In a progressive, powerful and path breaking development, the Delhi High Court has in a learned, latest, laudable and landmark judgment titled Rajwinder Kaur & Anr v Central Adoption Resource Authority in W.P.(C) 279/2019 and CM APPL. 40751/2021 and connected matters has commendably issued various directions for enabling adoptive and biological parents to obtain the required certification and no objection from District Magistrates, foreign authorities and Central Adoption Resource Authority (CARA) in relation with inter country adoptions. This was the crying need of the hour also! It must be mentioned here that this development came while the Court was dealing with three cases pertaining to international adoption of Indian children.
To start with, the ball is set rolling in this notable judgment authored by a single Judge Bench of Justice Prathiba M Singh first and foremost in para 1 wherein it is put forth that, “This hearing has been done in physical Court. Hybrid mode is, however, permitted only in cases where explicit permission has been taken from the Court.”
Simply put, the Bench then points out in para 2 that, “Vide order dated 9th November, 2021, in view of the absence of a proper status report filed by CARA and non-issuance of NOCs to the Petitioners, this Court had directed the presence of Ms. Tripti Gurha, member Secretary and CEO of CARA on the next date.”
As we see, the Bench then states in para 3 that, “Further to the last order, Ms. Tripti Gurha has appeared before the Court and ld. Counsel under instructions from CARA, has made submissions today. Ld. counsels for the Petitioners have also been heard.”
To put things in perspective, the Bench then envisages in para 4 that, “Vide judgement dated 31st August, 2021, the following directions were issued:
96. In terms of the directions issued above;
a. The Secretary, Ministry of Women and Child Development, Government of India shall file a report before this Court as to the manner and mode of creating a permanent mechanism to deal with inter-country adoptions under HAMA, both direct and indirect and place the said report before this Court within a period of two months.
b. There are several errors on the website of CARA in respect of HAMA adoptions. CARA shall carry out corrections in its website and place a report before this Court within eight weeks;
c. CARA shall also frame guidelines for the processing of NOCs for inter-country adoptions under HAMA and make available forms for this purpose on the portal. Let the draft guidelines and the timelines for activating the portal be placed on record by means of a status report within two months. Details of the special Committee constituted to deal with HAMA adoptions shall also be specified in the report;
d. A status report in respect of each of the writ petitions and the processing of grant of NOCs be also filed at least one week before the next date of hearing.””
As it turned out, the Bench then discloses in para 5 that, “It is submitted by CARA’s counsel that pursuant to the judgement passed by this Court, the Adoption (Amendment) Regulations, 2021 (hereinafter “2021 Regulations”) have been notified w.e.f. 17th September, 2021. They have been framed specifically to lay down the procedure to be followed for adoption of children under the Hindu Adoptions and Maintenance Act, 1956 (hereinafter “HAMA”) by parents who desire to give their children in adoption to adoptive parents located in a foreign country. The said Regulations apply to all inter-country adoptions under HAMA, both amongst relatives and non-relatives. Under the said 2021 Regulations, there are broadly two categories:
• Category No.1 are those adoptions which were executed pre-2021 Regulations; and
• Category No.2 are adoptions undertaken post the coming into effect of the 2021 Regulations.”
Furthermore, the Bench then enunciates in para 6 that, “On behalf of CARA, it is further submitted that upon the 2021 Regulations coming into effect, various steps have been taken by CARA including:
(i) Appointment of an officer at the level of an Assistant Director as the Nodal Officer for dealing with HAMA-related adoptions;
(ii) Communications have been issued to all State Governments through the Principal Secretary, Ministry of Woman and Child Development, informing them of the 2021 Regulations coming into effect and seeking their cooperation in implementation of the same; and
(iii) Various webinars have been conducted by CARA to sensitize all stakeholders, since the first week of November, 2021.”
What’s more, the Bench then brings out in para 7 that, “On behalf of the Petitioners who are before this Court, it is submitted that no NOCs have been issued to any of the parties and the process of issuance of NOCs is at different stages.”
Needless to say, the Bench then specifies in para 8 that, “In W.P.(C) 279/2019, the Petitioners have appeared before CARA and requisite documentation has been submitted. The DM’s certificate has also been obtained by the Petitioners on 11th November, 2021 and has been submitted to CARA. Thereafter on 16th November, 2021, CARA has written to the relevant central authority in Spain seeking the required certification under Article 5 and Article 17 of the Convention on Protection of Children and Co-Operation in respect of Inter-country Adoption, 1993 (hereinafter “Hague Convention”). Copy of the said communication has been shown to the Court. This communication has however not been marked to the Petitioner. A copy of that said letter has now been given to the ld. Counsel for the Petitioner who may follow up with the Spanish authorities on the status of the said certification. Post the said certificate being obtained, it is assured to the Court that CARA would initiate steps to issue the NOC, expeditiously.”
Going ahead, the Bench then further specifies in para 9 that, “Insofar as W.P.(C) 10064/2019 is concerned, it is submitted by ld. Counsel for the Petitioner that the documents could not be submitted by the Petitioner to CARA as the counsel had met with an accident. Accordingly, the required documents have now been submitted to CARA and also to the ld. Counsel for CARA, in Court. Petitioner/Petitioner’s authorized representative to appear before CARA on 26th November, 2021, at 2:30 p.m., in this regard.”
Not stopping here, the Bench then further brings out in para 10 that, “In W.P.(C) 11168/2020, the adoption is by the paternal uncle (Chacha) of the child who is located in the USA. The Petitioner to accordingly appear before the Nodal Officer physically or through authorized representative to submit the requisite documents and obtain the NOC. The Petitioner/authorized representative to appear before CARA on 26th November, 2021, at 1:30 p.m.”
Adding more to it, the Bench then stipulates in para 11 that, “In both W.P.(C) 10064/2019 and W.P.(C) 11168/2020, the Nodal Officer shall meet the Petitioner/authorized representative and coordinate with the concerned District Magistrate in order to enable the Petitioners to obtain the verification from the concerned District Magistrate expeditiously. Upon the same being obtained, CARA assures the Court that it would take necessary steps in terms of the 2021 Regulations to move forward for issuance of the NOC. All communications either with the District Magistrate or with any foreign authority shall be copied to the authorized representative of the Petitioners, as also the Petitioners, so that the Petitioners are duly informed of the progress of the application for issuance of NOC.”
Most crucially, what forms the cornerstone of this brief, brilliant and balanced judgment is then encapsulated in para 12 wherein it is held that, “From the facts that emerge in these three writ petitions, this Court notes that the main issue that arises for the applicants is the obtaining of verification from the concerned SDMs/DMs in terms of Schedules XXXIII and XXXIV of the 2021 Regulations. The second issue that arises is also as to the manner in which the coordination is to be effected between the adoptive child, adoptive parents, the relevant foreign agencies, CARA and the biological parents. In order to provide assistance and enable adoptive and biological parents to obtain the required certification and obtain no-objection from both District Magistrate as also the foreign authorities, CARA would consider implementing the following steps:
(i) Creation of a database of all SDMs/District Magistrates as also the State Adoption Resource Agencies and District Child Protection Unit who will need to be contacted for the purpose of verification and issuance of certificates;
(ii) Publication of such a database on CARA’s website;
(iii) Creation of a help desk at CARA which shall be available both physically and online. The help desk/helpline should have a 24- hour helpline, considering the time differences in different jurisdictions. This would enable adoptive parents to contact CARA as per their convenience. The feasibility of the same shall be reviewed by CARA and shall be submitted before this Court by way of a status report;
(iv) CARA shall also consider permitting advocates/lawyers to appear as authorized representatives to coordinate and facilitate the various formalities that are required to be undertaken;
Read concluding section on thedailyguardian.com
(v) Mechanism to be created to enable biological or adoptive parents to appear even virtually or be available telephonically, whenever CARA requires to contact them or interact with them;
(vi) All communications with foreign authorities or District Magistrates or any other parties made by CARA shall also be copied by an e-mail to the party concerned as also their authorized representatives so that the procedure being followed and the progress of the application is within their knowledge as well. This would also enable the parties concerned to follow up with the concerned foreign authority or with the District Magistrate for issuance of the certification.”
Be it noted, the Bench then lays bare in para 13 that, “Mr. Atul Nagarajan (Mb. No. 9811169087), ld. Counsel who is familiar with adoption matters and who is present in Court today, is appointed as an Amicus Curiae to assist the Court in these petitions. Mr. Nagarajan, may be provided with electronic copies of these writ petitions by the Court Master, to enable him to assist this Court.”
It is worth noting that the Bench then directs in para 14 that, “Let a status report in respect of the implementation of the above steps be placed on record within two weeks. In the status report, CARA shall also mention the details of the number of applications which are pending for inter-country adoption and the time period for which they have been pending with CARA. Steps taken qua each of the applications and their respective status shall also be placed before the Court. In the case of all inter-country adoption applications which are pending, CARA shall inform the parties concerned about the 2021 Regulations so that the said applications can also be processed towards issuance of NOCs.”
For sake of clarity, the Bench then also added in para 15 that, “In the meantime, all the ld. Counsels for the Petitioners as also the ld. Amicus Curiae may place on record their suggestions if any, in this regard.”
Quite significantly, the Bench then directs in para 16 that, “Let Court notice be issued to Mr. Kirtiman Singh, ld. CGSC, Union of India, with a copy of this order to enable him to obtain instructions from Ms. Preeti Pant, Joint Secretary, Ministry of Women and Child Development, Government of India. The Union of India to also place on record the status report in respect of the implementation of the 2021 Regulations.”
Of course, the Bench then hastens to add in para 17 that, “On the next date, the Nodal Officer for HAMA adoptions, at CARA, shall be present in Court.”
It is worth paying attention that the Bench then directs in para 18 that, “List these petitions on 20th December, 2021.”
Finally, the Bench then concludes by making it clear in para 19 that, “These are part-heard matters.”
In a nutshell, this extremely commendable, cogent, composed, concise and convincing judgment by a single Judge Bench of Justice Prathiba M Singh of the Delhi High Court lays bare the steps to be taken for enabling adoptive and biological parents to obtain the required certification and no objection from District Magistrates, foreign authorities and Central Adoption Resource Authority (CARA) in relation with inter country adoptions. The same must be done at the earliest. This is the real purpose also of this learned judgment and so its implementation brooks no delay!
Sanjeev Sirohi, Advocate
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Femtech Apps: An Analysis
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
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.
Vehicle Scrappage Rules’ Enforcement in current times
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.
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.
Back from the brink: Positivity is the key
“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.
Self-proclaimed appearance of Param Bir Singh
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!
ILLEGAL USE OF LICENSED WEAPON PER SE NOT OFFENCE UNDER SECTION 27 UNLESS MISDEMEANOUR UNDER SECTIONS 5/7 PROVED: SC
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.
Musings of a BSF officer’s daughter
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.
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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