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Inordinate delay would frustrate decree holders from reaping benefits: Delhi HC modifies guidelines

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Delhi HC

While very rightly, remarkably and reasonably observing that an inordinate delay would frustrate the decree holders from reaping benefits, the Delhi High Court in a latest, landmark, laudable and landmark 108-page judgment shortly termed Bhandari Engineers – III and titled M/s Bhandari Engineers & Builders Pvt Ltd v. M/s Maharia Raj Joint Venture & Ors in EX.P.275/2012 & EX.P. 276/2012 has modified the guidelines issued by it with regards to the execution of decrees and awards by directing the lower courts to expedite the proceedings within one year of their institution. It merits no reiteration that inordinate delay would frustrate decree holders from reaping benefits. To avoid this unpalatable situation, the Delhi High Court has very rightly modified guidelines for expediting execution of decrees, award which shall be dealt with later.

To start with, this brief, brilliant and balanced judgment dated 05th August, 2020 as modified by judgment dated 24th June, 2021 authored by a Single Judge Bench of Delhi High Court sets the ball rolling by first and foremost putting forth in para 1 that, “In execution proceeding, the Executing Court has to ascertain the assets and income of the judgment-debtor to determine, whether the judgment-debtor has the means to satisfy the money decree. In many developed countries, the law prescribes a comprehensive format of affidavit of assets, income, expenditure and liabilities to be filed by the judgment-debtor at the very threshold of execution proceedings to ascertain the financial means of judgment-debtor. However, Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure is not exhaustive to ascertain all the assets, income, expenditure and liabilities of the judgment-debtor.”

As we see, the Bench then observes in para 2 that, “Vide judgment dated 05th December, 2019, this Court, after considering the best international practices with respect to mandatory filing of an affidavit of assets, income, expenditure and liabilities by the judgment-debtor, formulated the formats of affidavits to be filed by the judgment-debtor at the very threshold of the execution proceedings. This Court also laid down the guidelines for expeditious hearing and disposal of execution cases.”

In hindsight, the Bench then enunciates in para 3 that, “Vide judgment dated 05th December, 2019, this Court sought the response and suggestions of the Courts below as well as the Delhi High Court Bar Association on the working of the aforesaid guidelines. The Trial Courts have submitted their response. Suggestions have been received from the Bar members, which have been considered by this Court.”

Simply put, the Bench then states in para 4 that, “This Court is of the view that the directions issued by this Court in the judgment dated 05th December, 2019 and formats of the affidavits (Annexures A, B and C) formulated by this Court require modification, in order to make them more comprehensive. The judgment dated 05th December, 2019, is hereby modified. The modified directions are as under:

MODIFIED DIRECTIONS

Of course, the Bench then rightly underscores in para 5 stating that, “Delays and difficulties in execution of decrees/awards erode public confidence and trust in the justice delivery system. Execution jurisdiction deserves special attention and expeditious disposal considering that the decree-holders have already succeeded in the litigation and hold a decree/award in their favour.”

While citing the relevant case law, the Bench then envisages in para 6 that, “In Satyawati v. Rajinder Singh, (2013) 9 SCC 491, the Supreme Court quoted the Privy Council’s judgment of 1872 that the ‘difficulties of a litigant in India begin when he has obtained a decree’ and observed that the position has not improved and the decree-holders still face the same problems. The Supreme Court further observed that if there is an unreasonable delay in execution of a decree, the decree-holder would be unable to enjoy the fruits of his success and the entire effort of successful litigant would be in vain. The relevant observations of the Supreme Court are reproduced as under: – ―

In relation to the difficulties faced by a decree-holder in execution of the decree, in 1872, the Privy Council had observed [General Manager of the Raj Durbhunga v. Coomar Ramaput Sing, (1871-72) 14 MIA 605 : 20 ER 912] that: (MIA p. 612)

… the difficulties of a litigant in India begin when he has obtained a decree.

2. Even today, in 2013, the position has not been improved and still the decree-holder faces the same problem which was being faced in the past……………

12. It is really agonising to learn that the appellant-decreeholder is unable to enjoy the fruits of her success even today i.e. in 2013 though the appellant-plaintiff had finally succeeded in January 1996. As stated hereinabove, the Privy Council in General Manager of the Raj Durbhunga v. Coomar Ramaput Sing, (1871-72) 14 MIA 605 : 20 ER 912] had observed that the difficulties of a litigant in India begin when he has obtained a decree. Even in 1925, while quoting the afore-stated judgment of the Privy Council in Kuer Jang Bahadur v. Bank of Upper India Ltd. [AIR 1925 Oudh 448 (PC)] the Court was constrained to observe that: (AIR p. 448).

“Courts in India have to be careful to see that the process of the Court and the law of procedure are not abused by judgment-debtors in such a way as to make courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights.”

13. In spite of the afore-stated observation made in 1925, this Court was again constrained to observe in Babu Lal v. Hazari Lal Kishori Lal [(1982) 1 SCC 525] in para 29 that: (SCC p. 539).

29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections.”

16. The position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree-holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain.” (Emphasis Supplied)

BE IT NOTED, THE BENCH THEN SPECIFIES IN PARA 28 THAT, “DELHI HIGH COURT RULES FOR EXECUTION OF DECREES

The Delhi High Court Rules for execution of decrees [Volume I of High Court Rules and Orders, Part C, Chapter 12 – Part A – ‘General’] provides for expeditious disposal of the execution cases by District Courts. Rule 2 provides at least one day every week to be reserved for execution work to ensure expeditious disposal. Rules 4 and 5 provide for close supervision and control of the execution cases by the District Judge and report to the High Court in the event of any delay in the disposal of execution cases. Rules 2, 4 and 5 of Volume I of High Court Rules and Orders, Part C, Chapter 12, Part A – General of Delhi High Court Rules are reproduced hereunder:―

CHAPTER 12

EXECUTION OF DECREES

PART A: GENERAL

2. Special Day To Be Reserved For Execution Work Execution of decrees should receive the same attention from the Courts as original civil work and should be methodically and regularly dealt with, as expeditiously as possible. Where parties have to be heard or evidence recorded in the course of execution proceedings, notice should be given, processes issued and dates fixed as in the case of original suits. As a rule one day during the week should be reserved for execution works so as to ensure proper attention being paid to it; some times two days are necessary. District Judges are responsible for seeing that proper arrangements are made for execution work by all courts subordinate to them.

DISTRIBUTION OF EXECUTION WORK BY DISTRICT JUDGE

District Judges should record standing orders regulating the distribution of applications for the execution of decrees among the Courts subordinate to them, providing for the disposal of cases in which decrees were passed by officers who have ceased to be attached to the district, and for carrying on the execution proceedings already pending before such officers at the time of their ceasing to be employed therein. In framing such orders, every Court should be required as far as possible, to execute all decrees passed by itself; but, where this is not possible and it is necessary to send the decree to another Court for execution, care should be taken to see that it is a Court of competent jurisdiction [Section 39(2)]. Court shall demand to be a Court of Competent jurisdiction, if at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed [Section 39(3) added by Amending Act, 1976].

5. District Judge To See That Execution Work Is not Neglected In Lower Courts

Close supervision and control should be exercised by District Judges over the execution of degree business pending in all Courts subordinate to them; and where any officer is found habitually to neglect this branch of work or to dispose of it in a perfunctory manner, he should be reported to the High Court.”‖

TRUTH SHOULD BE THE GUIDING STAR IN THE ENTIRE JUDICIAL PROCESS

It is a no-brainer that the Bench then postulates in para 29 that, “It is the duty of the Court to ascertain the true assets and income of the judgment-debtor. Truth is the foundation of justice. Dispensation of justice, based on truth, is an essential feature in the justice delivery system. People would have faith in Courts when truth alone triumphs. The justice based on truth would establish peace in the society.”

FALSE CLAIMS AND DEFENCES

No doubt, the Bench then points out in para 37 that, “The greatest challenge before the judiciary today is the frivolous litigation. The judicial system in the country is choked with false aconsuming Courts’ time for a wrong cause. False claims are a huge strain on the judicial system. False pleas are often taken and forged documents are filed indiscriminately in the Courts. The reluctance of the Courts to order prosecution encourages the litigants to raise false claims before the Court.”

IMPOSITION OF COSTS

Needless to say, the Bench then holds in para 49 that, “Imposition of actual and realistic costs in appropriate cases would go a long way in controlling the tendency of filing false cases.”

As we see, the Bench then states quite explicitly, elegantly and effectively in para 54 that, “The execution of decrees/awards deserve special attention considering that inordinate delay in execution proceedings would frustrate the decree-holders from reaping the benefits of the decrees/ awards.”

CONCLUSION

To say the least, the Bench then states in para 54 that, “The execution of decrees/awards deserve special attention considering that inordinate delay in execution proceedings would frustrate the decree holders from reaping the benefits of the decrees/awards.”

EXECUTION PROCEEDINGS INSTITUTED WITHIN TWO YEARS OF THE DECREE/AWARD

Briefly stated, the Bench then observes in para 55 that, “If the execution is filed within two years of the decree/award and the decree holder has disclosed the assets of the judgment debtor the Executing Court shall, on the first date of hearing, issue notice to the judgment-debtor, attach the assets of the judgment-debtor and direct the judgment-debtor to deposit the decretal amount within 30 years of the receipt of the notice.”

It is worth noting that the Bench then observes in para 56 that, “If the execution is filed within two years of the decree/award but the decree-holder has not disclosed the assets of the judgment-debtor, the Executing Court shall issue notice, attach the assets and direct the judgment-debtor to deposit the decretal amount within 30 days of the receipt of the notice.”

EXECUTION PROCEEDINGS INITIATED AFTER TWO YEARS OF THE DECREE/AWARD

It is then postulated in para 61 that, “If the execution proceedings are initiated after two years of the decree/award, the Executing Court shall, in the first instance, issue notice to the judgment-debtor to show cause as to why the decree be not executed against him. The directions relating to the deposit of amount, attachment of assets, filing of affidavit/additional affidavit of assets and the injunction to restrain the judgment-debtor from transferring/ disposing of its assets, shall be considered after the service of the judgment-debtor, unless the decreeholder has made out a case under Order XXI Rule 22 of Code of Civil Procedure.”

RESTRAINT AGAINST JUDGMENT-DEBTOR FROM TRANSFERRING ITS ASSETS

It is then postulated in para 62 that, “The Executing Court is empowered, at the initial stage itself, to restrain the judgment-debtor from transferring, alienating or disposing of or otherwise parting with the possession of any assets to the tune of the decretal/award amount except in the ordinary course of business such as payment of salary and statutory dues. The Executing Court shall restrain the judgment-debtor from discharging any financial liability, other than the liabilities of Banks/financial institutions, without the permission of the Executing Court.”

DETENTION OF THE JUDGMENT-DEBTOR FOR FAILURE TO FILE THE AFFIDAVIT OF ASSETS

Strictly speaking, the Bench then envisages in para 64 that, “In the event of default of the judgment-debtor to file the affidavit in Form 16A Appendix E Order XXI Rule 41(2) of the Code of Civil Procedure within the stipulated time, the Executing Court shall consider detention of the judgment-debtor in civil prison for a term not exceeding three months under Order XXI Rule 41(3) of the Code of Civil Procedure. However, before passing the detention order, the Executing Court shall issue a show cause notice to the judgment-debtor and afford an opportunity of hearing. The Court may also consider examining the judgment-debtor in terms of Order XXI Rule 41(1) of the Code of Civil Procedure before detaining the judgment-debtor. After the detention order is passed, the Executing Court shall direct the decree-holder to deposit the applicable subsistence allowance which at present is @ Rs.40/- per day per person with the Executing Court for detention of the judgment-debtor. Upon deposit of the subsistence allowance, the Executing Court shall issue non-bailable warrants against the judgment-debtor for his detention.”

Frankly speaking, the Bench then makes it known in para 66 that, “The aforesaid affidavits are very comprehensive and are useful to determine whether the judgment-debtor has the means to satisfy the decree/award. In the aforesaid affidavits, the judgment-debtor is required to disclose his occupation and income from all sources in the last five years; particulars of immovable properties in his name as well as joint names; financial assets including all bank accounts, DEMAT accounts, safety deposit lockers; investments including FDRs, stocks, shares, insurance policies, loans, foreign investments; movable assets including motor vehicles, mobiles, computer, laptop, electronic gadgets, gold, silver and diamond jewellery etc.; intangible assets; garnishee(s)/trade receivables; corporate/business interests; disposal and parting away of properties; properties acquired by the family members, inheritance. A salaried judgment-debtor has to disclose the particulars of his employment including salary, D.A., commissions, incentives, bonus, perks, perquisites and other benefits, Income Tax, pension and retirement benefits etc. A self-employed judgment-debtor has to disclose the nature of business/profession, share in business/profession, net worth of the business, number of employees, amount of regular monthly withdrawals, Income Tax, net income, annual turnover/gross receipts, gross profits etc. The judgment-debtor is also required to disclose the income from other sources, namely, agricultural income, rent, interest on bank deposits and investments, dividends, profit on sale of movable/immovable assets, mutual funds, annuities etc. The judgment-debtor is also required to disclose whether he has ever been arrested or kept in detention; whether any Court has issued bailable/non-bailable warrants against him; whether he has ever been released on bail/anticipatory bail; whether he has ever been prosecuted and/or convicted; whether he has ever been declared as proclaimed offender/proclaimed person; particulars of all pending litigations, decided/disposed off litigations as well as unsatisfied decrees/awards. The judgment-debtor is further required to disclose his standard of living and lifestyle, namely, credit/debit cards, membership of clubs and other associations, loyalty programmes, social media accounts, domestic helps and their wages, mode of travel in city and outside city, category of hotels for stay, category of hospitals for medical treatment, frequency of foreign travel, frequent flyer cards, brand of mobile, wrist watch, pen, expenditure ordinarily incurred on family functions, festivals and marriage of family members, etc. Annexure C1 requires the disclosure of expenditure on housing, household expenditure, maintenance of dependents, transport, medical expenditure, insurance, entertainment, holiday and vacations, litigation expenses, discharge of liabilities etc.”

Going further, the Bench then points out in para 67 that, “The affidavit of assets, income, expenditure and liabilities is to be treated as Guidelines to determine the true financial capacity/status of the judgment-debtor. The Courts are at liberty to determine the nature and extent of information/documents necessary and to direct the judgment-debtor to disclose relevant information and documents to determine the financial capacity/status. The Courts are at liberty to pass appropriate directions as may be considered necessary to do complete justice between the parties.”

What’s more, the Bench then enunciates in para 68 that, “The Executing Court shall ensure that the filing of the affidavits by the judgment-debtor is not reduced to a mere ritual or formality. If the affidavits of the judgment-debtor are not in the prescribed format or are not accompanied with the relevant documents, the Court may take the affidavits on record and grant reasonable time to the judgment-debtor to remove the defects/deficiencies and simultaneously act on the information available in the deficient affidavit as per law.”

Without mincing any words, the Bench then states in para 69 that, “If any ground for lifting of the corporate veil of a judgment-debtor company is made out as per law, then all the Directors/Promoters (other than independent/non-executive and nominee directors) of the judgment-debtor Company shall be directed to disclose their personal assets and income in the format of Annexure A1.”

What’s more, it is then stated in para 70 that, “If any objections are filed raising claims such as HUF character or transfer, agreement to sell, mortgage, tenancy etc. to the property of the judgment-debtor (as existing on the date of the institution of proceedings in which decree was passed), the Executing Court may direct the objector to file a detailed affidavit along with all the relevant documents evidencing his claim including subsequent conduct in relation thereto.”

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VERIFICATION OF ASSETS OF THE JUDGMENT-DEBTOR

It cannot be lost on us that the Bench then specifies in para 71 that, “Upon filing of affidavit in Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure and the additional affidavits namely Annexures A1, B1 and C1, the decree-holder shall verify the disclosures made in the affidavits, either himself or through an investigator. In appropriate cases, the Executing Court may order investigation by a Government Agency including a forensic audit, cost of which shall be borne by the decree-holder.”

Service of interrogatories on the judgment-debtor

For the sake of clarity, the Bench then mentions in para 72 that, “If the judgment-debtor does not truly disclose all his assets and income, the decree-holder is at liberty to serve the interrogatories under Order XI of the Code of Civil Procedure and/or seek production of the relevant documents from the judgment-debtor.”

Furthermore, the Bench then holds in para 73 that, “In appropriate cases, the Court may order interrogatories, discovery, inspection, production of any document and/or order any fact to be proved by affidavit under Section 30 of Code of Civil Procedure.”

Examination of judgment-debtor under Section 165 of Indian Evidence Act

It would be pertinent to mention here that the Bench then observes in para 74 that, “The Executing Court shall, thereafter, consider whether the oral examination of the judgment-debtor is necessary under Order XXI Rule 41(1) of the Code of Civil Procedure read with Section 165 of the Indian Evidence Act. If the Executing Court considers it necessary, the Executing Court shall examine the judgment-debtor to elicit the truth. The principles relating to the scope and powers of the Court under Section 165 of the Indian Evidence Act have been summarized in Ved Parkash Kharbanda v. Vimal Bindal, (2013) 198 DLT 555, which may be referred to.”

Attachment of assets of the judgment-debtor

The Bench then hastens to add here in para 75 that, “Sections 51(b), 60 to 64 and Order XXI Rules 41 to 57 of the Code of Civil Procedure contain the provisions for attachment of properties in execution. Before attaching a property, the Executing Court shall ensure that the property does not fall in the list of properties which are exempt from attachment/sale under the Proviso to Section 60(1) of the Code of Civil Procedure. The Executing Court shall ensure the compliance of Sections 60 to 64 and Order XXI Rules 41 to 57 of the Code of Civil Procedure with respect to the attachment of properties in execution of decrees/awards.”

Detention of judgment-debtor

To put it simply, the Bench then elucidates in para 76 stating that, “If the judgment-debtor does not satisfy the decree/award despite having means/capacity to pay, the decree-holder has to file an application for the detention of the judgment-debtor whereupon the Executing Court shall issue a show cause notice to the judgment-debtor to show cause as to why he should not be committed to civil prison. The Executing Court shall, upon being satisfied that the judgment-debtor has means to pay the decretal amount or substantial part thereof and has refused or neglected to pay the same, pass an order for detention of the judgment-debtor in civil prison for a period not exceeding three months in terms of Section 58(1)(a) of the Code of Civil Procedure. Even after release from detention, the judgment-debtor shall remain liable to satisfy the decree/award in terms of Section 58(2) of the Code of Civil Procedure. The Court shall follow the procedure laid down in Sections 51(c), 55 to 59 and Order XXI Rules 37 to 40 of the Code of Civil Procedure for detention of the judgment-debtor.”

Restitution of the decree-holder for the loss(es) on account of delay and obstruction in execution proceedings

Of course, the Bench then cogently observes in para 78 that, “The Executing Court shall pass appropriate order of restitution to reimburse the loss suffered by the decree-holder on account of delay and obstruction in the execution proceedings caused by the judgment-debtor. The Executing Court shall endeavour to place the decree-holder in the same position as he would have had been if the decree had been satisfied soon upon it being passed.”

Imposition of costs on the judgment-debtor

Quite commendably, the Bench then strikes the right note stating in para 79 that, “Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false claims by the judgment-debtor. The cost should be equal to the benefits derived by the litigants, and the harm and deprivation suffered by the rightful person so as to check frivolous litigations and prevent people from reaping a rich harvest of illegal acts through Court. The costs imposed by the Courts must be the real costs equal to the deprivation suffered by the rightful person and also considering how long they have compelled the other side to contest and defend the litigation in various courts. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.”

Consequences for raising false claims

It cannot be glossed over that the Bench then makes it amply clear in para 80 that, “If the judgment-debtor makes a false claim/statement in his/her affidavit, the decree-holder is at liberty to invoke Section 340 CrPC for prosecution of the judgment-debtor under Section 209 IPC. Whenever a false claim is made before a Court, it would be appropriate, in the first instance, to issue a show cause notice to the judgment-debtor to show cause as to why a complaint be not made under Section 340 CrPC for having made a false claim under Section 209 IPC and a reasonable opportunity be afforded to the judgment-debtor to reply to the same. If the facts are sufficient to return a finding that an offence appears to have been committed and it is expedient in the interest of justice to proceed to make a complaint under Section 340 CrPC, the Court need not order a preliminary inquiry. But if facts are not sufficient and there is suspicion, albeit a strong one, the Court may order a preliminary inquiry. For that purpose, the Court can direct a State agency to investigate and file a report along with such other evidence that they are able to gather. Once it prima facie appears that an offence under Section 209 IPC has been made out and it is expedient in the interest of justice, the Court should not hesitate to make a complaint under Section 340 CrPC. Reference be made to Sanjeev Kumar Mittal v. State, (2010) 174 DLT 214 for principles relating to Section 340 CrPC and H.S. Bedi v. National Highway Authority of India, 2016 (155) DRJ 259 for principles relating to Section 209 IPC.”

Quite appropriately, the Bench then observes in para 81 that, “The Courts below shall expedite the execution proceedings and shall make an endeavour to decide the execution cases within one year of their institution. The Courts below shall send the list of all pending execution cases which are more than one year old, through their respective Principal District Judges. The list shall contain the name of the case; date of institution; number of hearings that have taken place; whether the judgment-debtor has filed the affidavits of assets and income and the reasons for delay in disposal. List be prepared according to the seniority i.e. the oldest case shall be mentioned first. The Courts below shall also send a list of execution cases decided in the last one year. The Principal District Judges shall compile the lists of all their Courts and shall send them to the Registrar General of this Court by 31st October, 2021.”

For the sake of clarity, the Bench then notes in para 82 that, “These modified directions/guidelines shall apply to all execution proceedings, including the execution proceedings under Section 36 of the Arbitration and Conciliation Act; execution proceedings before Motor Accident Claims Tribunals; execution proceedings before the SDM empowered to execute decree/awards as arrears of land revenue; execution proceedings before Debt Recovery Tribunals; execution proceedings under Consumer Protection Act and proceedings before NCLT/NCLAT.”

It is worth noting that the Bench then makes it pretty clear in para 83 that, “The affidavits formulated by this Court namely Annexures A1, B1 and C1 or such information from the affidavits as is considered necessary, can be directed to be filed in any proceedings in which the Court considers it necessary to ascertain the financial capacity or status of a party such as proceedings under Order XXXVIII of the Code of Civil Procedure and proceedings under Section 9 of the Arbitration and Conciliation Act. The Arbitral Tribunals are also empowered to direct a party to file the aforesaid affidavits i.e. Annexures A1, B1 and C1 or such information from the affidavits as is considered necessary, in the proceedings under Section 17 of the Arbitration and Conciliation Act to ascertain the financial capacity/status of a party.”

Quite forthrightly, the Bench then minces just no words to hold in para 85 that, “This Court is of the view that the mandatory filing of the affidavit of assets, income, expenditure and liabilities by judgment-debtor in a detailed prescribed form at the very threshold of execution litigation should be incorporated in the statutes, as in the developed countries. Let this suggestion be considered by the Central Government. Copy of this judgment along with Annexures A1, B1 and C1 be sent to Mr. Chetan Sharma, learned ASG for taking up the matter with Ministry of Law and Justice.”

Going ahead, the Bench then states in para 86 that, “The modified directions and format of the affidavits (Annexures A1, B1 and C1) be uploaded on the website of the District Court (in .pdf format) to enable the lawyers/litigants to download the same.”

Furthermore, the Bench then directs in para 87 that, “Copy of this judgment and modified format of affidavits of assets, income and expenditure Annexures A1, B1 and C1 be sent to the Registrar General of this Court who shall circulate it to all the District Judges for being circulated to all the concerned courts.”

Adding more to it, the Bench then also directs in para 88 that, “Copy of this judgment be sent to Mr. Rahul Mehra, learned Standing Counsel for GNCTD who shall circulate it to all the SDM’s dealing with execution cases as arrears of land revenue. The Principal Secretary (Revenue) shall ensure the compliance of these directions by all SDMs in execution cases.”

Moving on, the Bench then also states in para 89 that, “Copy of the judgment along with Annexures A1, B1 and C1 be sent to the Delhi Judicial Academy to sensitize the judges about the modified directions laid down by this Court.”

Interestingly enough, the Bench then also makes it clear in para 90 that, “National Judicial Academy is reporting the best practices of the High Courts on their website (www.nja.nic.in) under the head of Practices & Initiatives of various High Courts. Copy of this judgment along with Annexures A1, B1 and C1 be sent to National Judicial Academy.”

Adding more, the Bench then also holds in para 91 that, “Copy of the judgment along with Annexures A1, B1 and C1 be sent to the Delhi Judicial Academy to sensitize the judges about the modified directions laid down by this Court.”

Finally, the Bench then holds in para 92 that, “National Judicial Academy is reporting the best practices of the High Courts on their website (www.nja.nic.in) under the head of Practices & Initiatives of various High Courts. Copy of this judgment along with Annexures A1, B1 and C1 be sent to National Judicial Academy.”

On a concluding note, it has to be said with consummate ease that the Single Judge Bench of Justice JR Midha of Delhi High Court in this leading case has very rightly observed that, “Delays and difficulties in execution of decrees/awards erode public confidence and trust in the justice delivery system. Execution jurisdiction deserves special attention and expeditious disposal considering that the decree-holders have already succeeded in the litigation and hold a decree award in their favour.” The Bench also further rightly held that, “Justice is the ideal to be achieved by law. Justice is the goal of law. ‘Law as it is’, may fall short of ‘Law as it ought to be’ for doing complete justice in a cause. The gap between the two gives an occasion to the Court to develop the law by evolving juristic principles for doing complete justice according to the current needs of the society.” The developments as stated hereinabove in this notable judgment came while modifying the guidelines issued earlier by the High Court in the judgments of Bhandari Engineers-I and Bhandari Engineer-II vide judgments dated 5th December 2019 and 5th August 2020 respectively. It needs no rocket scientist to conclude that the Delhi High Court Single Judge Bench led by Justice JR Midha has very rightly modified the guidelines for expediting execution of decrees, award as inordinate delay would frustrate decree holders from reaping benefits. All these guidelines must be promptly implemented! There can be just no denying it!

Sanjeev Sirohi, Advocate

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Policy & Politics

Femtech Apps: An Analysis

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INTRODUCTION

Since times immemorial, women’s reproductive rights and allied healthcare have been deliberated upon behind closed doors. Even in the 21st century, these pressing issues have been largely stigmatised and have not received the recognition that they deserve. The scales were tilted in favour of women after the arrival of ‘Femtech’. Now, women can count upon such apps which provide them with a plethora of solutions including menstrual cycle tracking, pregnancy tracking and fertility solutions. Female technology commonly abbreviated as Femtech entails creation of hygiene products, reproductive health monitoring systems and other digital applications that empower a woman by keeping her abreast of her less talked about but significant, reproductive health. A report by Emergen Research estimated the global market size for Femtech to be around USD 60.01 billion by 2027. The rationale behind the tremendous popularity of this novel industry is its huge target audience which constitutes 50% of the global population.

ARE WOMEN, COMMODITIES MASQUERADING AS USERS FOR FEMTECH APPS?

The leading Femtech apps like Flo, My Calendar, Clue, Maya and Ovia enjoy millions of downloads on Google Playstore. Their remarkable success makes it all the more imperative to address the issues encircling them. Women share their extremely intimate and sensitive information with these apps including the duration of their menstrual cycle, mood swings, the last time the user had unprotected sexual intercourse and whether she is trying to get pregnant. The enormous faith and confidence reposed by a female upon these apps is quite conspicuous given that she is apprehensive about sharing such information even with the closest people in her life. It is understandable that these apps require particulars of the user for processing and delivering the accurate outcome without which they cannot function effectively. Nevertheless, the chink in the armour is that this data is being shared with third parties without the informed consent of the user. So, you never know where your information might end up! According to a significant report published by the Norwegian consumer council, an advocacy group revealed that multiple apps including Clue transmitted personal information of its users to at least 135 companies or data brokers. These entities consolidated sensitive data received from myriad sources to create digital profiles of the consumers that are further exploited for online targeted advertising. Its detrimental impact can be discerned where several women are spammed by online advertisements related to diapers after they start using a pregnancy app. ‘Menstrual/Intimate Surveillance’ can be observed as a phenomenon directly emanating from circulating personal data of female users. Every minute step taken on a Femtech app is watched, recorded and processed by hundreds of suspicious agencies for their dystopian ways. This manifests as being a downright intrusion and an encroachment over the right to privacy of a woman.

APERTURES IN REGULATORY STANDARDS AROUND THE WORLD

Even the law does not come to the rescue of these women who continue to be susceptible to data exploitation by these Femtech apps. With respect to data protection laws, European Union (EU) observes that 12 non-EU countries have an acceptable legal framework for data security.

USA has Health Insurance Portability and Accountability Act (HIPAA), 1996 which caters to patients’ privacy concerns by defining ‘Protected Health Information’ (PHI) that specific entities are mandated to protect. These encompass healthcare providers, clearinghouses and business associates. The Femtech apps can come within the purview of HIPAA only under the third category, business associates because they are independent corporate houses that provide specialized technology. Nonetheless, they evade liability and keep themselves safe from any legal ramifications. EU’s General Data Protection Regulation (GDPR) can be viewed as a silver lining. It is a stringent legislation that administers how businesses ought to safeguard the confidentiality of digital personal information of EU residents. GDPR places the explicit and unconditional consent of the users at the highest pedestal without which their data cannot be transmitted to a third party at any cost. It is commendable that the residents of the EU are protected by a sound legal framework as regards data security. At the same time, it cannot be denied that the Femtech apps cater to women in non-EU jurisdictions as well who remain bereft of the protection offered by GDPR. Under these circumstances, it becomes imperative for the Femtech apps to have a universal policy addressing this issue.

ABSENCE OF DATA GOVERNANCE FRAMEWORK IN INDIA

Closer home, a path-breaking judgement Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors. transformed the privacy landscape. The Supreme Court of India recognized the right to privacy as a fundamental right under Article 21 of the Constitution. It further held that “….from the right to privacy in this modern age emanate certain other rights such as the right of individuals to exclusively commercially exploit their identity and personal information, to control the information that is available about them on the “world wide web” and to disseminate certain personal information for limited purposes alone.” To follow the judgement in its letter and spirit, Srikrishna Committee was constituted by the Ministry of Electronics and Information Technology (MeitY). It submitted a comprehensive report on 27 July 2018 which was later codified as the draft Personal Data Protection (PDP) Bill, 2018. The revised version of this draft was introduced before the Lok Sabha on 11th December, 2019 and was referred to a Joint Parliamentary Committee, formed exclusively for providing recommendations to the PDP Bill, 2019. The Bill once passed would be an immaculate attempt at bringing India at par with other jurisdictions, especially the EU. It prescribes a robust mechanism for notifying the user before his/her data is collected and mandates unambiguous consent of the user concerning sensitive data which can be easily withdrawn, as well. The Bill goes a step further by providing a host of rights including but not limited to, right to access and correction. Hopefully, the revered Parliament will soon make history by passing the first, one of its kind Data Protection law in our country.

THE ROAD AHEAD

Given the sky-rocketing downloads of Femtech apps all across the globe, the stakes are quite high. It is the need of the hour to explore optimal yet expedient solutions. A company must adopt the ‘privacy by design’ model by default. The principles of privacy such as data encryption can be embedded into the system to ensure user privacy and accessibility coupled with empowering user-friendly interface. Having said that, enhancing safeguards is a costly affair for corporations. Yahoo refused to address the issue of strengthening data security owing to exorbitant costs and complexities. As a result, the company suffered a major setback at the time of its data breach during 2014-2015. Thus, the state is expected to extend a helping hand to leading Femtech companies for setting a ‘commercially reasonable standard’ practice. The significance of prioritizing digital awareness to create more educated users cannot be emphasized enough. In addition to that, the apps should take the bull by its horns by having a simplified and comprehensible privacy policy.

CONCLUSION

We acknowledge that Femtech apps are quite efficacious and are empowering women to take charge of their health and body. Nevertheless, the unwavering trust that women have in them should not be compromised for ulterior motives. In other words, these apps can turn into Frankenstein monsters if data exploitation is trivialised.

At the cost of repetition, it is re-iterated that the right to privacy loses its true essence if Femtech apps are given leeway to commercialise intimate data. Henceforth, states should realise the significance of the interface between health, technology and confidentiality.

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Policy & Politics

Vehicle Scrappage Rules’ Enforcement in current times

Anu Bhuvanachandran & Anju Joseph

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In the Union Budget 2021, the country’s Finance Minister Smt. Nirmala Sitaraman has introduced vehicle scrappage policy where the reason for its introduction is to bring down pollution levels across the nation and to uplift the automobile industry.

Srcapping Policy

36. We are separately announcing a voluntary vehicle scrapping policy, to phase out old and unfit vehicles. This will help in encouraging fuel-efficient, environment friendly vehicles, thereby reducing vehicular pollution and oil import bill. Vehicles would undergo fitness tests in automated fitness centres after 20 years in case of personal vehicles, and after 15 years in case of commercial vehicles. Details of the scheme will be separately shared by the Ministry.”

On 18th March 2021, the Motor Vehicles (Registration and Functions of Vehicle Scrapping Facility) Rules, 2021 draft was issued vide notification by the Ministry of Road Transport and Highways. The Draft Motor Vehicles (Registration and Functions of Vehicle Scrapping Facility) Rules, 2021 aims to the establishment of Registered Vehicle Scrapping Facility (RVSF) and regulate automobile collection, scrapping and recycling centres, dismantling automobiles etc.

ELIGIBILITY TO GET SCRAPPED

It is clearly said in the draft rules, the vehicles not renewed under Rule 52 of Central Motor Vehicle Rules 1989, vehicles not granted with fitness certificate under section 62 of MV Act, 1988, vehicles damaged in natural disaster, fire, accidents, riots or owner himself certifies his vehicle a scrap, vehicles which are declared obsolete by state or central organizations of government, vehicle bought by any agency even RVSF in an auction for scrapping, vehicles outlived utility, manufacturing rejects and test vehicles certified by vehicle OEM and vehicles auctioned, abandoned or impounded by any Enforcement Agency.

So your vehicle in hand has more probability to get scrapped if you have a private vehicle of twenty years or above age or a commercial vehicle of fifteen years or above age and it fails to get fitness certificate.

END OF LIFE OF YOUR VEHICLE

Once your vehicle fails to get fitness certificate or if no valid registration is present or if registrations are cancelled under Chapter IV of MV Act or due to court order or any criteria said above, it will be called as End of Life of your vehicle and you will the Registered Owner of the End of Life Vehicle. Next step is to leave your vehicle for scrapping.

VEHICLE SCRAPPER FACILITY AND PROCEDURE

If you have an entrepreneur inside you, then you can be a registered scrapper by registration of your name or firm or company or establishment for Vehicle Scrapping as prescribed under this Draft Rules and owns and operates the same. To be an efficient scrapper you need to know some elementary definitions which are essential. Legally speaking, Rule 3(l) defines scrapping as the entire process from receipt and record of the “ELV including depolluting, dismantling, segregation of material, safe disposal of non-reusable parts, and issuance of “Certificate of Vehicle Scrapping to the registered owner of a motor vehicle. Clause (m) defines Scrapping Yard as the designated location within the premises of the RVSF where dismantled vehicle parts are processed for further treatment including recycling. Whereas Rule.3(n) says “Treatment” means any activity after the end of life vehicle has been handed over to a collection centre of an RVSF for depollution, dismantling, shearing, shredding, recovery or preparation for disposal of the shredder wastes, and any other operation carried out for the recovery and/or disposal of the end of life vehicle and its components.

Draft Rules says that Eligible RVSF means person, trust, company formed in accordance with the law and entity shall possess Certificate of Incorporation, valid PAN and GST registration. There are additional set of criteria such as evidence for availability of usable land, consent from State Pollution Control Board, obtain quality certification etc. or the undertakings of the concerned documents.

Once you find yourselves eligible, you can file Form-1 as prescribed by Registration Authority along with processing fee of One lakh rupee per RVSF and an Ernest Money Deposit (EMD) in the form of bank guarantee of Ten Lakh Rupees per RVSF with initial authorization period of ninety plus days. Approval or dismissal of your application has to be made by the Registration Authority within sixty days from the date of submission of application. If your application gets rejected the above EMD will be refunded but not the processing fee i.e. One Lakh Rupees.

RVSF is duty bound to keep up connectivity to the VAHAN database, maintain record of scrapping vehicles, issuance of Certificate of Issuance, Certificate of Scrapping and shall have necessary IT systems certifications for safe access to VAHAN database and also install CCTV cameras at the yard, in the customer and vehicle reception area.

Once get registered means its initial validity shall be ten years and can be renewed for another 10 years after the expiry of the initial validity period. If you need to do renewal, you have to submit application under Form-1 and the certificate will be issued under Form- 1A. It is to be noted that the registration issued is not transferable.

Now you have RVSF, and the question is how vehicles will come to you or if you are Registered owner of End of Life Vehicle how will you scrap the vehicle. The registered owner or authorized representative can submit two originals of Form-2 to the Regd. Scrapper or designated collection centre.

If the vehicle does not have valid registration, then Regd. Scrapper or the designated collection centre has to match the identity of registered owner as per VAHAN database with person who handover the vehicle and then receive the vehicle and issue receipt linked to VAHAN database.

In case of impounded vehicles Enforcement Agency shall handover the registered scrapper as per procedure prescribed by the appropriate government. Also Registered scrapper shall match the handed over vehicles with the database of the stolen vehicles held by NRCB as well as with local police before scrapping.

The documents to be produced along with Form-2 to the Registered scrapper include Original Certificate of Registration, authorization from registered owner, if inheritance applicable then death certificate of the registered owner with proof of succession, certificate confirming sale in public auction in his favour and undertaking that there is no pending criminal record or litigation.

The registered scrapper shall also keep self-certified copies of documents prescribed under Rule 10(8) of the Draft Rules.

Registered Scrapper shall always keep in mind that the RVSF established in a state shall accept and scrap the vehicles registered in any of the State/UTs under the jurisdiction of any Registering authority. The whole process shall be smooth linked with VAHAN and on PAN India basis irrespective of the location of any vehicle registering authority.

Being a Registered Owner of End of Life Vehicle handed over to registered scrapper, shall always be keen to collect Certificate of Deposit from the scrapper only by which the owner will be able to avail benefits for the purchase of new vehicle. This certificate is tradeable and once utilized will be stamped as cancelled by the agency providing benefits to the holder of said certificate. Matching entries shall also be made by the RVSF on VAHAN portal.

These are also additional provisions on removal of fuel, hazardous substance etc. from vehicles is discussed which has to be ensured by the registered scrapper before scrapper.

Certificate of Vehicle Scrapping shall be provided by the registered scrapper after completing necessary treatment including digital photograph of the cut out of Chassis in Form-4 to update national register VAHAN database and inform competent authority on the same. Central government shall maintain a separate record on the same.

The Draft Rule further concentrates on detailing the description of scrapping yard vide Rule 13 which a proposed registered scrapper shall always look into, before applying for the registration. It is also to be noted by the Registered Scrappers that your RVSF facility will be subject to audit and certification which shall be revalidated at least three months before its expiry.

DISPUTES & ADJUDICATION

Further the Registration has the right and authority to inspect upon on receipt of complaint, report of non-compliance from appropriate authority and shall prepare Report of Inspection. A copy shall be given to the scrapper. After providing opportunity to hearing to the Regd. Scrapper the authority may pass speaking order to cancel or suspend the authorization for the facility. Appeal can be filed by the aggrieved party to the Commissioner of Transport within thirty days of passing such order. There is an appeal fee of Ten Thousand Rupees. The said appeal shall be disposed in fourteen days.

DRAFT RULES AND PANDEMIC

From the Draft Rules, it is understandable that the implementation will be possible only if there are full-fledged RVSF is available in the states. Also, for commencing RVSF, the applicant has to have risk of Rs. One Lakh as processing fee of Application which is preferably high especially during this pandemic. Also, usable bulk lands are already turned to cemeteries in the first and the ongoing second Covid-19 wave. In this period, people regardless their wealth are securing assets for their health to escape from Corona virus.

Even though vaccine drive is actively conducted all over India, recovery cases are also hiking, many people are again suffering from Covid-19 even after taking two doses of vaccination. Every Today in recent comes up with terrifying news of people succumbed, begging for ventilators and even oxygen.

In addition, M. Vidyasagar (Scientist) and K Vijay Raghavan (Principal Scientific Advisor) vide news reports informed that the third wave of Covid-19 will hit by the January 2022. This is also not good news for people as no preparedness can be taken at ground level as variants of viruses are hitting person to person.

In our view, the government shall take into consideration about the appealing situation of India amidst of Covid-19 and take a prudent decision either by not implement it anytime soon and to decrease the amount fixed as processing fee, bank guarantee and fees for filing appeal.

We suggest that the implementation of this Draft Rules shall be a very slow process and both the proposed registered scrappers and registered owners shall get amicable time and may not take steps that further traumatize the registered owners of the vehicles.

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Policy & Politics

Back from the brink: Positivity is the key

Anil Swarup

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“Anil, it is not good news. You have malignancy”. This was my doctor-friend, Ambrish Mithal on phone. He was the one who had persuaded me to get the necessary tests done after some painless growth was detected in my groin and armpits. I had half expected it as the tuberculosis treatment for this growth was not working and the PET Scan had revealed growth in many parts of the body. Ambrish went on to explain that it was Non-Hodgkin’s Lymphoma, cancer of lymph glands. Though I had lost my mother to cancer a few years ago, I didn’t have much of an idea of this variety of cancer. Hence, all that he told me made no sense except that I had been afflicted with this dreaded disease. My wife, Ruchi was with me. My first reaction was that irrespective of the outcome, we will fight it out. She was a step ahead. She looked totally unfazed and was confident that we will tide over the crisis. If there was any turmoil going inside, she didn’t show it. She remained that way right though the six-month trauma of debilitating medication called chemo-therapy. It was her emotional strength that made all the difference.

I looked at the entire crisis differently. If I were to die, so be it. Everyone does some day. I had always believed in living in the moment and enjoying each one of it simply because I had no control over the consequences. This approach helped. I continued to fire on all cylinders. In a sense, COVID was a blessing in disguise. We were cut off physically from most of the world during the past year and a half. Hence, this quarantine on account of lowered immunity made no difference. I was physically shattered because of extreme weakness, loss of appetite, intermittent nausea, loss of weight, strange sensations, high pulse rate, long sessions of hiccups and sleeplessness. Consequently, I lost 10 Kgs of weight (I had previously thought I didn’t have additional weight to shed) and gained 10 years in age. All this made life extremely difficult. However, I was mentally as alert and as positive as ever, penning down my usual three articles every week and working on my next book, “No More A Civil Servant”. However, the Webinars stopped after some time. Intermittent appearances on television also were without the video feed because I could barely recognize myself in the mirror. To begin with, I could continue with physical exercises but as the body became weaker, I had to give it up. Even walking became difficult

I was lucky to run into a very competent set of doctors at Max Hospital at Saket, New Delhi. Ambrish who works in the same hospital was a great help in introducing me to Dr Harit Chaturvedi who performed the biopsy and, he in turn put me across to Dr Rajesh Naithani, a cool-headed doctor who knew his job. The experience otherwise with the hospital was a forgettable one. I have often wondered how and why do such accomplished doctors work in an environment that is so poorly managed. For a patient it is even worse. The hospital is interested in “catching” you. You are a VIP till then but once you are “caught”, you are left to the wolves. The only concern of the management is to somehow make money. Unfortunately, the doctors who have nothing do with this “mismanagement” end up getting a bad name.

The incompetence and callous attitude of some para-medical staff has to be experienced to be believed. You pay through your nose (though my bills were taken care of CHGS), yet get such poor service. My first experience was blood extraction for tests. The person just shoved the needle while engaging in a casual conversation with his colleague. Experience at Sir Gangaram hospital where I went for PET Scan was totally different. Here the para medical staff was not only polite but competent. When I asked one of them how did they manage such painless insertion of needles, I was pleasantly surprised at his response. He said that since all the patients that came to him were already in pain, they made an effort not to add to their misery.

Obtaining medical reports was another tragic experience at Max. Those at the front desk, almost always indifferent and sometimes even rude, have no clue. They make people run around for locating medical reports. The callous indifference is pretty appalling. The hospital takes regular feedback after each visit but follows up with no action.

Despite all the mismanagement, the hospital continues to attract patients on the strength of the quality of its doctors. My miraculous recovery in just six months after six rounds of chemo-therapy can be attributed totally to Dr Naithani. The para-medical staff, however, gave me an infection on account of their incompetence in inserting the Cannula needle.

The news relating to my ailment wasn’t kept a secret but I made no effort to share it with everyone. Still, many of my friends, former colleagues and relatives got to know of it. Their reaction ranged from disbelief to a variety of positive inputs. Many of them narrated cases where Lymphoma had been cured. All this helped enormously in staying positive. It was also extremely heartening to know that so many cared and prayed for me.

In such a crisis, support from family is the key. I was lucky to have them around. For my wife, everything else became secondary as she committed full time to take care of me. One of the fall-out of chemo-therapy was the loss of taste and appetite. She researched and cooked stuff that I could eat. There was never an occasion that she was found wanting, keeping awake with me during many sleepless nights to ensure that I was not put to any inconvenience. More than anything else, she never lost hope. My daughter, Aditi and son, Apurv were living elsewhere in Delhi.

They had their own professional and personal commitments but they ensured that at least one of them was around to assist my wife. Apurv also ferried me to the hospital and undertook the difficult task of engaging with the “people” at the hospital. In his absence, Divam, my son-in-law deputized for him. During these six months what I missed most was the company of my twin grand-daughters, Dviti and Srisha.

It was a tough journey, perhaps one of the very few in my life that I didn’t enjoy. However, it was an experience where positivity helped. It is not all over yet as there could be recurrence of this deadly disease but this experience will hopefully stand me in good stead.

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

The incompetence and callous attitude of some para-medical staff has to be experienced to be believed. You pay through your nose (though my bills were taken care of CHGS), yet get such poor service. My first experience was blood extraction for tests. The person just shoved the needle while engaging in a casual conversation with his colleague. Experience at Sir Gangaram hospital where I went for PET Scan was totally different.

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Policy & Politics

Self-proclaimed appearance of Param Bir Singh

Vijay Darda

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It’s been great that at long last you have turned in, Mr Param Bir Singh! Greetings to you on behalf of the people of Maharashtra! Your appearance calls for a celebration! Your appearance day should be celebrated the same way as that of saints and sages. The date of your appearance has also been recorded in the book of history. Yes, of course why not? How hard you got the police and intelligence agencies to chase you, how many of them got dead tired chasing you and how many of them were reduced to tears! You are in a class beyond compare! Actually we were anxiously waiting for you for a long time! Better late than never! At last you have turned in. Is your appearance any less than a miracle?

Mr Param Bir Singh, I was really longing for you. Everyone was wondering where you went missing? How did you vanish into thin air? Did anyone cause your disappearance? How would you have dodged the red corner notice? Have you changed your appearance? Did you undergo plastic surgery? Tell you what! Your disappearance fired up people’s wildest imaginations! Everybody had something to say about you! Someone said you were staying in Belgium. Someone else said you had relocated to London. Some people claimed with great pride about having tea and breakfast with you. What could we have done? Just kept listening..!

Whom could we have trusted? We just had faith in you and also believed that one day you will definitely come and tell us how you managed to escape the eyes of your department as well as dodge the smart agencies of your country. I think you should conduct training camps for police and intelligence agencies to see what vanishing tricks can be employed. Once the detectives of the agencies become aware of your art, learn your skills and master the nuances, it will become easier for them to nab the accused.

The art of dissimulation that you have demonstrated has failed even Anil Kapoor of Mr India and Amitabh Bachchan of Bhootnath fame. Both of them acted wonderfully on screen. Actually you did all that stuff too, though off screen. I want to thank you that you have also exposed some time-honoured institutions. The first is that the Mumbai police, which is equated to the Scotland Yard police, can so badly be defeated by its single officer in a game of hide and seek. You have also busted the myth of the invincibility of the intelligence agencies which consider themselves as ‘Turram Khan’ or supreme ones. You have proved to them that just one police officer can send them on a wild goose chase. The agencies kept running from post to pillar yet drew a blank. The court declared you a fugitive but amidst all this drama you were relaxing in Chandigarh. How amazing, isn’t it! Wow! I feel like doffing my hat to your skills. People are asking a wrong question: Who among you all three– you, police and intelligence agencies is the most powerful?

You are the emperor of the police department. Even the ones who witnessed your mood swings don’t know who you are, how you are, where you have come from and where you are going to go. Only the emperor can know this. You have also proved that it is not only difficult but impossible to catch the don. I am just astonished to think as to what would have happened if you had not appeared? Those who were saying that they will confiscate your property are ignorant. They don’t know who you are!

By the way, I want to advise your police and intelligence agencies that they must celebrate your appearance day. Your appearance is nothing less than an official celebration. I just want to say that what has passed in six months is a matter of letting bygones be bygone! The government should feel relieved and thankful that your appearance has saved it a lot of labour, time and resources in locating you. You have also benefitted those ensconced in power.

So say with love: Glory to Param Bir Maharaj’s appearance day! And be least bothered about those who have filed a case against you and some policemen for demanding Rs 15 crore from a builder. Now cases keep getting registered! You accused Anil Deshmukh of extorting Rs 100 crore and others accused you of seeking Rs 15 crore as bribe. Now understand that the greater the status, the greater the allegation! God alone knows the truth..!

And of course, one should really learn from you the art of executing somersault on tamarind leaves. The tamarind leaf is very small and no one can be a better acrobat than the one who can execute a somersault on it. That’s why this Hindi phrase ‘Imli Ke Patti Par Gulati Marna’ which means somersaulting on the tamarind leaf. I remembered this adage because your lawyer stated before the Chandiwal Commission that you do not have any specific evidence regarding the allegation in which you had accused Anil Deshmukh of extorting Rs 100 crore a month. You had levelled this allegation on the suggestion of some officials! Oh wow Param Bir Singh! You were the police commissioner.

As you already know that allegations require solid evidence, yet you acted like a child. Initially, you were breathing fire against the former minister, but you executed a reverse somersault when you found yourself on a sticky wicket. You are a great acrobat indeed!

I have just one request to make. Kindly don’t share and teach this magical art to other police officers because what you did has put our police system to shame! Don’t know how many skeletons in the cupboard have tumbled out and are still tumbling out. You are indeed a blessed soul, Param Bir..!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

Param Bir Singh is unique indeed. There is no other like him! He has immense potential to vanish into thin air like Mr India! The magic of staying out of sight of the police department of which he is a top officer and dodging all the government agencies is really unmatched. His appearance is no less than a miracle and calls for celebration!

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Policy & Politics

ILLEGAL USE OF LICENSED WEAPON PER SE NOT OFFENCE UNDER SECTION 27 UNLESS MISDEMEANOUR UNDER SECTIONS 5/7 PROVED: SC

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It is extremely significant to note that the Apex Court just recently on November 26, 2021 in a learned, laudable, landmark and latest judgment titled Surinder Singh vs State (Union Territory of Chandigarh) in Criminal Appeal No. 2373 of 2010 has made it absolutely clear that illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27 of the Arms Act, 1959 (“Act”). The Apex Court also observed that at best, it could be a ‘misconduct’ under the service rules. It must be also mentioned here that the Bench of Apex Court comprising of CJI NV Ramana, Justice Surya Kant and Justice AS Bopanna in this present matter was considering a criminal appeal against Punjab and Haryana High Court’s order dated May 19, 2010 (“impugned order”).

To start with, this notable judgment authored by Justice Surya Kant for CJI NV Ramana, himself and Justice AS Bopanna sets the ball rolling by first and foremost observing in para 1 that, “Appellant-Surinder Singh has laid challenge to the judgement dated 19th May 2010 of the High Court of Punjab and Haryana, whereby, the order of his conviction and sentence dated 25th July 2006 passed by Learned Additional Sessions Judge, Chandigarh was confirmed. The Appellant has been convicted under Section 307 of the Indian Penal Code, 1860 (hereinafter ‘IPC’) and Section 27 of the Arms Act, 1959 (hereinafter, ‘Arms Act’), and sentenced to rigorous imprisonment of 3 years for both the offences, with a direction that sentences will run concurrently.”

While elaborating on the facts of the case, the Bench then envisages in para 2 that, “The prosecution case in brief is that, on 10th July, 1999, Mansur Ali, Advocate (Complainant) was sitting at his residential office alongwith his clerk Maler Singh (PW-3), giving dictation to his steno, R.K. Sood (PW4). At about 5:30 PM, the Appellant, who was then a Head Constable in Chandigarh Police, entered the residential office of the Complainant in an inebriated condition and stating that he was a beat officer of the lane, asked for a glass of water. He thereafter sat across the Complainant and after consuming the water served to him by Balbir Singh (PW5), pulled out his service pistol and threatened the Complainant by pointing the pistol at him and stated that “there are 10 bullets in this gun and I will kill 20 people today”. Appellant also asked the Complainant to stand and raise his hands. At the same time, he directed Maler Singh and R.K. Sood to step outside the office, to which they complied. In the meantime, the Appellant moved around the table, towards the Complainant, pulled the lever and made himself ready to fire. Sensing the seriousness of the situation, Complainant lunged at the Appellant and pushed his hand towards the ceiling, which resulted in the bullet, fired from the pistol, hitting the ceiling of the office.”

While continuing in a similar vein, the Bench then enunciates in para 3 that, “The Appellant then attempted to fire a second time, however, he was unable to and in the said exercise a bullet fell from his pistol. By that time, the ladies of the house had entered the office and raised a holler. Panicstricken, Appellant rushed out of the office, leaving behind his wireless set on the table of the Complainant and his scooter outside the house. No injury was caused to the Complainant. The incident was then reported to the police. Upon receiving the information, about 10-15 minutes later, police officials arrived at the house of the Complainant and F.I.R. was lodged against the Appellant, whereafter, the police officials sprang into action and the Appellant was arrested by SI Ramesh Chand (PW6), who found the Appellant near the Masjid of Sector 20A, with the pistol still in his hand. Appellant was then taken for medical examination where he refused to give his urine or blood samples.”

Furthermore, the Bench then states in para 4 that, “The investigation ensued in light of the above-stated facts, and upon collection of substantial evidence, the charge sheet was filed against the Appellant. The case was committed to the Additional Sessions Judge, Chandigarh, and charges under Section 307 IPC and Section 27 of the Arms Act were framed. The Appellant abjured his culpability and claimed trial.”

Simply put, the Bench then lays bare in para 9 that, “Since there is no dispute regarding the presence of the Appellant at the residential office of the Complainant at the time of the incidence, or that the bullet was fired from his service pistol, the pivotal question before the Trial Court was, whether the Appellant fired the pistol, and if so, was the weapon used with the intent to kill the Complainant. The Trial Court observed that the prosecution witnesses had, by and large, supported the prosecution version and that no reason was adduced to depict why the Complainant would want to falsely implicate the Appellant. Although the Trial Court noted that there were some inconsistencies in the statement put forth by the prosecution witnesses, however, the same were held to be minor contradictions brought about naturally due to the passage of time. The Court found version of the Defense to be “a patch of lies and figment of imagination”, and rejected the same in its entirety.”

What’s more, the Bench then reveals in para 10 that, “As far as the charge under Section 27 of the Arms Act was concerned, the Trial Court observed that the Appellant had used his service pistol without any prior permission and for an illegal purpose. The act of firing by the Appellant was thus held to be in contravention of Section 27 of the Arms Act. The Trial Court therefore convicted the Appellant under Section 307 IPC and Section 27 of the Arms Act and awarded a sentence of rigorous imprisonment for 3 years.”

Needless to say, the Bench then states in para 11 that, “Discontented with his conviction, the Appellant preferred an appeal before the High Court of Punjab & Haryana. The High Court upon reappraisal of the evidence, sustained conviction and the consequential sentence imposed by the Trial Court and dismissed the appeal.”

Be it noted, the Bench then observes in para 30 that, “The Appellant was admittedly a police official at the time of the incidence and the arms and ammunitions used for the commission of the offence, were placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited under Section 5 of the Arms Act. It appears that the Trial Court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the Statute, which has been enacted to provide a licensing/regulatory regime, to enable law-abiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain categories of firearms, unless authorized by the Central Government. In other words, illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27, without proving the misdemeanor under Section 5 or 7 of the Arms Act. At best, it could be a ‘misconduct’ under the service rules, the determination of which was not the subject of the trial.”

As a corollary, the Bench then observes in para 31 that, “In light of the afore-stated discussion, we find that the order of the Trial Court in convicting the Appellant or of the High Court in maintaining such conviction under Section 27 of the Arms Act, is unwarranted and unjust. Accordingly, the Appellant is acquitted of the charge under Section 27 of the Arms Act.”

Most significantly, the Bench then holds succinctly in para 35 what forms the cornerstone of this brief, brilliant and balanced judgment that, “Adverting to the facts of the case in hand, we are of the considered view that at this stage, the sentence awarded to the appellant is no longer in degree to the crime which he has committed. Remitting the Appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice due to following mitigating factors:

a. No motive or element of planning has been proved by the Prosecution in the present case which indicates the possibility that the offense could have been committed on impulse by the Appellant. Hence, the culpability of the offender in such situations is less than that which is ascribed in premeditated offenses as the commission of planned illegal acts denotes an attack on societal values with greater commitment and continuity in comparison to spontaneous illegal acts.

b. Even though the factum of injury may not have a direct bearing on a conviction under Section 307 IPC, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 IPC, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant.

c. Appellant has already undergone a sentence of 3 months and 19 days. Additionally, despite the occurrence taking place in 1999, there is no indication that Appellant has been involved in any untoward activity before or after the incident. This highlights the Appellant’s good character and indicates that the incident can be interpreted as an isolated lapse of judgment. Further, the Appellant’s clean post-incident behaviour suggests that he is rational individual who is capable of responding to the social censure associated with the offence. Hence, the passage of a long time period coupled with a clean record, both before and after the incident is definitely a factor that calls for mitigation of sentence.

d. Barring this particular incident wherein he was under the influence of alcohol, the Appellant had an unblemished service record with sixteen good citations in his favour. This indicates that he was a valuable member of society than the present criminal incident might lead one to assume. This is not to say that courts should draw up a social balance sheet when sentencing, but only to take these positive social contributions as a factor for mitigation of sentence.

e. Lastly, it is to be noted that the Appellant was suspended in the year 1999 and has also been subsequently dismissed from service in the year 2007. Hence, this should also be considered as a reasonable factor for mitigation because the dismissal and the consequent loss of social security benefits such as pension, also construes as a form of social sanction.”

Finally, the Bench then aptly holds in para 36 that, “Consequently and for the afore-stated reasons, the criminal appeal is partly allowed. While the conviction and sentence awarded to the Appellant under Section 27 of the Arms Act is set aside, his conviction under Section 307 IPC is maintained. The sentence under Section 307 IPC is however reduced to the period already undergone. Since, Appellant is on bail, his bail bonds are discharged.”

To sum it up, the Apex Court thus makes it distinctly clear in this leading case that the illegal use of licensed weapon is per se not an offence under Section 27 of the Arms Act unless misdemeanor under Section 5 or 7 of the Act is proved. Of course, all the Courts whether they are Trial Courts or High Courts must always abide by what the three Judge Bench of the Apex Court comprising of CJI NV Ramana, Justice Surya Kant and Justice AS Bopanna have held so clearly, categorically and convincingly also in this noteworthy case! There can be just no denying it!

Even though the factum of injury may not have a direct bearing on a conviction under Section 307 IPC, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 IPC, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant.

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Policy & Politics

Musings of a BSF officer’s daughter

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An important part of being raised as a BSF officer’s kid was to get acquainted with the vagaries and challenges of a borderman’s job and to learn about their life-threatening situations along India’s international borders in states and union territories afflicted with insurgency and terrorism.

The task of protecting the borders stretched to the protection of villages in those areas from the enemy’s nefarious designs and activities.

In border areas, phenomena such as cross-border shelling and infiltration were routine and seldom shocked or demoralized a borderman’s family. Bordermen knew places they were posted to quite well. In several instances, their understanding was better than that of the locals, having researched every nook and corner, ditch, tunnel and ridge and topographical feature.

My father, Late Shri RS Mehta, who retired from the Border Security Force (BSF) as an Inspector General (IG), belonged to one of the first batches of officers to join the force. As a result, right from the time of BSF’s founding in 1965, he was passionately involved in the process of giving the force a shape, identity and a clear direction in over three decades of service. He held many key positions in the organization up to, and including, the Commanding Officer of a battalion.

During his very eventful career with the force, he conducted several counterterrorism operations in Jammu & Kashmir as well as planned and executed many counter-insurgency operations in the Northeastern part of India. These experiences were to later come in handy when, as a senior officer, he was instrumental in formulating many protocols and policies relating to securing the Nation’s borders.

My father used to tell us that bordermen had clearly defined protocols to deal with residents of border villages. A key part of their duty was to maintain an excellent rapport with the local population to win its faith and confidence. Moreover, in certain areas of the country, this also involved making sincere attempts to expedite the integration of the locals into the national mainstream.

I recall my father narrating his experience during his tenure as a young Commanding Officer (CO) posted at Dera Baba Nanak in Punjab’s Gurdaspur district, where he was instrumental in organizing several sports and cultural programmes for the villagers. He would always encourage them to wholeheartedly participate and excel in such events organized by BSF to become model citizens. Various prizes, certificates of merit and goodies were given to participants to build strong linkages. Papa also mentioned his efforts to work closely with Sub-Divisional Magistrates (SDMs) and Tehsildars to provide to the border villages basic facilities such as schools, dispensaries, etc., and to resolve any immediate problems that they might be facing.

Undeniably, the rapport that a borderman shares with the local population can hardly be replicated by the police or other law-enforcement agencies. In a similar vein, inhabitants of rural habitations secured by BSF feel inclined to provide security-related information, updates on border activity and other intelligence inputs.

I chanced to accompany my father to one of his border inspection tours of a remote area in Jammu & Kashmir. Certain pockets in the mountainous regions of Gul and Kishtwar were becoming host to terrorist camps. Our convoy comprising four to five vehicles swerved through the ravines of the majestic Himalayas. In a lonely spot, just by the waterfall, seeing an elderly lady walking by herself, Papa asked the driver to stop for a breather, rolled down his window and asked her, “Amma, sab theek hai na?” (Hope all is well?). To which she replied, “Ethe bus butte he butte ne!” Once the convoy started moving again, I asked my father what she meant and he laughingly told me that her evasive answer implied that there was nothing to tell as there were “only pebbles and more pebbles” in that area.

When we halted for the night at a BSF base camp, we were informed that there were many interceptions of our wireless network by the miscreants who had even challenged the inspecting officer to locate their camp and visit them for a cup of tea! Thanks to his knowledge of the culture and traditions of the area, and other information related to the region, it was possible for my father to deduce that local herdsmen, with their routine cross-border travels and nomadic way of life, had allied with the enemy. Consequently, they were providing strategic support to the miscreants from across the border.

Having understood the root of the problem, the force could carry out combing operations in the region, freeing it of the anti-national forces and, thus, cleansing the area of any terrorist camps.

It would not be wrong to say that the rigorous training of a borderman, his vast experience at the border in different terrains and familiarity with the people living in border villages, make him fit to fulfill his role of securing areas not just along the border but also beyond.

Recently, the Ministry of Home Affairs has issued a notification to widen BSF’s jurisdiction for seizure, search and arrest up to 50 kilometres from the international border in the states of Assam, West Bengal and Punjab.

On October 11, 2021, the Ministry of Home Affairs, Govt. of India announced that it was amending a 2014 notification related to the jurisdiction of the BSF to exercise its powers in states that are on the international border. This notification replaces a 2014 order under the BSF Act, 1968, which also covered the States of Manipur, Mizoram, Tripura, Nagaland and Meghalaya. It also specifically mentions the two newly created union territories of J&K and Ladakh. The BSF can carry out search and seizure operations to check and combat smuggling, illegal entry of migrants and other nefarious activities.

The Central Government’s decision to thus extend the area of jurisdiction of the BSF is, therefore, a welcome step. It will enable our bordermen to carry out combing and search operations in more areas and help the state governments concerned in weeding out anti-national elements to greatly reduce threats to national security. Further, having a centralized chain of command makes the BSF well-equipped and competent to handle issues relating to border security and to also secure the areas adjoining and adjacent to the borders.

As someone rightly noted a long time ago, the price of liberty is eternal vigilance.

The author is a practicing advocate at the Delhi High Court 

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