SPD.

Should adequacy be lacking in laws, states such as Russia, Switzerland and those following the GDPR permit cross-border transfers provided treaties or data sharing frameworks have been established for it. It was under this route that the Privacy Shield was set up to allow EU companies to transact with businesses in USA. Even if there is no data sharing framework in place, entities intending to transfer the data can opt to be contractually bound by the model clauses or Standard Contractual Clauses (‘SCC’) approved by the transferor nation’s data authorities. Even otherwise, parties can themselves provide contractual obligations respecting the higher protection standards. However, some jurisdictions such as Switzerland, would require prior approval of the data protection authorities if the SCCs terms are deviated from. The consequences of the CJEU judgment in Schrems II is that the businesses are now forced to rely on SCCs to legally support cross-border transfer of personal data from EU to USA. Contractual safeguards may even be put in place by way of binding corporate policies. The law proposed to be enforced soon in India i.e. the Personal Data Protection Bill, 2019 (‘Proposed Bill’) also envisages alternative mechanisms to facilitate cross-border transfer of data.

Even in case of glaring conflicts or inadequacy, all is not lost in the world of data transfer. In such situations, cross-border transfer can take place if the data subject or data principal, i.e. the person to whom this personal data relates, consents to transferring such data despite being apprised of the risks associated with such inadequacy. What assumes importance then is the quality of consent and the riders attached to it, which vary from jurisdiction to jurisdiction. For instance, EU, UK, Mauritius and Switzerland would require that consent should be given after informing the data subject about associated risks and giving the option to refuse such consent. In fact, in Vietnam, financial data is considered as SPD and therefore, the e-commerce websites must seek purpose-specific informed consent before using or disclosing such data. On the other hand, as per Australian law, since financial data is not strictly included in SPD, it could even be disclosed based on an implied consent understood to have been given by the data subject. However, most recently enacted data protection laws do not consider a ‘consent by default’ sufficient for this purpose. The practicality of this is to give the data subject an opportunity to make a conscious decision for herself, being insulated from the self-interest of the data controller/transferor to export data, whether for ease of business or earning profits.

Where transfer is necessary for purpose of contractual or pre-contractual obligations, the same may be transferred in the absence of specific informed consent for cross-border transfer by the data subject. However, the requisite parties to the contract eligible to transfer data in this manner also vary under different laws. In countries such as Brazil, Mauritius and Russia, so long as it is in the best interest of the data subject, even contracts entered into by the data collector/transferor with other third parties to the exclusion of but for benefit of the data subject would be valid ground for availing leeway under this basis. Whereas in Switzerland, for intra-group cross-border transfer in case of inadequacy, data subject should be a party to the contract.

The next basis for international transfer is vital or compelling interest. This means that cross-border transfer may be permitted on the grounds of vital interest of data subject, or on account of compelling legitimate interests of the data controller and/or processor, and in some cases, a third party. Different legislative frameworks have different standards for exercising this basis for cross-border transfer. In some jurisdictions, such as Germany, Russia and Luxembourg, such a ground of data subject’s interest would be permitted only where data subject is not in a position to give an informed consent. Interestingly, Mauritian authorities can even call upon the data exporter to demonstrate that compelling legitimate interests did in fact exist. Further, under the GDPR and Mauritian law, data from publicly accessible records can be shared, in compliance with other conditions of the data protection law or where the requesting third party, can demonstrate a legitimate interest where access is regulated. It is likely that issues relating to demonstrability and compelling nature of such interest, being subjective elements, would require frequent intervention of data protection authorities and courts.

 The ground of necessity for legal or state related functions for data transfer is, perhaps, a ground as widely observed as that of consent. Laws of almost all nations recognise that data to at least a limited extent could be transferred even without strictly complying with otherwise applicable law where disclosure is necessitated by reasons of national security or defence, public interest, protection of life or health, complying with court procedure or establishing or enforcing legal rights. It must be appreciated that it is not only in case of national or international exigencies that cross-border flow of data occurs. In the present day and age where international cooperation has expanded in all spheres, be it to improve global health, fight terrorism or to catch economic offenders, countries are likely to share data proactively to achieve their goals. Such cooperation amongst countries has been seen in the past when Herve Falciani in 2008 fled to France with data of account holders who were hiding money from taxmen in the Swiss branch of the Hongkong and Shanghai Banking Corporation (H.S.B.C.) Bank, and details of those individuals were shared with India by the French authorities in 2011 and later, the Swiss authorities in 2019. Being bound by their respective national laws to some extent, even the authorities would be expected to exercise a degree of caution while disclosing such data.

The protection of personal data in cross-border transfers has gained enormous importance in recent times and would continue to be of vital interest to the businesses in times to come given the fact that data flows are bound to grow with more and more businesses going digital. Judgments of CJEU in Schrems I and Schrems II has served notice to businesses and nations alike that the right to privacy must be upheld and respected.

 India has proposed a new law for protection of personal data. In fact, the Indian Government is also considering regulating the processing and transfer of non-personal data to promote a healthy business environment. Earlier this year, the Indonesian President is reported to have signed a draft law on personal data protection, which leans towards the Indian Proposed Bill and defines general personal data and SPD in a similar fashion. Unlike the GDPR, the Indonesian bill includes personal financial data as a part of SPD and for cross-border transfer of personal data and adopts the mechanism of ‘adequacy’ of protection in the recipient states. Countries like China, Indonesia and Russia, that once banned cross-border data transfers, are now conscious of the need to open up the digital boundaries and harmonize themselves with the global pulse of data protection. Where Switzerland had a more stringent regulation in place, in light of its close geographical and economic ties with the EU, perhaps, it realized the need to introduce leniency and streamline its laws with that of its neighbours.

 However, a view may be taken that it is not sufficient for countries to merely align their data protection policies. As seen above, a state of real adequacy of protection cannot be attained unless national laws overriding data protection laws are also brought in sync with one another. In absence of coming up with robust crossborder data transfer mechanisms, nations and entities might soon realise that the principle of adequacy is turning into an unforeseen trade barrier. Since international harmonization across legal issues seem more like a utopian vision than a soon to be achieved reality, data importers and exporters would have to make up for the disconnect on their own, to whatever extent it is possible. Depending on a case to case basis, one approach could be to transfer data not only on one of the many aforementioned legal bases but rather to use a combination thereof so that even if one of the basis is held to be invalid, like the Privacy Shield in Schrems II, business is not thrown in a state of absolute frenzy and rather already has provisions for enabling stop-gap arrangements to be put in place.

 While countries can take time to decide whether or not to review their respective legislations, the business entities are forced to amend their policies and contracts to protect their businesses so that they earn ‘adequate’ profits while arranging to provide for ‘equivalent’ protection for cross-border flow personal data.

Adv. Rahul Chaudhary is Partner, PSL Advocates & Solicitors. Adv. Jayashree Parihar is Senior Associate & Adv. Aastha Saxena is Associate, PSL Advocates & Solicitors.

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Policy & Politics

The encounter of gangster Vikas Dubey: Society, policy, politics and law

Pareekshit Bishnoi

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The administration of justice is one of the most essential function of the State for a due safeguard of the rights and lives of its people. The key functionaries in this system are police, prosecution, defense counsels, and courts and corrections. Each of these functionaries has defined powers and functions and is subject to specific rules and procedures. This brings reasonability and accountability in their functioning which ultimately solidifies a justice system of a country.

Talking of the police, the preamble of the Indian Police Act, 1861 describes police as an “efficient instrument for the prevention and detection of crime”. However, the recent incident relating to the encounter of accused Vikas Dubey at least at present appears neither prevention nor detection. The name assumingly needs no introduction in light of recent events. Vikas Dubey was accused in 64 cases including those of murder, abduction, extortion. The recent most being Kanpur Cops Killing case wherein 8 Uttar Pradesh police officials were killed when the police went to arrest him. After absconding the place of crime amongst others, on 09.07.2020, he was arrested from Kal Bhairav Temple in Ujjain wherein he surrendered to the police.

The apprehension of an encounter of this main accused was in the air since his run after the incident. His act of surrendering in the temple was thought as a smart and safe move to avert any possible encounter, including a fake encounter. However, an act which on 09.07.2020 appeared to avert encounter or fake encounter and assure safety to his life, turned enfeeble by the morning of 10.07.2020. He was encountered on the outskirt of city Kanpur while he was being brought to Kanpur from Ujjain. It is the case of the police that he was encountered when the vehicle in which he was being transmitted toppled and he “attempted to flee” after snatching a pistol from one of the police officials.

Presently, though the case of the police appears to be uncorroborated by the surrounding circumstances yet it would be not appropriate for the author to comment on the veracity of case of either side as an investigation by the Special Investigation Team is still ongoing.

However, it would be appropriate to point out several facts and issues likely to be involved and play a critical role in determining the veracity of the case of the police. Given the suspicious story and circumstances, on the factual front, an answer to several questions will play a very critical role in the determination of the truthfulness of the case of police. Some of these questions may be briefly noted as follows:

How many police officials accompanied the accused in the transit? How did the vehicle topple? What would the report of an expert say on the possibilities of the toppling of the vehicle? How many police officials were travelling along with him in the same vehicle? Did anyone sustain injuries from the toppling of the vehicle including Vikas Dubey? What does the medical report of each person say about the nature and cause of the injuries sustained? Has the weapon snatched by the accused been sealed? Does such weapon show fingerprints of Vikas Dubey on the pistol? Why was his leg not aimed in all four shots with which he was hit? Did the bullet enter his body from the back or chest? What does the site plan of the place of occurrence indicate? Has any bullet even been fired from the pistol snatched by the accused Vikas Dubey? If it was a fake encounter, why was the time of 7:00 in the morning chosen instead of any time at night? Is there any direct and independent witness to the incident? If no, what does the ratio of vehicles usually be on the said road? When was the transit of vehicles stopped on the road? When was the sound of fire heard? How did the misfortune and coincidence happen only with the accused and co-accused of this case and that too within such a short time, particularly when the apprehensions of the encounter were so high? Why was one of the houses of Vikas Dubey bulldozed when the investigation was still pending?

 In addition to them, questions will arise from the documents like site plan, medical reports and the witnesses produced will play a critical role in determining the veracity of the case presented by the police.

On the legal front, the question of why was no transit remand order taken from the Court in Ujjain has been raised. Though the explanation of the police for this would be a relevant fact but interestingly, obtaining of a transit remand has often been held as non-mandatory and mere irregularity. For example, the Jharkhand High Court in Ram Bilash Sahu vs. Union Of India [2012 SCC OnLine Jhar 932] observed that “non-compliance of provisions contained u/s 76 of the Code, in such circumstance can only be an irregularity which shall not be a ground to declare the remand illegal” (para. 13). Further, in Surendra Sardar vs. State of Bihar & Ors. [(2000 (3) PLJR 238] the Court observed as follows:

“It is not a condition precedent or a valid order of remand that the accused must at the time of remand, be in valid custody under a valid remand order. If on the date of hearing of the application the remand is valid, then no writ of habeas corpus can be issued only on the ground that at earlier point of time the remand was invalid.” (para. 6)

 Thus, in the present case, the non-taking of transfer remand may be considered as mere irregularity as had the accused been produced before the jurisdictional Court, his custody would have otherwise been treated as valid.

Having noted this, the author opines that the encounter which presently seems to have been staged could have been averted by due diligence of the jurisdictional Court, police official, and/or of any advocate. Taking of transit remand could have at least secured the transit of the accused from Ujjain to Kanpur. Moreover, the accused or any person on his behalf could have pleaded for the order of putting handcuffs and leg cuffs to the accused. This would have in the opinion of the author nullified the story of attempted escape by the accused. But it appears that the accused, the jurisdictional judge or any other advocate or official for that matter did not anticipate that the accused still has his life on risk once he was in police custody after a surrender.

However, in addition to the above-discussed factual and legal matrix, the series of incidents and the response of the police to the entire incident also posts some other questions and thoughts on the existing criminal justice system and political system of the country. First, whether the media and the police have different responsibilities towards society when eight police officials killed vis-àvis killing of any number of civilians of the country.

Second, the encounter at least at present appears to be an ecstatic and emotional response to the killing of their colleagues despite them, either under political pressure or otherwise, having let these people grow and perpetrate in this system to such an extent that some of their officials continuously conspired against the attempt of their colleagues to arrest the accused. The proverb, “as you show, so you shall reap” sadly appears to befit the situation except for the politicians if any were involved. However, the encounter, whether staged or inadvertent, cannot make the people turn a blind eye to this existing dysfunctionality in the police and political structure of the country.

 Last, and most importantly, the incidence of encounter particularly if assumed to be fake and staged mocks the functioning of the judicial system, dwindle the faith in the courts and “due procedure established by law”, and override “rule of law”. However, despite the issue of delay and pendency in courts, such encounters or at least encounters which could be averted cannot be justified.

The incident, on the one hand, gives a sense of inefficiencies in the Indian judicial system where a delay is a common phenomenon, on the other hand, it also shows the dysfunctionality of the police and political system. Such extra-judicial exercise of power in the hands of police posits a great threat. It may at present appear fascinating exercise of the police power but history shows that such an exercise of the power or any neglect or excuse thereof has often been misused and degraded justice mechanism of any country. While talking of separation of powers, Montesquieu in his book ‘The Spirit of Laws’ (1748) observed that if the executive power i.e. police and the judicial power are taken by a single hand, the executive acts would lose accountability and lead to arbitrariness. It is in light of this that it is incumbent on the Court to take a stern cognizance of the situation and circumstances and get the incident duly investigated. An overseeing of such an exercise of power would corrupt the justice mechanism in the long run.

 It is true that henceforward encounters of hardcore criminals by the police will not only be a norm and in vogue. But any light treatment of this incident would be a slow poison to the administration of the criminal justice system in India. Presently, the surrounding circumstances do suggest it to be a staged encounter and at least attack and question the efficiency of the existing criminal justice system in India. In closing, the author suggests that a strict recognition of the implementation of guidelines noted and framed by the Hon’ble Supreme Court in People’s Union for Civil Liberties & Anr. vs. State of Maharashtra & Ors. [(2014) 10 SCC 635] for encounters and investigation thereof should be put in place and acted upon including in the present appalling and suspected encounter of main accused Vikas Dubey.

Adv. Pareekshit Bishnoi practices at the Delhi High Court and district courts at Delhi.

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