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Environmental criminal law: Is it the need of the hour in India?

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INTRODUCTION

Even a single thought about the Bhopal Gas Tragedy never fails to send a chill down the spine- this is enough to address the grave consequences of the disastrous activities of the profit-sucking corporations that the people and the environment are exposed to. It is indeed thought-provoking how the gravity of such crimes go unnoticed even if they take the lives of hundreds of people, while an act of murder is seen with great contempt. Are these crimes less than murder? Indeed not. Environmental crimes are a simultaneous murder of not one but many people, and of the environment. The only method to curb such crimes is through a strong legal framework which currently is not up to the mark be it the legal provisions or the judicial pronouncements. The article, therefore, seeks to address and analyse the issues that the liberal perception of this crime raises.

The primary focus has been on analysing the liability of corporations in environmental crimes. To that effect, this article has been divided into four major sections. The first section of the article discusses and describes the concept associated with Environmental Crime. The second section of the article presents a detailed legal analysis of the criminalisation of corporate environmental crimes. The third section of the article highlights the lacunae concerning the incapacity of three legislations, i.e., the Indian Penal Code, the Code of Criminal Procedure, and the Environment (Protection) Act to deal with environmental crimes. The fourth and the final major section of the article based on some of the case laws, analyses the paradigm shift in the judicial trend that the concept of Environmental Crimes in India has gone through.

ENVIRONMENTAL CRIMES

The term ‘Environmental Crimes’ does not have a universally accepted definition, and is in most instances defined based on the convenience to interpret. The genesis of such an idea can be owed to the deleterious acts/omissions that are responsible for the violation of the environmental law.1 Y. Situ and D. Emmons2 cumulatively put forth the definition as “an environmental crime is an unauthorised act or omission that violates the law and is therefore subject to criminal prosecution and criminal sanction”. According to the United Nations Crime and Justice Research Institute, “environmental crimes encompass a broad list of illicit activities, including illegal trade in wildlife; smuggling of ozone-depleting substances; illicit trade of hazardous waste; illegal, unregulated, and unreported fishing; and illegal logging and trade in timber”.3 Legally speaking, for an act or omission to be categorised as an ‘Environmental Crime’ it should- a) cause direct/indirect damage to the environment, and b) be prohibited by the law.4 These interpretative definitions, though objective, do not suffice in toto. On analysing the proposed array of definitions available, a few shortcomings could be highlighted- firstly, the lack of a universally accepted definition creates uncertainties regarding a common ground for accepting an act as an environmental crime; secondly, the lack of a well-defined area of activities the definition would encompass; thirdly, the jurisdictional and geographical limitations- what is a crime in one nation may not be a crime in the other.

It is per se called a ‘crime’, for it endangers people’s health and causes irreparable damage to the environment. Such long-lasting and grievous harm is bound to have grave consequences not only on the present generation but also on the future generation, undermining the idea of Sustainable Development. It is the disastrous and far-reaching consequential nature of the act or omission that calls for criminal sanctions being associated with an environmental offence. There is no reason acceptable enough that would outweigh the costs over benefits of such heinous acts. As the telos is merely to serve either of the two- a) Corporations, or b) Individuals. These acts are unapologetically used as a means to serve the end of profit-making or financial gain. Corporations, under the veil of capital generation and lucrative business, blatantly ignore environmental and public concerns. Therefore, the present research seeks to deal with the Corporate Criminal Liability that arises out of the Corporate Environmental Crimes committed by industries and corporations.

THE CRIMINALISATION OF CORPORATE ENVIRONMENTAL CRIMES: AN ANALYSIS

There are three kinds of stances that are put forward concerning the corporate liability for environmental crimes.5 First, the traditional view argues that since a corporation does not have a mind of its own, so the criminal act would lack the requisite mens rea, therefore, the corporate bodies cannot be charged criminally. The supporters of this view majorly argue that a corporation though a separate legal personality has no physical existence, therefore, imposing criminal liability would render the punishment of imprisonment meaningless. Some European countries like Germany, Greece, Hungary, Mexico, Sweden, etc., support the traditional view. Second, are the ones who support imposing criminal liability on corporations for the commission of environmental crimes. In this scenario, the corporation and the persons responsible for running the corporation would be held liable personally. Countries like the USA, Australia, Denmark, France, Finland, Netherland, Belgium, United Kingdom, etc., favour this view. Moreover, the International Environment Law contemplates a mandatory obligation on all parties to the convention to incorporate within their domestic law- provisions imposing criminal sanctions on the erring corporations.6 Third, this view is mediatory, which suggests that criminal liability ought to be adopted as a last resort. It is only supposed to be chosen in the cases where the other remedies fail to deter the actions of the offender.

This article seeks to support the second stance- the one of making corporations criminally liable for environmental crimes. To refute the argument put forward by the traditional view- that seeks to not make corporations liable for their criminal activities associated with the environment, the following premises are vital. Corporations are non-physical entities but have a distinct legal persona. Moreover, corporations are run by individuals like the directors, who are said to be the ‘mind of a company’. Oftentimes, the Courts have treated such officers as the mind, body and soul of the corporate body.7 Though legally, it may appear to be a non-physical entity, however, in reality, it is an association of persons. A corporation cannot be run without individuals associated with it. Therefore, it is wrong to hold that a corporation lacks mind and that it cannot have the requisite mens rea to commit a crime. Furthermore, a widely accepted rule of corporate law is the lifting of the corporate veil used to make such offenders personally liable who seek to commit the offence under the guise of the corporation. This rule becomes cardinal while seeking to make the officials of a corporation liable for environmental crimes. The mediatory view of adopting criminal liability as a last resort is certainly not acceptable provided the egregious nature of these crimes and the incapacity of penalty to alone suffice for punishments in such grave cases.

The Bhopal Gas Tragedy of 19848 has come to be known as one of the ‘World’s Worst Industrial Disasters’. The Bhopal plant of Union Carbide Corporation negligently released Methyl Isocyanate and Hydrogen Cyanide gas into the atmosphere. This incident killed at least 3,800 people immediately. The toll of death has risen to an approximate number of 25,000 in the three subsequent decades. This disastrous incident not only took away the lives of many people but also gravely affected the survivors who were present inside the corporation and who resided in its vicinity. Some half a million survivors suffered respiratory problems, eye irritation or blindness, and other maladies resulting from exposure to the toxic gas. Such industrial disasters have an inherently detrimental impact on the people and the environment which continues to haunt in the years to come. In the early 21st century, 400 tons of industrial waste was said to be present on the site of the disaster. This industrial waste has contaminated the soil and the groundwater to an extent that the consumption has led to chronic health problems and birth defects among the inhabitants of the area. This incident has been a major contributor to all three kinds of pollution- air, soil and water.

So, the whole point around emphasising the need for the criminalisation of corporate environmental crimes, a sub-type of white-collar crimes, is because of its inherently vast nature and capacity to cause harm. Industries significantly contribute to polluting the environment in diverse ways- intentional littering, improper disposal of nuclear and hazardous waste, releasing toxic substances into air and water bodies. Most of these above-stated activities are well-known to the officials and are not mere cases of negligence. Such activities not only affect the environment but also affect countless people, rendering them victims of a plethora of respiratory illnesses and other problems. The argument of making the corporations criminally liable for environmental offences gains efficacy in light of the following reasons.9 Criminal sanctions mostly deter violations in ways that are efficient to the other methods of punishment. “Deterrence works best on people who have not had contact with criminal justice and for whom prosecution or even investigation will have severe personal consequences.”10 Corporate officials are known to be a “social group that is exquisitely sensitive to status deprivation and censure”.11 The accusation of a crime would be degrading to their corporate image since the publicity value means a great deal to their job. Criminal sanctions can have certain systematic effects as well, like disqualification of a corporate official may change his attitude towards the environment thereby, reducing the chances of prospective violations by him. Furthermore, on moral grounds, it could be argued that the affluent persons who used to escape liability by affording even heavy penalties would become more responsible towards the environment in the absence of an alternative. Last but not least, oftentimes, the gravity of environmental crimes is so high that such behaviour must only be addressed with the criminal law.

The Statutory Provisions Dealing with Environmental Crimes- An Analysis

The major lacuna that the Indian environmental law suffers from is the lack of the consideration that environmental crimes are serious and may take the shape of even an organised crime12. Such crimes are even lowly ranked in the law enforcement priority list. The Law Commission of India has recurrently recommended that the liberal punishments concerning environmental crimes must be amended to include stricter punishments so that the responsible corporations do not go scot-free.13 There is a wide array of provisions and legislations which have been enacted by the Indian government with respect to environmental protection. Some of the important ones are discussed hereunder:

THE INDIAN PENAL CODE, 1860

Chapter XIV of the Indian Penal Code, 1860 deals with “offences affecting the public safety, health, convenience, decency and morals”.

Section 268 provides for the offence of public nuisance- A person is held liable for the offence of public nuisance if he engages himself in any act/omission which causes- a) common injury, b) danger/annoyance to the public/people in general who live or occupy property in the vicinity, c) necessarily causing injury/obstruction/danger/annoyance to persons who may have occasion to use any public right. Further, Section 290 provides for the punishment of public nuisance with a maximum penalty of two hundred rupees. It is indeed dispiriting to know that the perpetrators of an egregious environmental offence like public nuisance can go scot-free by paying a mere penalty of a maximum of two hundred rupees or even less than that. This penalty can never succeed in deterring the violations towards the environment by the big corporations.

Fouling of the water of a public spring or reservoir is contemplated to be an environmental crime under section 277 of the IPC. Under this section, to voluntarily corrupt or foul the water of any public spring or reservoir is an offence and the person held liable would be punished with imprisonment for a maximum term of three months, or with a maximum fine of five hundred rupees, or with both. Moreover, the making of atmosphere noxious to health is punishable under the IPC under section 278. Under this section, to voluntarily vitiate the atmosphere in any place making it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way is a punishable offence. The offender is bound to be punished with a maximum fine of five hundred rupees.

The above-stated two provisions are directly related to environmental protection as they seek to prevent water and air pollution through a penal strategy. However, firstly, the problem with all these environmental offences is that the nature of punishment is not effective to cause a deterrent effect among the corporations. They are too lenient for offences as big as the ones where, for example, the industries pollute the only source of drinking water and the consumption of which causes mass public suffering.14 Secondly, the effective application of these provisions in achieving the objective of environmental protection is doubtful because the technicalities of Indian criminal law require a complete satisfaction of the ingredients of the offence as stipulated in the penal provisions making the process of delivery of the criminal justice system tedious.

THE CODE OF CRIMINAL PROCEDURE, 1973

Chapter X of the Code of Criminal Procedure, 1973 deals with the “maintenance of public order and tranquillity”. Part B and Part C enumerates provisions relating to Public Nuisance and urgent cases of nuisance and apprehended danger respectively- both relevant to be considered for environmental protection.

Section 133 (Part B) provides for the conditional order for the removal of the nuisance. The District Magistrate/Sub-Divisional Magistrate/Executive Magistrate is empowered to pass a conditional order for the removal of the nuisance on a report by the police officer or based on any other information after considering the evidence (if any). This has been proved to be an effective remedy to resort to abating public nuisance associated with environmental harm.

Section 144 (Part C) provides for urgent powers of the District Magistrate/Sub-Divisional Magistrate/Executive Magistrate to issue an order in urgent cases of nuisance or apprehended danger in situations where a speedy remedy is desirable. This section particularly confers wide powers on the Magistrate to deal with urgent cases of nuisance or apprehended danger.

ENVIRONMENT PROTECTION ACT, 1986

The Environment (Protection) Act, 1986 was enacted in an aftermath of the Bhopal Gas Tragedy and in accordance with the decisions taken at the United Nations Conference on the Human Environment, held in Stockholm in June 1972.15 The Act seeks to provide for protection and improvement of the environment and the prevention of hazards to human beings, other living creatures, plants and property.

Chapter III of the Act provides for the prevention, control and abatement of environmental pollution. The following provisions are relevant to the corporations for environmental protection. Under Section 7 of the Act, the persons carrying on industry operations, etc., are not supposed to emit or permit to be discharged/emitted any environmental pollutants above the prescribed standards. Further, Section 8 provides that a person handling hazardous substances must comply with the procedural safeguards.

The penal provision of the enactment has been incorporated under Section 15 of the Act. This section, in case of contravention of the provisions and rules, orders and directions of the Act, provides for imprisonment of a maximum period of five years and a maximum fine of one lakh rupees. If the contravention is continuing then an additional fine of a maximum of five thousand rupees can be imposed every day. Furthermore, if the contravention exceeds beyond a period of one year after the date of conviction, the punishment can be extended to a maximum period of seven years.

The Act under section 16 provides a specific provision for environmental offences committed by companies. This section very appropriately makes all such persons liable for the offence who were directly in charge of and were responsible to the company for the conduct of the business of the company, as well as the company. Such persons would be held liable and be punished accordingly. However, a person can escape from liability under section 16 if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

THE JUDICIAL TREND

1984- Union Carbide Corporation v. Union of India16 (The Bhopal Gas Tragedy Case): The very fact that in the Bhopal Gas Tragedy (the world’s worst industrial disaster) the Union Carbide Corporation was not held criminally liable suggests that the development of criminal jurisprudence of environment did not start off on the right foot. The UCC was absolutely exempted from the criminal liability and the Court held that the pending criminal prosecution was a separate and distinct proceeding unconnected with the suit from an interlocutory order. Since the Court did not have the power to withdraw the criminal proceedings, it urged to quash the order. “The order of February 15th, 1989 provided: All such criminal proceedings including contempt proceedings stand quashed and accused deemed to be acquitted.”17

1987- M.C. Mehta v. Union of India18 (The Oleum Gas Leak Case): This case is based on yet another instance of the leakage of gas that happened soon after the disastrous Bhopal Gas Tragedy. In one of the units of the Shriram Food and Fertiliser Industries, a major leakage of oleum gas was reported which caused considerable damage to the workers and the people residing in the vicinity of the factory. It was alleged that an advocate also died due to the gas leak. The Court very appropriately sought to hold the chairman and Managing Director and other officers along with the operator and head of the concerned plant personally responsible for this mishap. Such officers have often been treated as the mind, soul, and body of the corporation.19

However, the outcome of this case was particularly disappointing as the Court later decided to change the First Order. Subsequently, the Court ordered that the officials could be exempted from being held responsible if they prove that the escape of the gas was due to an Act of God or vis major or sabotage. On a positive note, the case particularly holds landmark importance in the development of criminal law in environmental jurisprudence and has also led to the incorporation of the tortuous doctrine of absolute liability in India.

1992- Dwarka Cement Works v. the State of Gujarat20: The absence of a strict legal framework provides the chance to the corporations to frame excuses to get rid of their responsibility in environmental offences. This is one such case where the corporation framed a lame excuse to escape liability.

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The Chairman, Director and the General Manager who were involved in the environmental crime contended that there was nothing in the complaint that concerned them with regards to the management of the industry, and, therefore, they could not be personally held liable for the harm caused. However, the Court did not allow their plea on account of their tricks to escape liability.

2003- M.C. Mehta v. Union of India21: This case marked the success of the environmental illuminary Mr M.C. Mehta in the unveiling of criminal sanctions on the respondent of the case. The Supreme Court ordered the respondent to close the hot mix plant unit. However, he alleged that the High Court had approved of his activities. Moreover, when the contempt notice was served on the respondent, he again chose to allege but this time it was the Apex Court, with contumacious statements. Therefore, the SC given the highly contemptuous statements decided ‘to give a strong signal to the respondent so that like-minded people do not repeat the same and such recurrence is thwarted in future’ who was responsible for causing the risk of deleterious effects of air pollution on the health of the society.22 Concerning the criminal sanction- he was punished with one week of simple imprisonment and a fine of one lakh rupees. One week of simple imprisonment seems too liberal for a criminal sanction, however, this case attempted to apply criminal sanction in environmental jurisprudence in a full-fledged manner.

Suggestions and Conclusion

The need of the hour is a shift in the environmental jurisprudence from tortious liability to criminal sanctions for crimes that affect the health and lives of people en masse and irreparably degrade the environment. The Courts must not allow the criminals to go scot-free.

It is high time for the environmental provisions to be amended to- a) include organised environmental crimes as separate and specific offences and b) raise the strictness of the currently liberal penalties.

The wide array of legislation on the environment should be consolidated to form a separate and specific piece of legislation that would precisely provide for environmental offences and their stipulated penalties.

The lame excuses of the corporations continue to take advantage of the weak legal framework and degrade the environment. Therefore, it is highly recommended to allow the full operation of absolute liability in environmental offences.

Considering the heinous, grave and egregious nature of environmental crimes, significant efforts should be made to formulate a definition and classify the acts that would result in environmental crime. The lack of a universally accepted definition, the liberal penalties, the weak legal framework and the absence of judicial activism has exacerbated the consequences of such a crime altogether. All of these lacunae should be given wide importance and be looked at with immense concern. Otherwise, profit-sucking corporations would continue to work in neglect to deteriorate and damage the environment. After all, it is not some temporary damage to the environment but serious, irreversible deterioration that affects not only the present generation but also the generations to come.

(Endnotes)

1 C.M. Jariwala, Corporate Environmental Criminal Liability in India: Reality or Myth, 3-5 RMLNLUJ 98 (2011-2013).

2 Y. Situ, D. Emmons, Environmental Crime: The Criminal Justice System’s Role in Protecting the Environment 3 Sage Publications, Thousand Oaks (2000).

3 UNITED NATIONS INTERREGIONAL CRIME AND JUSTICE RESEARCH INSTITUTE, http://www.unicri.it/topics/environmental (last visited June 29, 8:23 PM).

4 Stuart Bell, Donald McGillivray, Environmental Law 254 Oxford University Press (2008).

5 C.M. Jariwala, Corporate Environmental Criminal Liability in India: Reality or Myth, 3-5 RMLNLUJ 98 (2011-2013).

6 The Resolutions of the XVth International Congress on Penal Law, (Rio) Res. 12, 14 and 20, 1994.

7 Moore v. Brester, (1944) 2 All ER 515; Tesco Supermarket Ltd. v. Nattrass, 1972 AC 153.

8 BRITANNICA, https://www.britannica.com/event/Bhopal-disaster (last visited June 29, 8:23 PM).

9 Joseph F. Dimento, Criminal Enforcement of Environmental Law, 525 The Annals of the American Academy of Political and Social Science 134-146 (2013).

10 Greider, Fines Aren’t Enough: Send Corporate Polluters to Jail, Rolling Stone 46 (1984).

11 Susan Hedman, Expressive Functions of Criminal Sanctions in Environmental Law, 59 Geo. Wash. L. Rev. 889-99 (1991).

12 Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1985 SC 652; Indian Council For Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.

13 The Report of the Law Commission of India (Forty-first) 1969; The Report of the Law Commission of India (Forty-seventh) 1972.

14 Vellore Welfare Citizen Forum v. Union of India, AIR 1996 SC 2715.

15 Environment (Protection) Act, 1986, No. 29, Acts of Parliament, (1986) India.

16 Union Carbide Corporation v. Union of India, AIR 1992 SC 248, 281.

17 Id.

18 M.C. Mehta v. Union of India, AIR 1987 SC 965.

19 Moore v. Brester, (1944) 2 All ER 515; Tesco Supermarket Ltd. v. Nattrass, 1972 AC 153.

20 Dwarka Cement Works v. State of Gujarat, (1992) 1 Guj L Her 9.

21 M.C. Mehta v. Union of India, (2003) 5 SCC 376.

22 C.M. Jariwala, Corporate Environmental Criminal Liability in India: Reality or Myth, 3-5 RMLNLUJ (2011-2013) 98.

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Policy & Politics

Delhi HC facilitates school admission

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While emerging as a very strong voice for the voiceless, the Delhi High Court in an extremely laudable, learned, landmark and latest judgment titled Kamini Arya Through Perokar vs The State NCT Of Delhi in Bail Appln. 2165/2022 pronounced as recently as on August 3, 2022 has taken suo motu cognizance to facilitate admission of an 8 year old child to school which could not be facilitated for the reason that her parents were in judicial custody in a murder case since July 2021. It must be mentioned here that the Single Judge Bench of Hon’ble Ms Justice Swarana Kanta Sharma minced just no words to espouse child’s cause while observing that, “The court is of the opinion that the child must get admitted in a school at the earliest so that shadow of no unpleasant happening falls upon the child’s life to darken her future.” It is also most pleasing to learn that the Delhi High Court in this notable case made it absolutely clear that the child, being an individual Indian citizen, enjoyed the Fundamental Rights including the Right to Education and that the welfare of child should not only be considered in cases dealing with family disputes but also like the present one.

At the outset, this most commendable, cogent, courageous, composed and convincing judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma sets the ball rolling most promptly by first and foremost putting forth in para 1 itself that, “The present application has been filed by the petitioner seeking interim bail for two weeks in FIR No. 323/21 registered at P.S. Mohan Garden under sections 302/365/292/397/411/120-B/201 & 34 of the Indian Penal Code, 1860 (‘IPC’). The petitioner and her husband, who is the co-accused in the aforementioned FIR, have been in judicial custody since 11.07.2021. The application has been moved by the mother of the child on the ground that she is concerned about the admission in a school of her child, who is about 8 years of age. It is stated that without her presence, she cannot be admitted in any school.”

No doubt, the grounds forwarded by the mother of the child are bona fide and worth considering seriously by the Court. The child is just about 8 years of age and so definitely the mother’s presence is inevitable to get the child admitted to school. This was considered seriously also by the Court!

To put things in perspective, the Bench then envisages in para 2 that, “The interim bail application of the petitioner has been dismissed by the ld. ASJ, Dwarka Court, vide order dated 21.05.2022 wherein the ld. ASJ opined that the ground on which the petitioner has approached the court for bail, i.e. getting her daughters admitted to school, is not of such a nature which can be termed as a compelling circumstance or intolerable grief. The application was thus dismissed by the ld. ASJ.”

As it turned out, the Bench then points out in para 3 that, “The court is informed by the learned counsel for the applicant that the elder sibling of the child is studying in the secondary school branch of Co-Ed Pry. School, West Zone, New Delhi – 110059. It is prayed that the child in the present case may be admitted in Nursery Class in the aforementioned school.”

As we see, the Bench then discloses in para 4 that, “In the present case, it has come to notice of the court that the applicant, i.e. the mother of the minor child, is in judicial custody due to her alleged involvement in the murder of an old lady whose body parts were severed and disposed of in a drain.”

As things stand, the Bench then brings out in para 5 that, “During the course of arguments on the bail application a query was put forth by this court and the court was informed that the presence of the applicant/mother is not required for admission of the child in the school and the Aadhaar Card of the mother shall suffice. The same has been duly verified by the Investigating Officer (IO) who has filed a reply from the Principal of SDMC, Co-Ed Pry. School, West Zone, New Delhi – 110059, wherein it is stated that the child’s admission can be done without the Aadhaar Card if the child has a certificate bearing the child’s date of birth from any government institution. It is further stated that any local guardian of the child can also get him/her admitted in school.”

While unequivocally underscoring the huge importance of education in a child’s life, the Bench then opines in para 6 that, “In my opinion, education is the first step towards tackling social evils, especially poverty, inequality and discrimination. Every child, irrespective of caste, religion, sex, or economic background has been guaranteed right to education. An educated individual can make informed decisions, first for themselves, and then be able to contribute constructively towards the progress of the nation and society at large.”

While sending out the most simple, straightforward and strong message to all the Judges, the Bench then mandates in no uncertain terms in para 7 that, “Once it comes to the notice of the court that a child or an individual is deprived of a fundamental right, the courts have to ensure that the fundamental right is enforced and there is no impediment for any individual to enjoy the same. The court should not fail in its duty at any point of time in this regard.”

Most remarkably, the Bench then further adds in para 8 that, “Right to Education is a fundamental right guaranteed to every citizen under Article 21-A of the Constitution. A child must not suffer the consequences, on account of their parents having been in judicial custody for a crime which is yet to be adjudicated upon by the court. This court is duty bound to enforce fundamental rights of every citizen and in this case right to education of the child.”

Most forthrightly, the Bench then also unambiguously maintained in para 9 that, “The Constitution guarantees protection of independent identity and individuality to every Indian citizen. Constitution of India is the supreme law of the land and this court is bound to protect the rights of every individual enshrined and guaranteed by the same. Especially in the present case, where the right to education of a child is at stake, it is imperative that the court intervenes timely and upholds the right envisaged in the Constitution to protect the future of the child.”

Needless to say, the Bench then notes clearly in para 10 that, “This court is of the opinion that the child must get admitted in a school at the earliest so that shadow of no unpleasant happening falls upon the child’s life to darken her future.”

Most significantly, the Bench then state in para 11 what constitutes the cornerstone of this learned judgment that, “At the cost of repetition, it is opined that in the present case, the child is an individual Indian citizen and enjoys her own Fundamental Rights given to her by virtue of her being born in India, Right to Education is the child’s fundamental right. In the present unpleasant situation of the case, the court has to become the voice of the voiceless child. The parents are in judicial custody and the prime concern of the parents is education of the child. It is not only in cases dealing with family disputes that the rights and welfare of the child should be considered but also in the cases as the present one, the courts can become and act as the parent of the child and ensure that the child is not deprived of its Fundamental Right to Education. Depriving any child of education due to family circumstances should not be allowed to every extent possible. An educated child educates the entire family and becomes an asset to the nation.”

Quite forthrightly, the Bench then directs in para 12 that, “In the circumstances, at this stage, this court feels the need to exercise its discretionary powers under Article 226 of the Constitution of India and take suo-motu cognizance to facilitate the child’s admission in a school so that the child does not lose out on the current academic year i.e. 2022-23. It is therefore directed that the SHO concerned will get the child admitted to the school adjacent to the senior branch of the school in which the older sibling of the child is already enrolled and pursuing her education.”

Furthermore, the Bench then lays down in para 13 that, “The Principal of the school will extend full cooperation for the admission of the child. A compliance report will be filed within 10 days. The identity of the child and the school in question is not being mentioned in this order to protect the privacy and dignity of the child.”

What’s more, the Bench then aptly points out in para 14 that, “It is submitted by the counsel for the petitioner that the petitioner is satisfied with the relief that has been granted. Considering the petitioner was seeking bail only on the ground that she needed to fulfil her responsibilities as a parent and get her child admitted to school, permission is now sought by the counsel of the petitioner to withdraw the present application.”

As a corollary, the Bench then reveals in para 15 that, “In view of this order, the learned counsel for the applicant states that she is satisfied with the order and does not press her application at this stage. Permission is sought to withdraw the same.”

In this context, the Bench then quite ostensibly directs in para 16 that, “In terms of the above, the application is dismissed as withdrawn.” Finally, the Bench then concludes by holding in final para 17 that, “Ordered accordingly.”

All told, it definitely merits no reiteration that all the courts must in similar such cases emulate what the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma of Delhi High Court has laid down so elegantly, eloquently and effectively in this noteworthy case! In essence, the Courts must definitely become the voice of the voiceless as we see so very ostensibly in this leading case. It also must be definitely underscored that the Courts must also prima facie ensure that the process itself does not become the punishment due to which the long term interest of the child gets jeopardised. No doubt, we saw how in this case the Delhi High Court so very commendably took suo motu cognizance to facilitate the school admission of the child whose parents are in custody and thus ensured that the paramount interest of the child to education is safely protected. Of course, it must be said that this is definitely the best way in which ideally all the Courts in our country must always act and not just turn away their face citing process, procedure etc! There can be certainly just no denying or disputing it!

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Policy & Politics

PRADHAN MANTRI AWAS YOJANA: RS 8.31 LAKH CR INVESTMENT APPROVED

Anuj Puri

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Union Finance Minister Nirmala Sitharaman

In Finance Minister Nirmala Seetharaman’s words, India stands on the threshold of Amrit Kaal, or the ‘Era of Elixir’. Regarding the country’s real estate sector, we can be a little more restrained with such definitions. Still, there is little doubt that the industry has made remarkable progress since it attained independence 75 years ago. Real estate has not been left behind – quite the contrary.

This once hugely beleaguered sector has made history-defying forward strides, especially in the last 8-10 years.

Today, massive transformation across sectors and industries has assured India a recognizable position in the new world order. The real estate sector features prominently in this revitalized avatar of a country on the move. Let’s reflect on what has transpired over the years and take a look at what lies ahead for the sector.

The Winds of Change

As India’s population grew over time, cities expanded to create habitable localities and industries for its economic upliftment. Chandigarh was the first planned city of independent India – one of the successful trials of urban planning and modern architecture. To address the ever-increasing need for housing, the government set up institutions like the Housing and Urban Development Company (HUDCO), City Industrial and Development Corporation (CIDCO), and the National Housing Bank (NHB).

The liberalization of policies in the 1990s facilitated significant changes in the real estate sector. Many international companies jostled to establish businesses in India, triggering a consistently increasing demand for commercial and residential real estate.

The rapid growth of the IT-ITeS sector resulted in the expansion of new urban centres across major cities like Bengaluru, Chennai, Hyderabad, Kolkata, MMR, NCR, and Pune. These cities were the first to witness changing skylines and rapid vertical development.

At the turn of the century, the sector was further invigorated when foreign direct investments allowed the entry of global investors. This catalysed the development of malls and other organized retail spaces across the country.

PMAY: With the Pradhan Mantri Awas Yojana (PMAY) program, the social housing sector – mainly aimed at the economically weaker sections – has gathered momentum over the last decade. PMAY was launched with a specific and ambitious target to provide Housing for All by 2022. In the country’s urban areas, the development has been tangible.

CLSS: To provide momentum to affordable housing and generate demand for it, the government has provided for subsidized interest to be paid to financial institutions lending to borrowers in this housing category. The cost of ownership became easier on prospective buyers and empowered women with the social security of having their own homes – a significant sea-change in a once highly patriarchal society.

Smart Cities Mission: The Smart Cities mission aims to develop 100 cities that are technology-enabled to drive economic growth and offer significantly improved quality of life to citizens. Currently, there are 5,151 projects under this mission across the identified cities, with investments to the tune of INR 2,05,018 crores.

CRITICAL REFORMS

Various reforms and structural changes implemented in the government have been instrumental in altering the real estate sector. Today, we use terms such as governance, transparency, and accountability, and stakeholders are evaluated on these parameters.

Many corporate business houses have also ventured into the sector. Prominent and listed real estate players are successfully gaining market share and helping the industry consolidate – a much-needed process that steadily eliminates unwholesome elements and the shenanigans for which they were known.

Some of the significant reforms in recent times and their effects:

GST: This taxation reform was conceived and implemented to enable a uniform tax code across the country. Completed real estate projects are exempted from GST, and affordable housing projects are levied with GST of only 1% to keep the momentum of demand high.

REITs: Real Estate Investment Trusts (REITs) have emerged as another option for Indian investors to add real estate to their portfolios for better diversification and risk mitigation. The REITs operational in India today are mainly in the commercial office segment. The total market cap of these REITs is estimated at INR 60,584 crores.

RERA: Perhaps the most significant post-independence reform to impact the Indian real estate sector was implementing the Real Estate Regulation Act. This Act aims to safeguard the interests of homebuyers and investors and make developers accountable for their projects. The Act makes all relevant project details, including the approvals and permissions, available at homebuyers’ fingertips and provides a mechanism for redressing complaints and grievances.

RERA establishes specific standards for the construction and development of real estate that aim to improve transparency in real estate transactions. It has given homebuyers several rights and has set forth specific laws and regulations that all developers must observe.

In the five years of its existence, 87,124 projects and 65,500 agents have been registered across the country. The regulator has successfully disposed of 97,404 complaints, paving the way for a stronger and more resilient real estate sector.

RERA is in many ways still a work-in-progress, with loopholes and lacunae getting addressed along the way. However, it is safe to say that it is the one regulatory reform that has genuinely empowered real estate end-users and investors.

THE ‘AMRIT KAAL’ WAY FORWARD

As the nation progresses rapidly and requirements evolve, real estate products, services, and assets will grow too. Many new-age real estate asset classes such as senior living and student housing are already gaining momentum. Data centres, warehousing, and industrial parks are the new buzzwords in the sector. They will gain further traction as the incumbent government focuses on its visions of Atmanirbhar Bharat and India becoming a USD 5 trillion economy.

NOT A HOME RUN YET

As these sectors and economic activities rev up, housing for the workers they employ will pose a significant challenge. The government has already laid the framework for affordable rental housing and invites private participation, but there is still a lack of clarity. ARHCs (Affordable Rental Housing Complexes) are now among the most urgent needs in post-Independence India – and the government’s Housing for All vision.

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Policy & Politics

‘Fishery sector needs an integrated structure like dairy’

Tarun Nangia

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It is crucial to have an integrated chain of activities when organising fish farmers, especially those who are poor, said NN Sinha, Secretary, Ministry of Rural Development, Government of India, at the First Conference on Fishtech, organised by the industry chamber FICCI.

Delivering the Special address, Sinha alluded to the need to develop an integrated structure akin to the dairy sector. “There is a lot of scope for developing such a value chain”, he said. The secretary also referred to growing seaweed, ornamental fishing, and cage culture as viable livelihood activities. “We think aquaculture is an important livelihood option for a large number of people”, he said, adding, “we will work with everyone in the sector”.

Speaking on occasion, Hemendra Mathur, Chairman, FICCI- Taskforce on Agri-Startups, said, “we need a dedicated fund for fishery startups, which can put in early-stage funding for startups trying to build interesting models and features”. Further, Mr Mathur said that “we should at least have 500 fishtech startups in the country, given the sector’s potential”, adding, “all startups put together account for less than 2-3 per cent of the market potential”.

He said that fishery is an important sector with more than 1.5 crore fishermen engaged in the activity and its contribution to GDP being more than USD30 billion. Noting the considerable headroom for growth, Mr Mathur alluded to the need to develop an innovation ecosystem in fishtech on the lines of agriculture and said, over the last five to seven years; we saw 1500-plus agri-tech startups in the country due to ecosystem development. However, he said the share of fishtech startups is still tiny, probably 30 to 50. “That is a small number in the context of the opportunity ahead of us”, he said, adding, “I think fishtech has a lot to catch up to when compared to agritech”.

Alluding to the opportunities in the sector, Mathur noted the need to create an integrated supply chain and incorporate technology to bring efficiency to fisheries.

Mr Shashi Kant Singh, Executive Director, Agri & Natural Resources, PWC, also noted the potential of increasing the use of technology and, further, the headroom available to increase the production, exports and domestic consumption in the fishery sector. He added that a lot of “policy support”, “ecosystem support”, and “well-designed schemes” were introduced by the government during the last four to five years. However, “we do see a lot of opportunity for the fishery sector in improving the quality of the produce”, he said. Mr Singh added that “if the blue economy story has to be a success in India, then fishery is going to be one of the key segments, among others”.

Devleena Bhattacharjee, Chair, FICCI Committee on Fishtech and Founder & CEO, Numer8 Analytics, said, “India is the second largest fish producing country in the world and contributes to about 7.56% of the global fish production. She noted that the fishery sector is a sunrise sector owing to tremendous scope in domestic consumption and expansion, strong export potential and greater economic returns with strong policy support.

A FICCI PwC report, “Championing the blue economy: Promoting sustainable growth of fisheries sector in India”, was released on occasion. The report showcases the potential of India’s fisheries sector, trends, opportunities, challenges, and strategic interventions needed to support the blue economy in India and build a sustainable and profitable future for the industry.

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Policy & Politics

Industry should engage with the government to help reduce the use of fertilizers and pesticides in the agriculture sector, says Narendra Singh Tomar

Need to focus more on organic pesticides; Industry should work with the aim of protecting the environment and being self-reliant, says Bhagwanth Khuba, Minister of State for Chemicals & Fertilizers.

Tarun Nangia

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Narendra Singh Tomar, Minister of Agriculture & Farmers Welfare, Govt of India today said that the private sector should come forward and support the government in reducing the use of fertilizers and pesticides in the agriculture sector.

Addressing the ‘11th Agrochemicals Conference 2022 -Policy Landscape for a Flourishing Agrochemicals Industry’, organized by FICCI, with the support of Department of Chemicals & Fertilizers and Department of Agriculture & Farmers Welfare, Govt of India, Mr Tomar while speaking virtually, added that India is agriculture oriented, and agriculture has a huge contribution in country’s economy. “Profit is very important for the farmers in the agriculture sector. Increase in production is also necessary. It is imperative to increase the profits in the field of agriculture and post-harvest losses to the farmers should be minimal for which the government is working on several schemes,” he added.

Mr Tomar also stated that the government is promoting the use of newer technology to be adopted by the farmers to produce expensive crops. “Work is also being done to ensure uniformity in production of crops along with ensuring quality in the production”, he added.

The Minister also emphasized that today, horticulture should be promoted so that India can become self-reliant in every respect. “Our country is in a very good position from the point of view of food grains. To compete at the global level, we have to look towards developed countries and move ahead with them,” he said.

Bhagwanth Khuba, Minister of State for Chemicals & Fertilizers and New & Renewable Energy, Govt of India stated that the government aims to move forward while keeping in mind the benefits for farmers. “With rising population, it is important to focus on food security along with ensuring farmers produce at lower cost and safeguarding the environment.” He further added that the government is farmers and business friendly and works to remove barriers by amending policy and reforms as and when needed. “It is not only the commitment but conviction of the government to work towards doubling farmers income. It is our responsibility to adopt low-cost agrochemicals along with innovations to improve the agriculture sector. We need to also focus on organic fertilizers,” he stated.

Khuba also urged the industry to focus on organic pesticides as this will take time to adopt to mitigate the side effects of pesticides currently used. “We must also promote manufacturing these organic pesticides in India as well”, he added.

Vijay Sampla, Chairman, National Commission for Scheduled Castes, Govt of India said that there is a need for the research and development to be communicated to the small and marginal farmers in their language. He also emphasized on the need to create more awareness on the use of pesticides to benefit the agriculture sector.

RG Agarwal, Chairman, FICCI Crop Protection Committee & Chairman, Dhanuka Group said, “We urge the government to reduce GST rates on pesticides and bring it at 5 per cent like fertilizers so as to benefit small and marginal farmers as well. The government should also provide PLI to pesticides industry to develop the domestic industry as an international manufacturing hub.”

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Policy & Politics

SUPREME COURT TELLS CENTRE: ADOPTION PROCESS TEDIOUS IN INDIA, PRECLUDING PEOPLE FOR ADOPTING.

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The Supreme Court in the case The Temple of Healing v. Union of India observed and has adjourned the hearing of the petition seeking simplification in the process of adoption in India.

The bench comprising of Justice D.Y. Chandrachud and the Justice J.B. Pardiwala apprised by Additional Solicitor General, Mr. K.M. Nataraj observed and has held that he had not received the petition. Thus, the Bench asked the petitioner-in-person to handover a copy to him.

In the present case, as a preliminary objection, Mr. Nataraj indicated that the writ petition might not be maintainable as it is filed by a society. It was noted by the bench that the process of adoption in India is indeed cumbersome and tedious and needs to be addressed, wile stating that it is a genuine PIL. It was requested by the bench to the ASG not to treat it as adversarial litigation. Thus, the bench also orally observed that the petitioner-in-person has established his bona fides, on the last date of hearing.

The bench of Justice Chandrachud orally said that “We issued notice because the process of adoption is so cumbersome and tedious that it is precluding people from adopting…It is a genuine PIL. Do not treat the PIL as adversarial litigation”.

A charitable trust, “The Temple Of Healing” filled an PIL through its secretary Dr. Piyush Saxena (petitioner-in-person).

It was observed that earlier, when the notice was issued, Dr Piyush Saxena, had informed the Apex Court that he had submitted an application seeking leniency in adoption norms to the Ministry of Women and Child Development and which has not been acted upon.

It was stated by him that 4000 children are adopted in our country every year but there are 3 crores orphans in our country and there are infertile couples too who are desperate to get a child. Thus, parents are not educated enough therefore the scheme should be introduced based on the Income Tax Scheme which was issued 16 years back. The notification has been issued by the Ministry wherein they have given some leniency to the prospective parents.

It was suggested by the petitioner that the Child Adoption Resource Information and Guidance system may appoint a few trained “Adoption Preparers” along the lines of the Income Tax Preparer Scheme of 2006. However, they can help prospective parents complete the cumbersome paperwork required for adoption.

It was pointed out by Dr. Saxena that adoption governed by the Hindu Adoption and Maintenance Act, 1956 was administered by the Ministry of Law and Justice, whereas adoption of orphans is dealt with by the Ministry of Women and Child Development.

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Policy & Politics

Karnataka HC Orders Rs 5 Lakhs Compensation To Man Wrongly Arrested

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It has to be stated right at the very outset that a Single Judge Bench comprising of Hon’ble Mr Justice Suraj Govindaraj of Karnataka High Court in an extremely laudable, landmark, learned and latest judgment titled Ningaraju N v. Official Liquidator Of M/S India Holiday (Pvt) Ltd in Company Application No. 96 of 2022 in Company Petition No. 26 of 2008 pronounced recently on July 7, 2022 has directed the State Government to pay a compensation of Rs 5 lakhs to one Ningaraju N for wrongful arrest based on alleged confusion in his identity. It merits mentioning here that the Karnataka High Court has explicitly held that whenever warrant is issued, whether bailable or non-bailable, the arresting officer is required to ascertain the identity and be satisfied that the person proposed to be arrested is the same person as against whom the warrant has been issued. We thus see that the Karnataka High Court has made it indubitably clear by this learned judgment that when a person suffers because of being wrongly arrested then the State is certainly liable to pay a suitable compensation to him/her to compensate for the loss suffered by him/her as a consequence of such wrongful arrest! Very rightly so! It must be also mentioned here that this Company Application has been filed under Rules 6 and 9 of The Companies (Court) Rules 1959, with prayer being made to drop the proceedings.

At the outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench comprising of Hon’ble Mr Justice Suraj Govindaraj of Karnataka High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This application has been filed for dropping the proceedings against Sri N.G.N. Raju S/o. Ningegowda on the ground that he is not the Ex-Director of the Company in liquidation as mentioned in CA.No.1382/2011. This Court in its earlier order dated 26.05.2022 dealt with the said issue and on verification it has been found that the applicant in C.A.No.96/2022 is not Raju N.G.N., who is the Ex-Director of the Company in liquidation.”

While taking potshots at the arbitrary and whimsical manner in which the arrest took place, the Bench then observes in para 2 that, “It is rather shocking that a person has been arrested without ascertaining whether he was the person who was required to be arrested and that the warrant had been issued against him. Though the arrestee had disputed that he was the person named in the warrant and the applicability of the warrant to him, his identification was not cross-checked and verified resulting an innocent person being arrested.”

Needless to say, the Bench then underscores in para 3 that, “The Right to Life and Liberty Guaranteed under Article 21 of the Constitution of India is of paramount importance. By arresting a person whose arrest was not authorized there is a violation of the fundamental rights guaranteed under Article 21 of the Constitution of India.”

While expressing serious reservation over the shoddy manner in which arrest had been made, the Bench then notes in para 4 that, “The only reason why the applicant had been arrested is that the name of his father was similar to the name of the person named in the warrant. I’am unable to comprehend as to how the name of the father being similar or even identical would have any role to play in the arrest, extrapolating the same logic if the arrest warrant has been issued for one brother, another brother or maybe even the sister could be arrested, merely, because the father name is identical.”

To be sure, the Bench then observes in para 5 that, “What is of primary importance is the identity of the person who is to be arrested and not any other aspect like the name of the father, though the same may have a corroborative role.”

Without mincing any words whatsoever, the Bench then stipulates in para 6 that, “Whenever any warrant is issued bailable or non-bailable, it is but required for the arresting officer to ascertain the identity of the person proposed to be arrested and be satisfied that the person proposed to be arrested is the same person as against whom a warrant has been issued.”

Quite notably, the Bench then lays bare in para 7 mentioning that, “In the present case though the arrestee had categorically stated that he was not the person named in the warrant, the arresting officer has not verified the same instead the arrestee has been arrested and produced before this Court, thereby causing harm and injury not only to the liberty of the arrestee but also to the reputation of the arrestee which are in violation of the fundamental rights guaranteed under Article 21 of the Constitution.”

It is worth noting that the Bench then directed in para 8 that, “If Guidelines or Standard Operating Procedure are already issued to cater to this situation, training in this regard to be provided to all arresting officers.”

While adding more to it, the Bench then further directs in para 9 that, “If not issued the Director General of Police is directed to issue suitable Guidelines and/or Standard Operating Procedure as to what are the steps to be taken by the arresting officer before arresting a person including the verification of identity. The same to be issued within 4 weeks from the date of receipt of the copy of this order. Registrar (Judicial) is directed to forward a copy of this order to the Director General of Police, Government of Karnataka, immediately.”

Most notably, most laudably and also most remarkably, the Bench then minces just no words whatsoever in para 10 to explicitly, elegantly, eloquently and effectively hold that, “In the present case, the arrestee having been put to loss of liberty as also loss of reputation, I’am of the considered opinion that the State would be liable to compensate the arrestee for the same. The compensation is fixed at Rs.5,00,000/- (Rupees 5 Lakhs only), the said payment to be made within a period of eight weeks from today. The State is at liberty to recover the same from the Police Officers who had arrested the applicant.”

As a corollary, the Bench then holds in para 11 that, “In view thereof, C.A.No.96/2022 is required to be allowed and the same is allowed.”

Finally, the Bench then concludes by directing in para 12 that, “Though the above matter is disposed, re-list on 1.9.2022 to report compliance with the above directions.”

No doubt, we thus see that the Single Judge Bench of Karnataka High Court comprising of Hon’ble Mr Justice Suraj Govindaraj has most commendably, cogently and convincingly ordered Rs 5 lakhs compensation to be paid to the person named Ningaraju N who was wrongly arrested due to the alleged confusion in his identity. It is high time and a statutory right to compensation must be enacted and if men in uniform are found to be indulging in maliciously framing any person due to which the person framed got wrongly incarcerated in jail for a number of years then those men in uniform must be not just dismissed from service but also be jailed and no bail should be given in such cases so that no men in uniform ever dares to take the personal liberty of any citizen of India for granted. If our country is able to ensure this for the benefit of citizens only then can we call ourselves free in the real sense!

There can be no gainsaying that the subject of “police” falls within the ambit of the State list under the Seventh Schedule of the Constitution as enunciated in Article 246 of the Constitution. So it is definitely the job of the State government to ensure that the police in their respective State functions properly and if they fail in ensuring this then they are liable to pay compensation to the person aggrieved as we see the Karnataka High Court directing the State Government to pay so to the person named Ningaraju N who was wrongly arrested due to the alleged confusion in his identity. Of course, the State is at liberty to recover the amount from the men in uniform who were guilty of wrongly framing an innocent person and jailing him/her for no fault!

Unquestionably, it is high time and now a law must be enacted whereby it would be mandatory for the State Government to award a huge compensation of at least Rs 25 lakhs to any person who is wrongly incarcerated so that this growing tendency of wrongly framing an innocent person is checked to a large extent as early as possible. It cannot be glossed over that the United Nations had drafted and so also introduced the International Covenant on Civil and Political Rights (ICCPR) in 1954 and after thoroughly going through each and every aspect on compensation, the ICCPR ultimately came into force on March 23, 1976. It must also be noted that India itself had ratified it and became a signatory to it on July 10, 1979. It also must be borne in mind that Article 9(5) and Article 14(6) of the ICCPR deal with a judicial remedy to victims of unlawful or wrongful arrest in the form of compensation.

It also cannot be glossed over that in August 2018, the Union Government had been submitted Report No. 277 on ‘Wrongful Prosecution (Miscarriage of Justice) : Legal Remedies’ by the Law Commission of India. The report, among other things had suggested the formation of special courts to deal with claims of compensation within a specified timeframe. But we ought to remember in this context that asking a victim to approach a special court for compensation would be akin to engrossing them into another protracted round of legal battle which will only make them suffer further and waste money in hiring lawyers, attending court proceedings etc. This definitely has to be avoided so that the victim does not have to suffer interminably.

In a nutshell, we can thus very rightly infer from what we have discussed hereinabove that what must be done forthwith is to make mandatory awarding of prompt compensation to all those persons who have been wrongly incarcerated and those men/women in uniform who are found guilty of malicious conduct in framing innocents without any fault of theirs must be most strictly punished and not just suspended for a very short span of time for public consumption only and then again reinstated once the public anger subsides. This open sham as we see so many times must end once and for all so that those in uniform never dare to breach the personal liberty of any citizen of India! It also merits no reiteration that there must definitely be most exemplary punishment in such cases so that no men/women in uniform ever dares to take the fundamental right of any citizen of right to life and personal liberty as encapsulated in Article 21 of the Constitution for granted any longer! No denying it!

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