Police personnel cannot be appointed jail superintendent, says Uttarakhand HC - The Daily Guardian
Connect with us

Legally Speaking

Police personnel cannot be appointed jail superintendent, says Uttarakhand HC

Published

on

In a significant judgement pertaining to prisoners rights and affecting them directly, the Uttarakhand High Court has in a latest, landmark, laudable and learned judgement titled Sanjeev Kumar Akash v. State of Uttarakhand & Ors in Writ Petition (PIL) No. 25 of 2021 delivered on 12 April 2021 has held that police personnel cannot be appointed as Jail Superintendent. A Division Bench comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma observed that we have come to the age of “Reformation and Rehabilitation of Prisoners”. It held that the purpose of police is very different from that of Jail Superintendents and as a natural corollary, their trainings and psyche are poles apart. Hence the former cannot possess the position of the latter.

To start with, Chief Justice Sri Raghvendra Singh Chauhan who has authored this notable judgment for a Bench comprising of himself and Justice Alok Kumar Verma of the Uttarakhand High Court sets the ball rolling by first and foremost pointing out in para 1 that, “Mr. Sanjeev Kumar Akash, the petitioner, has filed the present Public Interest Litigation in order to challenge the order dated 12.02.2021, passed by the Secretary, Department of Home, the respondent no. 2, whereby the Officers of the Police Department have been given the additional charge of the office of the Senior Superintendent/Superintendent of Jail at Sitarganj, Haldwani, Haridwar, Dehradun and Roorkee. The petitioner has further challenged the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, the respondent no. 3, whereby the Officers of the Police Department have been transferred, and posted with the additional charge of Senior Superintendent/Superintendent of Jail at various prisons in the State of Uttarakhand.”

While elaborating on the facts of the case, the Bench then enunciates in para 2 that, “Briefly stated, the facts of the case are that, as per the structure in the Department of Prison in the State of Uttarakhand, there are three sanctioned posts of Senior Superintendent of Jail, and nine sanctioned posts of Superintendent of Jail. Out of the nine sanctioned posts of Superintendent of Jail, four posts are to be filled up by way of direct recruitment, and five posts are to be filled up by way of promotion from the post of Jailor. Presently, one post of Senior Superintendent of Jail, and four posts of Superintendent of Jail, have been filled up. Therefore, currently two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail are lying vacant. According to the State Government, considering the difficulties faced in running the Jails properly, it has taken a conscious decision to give additional charge of Senior Superintendent of Jail, and Superintendent of Jail, to officers of the Indian Police Service (IPS). Hence, the present Public Interest Litigation before this Court.”

On the one hand, the Bench first dwells on the petitioner’s contentions in para 3 stating that, “Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has raised the following contentions before this Court :-

Firstly, that the job responsibility and the training of the Police Officers, and those of the Officers of the Jail Administration, stand on different plains. The duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order. On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners. Since the job responsibilities are of different nature, the psychological makeup, the thinking, the conduct of the Police Officers and the Jail Officers, perforce, has to be quite different. Whereas, generally a Police Officer sees an offender as a culprit, as a person who has violated the law, and thus deserves to be condemned and punished, the Officers of the Department of Prison see prisoners as human beings, who have erred, who need to be reformed, who need to be rehabilitated, and brought back as productive members of the society. Thus, the very philosophy behind the interaction between a Police Officer and an offender, and the interaction between a Jail Officer and the prisoner, stand on a different footing. Therefore, one cannot be confused with the other.

Secondly, keeping this distinction in mind, even law has bifurcated these two services into two different classes; the laws have empowered them differently. Therefore, to confuse these two classes would be violative of the fundamental philosophy, which govern these two different services.

Thirdly, this bifurcation of the two departments, and the philosophy behind working of the two departments, is not unique to India. But has universal application throughout the world. According to the learned Senior Counsel, the United Nations has issued “Standard Minimum Rules for the Treatment of Prisoners”, better known as “the Nelson Mandela Rules”. These Rules prescribe the “good principles and practice in the treatment of prisoners and prison management”. Rules 74 to 82 deal with “Institutional Personnel”. Rule 74 provides for “careful selection of every grade of the personnel”. It emphasises “on their integrity, humanity, professional capacity, and personal suitability for the work that the proper administration of prisons depends”. Rule 74(3) further stresses on the need for appointment of prison personnel “on a full-time basis”. Rule 75(2) states that “before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences”. Rule 76 further states that the training referred to in Rule 75(2) shall include, at a minimum, training on “rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners, and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment, or punishment.” Rule 79 further states that “the Prison Director (Superintendent of Jail in India) shall devote his or her entire working time to official duties, and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.”

Relying on the Nelson Mandela Rules, the learned Senior Counsel has emphasised that the Superintendents of Jail are required to undergo a particular training, which will inculcate a sense of dignity of all the prisoners, will make them humane, and sensitise them to the plight of the prisoners, to their families, and to the prison conditions. The learned Senior Counsel has further stressed on the need for appointing the Senior Superintendent/Superintendent of Jail on a full-time basis, rather than on a part-time basis.

Fourthly, referring to the Uttar Pradesh Jail (Group A and B) Service Rules, 1982 (for short “the Rules, 1982”), the learned Senior Counsel has submitted that Rule 3(k) defines the post of “Superintendent, District Jail” to mean “the whole-time Superintendent, Jail appointed in accordance with the 1982 Rules”. According to Rule 5(6) of the Rules, 1982, the post of Superintendent of District Jail is to be filled up fifty percent by direct recruitment, and fifty percent by promotion from amongst the regularly appointed Deputy Superintendents/Jailors with a minimum of five years’ service as Deputy Superintendents, or Jailors or both. Moreover, Rule 14 deals with “determination of vacancies”. Rule 15 deals with the “procedure for direct recruitment”. Rule 16 deals with the “procedure for recruitment by promotion to the post of Superintendent, District Jail”. Therefore, according to the learned Senior Counsel, the procedure for making an appointment to the post of Senior Superintendent/Superintendent of Jail is clearly prescribed by Rules 14, 15 and 16 of the Rules, 1982. These Rules do not permit ad-hoc appointment of Police personnel on the post of Senior Superintendent/Superintendent of Jail. Therefore, the impugned orders are clearly in violation of the Rules, 1982.

Fifthly, even the Code of Criminal Procedure, prevents the keeping of an undertrial prisoner in police custody beyond a stipulated period of time. According to Section 167 of Cr.P.C, an accused cannot be detained in police custody beyond a period of fifteen days. In case the investigation is not completed within a period of ninety days, for offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, the offender would have to be granted bail under Section 167(2)(a)(i) Cr.P.C. Therefore, even the Cr.P.C. does not envisage keeping of undertrial prisoners in police custody for too long a period. Even otherwise, while keeping an offender in judicial custody, he/she cannot be kept beyond a period of sixty days or ninety days in case the investigation were not completed within the stipulated period of time. Moreover, in case the investigation were to be completed within the stipulated period of sixty days or ninety days, and in case bail were not granted by a competent Court, an undertrial is required to be kept in judicial custody. But, by appointing police personnel as Senior Superintendent/Superintendent of Jail, for all practical purposes, the custody is suddenly changed from a judicial one to a police one. Therefore, the learned Senior Counsel submits that the impugned orders violate the letter and the spirit of Section 167 Cr.P.C.

Lastly, despite the fact that a prisoner loses the freedom of movement, he/she continues to enjoy the other fundamental rights, as guaranteed by the Constitution of India. Therefore, Article 21 of the Constitution of India, guaranteeing protection of Life and personal liberty, continues to shine even in the dark corners of a prison cell. According to the learned Senior Counsel, once a procedure has been established by law that too a procedure backed by certain penological philosophy- it cannot be violated by the State. Therefore, the State is legally bound to implement the service rules as contained in the Rules, 1982, to implement the requirements of Cr.P.C, to implement the constitutional philosophy, as embodied in the Preamble of the Constitution of India, and to implement the “Nelson Mandela Rules”. Hence, according to the learned Senior Counsel, the impugned orders deserve to be set-aside by this Court.”

On the other hand, the Bench then further states about the States contention in para 4 wherein it is put forth that, “On the other hand, Mr. Anil Kumar Bisht, the learned Additional Chief Standing Counsel for the State, has raised the following counter-contentions before this Court :-

Firstly, in the order dated 17.11.2006, issued by the Principal Secretary, Uttaranchal Administration, it was clearly mentioned that the Inspector General of Prisons would either be the Secretary, Home, or IAS officers, or of equivalent posts. Similarly, Additional Inspector General of Prisons would be from the post of Additional Secretary, Home/Joint Secretary, Home, or from PCS Cadre. In fact, even presently, the post of the Inspector General of Prisons is occupied by a person belonging to the IPS cadre. Therefore, the appointment of police personnel to the post of Senior Superintendent/Superintendent of Jail can certainly be made from Police Officers.

Secondly, considering the fact that presently there are two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail, which are lying vacant, considering the fact that direct recruitment to these posts would require some time, considering the fact that there is no one in the post of Jailors, who has completed five years of required service for being promoted to the post of Senior Superintendent/Superintendent of Jail, the State is justified in making Police Officers incharge of these two posts on a temporary basis. Therefore, the learned counsel has supported the impugned orders.”

As a corollary, the Bench then brings out in para 5 that, “In rejoinder, Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has pleaded that the letter dated 17.11.2006 does not support the case of the State. For, while the post of Inspector General of Prisons and Additional Inspector General of Prisons may be permitted to be filled up from IPS Officers, the post of Senior Superintendent/Superintendent of Jail is covered by the Rules, 1982. Once the Rules, 1982 have been promulgated, they cannot be diluted by a mere letter issued by the Principal Secretary. In fact, the appointment to the post of Senior Superintendent/Superintendent of Jail has to be strictly in accordance with the Rules, 1982.”

Needless to say, the Bench then after hearing the learned counsel and perusing the impugned orders as stated in para 6, it is then brought out in para 7 that, “Prisons are as ancient as human civilization. Initially, prisons were created as detention centres for detaining those who were threat to the political power. According to the Bhagavata Purana, an ancient text on the life of Lord Krishna, his parents, Devaki and Vasudeva, were imprisoned by Kansa, the King of Mathura. However, over the centuries, prisons were constructed for the purpose of punishing those, who violate the law. Soon the purpose of prisons was changed from detention to punishment. In ancient Athens, Socrates was imprisoned for punishing him for having corrupted the minds of the youth. Long imprisonment sentences catered to the retributory and deterrent theories of punishment.”

Quite alarmingly, the Bench then observes in para 11 that, “In 1835, Lord Macaulay presented a note to the Legislative Council in India as he was shocked by the horrifying and inhumane conditions prevalent in the Indian jails. The next year, on 02.01.1836, Lord William Bentick constituted a “Prison Discipline Committee”. The report of this Committee, submitted to Lord Auckland in 1838, revealed the rampant corruption, the laxity in discipline, and the abuse of men and women, who were imprisoned. However, surprisingly, the Committee rejected the thought of reforming the criminals.”

Going ahead, the Bench then further observes in para 12 that, “Over the years, the “Conference of Experts” held in 1877, and the “Fourth Jail Commission” in 1888, recommended that there should be a uniformity in all the Jails functioning in British India. Since Indians were seen as subjects and not as citizens, since the Britishers saw themselves as the Ruler, they recommended rigorous prison sentences, and even punishments within the confines of the Jails, such as whipping and solitary confinement, and keeping the prisoners in gunny clothing. The outcome of the recommendations of the “Conference of Experts” and the “Fourth Jail Commission” was the enactment of the “Prisons Act of 1894”. The Prisons Act, 1894 continues to govern most of the Jails even today.”

Needless to say, it is quite baffling that why no new Prisons Act has been passed even after 127 years till now? Why our lawmakers care a damn for the prisons? Why they never acted till now to meet the conditions of prisons to the present circumstances and now that of 1894 or 1895?

In this context, it has to be mentioned that the Bench then elucidates in para 13 stating that, “The “All India Jail Committee (1919-1920)” for the first time recommended the reformation and rehabilitation of offenders as one of the objectives of the prison administration. The Committee spoke about the adequate training of the prison staff, and about the separation of executive/custodial, ministerial and technical staff in prison service. The Committee believed that a different sort of training needs to be provided to the prison staff, than the training being provided to the police staff.”

Furthermore, the Bench then mentions in para 14 that, “After independence, a number of Committees have been constituted, beginning with the Jail recommendations made by Dr. W.C. Reckless, a U.N. Expert on Correctional Work. While submitting his report on “Jail Administration in India”, he advocated the reformative theory of punishment; he emphasised on specialized training of correctional personnel; he stressed on the need for a cadre of properly trained personnel staff.”

While underscoring the dire need to ameliorate the condition of prisons and prisoners, the Bench then states in para 15 that, “In 1972, the Ministry of Home Affairs, Government of India, appointed a “Working Group on Prisons”. In its report submitted in 1973, the Committee again emphasised the need for proper training of prison personnel. It also stressed that “prison administration should be treated as an integral part of the social defence components of national planning process”. Thus, the very basis for prison administration was to protect, reform and rehabilitate the prison population. Moreover, the prison population is not a population to be neglected. But it is a population, which needs to be encouraged to be productive. Therefore, skill upgradation is a sine qua non.”

While continuing in a similar vein, the Bench then observes in para 16 that, “In 1980, the Government of India constituted an “All India Committee on Jail Reforms” under the chairmanship of Hon’ble Mr. Justice A. N. Mulla. The Mulla Committee submitted 658 recommendations. According to the Committee, prisons in the country shall endeavour to reform and reassimilate offenders in the social milieu by giving them appropriate correctional treatment. One of the most important recommendations is that “prison services shall be developed as a professional career service. The State shall endeavour to develop a well-organized prison cadre based on appropriate job requirements, sound training and proper promotional avenues. The efficient functioning of prisons depends, undoubtedly, upon the personal qualities, educational qualifications, professional competence and character of prison personnel. The status, emoluments and other service conditions of prison personnel should commensurate with their job requirements and responsibilities. An All-India Service, namely the ‘Indian Prisons and Correctional Service’ shall be constituted to induct better qualified and talented persons at higher echelons. Proper training of prison personnel shall be developed at the ‘national, regional and State levels’.”

Quite significantly, the Bench then lays bare in para 17 that, “On 17.07.2009, the Ministry of Home Affairs, Government of India had written to the Principal Secretary (Prison)/Secretary (Home) (In-charge of Prisons) – All State Governments / UTs DGs/ IGs incharge of prisons- All State Governments / UTs, wherein it had emphasised the large number of judgments delivered by the Hon’ble Supreme Court with regard to the prison administration and the jail system prevalent in India. It had further made certain recommendations as under:-

(i) Establishing well equipped training infrastructure in the State, with adequate skilled and well qualified instructional staff, to cater to the normal needs of basic and in-service training for the prison staff in different discipline.

(ii) Creating adequate posts for prison staff as per norms in different categories, commensurate with operational needs of safe custody, reformation, rehabilitation, health care, legal assistance etc.

(iii) Filling up all the vacancies, presently running up to 17.58% (in 2006) within time bound frame and ensure proper cadre management through timely trainings, promotions, recruitments etc.”

While dwelling on the yeoman role of the Apex Court, the Bench then puts forth in para 18 that, “Over the decades, the Hon’ble Supreme Court has rushed to the rescue of the prisoners. The Apex Court has not only given the protection of Article 21 of the Constitution of India to the prisoners, but has also emphasised on the penological philosophy of reformation, and rehabilitation of the prisoners. It has, thus, stressed on the need for having a well-trained prison staff, who would cater to the needs of the prisoners on a full-time basis.”

Quite pertinently, the Bench then observes in para 19 that, “Recently, in the case of Inhuman Conditions In 1382 Prisons, In re [(2018) 18 SCC 777], keeping in mind the dire necessity of reforming in prison administration, and the prison management, the Hon’ble Supreme Court has constituted a Supreme Court Committee on “Prison Reforms” consisting of : (i) Hon’ble Mr Justice Amitava Roy, a former Judge of the Supreme Court as its Chairperson, (ii) Inspector General of Police, Bureau of Police Research and Development as its Member, and (iii) Director General (Prisons) Tihar Jail, New Delhi as its Member.

The Committee has made the following recommendations with regard to the staffing patterns in the jails:

“RECRUITMENT OF STAFF

The Hon’ble Court may issue following directions in this regard:-

(a) All State Governments will hold special recruitment drives to fill up the existing vacancies in different ranks with the following timelines.

(i) In case of regular recruitment against permanent vacancies, the recruitment process should start within three months and should be completed within one year in the maximum.

(ii) All promotional vacancies should be filled up within six months”.”

Of immense significance is what is then stated in para 20 that, “At the International level, the United Nations has issued the “Nelson Mandela Rules”, which deal with the “Standard Minimum Rules for the Treatment of Prisoners”.

Please read concluding on thedailyguardian.com

As mentioned hereinabove, these Rules prescribe the accepted good principles, and practices in the treatment of prisoners and prison management. Rules 74 to 82 deal with “Institutional Personnel”.”

On these Rules, it is first and foremost stated in para 21 that, “Rule 74 is as under :-

“Rule 74

1. The prison administration shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of prisons depends.

2. The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance, and to this end all appropriate means of informing the public should be used.

3. To secure the foregoing ends, personnel shall be appointed on a full-time basis as professional prison staff and have civil service status with security of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women; employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.””

As we see, the Bench then states in para 22 that, “Rule 75 is as under :-

“Rule 75

1. All prison staff shall possess an adequate standard of education and shall be given the ability and means to carry out their duties in a professional manner.

2. Before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences. Only those candidates who successfully pass the theoretical and practical tests at the end of such training shall be allowed to enter the prison service.

3. The prison administration shall ensure the continuous provision of in service training courses with a view to maintaining and improving the knowledge and professional capacity of its personnel, after entering on duty and during their career.””

As we progress, we see that the Bench then observes in para 23 that, “Rule 76 is as under :-

“Rule 76

1. Training referred to in paragraph 2 of rule 75 shall include, at a minimum, training on:

(a) Relevant national legislation, regulations and policies, as well as applicable international and regional instruments, the provisions of which must guide the work and interactions of prison staff with inmates;

(b) Rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment or punishment;

(c) Security and safety, including the concept of dynamic security, the use of force and instruments of restraint, and the management of violent offenders, with due consideration of preventive and defusing techniques, such as negotiation and mediation;

(d) First aid, the psychosocial needs of prisoners and the corresponding dynamics in prison settings, as well as social care and assistance, including early detection of mental health issues.

2. Prison staff who are in charge of working with certain categories of prisoners, or who are assigned other specialized functions, shall receive training that has a corresponding focus.””

Not stopping, the Bench then adds in para 24 that, “Rule 79 is as under :-

“Rule 79

1. The prison director should be adequately qualified for his or her task by character, administrative ability, suitable training and experience.

2. The prison director shall devote his or her entire working time to official duties and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.

3. When two or more prisons are under the authority of one director, he or she shall visit each of them at frequent intervals. A responsible resident official shall be in charge of each of these prisons.””

Be it noted, the Bench then hastens to add in para 25 that, “Since India is a member of the United Nations, these Rules are equally binding on the country. Therefore, neither these Rules, nor the recommendations of the various Committees, nor the letter issued by the Ministry of Home Affairs, Government of India dated 17.07.2009, can possibly be ignored by the State.”

What’s more, the Bench then observes in para 26 that, “All these recommendations, and Rules are in conformity with the great transformation, which has occurred in the theory of punishment : from the theory of “Retribution And Deterrence”, we have come to the age of “Reformation and Rehabilitation of Prisoners”. These Committee recommendation and the Nelson Rules emphasize the need for carefully selecting the prison personnel, for providing rigorous training, both prior to their joining the service, and subsequent thereto, of the appointment being a full-time, regular appointment. It is only when these factors are inculcated in the prison administration that the prison system succeeds in protecting, reforming and rehabilitating the prisoners. Otherwise, it is a self-defeating proposition.”

Quite remarkably, the Bench then waxes eloquent to hold in para 27 that, “Needless to say, the purpose of the Police is not to reform, or to rehabilitate, but to prevent the occurrence of crime, and to punish the criminals. Therefore, the very training of a police personnel is carried out with a different purpose in mind, and with different goals prescribed by law. Thus, there is a vast difference in the philosophy that permeates the police administration, and the jail administration. Hence, even their training and the psychology of the police personnel and prison personnel are poles apart.”

No less remarkable is what is then divulged in para 28 that, “Keeping the differences in two systems, the Rules, 1982 clearly provide that the post of Superintendent, District Jail should necessarily has to be filled up in accordance with the Rules, 1982. Rule 5(6) of the Rules, 1982 is as under :-

“5(6) Superintendents, District Jails. – (i) 50 per cent of posts in the cadre by direct recruitment through the Commission.

(ii) 50 per cent of post in the cadre by promotion through the Commission from amongst regularly appointed Deputy Superintendents/Jailors with a minimum of 5 years services as Deputy Superintendents of Jailors or both.””

In the same vein, the Bench then points out in para 29 that, “Rule 14 of the Rules, 1982 is as under :-

“14. Determination of vacancies.- The appointing authority shall determine and intimate to the Commission the number of vacancies on the posts of Superintendents, District Jails to be filled during the year of recruitment as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under Rule 6.””

Going forward, the Bench then envisages in para 30 that, “Rule 15 of the Rules, 1982 is as under :-

“15. Procedure for direct recruitment.- (1) Application for permission to appear in the competitive examination for direct recruitment shall be invited by the Commission in the prescribed form which may be obtained from the Secretary to the Commission on payment, if any.

(2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission.

(3) After the results of the written examination have been received and tabulated the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes, and others under Rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.

(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of-marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidate obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. The number of names in the list shall be larger but not larger by more than 25 percent of the number of vacancies. The Commission shall forward the list to the appointing authority.

Note. – The syllabus and rules for the competitive examination shall be such as may be prescribed by the Commission from time to time.”

Also, still ahead, the Bench then states in para 31 that, “Rule 16 of the Rules, 1982 is as under :- “16. Procedure for recruitment by promotion to the post of Superintendent, District Jail.- Recruitment by promotion to the post of Superintendent of District Jail shall be made on the basis of seniority subject to the rejection of the unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time.””

Most significantly, the Bench then minces no words to state it upfront in para 32 that, “A bare perusal of these Rules of 1982 clearly reveals that the post of Superintendent of Jail necessarily has to be filled up either by direct recruitment (fifty percent), or by promotion (fifty percent). The Rules do not permit an ad-hoc appointment from any other service, much less the police service. Therefore, the post can be filled up either directly from candidates from the open market, or from the post of Deputy Superintendents/Jailors having a work experience of minimum of five years. Hence, the appointment of the police personnel, by the impugned orders, is clearly illegal.”

Equally significant is what is then pointed out in para 33 that, “Although the learned counsel for the State has tried to support the impugned orders ostensibly on the ground that the Inspector General of Prisons and the Additional Inspector General of Prisons can be appointed from the IPS cadre, the said argument is clearly untenable. For, once the Rules, 1982, which deal with Group A and B services, clearly provide a procedure for determination of vacancy, and selection and promotion for filling up the post, the said Rules cannot be deviated from. After all, it is a settled position of law that once a procedure has been established by law, it cannot be circumvented from. Therefore, merely because the post of Inspector General of Prisons, and Additional Inspector General of Prisons can be filled up from persons belonging to the IPS cadre, it does not empower the State to fill up the post of the lower echelons by posting police personnel on the post of Senior Superintendent/Superintendent of Jail.”

As a consequence, the Bench then holds in para 34 that, “For the reasons stated above, the impugned order dated 12.02.2021 passed by the Secretary, Department of Home, respondent no. 2, and the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, respondent no. 3, are hereby set-aside. The State is directed to immediately fill up the posts of Senior Superintendent and Superintendent of Jail either through direct recruitment, or through promotion. Since the Rules permit ad-hoc promotion as a temporary measure, even ad-hoc promotions may be granted by the State till regular promotions are made. The said exercise shall be carried out as expeditiously as possible and preferably within one month from the date of receiving the certified copy of this judgment.” Finally, it is then held in para 35 that, “The Writ Petition is, hereby, allowed.”

No doubt, words cannot be adequate to describe the brilliance with which this judgment is written which is par excellence and substantiating them with relevant Rules followed in India and simultaneously backing them up with rules at international level as for instance the Nelson Mandela Rules issued by UN already dwelt in detail above dealing with the standard minimum rules for the treatment of prisoners. It is now abundantly and manifestly clear from the aforesaid discussion that we had on the ruling by a two Judge Bench of the Uttarakhand High Court comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma that police personnel cannot be appointed as jail superintendents.

Sanjeev Sirohi, Advocate,

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

DISPOSE OF EXECUTION PROCEEDINGS WITHIN SIX MONTHS FROM THE DATE OF FILING: SC ISSUES DIRECTIONS TO REDUCE DELAY

In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.

Published

on

While taking the right stand, the Supreme Court just recently on April 22, 2021 in a latest, landmark, laudable and learned judgment titled Rahul S Shah vs Jinendra Kumar Gandhi in Civil Appeal Nos. 1659-1660 of 2021 (@ Special Leave To Appeal Nos. 7965-7966/2020) and 2 Other Civil Appeals while issuing directions to reduce delays in the execution proceedings observed that an Executing Court must dispose of the Execution Proceedings within six months from the date of filing which may be extended only by recording reasons in writing for such delay. It must be mentioned here that the Bench of Apex Court headed by former CJI SA Bobde asked the High Courts to reconsider and update all the Rules relating to Execution of Decrees made under exercise of its powers under Article 227 of the Constitution of India and Section 122 of CPC, within one year of this order. The Bench also comprising of Justices L Nageswara Rao and S Ravindra Bhat observed that, “These directions are in exercise of our jurisdiction under Article 142 read with Article 141 and Article 144 of the Constitution of India in larger public interest sub-serve the process of justice so as to bring to an end the unnecessary ordeal of litigation faced by parties awaiting fruits of decree and in larger perspective affecting the faith of the litigants in the process of law.”

To start with, the ball is set rolling in para 2 wherein it is put forth that, “The present appeals arise out of the common judgment and order dated 16th January, 2020 of the Karnataka High Court which dismissed several Writ Petitions. The course of the litigation highlights the malaise of constant abuse of procedural provisions which defeats justice, i.e. frivolous attempts by unsuccessful litigants to putting up spurious objections and setting up third parties, to object, delay and obstruct the execution of a decree.”

While elaborating in detail, the Bench then observes in para 3 that, “The third respondent (hereafter referred to as ‘Narayanamma’) had purchased a property measuring 1 Acre (Survey No. 15/2) of Deevatige Ramanahalli, Mysore Road, Bengaluru (hereafter referred to as ‘suit property’) under the sale deed dated 17.03.1960. The suit land was converted and got merged in the municipal limits of Bengaluru and was assigned with Municipal Corporation No. 327 and 328, Mysore Road, Bengaluru. Narayanamma sold 1908 square yard of the suit property in Municipal Corporation (Survey No. 327) to 2nd and 3rd respondents (hereafter referred to ‘Jitendra’ and `Urmila’) under a sale deed dated 13.05.1986. This was demarcated with the sketch annexed to the sale deed. The adjacent portion of property, Survey No. 327 was sold to Shri Moolendra Kumar Gandhi and Smt. Baby Gandhi by another sale deed dated 13.05.1986. This property was also demarcated in the sketch and clearly shows its dimensions and boundaries annexed to the sale deed. Therefore, the first two respondents, Shri Moolendra Kumar Gandhi and Smt. Baby Gandhi became absolute owners of the suit property with the totally admeasuring of 3871 square yards. Thus, Narayanamma had sold about 34,839 square feet of the property out of 1 Acre land (43,860 square feet) owned by her. Subsequently, after the sale of the major portion of the said property to the first two respondents and their brother, Narayanamma who is the mother of A. Ramachandra Reddy the fourth respondent (hereafter called “the vendors”) filed a suit1 for declaration that the two sale deeds in favour of the first two respondents (also called “purchasers” or “decree-holders”) as well as against Shri Moolendra Kumar Gandhi etc. were void. The vendors and Shri Anjan Reddy (deceased respondent no. 8) on 25.03.1991 executed a registered partition deed. This document did not advert to the sale deed executed in favour of the purchasers and Shri Moolendar Kumar Gandhi and Smt. Baby Kumari Gandhi. The purchasers were restrained by an injunction from entering the property which Narayanamma claimed was hers.”

To put things in perspective, the Bench then points out in para 4 that, “During the pendency of the suit for declaration, the first purchasers filed two suits (O.S. Nos. 9077/ 1996 and 9078/1996) against the vendors for possession. During the pendency of these suits on 11.02.2000 by two separate sale deeds Shri Dhanji Bhai Patel and Shri Govind Dhanji Patel purchased 7489 square feet and 7650 square feet respectively, out of the residue of the property owned by Narayanamma. While so, during the pendency of the suits instituted by the purchasers, the vendors again sold the suit property i.e. the land to the present appellant (Rahul Shah) and three others (Respondents no. 5-7) by four separate sale deeds. (Dated 09.11.2001, 12.12.2001, 05.12.2002 and 20.10.2004) In the possession suits the vendors filed counter claims (dated 18.04.1998). During the pendency of proceedings the purchasers sought for transfer and mutation of property in their names which were declined by the Municipal Corporation; this led to their approaching the High Court in Writ Petition No. 19205/1992 which was disposed of with a direction (Dated 05.11.1998) that after adjudication of the injunction suit (filed by the vendors) the khata be transferred.”

Furthermore, the Bench then states in para 5 that, “The proceedings in the injunction suit filed by the vendors and the other two suits filed by the purchasers were clubbed together. The City Civil Judge, Bangalore by a common judgment dated 21.12.2006 allowed and decreed the suits for possession preferred by the purchasers and dismissed the vendor’s suit for injunction. The decree holders preferred execution proceedings. (Execution Case Nos. 458-459/2007). They filed applications under Order XXI Rule 97 of the Code of Civil Procedure (CPC) since the judgment debtors/vendors had sold the property to the appellant and respondents no. 4 to 7. The appellant i.e. a subsequent purchaser filed objections.”

As it turned out, the Bench then enunciates in para 6 that, “During the pendency of the proceedings the front portion of the suit property bearing Municipal Corporation No. 327, Mysore road, Bangalore became the subject matter of the acquisition for the Bangalore Metro Project. The decree holders (the first two respondents) preferred objections to the proposed acquisition and further claimed the possession. In the meanwhile, aggrieved by the dismissal of the suit and decreeing the suit for possession, Narayanamma filed first appeals in the High Court (R.F.A. No. 661-663/ 2007). In these proceedings it was brought to the notice of the High Court that the suit properties had been sold to the appellant and respondents no. 4 to 7. By an order dated 10.04.2008, the High Court directed the vendors to furnish particulars with respect to the sale, names of the purchaser and area sold etc. By common judgment dated 22.10.2009 the High Court dismissed all the appeals pending before it. The Special Leave Petition preferred by the vendors (S.L.P. (C) Nos. 16349-13651/2010) was also dismissed by this Court on 23.07.2010.”

To be sure, the Bench then points out in para 12 that, “All these orders led to initiation of five writ petitions on behalf of the appellant, and the vendors etc. Three First appeals (R.F.A. Nos. 441, 468 and 469/2017) were preferred by obstructers challenging the decision of the Executing Court dated 15.02.2017. By impugned common order all these Writ Petitions and appeals were dismissed.”

Quite remarkably, the Bench then stipulates in para 41 that, “Having regard to the above background, wherein there is urgent need to reduce delays in the execution proceedings we deem it appropriate to issue few directions to do complete justice. These directions are in exercise of our jurisdiction under Article 142 read with Article 141 and Article 144 of the Constitution of India in larger public interest to sub-serve the process of justice so as to bring to an end the unnecessary ordeal of litigation faced by parties awaiting fruits of decree and in larger perspective affecting the faith of the litigants in the process of law.”

Most remarkably, the Bench then in para 42 which forms the cornerstone of this commendable judgment very rightly holds that, “All Courts dealing with suits and execution proceedings shall mandatorily follow the below-mentioned directions:

1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.

2. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.

3. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.

4. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.

5. The Court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property.

6. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application.

7. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.

8. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.

9. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.

10. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A.

11. Under section 60 of CPC the term “…in name of the judgment- debtor or by another person in trust for him or on his behalf” should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.

12. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.

13. The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law.

14. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the Court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the Executing Courts.”

Going forward, the Bench then observes in para 43 that, “We further direct all the High Courts to reconsider and update all the Rules relating to Execution of Decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 of CPC, within one year of the date of this Order. The High Courts must ensure that the Rules are in consonance with CPC and the above directions, with an endeavour to expedite the process of execution with the use of Information Technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable.”

Finally, the Bench then holds in para 44 that, “The appeals stand dismissed.”

In sum, these above mentioned directions laid down by the three Judge Bench of Apex Court headed by former CJI Sharad Arvind Bobde and also comprising of Justice L Nageswara Rao and Justice S Ravindra Bhat must be followed by all courts dealing with suits and execution proceedings. Until the rules are made these directions shall remain enforceable as has been very rightly laid down also. All courts must comply with it accordingly! No denying it!

The writer is an Advocate.

Continue Reading

Legally Speaking

NABFID ACT, 2021: ANALYSING THE CHALLENGES AHEAD

Sine qua non, the banks and other financial institutions must comply with statutory norms and requirements framed by the supervisory authorities. It is imperative to hire external auditors to scrutinise the working of the institution and book members if they indulge in financial malpractices or breach regulatory and statutory code of conduct.

Published

on

Infrastructure development of any nation plays crucial role in attracting foreign investments and boosts the economic development of the country. Improvement in Infrastructure financing facilitates rapid economic growth. Prime Minister Narendra Modi in his 2019 Independence Day speech laid the foundation of National Infrastructure Pipeline (NIP) for financial year 2019 to financial year 2025 with the purpose of injecting almost Rs100 lakh crore into the social and economic infrastructure projects of the country such as roads, rail, ports, energy, housing, water etc.Presently, around 7,400 projects have been included so far under NIP within more than 30 sub-sectors out of which over 1800 projects have already been sanctioned and are now under the developmental phase.

Infrastructure projects involve high capital investments, high risks and long gestation periods. Owing to large capital investments in these projects, the major focus of lenders is on revenue generation. Before financing such projects the lenders analyse the potential of such projects considering commercial, environmental, regulatory, engineering and financial aspects that would govern the implementation of such projects. With the aim of providing the facility of Infrastructure Financing, the government of India has established a new Development Financial Institution which will go by the name of The National Bank for Financing Infrastructure and Development (hereinafter referred to as NaBFID).

INCEPTION OF DFI

The inception of Development Financial Institution (DFI) can be traced back to the time of India’s independence. In the year 1948, India’s first DFI, Industrial Finance Corporation of India (ICFI) was set up. Industrial Credit and Investment Corporation of India Limited (ICICI) — nation’s first DFI in the private sector, was established in 1955. An initiative of the World Bank, ICICI Bank Limited was initially established prior to ICFI in 1944 and it was only in 2000; that both ICICI Limited and ICICI Bank Limited agglutinated into the first Universal bank of India. Industrial Development Bank of India (IDBI) was set up in 1964 under RBI and converted to a universal bank in 2003. All these primary financial institutions were responsible for assisting long-term financing in the industrial sector of the economy of the country.

Some sector- specific Development Banks such as EXIM Bank, National Housing Bank and Housing and Urban Development Corporations followed by State- specific DFIs came up in the 70s and 80s with the objective of providing concessional lending to small and medium enterprises. Yet, in early 1990, the financial reforms drastically compressed and condensed the role of DFIs in financing the industrial sector by drawing out concessional funding through Long Term Operation (LTO) funds from RBI thereby making it impractical and non- sustainable. As a result, ICICI and IDBI were transmuted into Commercial banks and IIBI was shut down.

The idea of DFI was again resuscitated in 2017 by RBI in an attempt to cater long-term financing needs of the economy. Finance Minister Nirmala Sithraman while presenting the Union Budget 2021-22 stated that, India’s Infrastructure needs long term debt financing. A professionally managed Development Financial Institution is necessary to act as a provider, enabler and catalyst for infrastructure financing. Therefore, India will set up a new DFI called the National Bank for Financing Infrastructure and Development.

STATUS QUO

The National Bank for Financing Infrastructure and Development (hereinafter referred to as NaBFID) bill was introduced in Lok Sabha on 22nd March, 2021 and was passed on 23rd March, 2021. The bill was subsequently passed in Rajya Sabha on 25th March, 2021. This bill states that the institution established by it will be the principal DFI for infrastructure financing. The institution is set up as a corporate body with authorised share capital of one lakh crore rupees. Its shares will be held by:

1. Central Government

2. Multilateral Institutions

3. Insurers

4. Sovereign Wealth Fun

5. Pension Funds

6. Financial Institutions

7. Banks

8. Any other institution as the central government prescribes.

The central government will own 100% shares initially but they can in the future be reduced to at least 26%. The Bill establishes NBFID as a company with share capital amounting to one lakh crore rupees. NBFID has been set up with the primary motive of lending, investing or to attract investments for infrastructure projects located wholly or partially in India. This institution will also facilitate the market for bonds and derivatives for development financing.

The Institution will discharge two types of functions: (i) Financial Objective, (ii) Developmental Objective. Financial Objectives include directly or indirectly lending, investing or attracting investments for projects entirely or partly within Indian territory whereas developmental objective facilitates the development of market for bonds, loans and derivatives for infrastructure financing.

Board of Directors will form the governing body of NBFID and the Chairperson will be appointed by the central government in consultation with the Reserve Bank of India. Central Government will constitute a body that will recommend candidates suitable for the post of Managing Directors and Deputy Managing Directors. Independent Directors will be appointed based on the recommendations of the internal committee.

CRITICAL ISSUES

The weakening of growth impulses and subdued credit off-take are playing out, with sporadic credit default events and incidents of frauds exacerbating the reluctance to lend which is starkly evident in the slowdown of flow of resources, both from banks and non-banks to the commercial sector in the first half of 2019-20. Frauds can occur on account of overlooking regulatory guidelines and/ or on lapses in internal risk governance, compliance, and audit functions. In particular, lack of prudent internal control mechanisms and surveillance systems is limiting their ability to prevent frauds. The increased Incidents of forgery and fraud not only result in financial loss to the institutions but additionally disturb the fiduciary relationship which exists between the customer and the institution.

Considering the business shambles like IL&FS, RBI has come up with stringent set of rules for the auditors of financial institutions and banks respectively. As per the reports, the primary function of fraud management, monitoring and investigation must be assigned to the Audit Committee of the Board. Thus, it is clearly evident that auditing process should be free from the other pillar of the government namely the legislature yet under their perusal. The bone of contention of lack of parliamentary oversight of a DFI was raised by members of Parliament while debating on the National Bank for Financing Infrastructure and Development (NaBFID) Bill, 2021.

While referring to Section 26 of the bill, it was contended that DFI would remain outside the purview of Comptroller and Auditor General (CAG), Central Vigilance Commission (CVC) and Central Bureau of Investigation (CBI). Since these development institutions will be expending huge amount of government funds, the inspection by these 3Cs becomes imperative. Opposing these contentions, Finance Minister Nirmala Sitharaman said, “Every year audited accounts (of this bank) will come to each House of Parliament….so Parliament oversight (of the institution) is in-built in the bill.” Section 26 of the Act provides, “The Institution shall furnish to the Central Government and the Reserve Bank within four months from the date on which its accounts are closed and balanced, a copy of its balance-sheet and accounts together with a copy of the auditor’s report and a report of the working of the Institution during the relevant year, and the Central Government shall, as soon as may be after they are received by it, cause the same to be laid before each House of Parliament.”

Section 6 of the Act states the procedure for appointment of board of directors. According to the section, the members of the board will be appointed by the Central Government which means there are chances of political biasness for infrastructure financing. The political party in power may then appoint its own people to the board and may then favour its own people by financing their projects thereby making it politically biased.

Secondly, Section 35 states that before initiating any investigation against the employees of the institution prior sanction of the Central Government is necessary. Prior sanction is mandatory for Courts as well before taking cognizance of the offences under any law against the employees of NBFID. Now, this provision makes the employees of the institution immune from legal proceedings and as has been mentioned under section 6, the government will appoint these employees and prior sanction from the government will lead to defiance of the principles of accountability as then they will not be answerable for their actions. This Section will help such employees evade their responsibilities and consequently there will be no transparency thereby going against public welfare.

CONCLUDING REMARKS

Sine qua non, the banks and other financial institutions must comply with statutory norms and requirements framed by the supervisory authorities. It is imperative to hire external auditors to scrutinize the working of the institution and book members if they indulge in financial malpractices or breach regulatory and statutory code of conduct. Thus, there is a need for an independent and efficacious audit system to ensure sound health of these institutions as per the recommendations of the Expert Committee set up by the Reserve Bank (Chairman: Shri Y H Malegam).

India is striving towards becoming a major economic power and in that direction government is taking every possible step to strengthen up the economy. By establishing this DFI the government is trying to improve the infrastructure of the country as any country’s infrastructure development is a litmus test of knowing whether the country is financially sound or not. But the government should also have considered that by only establishing the new institution this objective cannot be achieved as what’s more important is the implementation and the mechanism of the new institution and therefore, on reading of section 6 and section 35 of the Act we can see that there will arise issues on the governance of the institution. The governance of DFIs matters a lot since these are public financial institutions dealing with public money. Therefore, it is of utmost importance that these DFIs should be transparent in their operations and accountable to the public.

Continue Reading

Legally Speaking

DRUG ABUSE IN INDIA: POLICY REFINEMENT FOR EFFICIENT CONTROL

Published

on

“Drug abuse is a social evil. It destroys vitals not only of the society but also adversely affects the economic growth of the country…..” Y K Sabarwal, Former Chief Justice of India (2006)

It is no secret that despite being illegal, marijuana, also known as cannabis, can be availed very easily. As per the Indian law, the consumption or possession of marijuana is a criminal act and those found guilty can face a jail term up to 10 years or a fine of Rs. 1 lakh or both. When the Britishers arrived in India, they found the widespread trade of cannabis and its massive consumption as a source of revenue. Accordingly, they had levied a tax on it and were the first one to pass a law in connection with the usage of marijuana in 1838, 1871, and further in 1877.

The vogue of substance abuse in young generation has assumed alarming dimensions in India. Changing cultural values, increasing economic stress and dwindling supportive bonds are leading to initiation of substance abuse. According to the World Health Organization (WHO) substance abuse is persistent or sporadic drug use inconsistent with or unrelated to acceptable medical practice. Drug addiction causes immense human distress and the illegal production and distribution of drugs have spawned crime and violence worldwide. Today, there is no part of the world that is untouched from the curse of drug trafficking and drug addiction. Millions of drug addicts, all over the world, are leading miserable lives, between life and death. India too is caught in this vicious cycle of drug abuse, and the number of drug addicts is gradually increasing. Cannabis, heroin, and Indian-produced pharmaceutical drugs are the most frequently abused drugs in India. Cannabis products, often called charas, bhang, or ganja, are massively abused throughout the country

From traditional plant-based drugs such as cannabis, cocaine and heroin to synthetic drugs such as tramadol, consumption of narcotic substances in India has increased manifold over years, pushed through a strong network of drug cartels. In terms of users, India’s illicit drug markets are mostly dominated by cannabis and opioids.

According to a 2019 study, National Survey on Extent and Pattern of Substance Abuse in India, by the Ministry of Social Justice and Empowerment, there are nearly three crore cannabis users in India.

THE CONSTITUTIONAL APPROACH AND DRUG POLICY

India’s approach towards Narcotic Drugs and Psychotropic Substances is enshrined in Article 47 of the Constitution of India which mandates that the ‘State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health’. Article 47, which is based on Gandhian principle, provides social security and justice to the citizens by enumerating duties of the state which are important for achieving the goal of a better society, and it includes better conditions of living, access to healthy and nutritious food and public health and hygiene. As intoxicating drinks and drugs are injurious to health and therefore it has been expressly provided by article 47 that state should take steps to reduce or stop the consumption of such injurious drinks or drugs. The same principle of preventing use of drugs except for medicinal use was also adopted in the three international conventions on drug related matters, viz., Single Convention on Narcotic Drugs, 1961, Convention on Psychotropic Substances, 1971 and the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. India has signed and ratified these three conventions. India’s commitment to prevention of drug abuse and trafficking predates the coming into force of the three conventions.

THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985: A CRITICAL ANALYSIS

The NDPS Act prohibits cultivation, production, possession, sale, purchase, trade, import, export, use and consumption of narcotic drugs and psychotropic substances except for medical and scientific purposes in accordance with the law. Preparation to commit certain offences is punishable as is attempt. Accessory crimes of aiding and abetting and criminal conspiracy attract the same punishment as the principal offence.

The NDPS Act lays down the procedure for search, seizure and arrest of persons in public and private places. Safeguards such as prior recording of information, notifying a superior, limiting powers of arrest to designated officers, informing the person being searched of her/his rights have been scrupulously enforced by the courts, in light of the stringent punishments prescribed under the Act. At the same time, norms for investigation and evidence are permissive and have been interpreted in a manner that prejudices the accused. In 1988, the NDPS Act was supplemented by the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act to provide for preventive detention of people suspected or accused of involvement in drug trafficking

Adolescents are adventurous, self confident and often do new things to show that they can. By and large, this is the age at which most addicts get initiated into drugs. Section 32B of the NDPS Act lists ‘the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or facility or in other place to which school children and students resort for educational, sports and social activities’ as one of the aggravating factors which may be considered by the Court for imposing higher than the minimum penalty prescribed for the offence.

THE JUDICIAL RESPONSE

The Indian judiciary is considered as one of the most proactive adjudicatory wings when it comes to judicial review of the Indian legislations and policies. In 2008, a division bench of the Supreme Court of India in the case of ‘E Michael Raj v Intelligence Bureau, Narcotics Control Bureau had ruled that punishment under the NDPS Act will depend on the quantity of offending drug present in a consignment seized by the police. Five grams of heroin would classify as a small quantity while 250 grams of the same contraband would be considered a commercial quantity attracting a punishment of up to 20 years of imprisonment. Drug peddlers would sell heroin mixed with caffeine, chalk powder, zinc oxide, to get around the law and escape with minor sentences. Reversing the 2008 decision of E Michael Raj, a three-judge bench of Justices Arun Mishra, Indira Banerjee and MR Shah in the case of Hira Singh And Another v. Union Of India And Another held that, “The problem of drug addicts is international and the drug mafia are working throughout the world. It is a crime against society and it has to be dealt with an iron hand. The use of drugs by young people in India has increased. The drugs are being used for weakening the nation.” Therefore, if it is accepted that it is only the actual content by weight of offending drug which is relevant for the purpose of determining whether it is a small quantity or commercial quantity, in that case, the object and purpose of enactment of NDPS Act would be frustrated,” the court said.

The evil of drug abuse not only creates shackles on the very idea of a better life but it also acts as an impediment to the growth of the country. The legal framework which is present to counter the abuse of drugs is based on a solid foundation. As far as the drug law enforcement is concerned, the Narcotics Control Bureau (NCB) has been compiling statistics on seizures, etc. from various State and Central law enforcement agencies and has been compiling the National Drug Enforcement Statistics (NDES) every month. These statistics represent the drug law enforcement as well as the comparative performance of various agencies and the compilation need to be done within the appropriate time so as to comply with the provisions of the Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985.

THE AMELIORATIVE APPROACH FOR EFFICIENCY

In 1988, the Prevention of Illicit Traffic in NDPS (PITNDPS) Act was enacted to provide for detention in certain cases for the purpose of preventing illicit traffic in narcotic drugs and psychotropic substances and for matters connected therewith. The act may be used to secure preventive detention of the major drug traffickers. As the drug traffickers deal in large volumes, and earn substantially through trafficking, every effort should be made by the concerned organization to identify, seize and freeze their properties and follow up the case vigorously till the properties are forfeited. Moreover, the need of the hour is to improve the quality of estimates and statistical reports on narcotic drugs and ensure that these reports are submitted in a timely manner, including the reports on consumption of narcotic drugs, in conformity with the definition of “consumption” in the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol.

Efforts have to be made to keep up and further strengthen the mechanism for collection of statistics on drug law enforcement by the NCB. The mechanism of collection of statistics on legitimate manufacture, trade, use, consumption and stocks of narcotic drugs, psychotropic substances and precursors should be strengthened and streamlined so as to ensure strict compliance of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Apart from this, the authorities must strive for the development of a mechanism to regularly collect statistics on drug and substance abuse in the country and to use such statistics as a yardstick to measure the effect of various interventions.

Efforts have to be made to keep up and further strengthen the mechanism for collection of statistics on drug law enforcement by the NCB. The mechanism of collection of statistics on legitimate manufacture, trade, use, consumption and stocks of narcotic drugs, psychotropic substances and precursors should be strengthened and streamlined so as to ensure strict compliance of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Continue Reading

Legally Speaking

RIP VAN WINKLES HAVE A PLACE IN LITERATURE, NOT IN LAW, SAYS ALLAHABAD HIGH COURT

Published

on

In a latest, laudable, landmark and learned judgment titled Ganga Sahay & Ors. v. Deputy Director of Consolidation & 14 Ors. in Writ- B No.- 302 of 2021 delivered recently on March 18, 2021, the Allahabad High Court has most rightly, remarkably and rationally observed that the rule of delay and laches as a policy of litigative repose, creates certainty in legal relations and curtails fruitless litigation thereby ensuring that the administration of justice is not clogged by pointless litigation. The observation came from a Single Judge Bench of Allahabad High Court comprising of Justice Ajay Bhanot while dismissing a writ petition filed after a delay of more than 4 years, by observing it to be barred by the rule of delay and laches without there being any satisfactory explanation as to the delay. Justice Ajay Bhanot has done certainly the right thing and has thus once again only reiterated what is well known that a party who does not care in filing the petition in time and wakes up after a long period of time without any reasonable cause is bound to be held barred to file petition after the lapse of a certain period of time as we see in this notable case also!

Needless to say, as goes the well known legal maxim also which is titled “Vigilantibus Non Dormientibus Jura Subveniunt” which means that, “The law assists only those who are vigilant, and not those who sleep over their rights.” There can be no denying it! It must also be mentioned here that this famous legal maxim makes it amply clear that it is the obligation of individuals to not only be aware of their rights under the law, but also to be vigilant while exercising or using the same. If they are not vigilant then they are bound to pay a heavy price for it as we see in this case also where the petitioner’s claim is rejected for not filing the petition well within time! We even see in the Limitation Act of 1963 that if the suffered/aggrieved party does not file a suit for relief within the stipulated period, for the breach of his rights, then it cannot be claimed at a later stage.

To start with, the ball is set rolling in para 1 of this notable judgment wherein it is observed that, “Petitioners have assailed the order dated 09.09.2016. The petitioners were not parties in the proceedings before the courts below. The petitioners claim inheritance from one Ram Avtar (since deceased) who had allegedly executed a Will deed in favour of the petitioners. The authenticity of the Will deed and rights of petitioners as successors have first to be approved by the competent court before the petitioners can maintain any petition on behalf of the deceased Ram Avtar. It could not be pointed out what heritable rights of the petitioners devolving from Ram Avtar (since deceased) are being canvassed before this Court.”

As we see, it is then pointed out in para 2 that, “Learned Standing Counsel raises a preliminary objection to the maintainability of the writ petition. He submits that the writ petition is barred by delay and laches and the petitioner has approached this Court after a delay of more than four years.”

To put things in perspective, the Bench then very rightly maintains in para 3 that, “Clearly, the writ petition is barred by delay and laches. The petitioner has approached this Court after more than four years. There is no satisfactory explanation for laches and the delay in filing the writ petition on the part of the petitioner. Further third party rights have been entrenched. The law has long set its face against indolent litigants who approach this Court after a long delay.”

Needless to state, it is then underscored in para 4 that, “The courts have consistently observed that delay and laches on part of the litigant will disentitle him to any relief. In this regard the Hon’ble Supreme Court has settled the law with clarity and observed it with consistency.”

Furthermore, it is then enunciated in para 5 that, “The line of authorities on this point are consistent and long. The discussion will benefit from the authorities in point.”

While citing the relevant case law, the Bench then seeks to substantiate its reasonable stand by pointing out in para 6 that, “The Hon’ble Supreme Court in R & M Trust Vs. Koramangala Residents Vigilance Group and others reported at 2005 (3) SCC 91 held thus:-

“There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third party interest created on account of delay. Even otherwise also why Court should come to rescue of person who is not vigilant of his rights.””

While citing yet another relevant case law, it is then pointed out in para 7 that, “The Hon’ble Supreme Court in Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service reported at AIR 1969 SC 329 held thus:-

“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”

While continuing in a similar vein, the Bench then makes it a point to mention in para 8 that, “A similar sentiment was echoed by the Hon’ble Supreme Court in Shiv Dass Vs. Union of India reported at 2007 (9) SCC 274, the Hon’ble Supreme Court opined as under:-

“The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.”

For esteemed readers exclusive benefit, it must be mentioned here that it is then pointed out in para 9 that, “When the issue of delay and laches came up before the Hon’ble Supreme Court in Shankara Co-op. Housing Society Ltd. Vs. M. Prabhakar and ors. reported at 2011 (5) SCC 607, Hon’ble Supreme Court reiterated settled position of law and confirmed the well established criteria which has to be considered before exercise of discretion under Article 226 of the Constitution of India. The relevant portion is extracted herein below:-

“53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the Petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the Petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the Petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay.”

While continuing further, the Bench then also points out in para 10 that, “The Hon’ble Supreme Court also noticed the ingenuous devices adopted by unscrupulous litigants to tide over the delay and laches on part of such litigants. One such commonly used device is by filing a representation to the authorities after a long delay. Such litigants then approach the Court with an innocuous prayer to decide the representation. Once such representation is decided in compliance of orders of the court, it is claimed that a fresh cause of action has arisen. Stale wine does not become fresh in a new bottle. The Hon’ble Supreme Court saw through the designs of such litigants and foiled their intent in no uncertain terms.”

Be it noted, it is then very aptly pointed out in para 11 that, “The Hon’ble Supreme Court considered this issue in C. Jacob Vs. Director of Geology & Min. Indus. Est. and another reported at 2008 (10) SCC 115. The law laid down by the Hon’ble Supreme Court would guide the fate of the case. The relevant extract of the judgment is reproduced hereunder for ease of reference :-

“6. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any ‘decision’ on rights and obligations of parties. Little do they realize the consequences of such a direction to ‘consider’. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to ‘consider’. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.””

It is also worth noting that no differently, it is then also stated in para 12 that, “A similar view was taken by the Hon’ble Supreme Court in S.S. Rathore Vs. State of Madhya Pradesh reported at 1989 (4) SCC 582. The relevant extract of the judgment is reproduced hereunder for ease of reference :-

“It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation.””

Most significantly, what forms the cornerstone of this worth emulating judgment is then stated quite elegantly, effectively and eloquently in para 13 that, “Law has long set its face against delay in approaching the court. The courts have consistently declined to condone the delay and denied relief to litigants who are guilty of laches. Litigants who are in long slumber and not vigilant about their rights are discouraged by the courts. Belated claims are rejected at the threshold. Rip Van Winkles have a place in literature, but not in law.”

No less significant is what is then stated in para 14 that, “All this is done on the foot of the rule of delay and laches. Statutes of limitation are ordained by the legislature, rule of laches was evolved by the courts. Sources of the law differ but the purpose is congruent. Statutes of limitation and the law of delay and laches are rules of repose.”

To be sure, it is then also postulated in para 15 that, “The rule of laches and delay is founded on sound policy and is supported by good authority. The rule of laches and delay is employed by the courts as a tool for efficient administration of justice and a bulwark against abuse of process of courts.”

Going ahead, it is then stated in para 16 that, “Some elements of public policy and realities of administration of justice may now be considered.”

While explaining why the rule of laches and delay is strictly adhered to by courts, the Bench then minces no words to hold in para 17 that, “While indolent litigants revel in inactivity, the cycle of life moves on. New realities come into existence. Oblivious to the claims of the litigants, parties order their lives and institutions their affairs to the new realities. In case claims filed after inordinate delay are entertained by courts, lives and affairs of such individuals and institutions would be in a disarray for no fault of theirs. Their lives and affairs would be clouded with uncertainty and they would face prospects of long and fruitless litigation.”

Truth be told, it is then further expounded in para 18 that, “The delay would entrench independent third party rights, which cannot be dislodged. The deposit of subsequent events obscures the original claim and alters the cause itself. The refusal to permit agitation of stale claims is based on the principle of acquiescence. In certain situations, the party by its failure to raise the claim in time waives its right to assert it after long delay.”

Not stopping here, it is then also put forth in para 19 that, “The rule of delay and laches by preventing the assertion of belated claims puts to final rest long dormant claims. This policy of litigative repose, creates certainty in legal relations and curtails fruitless litigation. It ensures that the administration of justice is not clogged by pointless litigation.”

What’s more, it is then most aptly stated in para 20 that, “The above stated position of law on the question of delay and laches on part of the petitioners, controls the facts of the case. There is no satisfactory explanation of the delay in the writ petition. The explanation for laches is self serving and lacks credibility is accordingly rejected. The writ petition is barred by delay and laches and is not liable to be entertained.”

Finally, it is then held in the last para 21 that, “The writ petition is dismissed.”

To conclude, Justice Ajay Bhanot of Allahabad High Court has done certainly the right thing giving the right reasons for holding so and has thus once again only reiterated what is well known that a party who does not care in filing the petition in time and wakes up after a long period of time without any reasonable cause is bound to be held barred to file petition after the lapse of a certain period of time as we see in this notable case also! All the parties must always be cautious of it and adhere to the time limit without fail. It is in their own best interest to do so because if they err then their petition is bound to be rejected as we see so ostensibly in this case also!

Sanjeev Sirohi, Advocate

Continue Reading

Legally Speaking

TAKING THE FREEDOM OF SOCIAL MEDIA SERIOUSLY

Published

on

Last week, a three-judge bench of the Supreme Court of India comprising Justices Dr. D. Y. Chandrachud, L. Nageswar Rao, and S. Ravindra Bhat issued a strong warning to the Central and State Governments not to curtail the freedom of speech and expression of people who are seeking help on social media platforms to get oxygen, essential medicines, and other things during the covid pandemic.“The Central Government and State Governments shall notify all Chief Secretaries/Directors General of Police/Commissioners of Police that any clampdown on information on social media or harassment caused to individuals seeking/delivering help on any platform will attract a coercive exercise of jurisdiction by this Court. The Registrar (Judicial) is also directed to place a copy of this order before all District Magistrates in the country”, observed the Court for protecting the social media users from harassment by the police and other administrative agencies of the centre and the states. This is a much-needed and timely intervention by the Apex Court that is likely to facilitate the smooth communication of information on the internet during this difficult time when social solidarity needs to be promoted in our society.

The directions given by the Apex Court will certainly protect people from harassment and torture by the police and other government agencies in some states that have shown less tolerance to digest their criticism on social media platforms during this pandemic. Unfortunately, some governments have wrongly interpreted the criticism as an attempt to disrepute them and they also warned the people to face the charges under draconian laws such as the National Security Act. This is nothing but rubbing salt on people’s wounds. Admittedly, social media has been very useful and effective in addressing the grievances of thousands of people who were unable to get any kind of help from the government during this covid crisis. Not only this, but social media has also unearthed the various omissions and commissions of the centre and the states who have failed the people utterly during this covid pandemic. It seems the governments want to clamp down on the use of social media to avoid their responsibility. This is not the way to deal with the people. At this time, the governments should come forward to address the public health issue and take people’s cooperation in fighting against the invisible coronavirus.

Sadly, in some states like U.P., the administration has filed criminal cases against the citizens who were seeking help on social media platforms like Facebook and Twitter. In Amethi, the police registered an FIR against a man who was asking people to send him an oxygen cylinder for his family member who was suffering from covid. Ironically, no government wants to accept the truth. Recently, a Division Bench of the Allahabad High Court had strongly criticized the functioning of the U. P. government during the corona crisis while hearing a PIL. “The ghost of corona is marching on the roads and streets of the major cities of the state…those who are resourceful will survive and the rest as histories of past pandemics tell us, may die for want of proper health care”, the Court had said about the corona infection in the State of Uttar Pradesh. Not only this, but the High Court had also asked the State Government to discard its “my way or no way” attitude. This is the time when the government should listen to the High Court’s suggestion and improve the health infrastructure in the state.

It is a matter of fact that governments have ignored the public health issue in our country. It has never been a big issue for debate and discussion in the elections. The people have also failed to raise this issue on social platforms that build a strong public opinion. Indian politics is badly plagued with caste, community, and religious issues. The time has come when people should make it an election agenda given the poor health infrastructure in the country. Today, thousands of people are dying because of the shortage of oxygen, beds, and essential drugs. People are getting their covid test reports after five-six days. They are badly fed up with the governments and their agencies. Where should they go to seek help if the state does not respond to their calls? This is a matter of national shame. During this time, some public-spirited citizens have come forward to help people on social media platforms. It is indeed an admirable effort that should be carried forward to protect people’s lives and livelihoods at this extremely difficult time. Not only common people, but some honest administrative and police officers have also taken serious note of such calls and sent the required help to the needy people. This is why even the Apex Court appositely admired this gesture in these words: “In these trying times, those desperately seeking help for their loved ones on these platforms should not have their misery compounded through the actions of the State and its instrumentalities. Further, there are two more crucial reasons why such a clampdown on information sharing must be absolutely stopped immediately”.

Given the above discussion, it is submitted that all governments should welcome constructive criticism at this time. They should not discourage people from getting help on social media platforms. In a difficult time like this, people’s complaints, criticism, anguish, and anger provide valuable feedback to the policy-makers that must be used in urgently plugging the holes in the public health system, fixing accountability of negligent medical officers, and making self-introspection to learn from the mistakes and prepare for the future in a better manner. No popularly elected government can avoid criticism in a democracy. When people will die, they will cry and the government is duty-bound to protect people’s lives.

Continue Reading

Legally Speaking

DEALING WITH BIOMEDICAL WASTE: A TOUGH GRIND AFTER THE PANDEMIC

Published

on

Biomedical waste is composed of animal and human waste, treatment equipment, for instance, syringes, needles, and the other different kinds of amenities in the process of research and treatment (Bio-Medical Waste Management Rules, 2016). Adequate biomedical waste management concerning the proper rules and regulations were consistently overlooked for years, specifically in a developing country like India.

India, the second most populated country worldwide after China and the world’s second worst-hit country by COVID-19 officially, and unofficially it is undoubtedly the worst affected. India now has 20.7 million confirmed cases of the deadly Covid-19 virus. However, the recovery rate among Indian population is also very remarkably high. The administration has also taken rigorous steps to tackle Covid-19, but this has resulted in piles of Bio-medical waste. According to Central Pollution Control Board (CPCB) data, approximately 4527 tons of bio-medical waste was generated in December 2020. This has unduly pressurised the waste management system of country. Lack of resources has further added to this problem of waste management. India faced severe consequences during the second wave of COVID-19 and responding to which the medical system is also overburdened. These critical conditions have also posed a challenge in the administration to manage the bio-medical waste generated in treating the patients found positive with Covid-19. The country has a total of 238,170 healthcare facilities, out of which 87,267 are bedded while the remaining 151,208 are non-bedded healthcare facilities (HCFs) generating BMW. According to a study, improper management and disposal of bio-medical waste could expose freely roaming animals and humans with diseases like Covid-19. Thus, it becomes imperative to think for effective management strategies and spare some resources to manage bio-medical waste.

Untreated and improperly managed BMW is a potential source of infection. Millions of contaminated personal protection equipment (PPE) (e.g., facemasks and gloves) would end up as wastes, which, if improperly managed, can pose environmental and health threats. In a recent study (Kampf et al., 2020) finds that the coronavirus can survive on material surfaces (e.g., metals, glass, and plastics) for up to 9 days. Such threats may be ameliorated in developed countries where green and sustainable waste management strategies, capable of containing such viruses, are practiced. However, the threats would be much higher in developing countries that have poor waste management strategies. In many developing countries, solid wastes are dumped in the open and in poorly managed landfills where waste pickers without wearing proper PPE would scavenge for recyclable materials (World Bank, 2019).

Thus, it is the right time to call upon the policymakers to ponder this problem, which could become an uphill climb later if not given due attention.

IMMEDIATE ACTION AND FUTURE POLICY RECOMMENDATIONS:

The lockdown had led to enhancement in the origination of the food and packaging waste from the domestic households, which should be disseminated as per the current waste accumulation rules. The occurrence of the collection of biodegradable waste could be modified according to the locality. However, the recyclable waste could be reduced according to the accessibility of the people as well as the trucks. As they should be helped to accumulate them in the sealed bags for a longer tenure. There would be more generation of infectious waste and toxic waste if more heed is given to sanitary products and other health care products. So, it is very much necessary that it should be accumulated in double lined sealed bags with a particular symbol. The food packaging and the other waste should be handled with possible care and caution as it should be carried in a double layered compostable bag.

There would be less charge on the management of the hazardous waste as more waste from the households is being compensated by the smaller number of wastes from the restaurants, eateries and the other complexes. It is necessary to be conscious for the exposure of the waste as long as it exposes the pathogen to spread. The people living at their home required to be more prudent as there is a need of dissemination of the waste. The propagation of the same should be done through advertisements, newspapers or other source of media.

Few Policy recommendations deliberately made for the policymakers which might assist a system to tackle the pandemic:

a) Identification of the key role: This is the prime duty of the government to recognize the part which has to be played by sanitation workers. For instance, UK government has specifically given key worker status to their workers as the government would be fulfilling all the requirements of their family during the COVID crises so they could continue their services.

b) Formulation of the Global Common Platform of Knowledge: It is very much necessary to formulate a platform as well as foundation of knowledge so that the people should gain the know how of handling the waste as they could curb themselves in need of the hour.

c) Pervasive standardization of the coding: The universal standards for the color coding are very much significant for disseminating the bio medical waste. As it would provide assistance to the identification of the type and the characteristic of the waste. Proper training to the workers in the regard would also be very much helpful.

d) Technology Based Solutions: To deliver the high quality by products, it is very much necessary to emphasize the gasification, hydrothermal, and carbonization kind of techniques. Additionally, there should be investment of research into it.

e) Implementations of the principals from circular economy: To reduce the amount food wasted, re-utilization of the food waste and nutrient recycling are the major fundamentals of the circular economy in the food system and should be executed both at producer as well as consumer level. Furthermore, the circular-based models’ execution would assist in deviation of the accumulated waste from the disposal sites to the recyclable plants; however, it would also help in declining the generation of the waste in the initial place.

f) Propagation Regarding Circular economy: People are not knowing about the methodology behind the circular economy so it is the dire need to aware people regarding the concept of circular economy. The fabrication of the recyclable products would, for instance, bioplastic and biodegradable products should be highly promoted as well rewarded.

g) Moving from awareness to Action: Just by propagating the general public regrading the same would not help rather they should be highly motivated to implement all the schemes practically. Media campaigning would really assist in effecting the people’s behavior and would also assist in the transformation of their musings to converting the economy into a greener one.

Continue Reading

Trending