Early trend of joint family system was diminished from its core presence and superseded by the nuclear family system with the sudden merge of globalization and modernization in the Indian society. Irrespective of the nature of family there is a designation called the head of the family, may be male or female with whom the vested and absolute rights with regard to ancestral property and self acquired property.
The mode of succession can be testamentary i.e. vide “WILL” or non testamentary i.e. “WITHOUT WILL”. The passing of property in succession varies with respect to religion, nature of family and presences of lineal descendants. Law regulates the mode, quantity and division of property to be succeeded. First, you need to understand how property undergoes succession under different circumstances and basis and statute regulating the same.
Death without Making a WILL
Death without making a will includes the circumstances where there is total absence of will, incapability of executor of the will, incapability of the will to function and if the property is transferred for any illegal purpose as said under the law for the time being. Hindu Succession Act 1956 regulates Hindu, Sikh, Jain and Buddhist. Indian Succession Act regulates Christians, Parsi and Jew. Whereas Muslims are regulated under Muslim Personal Law Application Act, 1937; the interfaith marriages are governed under the Special Marriage Act, 1954.
In case of testamentary succession, the division of property will be based on the WILL and is regulated by respective above said laws. If a Hindu male or female dies, the heir ship is divided into five categories, namely Class I heirs, Class II heirs, agnates, cognates and government. Class I heirs include husband or wife, mother and children. As far as Class II heirs are concerned, the property can be inherited to father, brother, sister, children of sons and daughters. Agnate means relationship with deceased and the heir wholly through male descendants. Cognate means relationship between deceased and heirs through blood or adoption but not wholly through males. With respect to priority it is “Class I heirs> Class II heirs > Agnates > Cognates > Government”. With the amendment of section 6 of the Hindu Succession Act 1956 in 2005, the male and female is entitled to equal rights and liabilities and the division of shares will be done same.
Under the Indian Succession Act, 1925 there is no difference between deceased person’s relatives of father’s and mother’s side. There is no concept of full blood and half blood and also a born child and unborn child in the womb. It entails equal rights of inheritance. Application of succession to Christian female is bestowed through the landmark case of Mary Roy v. Union of India.
Under the Muslim Personal Law (Sheriat) Application Act, 1937, the law is the amalgamation of four sources of Islam i.e. the Holy Quran, Sunnah i.e. the practice of the Prophet, Ijma i.e. learned men’s consensus on decision on a particular factor and Qiya is the decision taken in line with the laid down principles of God. Under this succession there is no differentiation in share of rights and division of property between men and women. This law contains two other laws that are the Sunni and the Shiah law by which former goes for per capita distribution of property whereas the latter goes for per strip distribution of property. Per capita signifies total estate will be distributed equally among the heirs and per strip indicates the inheritance of strip the belong to. As like Hindu law, if the deceased has no heirs then the property shall go to government.
A Muslim widow without child inherits one-fourth of the movable property and one-eighth of the immovable property of her deceased husband. Step children have given no share of rights from step parents but they can inherit from stepbrother or step sister.
Irrespective of the religion, there will be a head(s) that will be holding the inherited property and self acquired property till their death. There is no law which describes the administrative procedure that shall be followed to transfer and inherit the property after the demise of the said head(s). Here are some inevitable documents without which we cannot transfer or convert the self acquired or immovable or movable property of the deceased. The procedure for the same differs from region to region and from state to state.
It is the only document which proves conclusively the demise of a person on said date due to said reason. It is issued by the hospital or clinic which confirms the death of the person. The certificate plays exceptional role in closing or modification of bank accounts and transfer of money in the bank account in the form of bonds, fixed deposits, recurring deposits; transfer of shares in a company; modification of government documents and inheritance.
Legal Heir-ship Certificate
Legal heir certificate is a document that establishes the relationship between the deceased and legal heirs. The certificate can be obtained by furnishing death certificate of the deceased before concerned corporation or municipality. The purpose of this certificate comes on the sudden demise of the family member or the head of the family. However this certificate cannot be used to claim insurance, employee benefits, property registration and so on. The certificate is never a conclusive proof as per the Indian law. The certificate can be obtained by parents, children, siblings or spouse of the deceased.
Nominee is a person whose name is given by another person to deal and inherit the monetary subjects such as insurance policy, bank accounts fixed deposits etc after the demise or inability to function himself by the latter. The latter is commonly known as the account holder. The account can be in a bank, co-operative society or even share/ stock enterprises.
These are the three elements that are essentially required to inherit properties both immovable and monetary after the demise of the person.
What to do with deceased person’s bank accounts?
The general rule is that after the date of demise of the account holder, there shall not be any transaction made from that account. If any person including legal heir draws any amount after the demise, the person will have to deposit money back to the account. If the bank feels any suspicion it is free to conduct any inquiry on the same. As per RBI rules, after the demise of the account holder the amount shall be transferred or inherited to the nominee imputed by the account holder in his statement. If there is no nominee, the amount will be divided equally and given to all legal heirs. If there is a situation of any dispute with regard to legal heirs or the subject matter, the same shall be decided by a civil court of appropriate jurisdiction. The same is applicable in co-operative societies and other financial institutions collecting deposits.
This can be administered only when an application made along with death certificate of the deceased account holder. There are variations in procedure in different regions and states but such procedures strictly stick to the Reserve Bank of India rules.
Nominee versus Legal Heir
The rights of nominee on the balance in the deceased depositor’s bank account supersede the right to inherit by a legal heir. That is, if nominee is a third party, the balance deposits of all form will be transferred to him/her.
Inheritance of Stock
The stock inherited to the legal heir on the event of death of original holder is called inherited stock. On inheritance the cost will step into the value of security at the date of inheritance. The tax on inherited stock is not applicable in our country.
So, what about Property Inheritance?
In case of joint undivided property, your rights will be already mentioned in the deed. Hence the legal heirs shall go to court or Revenue Department Officer or any other authority capable to do partition of property with the death certificate and legal heir certificate. If the joint property is divided and there is no dispute as to division of land, the right can be transferred by a village officer or any other concerned authority.
In order to transfer/ inherit the duty of payment of land tax, the legal heir has to approach the concerned Taluk Office with the death certificate of the deceased and legal heir certificate along with an application for the same to the concerned officer. Taluk office will then revert to the village office after changing the thandaper or pattadar. Irrespective of the remittance of tax by the deceased, the legal heir shall remit the tax to imprint his/her name in the tax receipt.
What happens with NRI?
In a regular fashion NRI assets are inherited by creation will, whereas in the absence the legal heir shall approach Indian Courts to obtain succession certificate. The major documents to be produced in the court include death certificate of the deceased and birth certificate of the legal heir or the successor. In case, the deceased has written a WILL, then the successor for Probate in the concerned civil court. If the deceased has not appointed an executor, there comes the requirement of Letter of Administration through which the beneficiaries are given all the rights of the executor. It is obtained from a court of competent jurisdiction. The NRI successor can inherit from another NRI or Person of Indian Origin by adhering to the permission from RBI if the succession is to a foreign state citizen. The NRI can inherit from another NRI in case of repatriation by submitting proof of inheritance and amount shall be less than 1 million USD.
As already said, the structure of procedure to be followed for succession and transfer of movable and immovable property is the same across India but there are variations in the masculine part of the procedure, which vary with respect to regions and states. Considering this I have dealt the topic in general perspective. In India there is a huge bundle of administrative and legal formalities. The best way to tackle this dilemma is to engage a tax practitioner, a lawyer and a person from concerned municipality; so that they are well versed with dealing the same and your work will be completed in a short span of time.
Adv. Anu Bhuvanachandran is Partner, Outsay Legal. She practices at the Delhi High Court.
Need for aggressive stand against extremism in Northeast
China is resorting to its old tricks to destabilise India, arming extremists with lethal weapons.
The jawans of Assam Rifles in Manipur have been ambushed and three of them martyred in the same Chandel district in which the militants had launched a deadly attack on an Indian Army convoy in June 2015 killing 18 of our soldiers. It is clear from the latest attack that the militants have started raising their ugly head and are reasserting their defiance to such an extent that they can now dare to attack the Indian security forces.
The threat of further attacks by militants in the Northeastern states and the unrest there had started to loom large the moment Chinese incursions started in the Ladakh region. China is the biggest supporter of militants in the Northeastern states and the sole purpose of creating unrest there is to not let India shift the Army stationed there anywhere else! This move of China was further confirmed in the last week of June 2020 when a huge cache of arms was caught at the Thailand-Myanmar border. All the weapons were made in China. Prima facie, it seemed that the weapons were meant for the Myanmar terrorist outfit called Arakan Army, which China keeps aiding and abetting but the experts later confirmed that the Arakan Army does not use such weapons. Through the Arakan Army, this cache of arms was being sent to the militants of the Northeastern states in India. Militant groups in Myanmar and India work in tandem. However, India has also sought information from the Thailand government regarding the stockpile of arms and requested it to provide a detailed investigation report. Our intelligence agencies are at work too.
Though this stockpile has been seized, would China not have already delivered such arms cache before, is the moot question. There is nothing to suspect otherwise. In fact, one route to deliver a consignment of Chinese weapons in Northeast India is from Myanmar, wh e r e m a ny m i l it a nt groups have links with terrorist groups in Manipur, Nagaland, Arunachal Pradesh and Tripura. The other route is from Bangladesh. The Netherlandsbased think tank European Foundation for South Asian Studies (EFSAS) has categorically stated in its report that China is continuously engaged in fomenting tension in India. It is arming the rebels of Myanmar to stand against India. Many militant outfits in the Northeast have taken refuge in Myanmar. They cross the border, carry out attacks here and go back to Myanmar with impunity. India shares good relations with the government there, but the problem is that the terrain is inaccessible and the militants hide in the forests and mountains. Many a time, the armies of India and Myanmar carry out joint operations but the network of militants is very strong, and China too may be informing them about all the activities. So they escape.
So naturally, the question is what kind of strategy which could prove effective against extremism in the Northeastern states should be adopted. The administrative machinery has been strengthened and development brought about in the region, thanks to the efforts made by the previous Congress government and now the BJP regime. The common man too wants that peace should be restored, but the militants are so dominant that people remain silent. Here, the common man is sandwiched between the militants and the security forces. Many a time, the locals suffer too during the counter-measures by security forces against the extremists. This has bred resentment among the people on many occasions. Therefore, special attention is needed. But the major problem before the government is whom it should talk to in order to establish peace. There are many militant outfits and each one of them has its own agenda. Most of the rebel leaders dance to China’s tune.
Under the circumstances, it is imperative to adopt an aggressive stand against extremism while taking care of human rights. In 2015, when the Indian Army had entered the dense forests and destroyed the militants’ hideouts to avenge the martyrdom of their fellow soldiers, it had created a sense of fear in their minds. Almost all the militant organisations had gone silent. Though there have been a few isolated incidents, the militants could not carry out any major attack after that. The need of the hour is to put in place a firm, strict and aggressive strategy for the elimination of these militants. They should be cornered and cordoned off in such a way that no external element, including China, could deliver weapons to them under any circumstances. If we are successful in doing this, the screws on extremists could definitely be tightened to a great extent. But we will have to eliminate all those leaders and elements, too, who sneak into our system, nurture extremism and help it to spread on our soil.
Vijay Darda as served as Member of Parliament, Rajya Sabha for three consecutive terms and is Chairman of the Editorial Board, Lokmat Media.
National Education Policy 2020: A reform at last
Such is the nature of this government’s articulation that it believes in big bang and dramatic policy announcements, and the latest one is here. In the case of the recent National Education Policy (NEP), which the cabinet has passed, the structural reform may either mean a long, stepwise process of implementation, or a tectonic-shift kind of implementation. If it must be the latter, given the government’s constant anxiety to make a mark on reform, then it must create the required ecosystem in a hurry.
The recent renaming of “Fair & Lovely” cream is only an initial example of how, in this age of social media, societies will impact what industries produce. For far too long we have overemphasized science and technology as the “real” education. But technology needed to be integrated with our ability to think independently and critically, and education should have achieved this goal easily with the interdisciplinary approach. This is especially critical in higher education.
The way forward via this policy, then, would be to introduce our students to a spectrum of thoughts and liberate the mind from established structures. Can this government truly drive such independence without being constantly tempted to nudge the student towards its favourite ideologies?
THE CHANGE IN METHOD
Methodologically, our education system needed more interdisciplinarity and flexibility for the student. For over a decade, this writer has held that higher education suffers from structural problems and that a change in methodology was needed. We brought in some of these changes in a private, independent media college in Pune in the 2000s, and it worked well. That longstanding belief now stands vindicated. Interdisciplinarity by its very nature should bring in a methodological reform, and the new NEP holds that promise. The fluidity of “streams” at the college level is another welcome move to this end.
For liberal education to be truly liberal, it is critical to understand that the traditional disciplinary walls were built to suit structure and not agency. The world we live in today, though, is one that already demands interdisciplinary thinking. An engineer cannot conceptualise mobile or web applications without understanding social, psychological, even cultural needs and environments. Similarly, a writer can no longer claim ignorance of the basics of the digital media technology. It gets even more intriguing with artificial intelligence (AI). But as of now, most of us learn these related aspects on the go, defeating the purpose of formal education.
COMPETENCIES, NOT SKILLS
Hearteningly, the policy attempts to move away from toolsy skills and create uniquely individual graduates by unlocking the greatest potential of all—the potential to think independently. Liberal, interdisciplinary education promotes human empowerment, preparing students to deal with complexity, diversity and change. While providing a worldview, it also offers the opportunity to specialise in one area of study. Adaptability is key to competency, while skills are more grounded in specific technologies and tools.
That is why an important part of our operation in the world must revolve around competencies, and not merely skills. Coding may be a skill, but integrating it with those sociological, psychological and other factors is a competency. This means designing for competency must be the soul of liberal, interdisciplinary education. As we take strides towards populating the new framework, we must recognise this fundamental difference.
Among such new and needed competencies at school and college levels are media literacy, communication and analytics. These are often taught as skills, but when you consider them as competencies, specific skills (such as spreadsheets or presentations) are embedded.
In theory, learning in native language in the early years should be welcomed, but I consider this the most problematic section of the school-level policy. In the long run, this language policy will help us reclaim our native languages. It may even integrate eclectic cultural values into our thinking. However, it will also imperil a more practical aspect. China had to quickly rethink its erstwhile attempts at similar protectionism for a very practical reason.
Whether we like it or not, the world has consolidated itself this century around English. Making students the instruments of change may mean that those first several generations of students that will live the change will suffer in an English-speaking world. It is impractical to believe we can create an ecosystem in quick enough time that will bring about related changes in technology, research and world hegemony. So, if anything, doing away with English should be the result of a ready infrastructure, not its initiation.
The most suspect practical issue, though, is likely to be government intervention. This government has recently administered its various missions into national educational institutions, from the Swachh Bharat Mission to yoga, lessons under its “Ek Bharat Shreshtha Bharat (EBSB) mission, and promotion of the government’s pension scheme—exposing this government’s obsession with events and publicity.
It is fair to assume that implementing this policy will be a nightmarish long haul for educational institutions. The devil will be in the details, and there are several flags within the new structure. Among the biggest perils of this policy is going to be its impending centralised control. A single control entity could pave the way for control over content, while the very philosophy of liberal education should be to release the control.
The government must ensure, through various interventions such as training and guidance, a proper implementation. On the other hand, it must guarantee that the implementation on ground cannot be allowed to suffer at the hands of the wrong kind of intervention, such as infusion of party-specific ideology.
The new NEP would have been middle-aged by now, had it been implemented earlier. As it had been building up over decades, it could have been implemented in stages. This writer has argued before that some the repeatedly stated changes could be gamechanging. Now it has snowballed into such a radically different structure that it could become too much to chew unless massive, radical efforts run in parallel.
Prof. Shashidhar Nanjundaiah has led private institutes of repute.
Achieve the mandate of aatmanirbhar and go local for mining in Goa
Need for immediate resolution of stalemate on issues of mining in Goa.
Mining in Goa has reached a stalemate and this stalemate needs to be resolved. It is very important to do a sort of SWOT analysis of what is local for the state of Goa to have sustainable growth heading towards surplus and continue to contribute to the state GDP.
Goa with its 15 Lac population, its major income resources are tourism and mining and these can be complementary to each other and need not to be at logger heads with each other and that is where the beauty lies in the policy making that we are able to strike a balance between the two. At this point of time, Goa is having double whammy. The COVID 19 had adverse impact on tourists visiting Goa and the closure of mines has dimmed the chances of the State to contribute to the vision of five trillion economy of the country. Mining came to a grinding halt in Goa from 16th March 2018 after the Supreme Court quashed 2nd renewal of 88 mining leases and imposed ban on entire mining operation.
The issues of concern to be immediately resolved are as follows:
1. The concerns of Environmentalists
2. Geographical Location & Geological emplacements
3. Mining & allied activities challenges
4. Legal interpretation of the two major acts Goa Daman Diu Abolition and Declaration as mining lease act 1987 which is commonly known as Abolition Act 1987 and the MMDR Act 2015 and its amendment of 2020 to be read along with the court directions,
5. The impact on Economy due to non-resolution of stalemate on the employment, lowering of income and that of state GDP
6. How to restart by consistent and credible holistic approach to boost the economy of Goa and Unlocking stalemate
1 . The concerns of environmentalists:
The concerns of environmentalists can easily be addressed as adopting appropriate technology and methodology, mining can be very environment friendly. That can be insisted upon and monitored. A well laid out plan with bench marking to ensure that during mining operations the environment protection measures are adhered to, a systematic dedicated arrangements of dumping of waste and reclamation of land post mining to be a part of agreement between the miners and the State.
In 2015, when Supreme Court has given a verdict that dumping outside lease area is not allowed unless the provisions in the Rules and Acts are made available as that had been an age old practice of Goa iron ore mining as the lease hold area of Goa iron ore mining is very small. On an average the lease areas are about 70-75 acres as compared to much larger lease areas greater 100 hectare in other parts of India. This brought in challenge of re-handling of this waste material disposed over the mineralized zone and adds to the cost of production. Thus a clear arrangement of dumping of waste is to be laid and executed.
Goa did have a history of environment friendly mining and notable good practices were demonstrated at international forums as well. ISO 14001 Standards and independent Mineral Foundation of Goa were early start ups. Thus, miners of Goa are coconscious of the issue and with a well laid out plan with bench marks have endeavor to achieve the same. These norms will ensure that mining do not cause harm to the locality and to the beauty of Goa and yet add to the economy.
2. Geographical location & geological emplacements
Goa has been trying to find a place in international markets, mostly to Japan, China, South Korea and Europe. The nature of its Geographical location and its geology, that is a low grade hematite ore, that works very well to blend with higher grades sourced elsewhere by major steel producers and thereby enable Goa to compete internationally,
Goa is well-known for its iron and manganese ores. Bauxite and laterite are the other minerals produced in the State. Resources of major minerals in Goa as per National Mineral Inventory published by IBM as on 1.4.2015 are as follows:
In Goa iron-ore is mostly low grade siliceous in nature with iron contents ranging from 50%-58%Fe, Alumina & Silica combined varies from 10-12% & mostly occurs in powdery form. As such Goa has inferior quality of iron ore deposits.
It is important to understand the business model of Goa mining industry and how it is different from business model of rest of India. The five parameters, to compare the Goa mining industry, are:
• Quality and quantity of the ore,
• Strip ratio,
• Requirement of beneficiation facility,
• Transportation methodology and
• Product portfolio.
The First parameter is “quality and the quantity”. The total geological resource base for iron ore of Goa is to the tune of 1.45 billion ton, out of which almost 82% is hematite ore and rest 18% is magnetite ore. Bulk of the magnetite deposits however within protected areas(WLS). This corresponds to almost 5% of total India’s hematite resource, other states like Odisha contributes almost 37%, Jharkhand 24% and Chhattisgarh 22% and Karnataka 11%.
On the quality front, Goa iron ore the Fe ranges from 50%-58% (Average grade is 54-55%Fe), Alumina plus Silica will be around 10-12% , inherent moisture will be in the tune of 10% and it’s mostly powdery ore. Goa has inferior quality of iron ore deposits as compared to other major iron ore producing states of India.
Second parameter is Strip Ratio, in general strip ratio means in removing 1 ton of ore how much waste needs to be removed. So for the Goa iron ore mining the strip ratio is as high as 1:4, compared to other states like Jharkhand, Odisha which is like 1:2.5 max and for Karnataka it’s 1:3 max. Higher the steep ratio results in higher cost of production.
On Third parameter is a requirement of beneficiation and value addition as the ore is of inferior quality in Goa and cannot be sold directly by dry screening and sizing, it requires wet beneficiation. Infact, out of total capacity of wet beneficiation in the country, around 50% lies in Goa region. However, even after beneficiation 3-4% Fe enhancement of Fe Grade, 20-25% reduction in alumina and 30-35% reduction in silica is possible and then there is a loss of recovery that 30-35% loss as per tailings. So this again adds to the cost of production as more percentage of wet beneficiation need to be done to make the product sellable in the market.
On the Fourth parameter that is transportation Goa have inbuilt advantage with an evolved system as compared to the other states of India. Goa has one of the lowest transportation cost per ton from pit head to the port due to well managed river navigation system. Geographically and strategically Goa is located on the western coast that has added advantage of the ports for export. The cost of transportation in terms of freight to South Korea, Japan and China is only $10- 11 i.e. Rs 800/- as compared to the nearest steel mill in the neighbouring state being Rs1500-1800/- per ton.
The Fifth parameter is the product portfolio, what product sending in the market. Product of mines of Goa is 56-57% Fe, silica 5-6% and alumina 4.2 to 4.5%. Thus, it caters to specific market as the requirements. Goa is producing very low grade product mix. If you see the analysis that is published in mineral year book almost 80% of Goan iron production is below to 60% Fe as against rest of India that produce 80% with 60% Fe content.
This raises the question as to then where is the market for this low Fe content iron ore? Definitely there are no takers in domestic market but Goan ores are more export oriented, bringing in precious foreign exchange. This export would contribute approximately 30% of the state GDP.
3. Mining and allied activities challenges
Mining in Goa today was synonymous with iron ore mining which is completely in Private Sector. It has long cherished history of systematic & scientific mining and won various accolades from different government regulatory bodies like IBM, DGMS etc. The exemplary Reclamation & Rehabilitation of mined-out area carried out in some of mines in Goa has attracted the attention of the mining world not in India but also in overseas and used to be referred by experts on different platforms.
However the low quality of Iron-ores coupled with more removal of waste rocks for every tone of ore production (excessive stripping ratio) & comparatively higher transportation charge to iron & steel plants with respect to iron-ores mine of other jurisdictions like Karnataka, Odisha etc made it economically unviable to compete in domestic markets and thereby leaving no option other than to look for overseas markets. Thus Iron-ores produced from Goa has been exported to various countries like Japan, South Korea & China etc. The export of Iron-ores from Goa is also in tune with National Mineral Policy 2019.
It is stated under Para 6.1 of NMP2019 that thrust will be given to extraction of mineral resources in which the country is well endowed so that the needs of domestic industry are fully met keeping in mind both present and future needs, while at the same time fulfilling the demand of external markets for such minerals, so as to enhance domestic economic and social well-being.
Before suspension of Mining Activities in the State of Goa in the year 2012, it was reported that 332 Mining Leases were valid for Iron and Manganese ore. Out of these 332 leases, 118 mining leases were in operation (About 90 mines).
The Production of Iron and Manganese ore before suspension of mining operations is shown in following Tables:
In the year 2010-11 and 2011-12 the contribution of mining to State GDP was about 20% and 17% respectively, which has dropped to almost negligible during 2013-14.
The status of Iron ore mining leases in Goa & production from the year 2015 till the complete ban imposed by the Supreme court vide it order dated 7th February 2018 was as under:
It is estimated that Mining industry in Goa was employing over 60,000 persons directly and another 250,000 persons indirectly. About 30% of State’s population depends on mining and allied activities.
Challenges of Mining Allied Activities
• Nevertheless the iron-ore mining in Goa is beset with the following issues;
• Dumping of waste rocks/ overburden outside the leasehold as the leasehold area mostly being less than 100 hectares,
• Transportation of Ironores from mine head to nearest jetty points by tippers causing excessive burden on existing public transport infrastructure,
• Centralized location of Beneficiation plants catering the needs of multiples leaseholds leading to complexity in accounting for production from individual leaseholds
• To carry-out mining operation on the basis of Power of Attorney in the background of Mineral Concession Rules 2016
The above issues need to be resolved to avoid further complication in future. There is need for technolegal audit of the entire flow process of mining operation to find out the likely aberration so that suitable remedial measures are taken in advance to avoid knee jerk reaction.
4. Legal interpretation of the two major related acts Goa Daman Diu Abolition and Declaration as mining lease act 1987 which is commonly known as Abolition Act 1987 and the MMDR Act 2015 and its amendment of 2020 to be read along with the court directions
History of Mining in State of Goa at a Glance
• 1941-53: Erstwhile Portuguese Government granted most mining concessions under Mining colonial laws 1906 (not granted under MMDR Act of 1957)
• 1961: Goa becomes part of Union of India
• 1963: Mines and Minerals (Regulation and Development) Act, 1957, extended to Goa Daman and Diu
• 1975, (10th March)the Controller of Mining Leases for India issued notices to every mining concessionaire under the Mining Leases (Modification of Terms) Rules 1956.
• MMRDA excludes power to modify leases granted before October 25, 1949
• 1966 – 1983: Aggrieved concessionaires moved the Bombay High Court, Goa Bench and by judgment dated 29.09.1983, Bombay High Court restrained the Union of India from treating concessions as mining leases.
• Attempts to modify leases fail. High Court notes that no modification can be done as concessions principally not granted under MMDR Act.
• 1987: Parliament abolishes concessions, introduces leases in Goa, Daman & Diu under MMRDA that was notified on May 23, 1987 – Termed as Abolition Act (GBA)
• 1987: Appointed date indicated in GBA reads retrospective from Dec 20, 1961
• 1987: Miners challenge the Act before High Court. Interim relief granted threafter.
• 1997 High Court abolishes the challenge to the virus of the GBA, however, holds the Act and the recovery of dues prospectively
• HC judgment thereafter challenged in Supreme Court of India through SLPs
• 1998: SC’s 3-Judge bench passes interim order permitting mining operations and restricts any recovery of royalties retrospectively
• 2006/2007 –337 apply for renewals in the stipulated time. Workings permitted under deeming provision as in rest of India.
• 2012 – 1st Suspension of Mining Operations
• 2014 – Hon’ble SC permits mining operations. Caps Production capacity to 20 Million tons & Introduces concept of Iron Ore fund (before the advent of DMF to follow thereafter).
• •2014/2015 – Goa Government grants second renewal to 88 (out of 409) leases before ordinance introduced in January 12, 2015.
• 2015: NGO challenges renewal orders of the State Government.
• 2018: SC’s 2-Judge Bench quash 88 Mining leases which were granted second renewal by Goa Government in 2015.
• 16th March 2018 onwards Mining activity comes to a halt.
• 2018-19 – State Government pitches to the Central Government to remove the impasse created by harmonizing the Abolition Act & MMDR Act. Interventions filed in the SC, including by Ministry of Mines indicating vested rights of Miners in Goa cases.
• 30th January 2020: In a partial relief, SC permits extracted ores prior to Mid March 2018 to be transported.
Dr. Aruna Sharma has served as Secretary, Govt. of India. She is a Development Economist and served as Secretary, Ministry of Steel; Secretary, Electronics and Panchayati Raj. She also held charge of Rural Development and Panchayati Raj in Madhya Pradesh state government. She conceived and launched governance software like Samagra, now operational in 10 states and coordinated for Direct Benefit Transfer. She was member in 5 member high level committee of RBI for deepening digital payments.
Connecting the dots: Contraband gold and terror funding
It was widely reported by the media from UP on 27 January that ED had submitted a report to Ministry of Home Affairs on Kerala-centred Popular Front of India mobilising funds to finance the cost of demonstrations and gherao against the CAA Bill till 6 January 2020.
Kerala has had a long history of gold smuggling, going back decades. Over the years, the carriers coming from all walks of life have improvised their skill sets, finding stunningly original ways to bring in the contraband, in all shapes and forms, hidden in the most intriguing places including various parts of their body.
Though not claiming that long a history, a few pockets in Kerala, especially the Kannur-Kozhikode-Malappuram region and certain parts of Ernakulam and adjoining Idukki districts had spawned terror since the 1990s.
The early days saw Abdul Nasser Madani’s brand of radicalism that included planning and pulling off terror strikes like the Coimbatore blasts played hide-and-seek with political aspirations through his People’s Democratic Party. His camp follower Thadiyantavide Naseer never hid his true intent, forging ties with the dreaded Lashkare-Taiba. Since then, there have been numerous terror cases such as the infamous palm chopping case of 2010 that had NIA looking closely at Kerala.
But the tide really began to turn in mid-2016 when Kerala had to take cognisance of the tentacles of ISIS terror having reached the nooks and crannies of the state. From Padna and Trikkaripur in Kasargod, Yakkara in Palakkad, Thammanam in Ernakulam and Attukal in Thiruvananthapuram, the intelligence agencies traced 15 educated youth, including four Christian converts and one Hindu among the team of 15 who went to Syria to engage in jihad. Their route of travel to Syria was traced via Sri Lanka and Afghanistan. Many of them are reported to have been killed.
That was not the end as in 2017 a number of youngsters from Valapattanam in Kannur were found getting recruited by IS in Syria. Then again in 2018, the state woke up to another bout of IS recruitment from Wandoor in Malappuram. A year later came investigations into terror footprints linking the state and Easter church blasts in Colombo and other parts of Sri Lanka.
So far, the investigating agencies have failed to connect these two strands of anti-national activities – gold smuggling and terror links – in a significant way.
That is precisely what the National Investigation Agency (NIA) has set out to do from Day 1 of its engagement in the Thiruvananthapuram gold smuggling through diplomatic channel case that was officially busted on July 5.
The Customs Department, that apprehended the contraband and followed up with a series of arrests, has been elusive about the source of their alert that culminated in the bust. Meanwhile, the state police have started claiming as to how the whole case began unravelling after their periodic input to the central agencies such as the Directorate of Revenue Intelligence (DRI) and Enforcement Directorate (ED) about money trail leading to possible terror funding.
It was widely reported by the media from UP on January 27 that ED had submitted a report to Ministry of Home Affairs (MHA) on Kerala-centred Popular of India (PFI) mobilising funds to finance the cost of demonstrations and gherao against the CAA Bill till 6 January, 2020. ED is understood to have come across the information while investigating PFI’s role in an earlier case registered under the Prevention of Money Laundering Act. PFI had come out with a detailed rebuttal of ED’s charges which it said was false.
The ED had claimed to have found details of Rs 120.5 crore credited to accounts related to PFI, suggesting there was direct correlation between the dates of deposits and withdrawals from these accounts vis-à-vis the anti-CAA demonstrations in different parts of the country. One such payment found its way to an accused in a terror case, Abdul Samad, with roots in Mumbai who was arrested from Uttarakhand and taken into custody by NIA in February 2018 for his role in wide-reaching hawala operations and links to LeT.
“There are a number of instances with men from Kerala involved in cases like recruitment to IS, those with established links with LeT and many accused in terror cases across India. Apart from recruitment, their ground-level operations require serious money. Kerala police have cracked two IS recruitment-radicalisation cases and five cases are under investigation. And there have been a number of smuggled gold seizures we have done outside airports,” DGP-Kerala Loknath Behera told this correspondent.
Therefore, when the case of gold smuggling through the diplomatic route was busted on July 5, it appears the theory of the yellow metal being the new instrument of terror funding had already some traction among the intelligence agencies. This gives credence to the inference that the customs department was tipped off about the contraband gold coming in from Dubai. Sources say this gang had already smuggled in over 200 kg when the bust took place. Some say the gang led by Ramees KT (also arrested) was the man controlling the show and had access to Sarith PS and Swapna Suresh through Sandeep Nair. And the Dubai side of activities were handled by Faisal Fareed and Rabins Hameed, also from Kerala. Officers familiar with the probe fear 500-700 kg contraband gold would have been brought in by these players in the past one year.
In August 2019, the DRI arrested Rahul Pandit, inspector in the customs preventive division at Kannur airport for his involvement in gold smuggling at Kannur airport. Three other officers who assisted him too were held. Pandit was suspended from service, probe against others initiated. In November, 2019 the DRI arrested B Radhakrishnan, senior customs officer and former superintendent, Customs Air Intelligence Unit, Thiruvananthapuram on the charge of aiding and abetting import of large quantities of contraband gold through the international airport while manning the X-ray scanning machine. Again the volume of gold smuggled is put in excess of 500 kg before they were caught.
The sleuths are trying to separate the grains from the chaff – the large volume operations held together by operatives owing allegiance to organisations known to engage in anti-national activities and the regular carriers bringing in the contraband for shady jewellers. It is also suspected that all big operations had the same set of key players in the background.
In retrospect, it was no surprise that the MHA showed no hesitation in asking the NIA to investigate the gold smuggling case. Naturally, the inference can only be that NIA is working the case backwards towards funding of anti-national activities by connecting the dots. And hence its confident assertion in its remand petition filed before the special court in Kochi that the accused in the gold smuggling case were using the proceeds for terror funding. The state police brass admits the gold-terror nexus theory announced by the NIA was not implausible.
“Most terror outfits have sleeper modules in Kerala. This was the purpose behind reviving the Kerala Anti-Terrorism Squad last year, exactly along the lines of the NIA. That is why we have a dedicated unit within the ATS to track fund flow, mainly connected with gold and real estate. But we have limitations of jurisdiction and often need the help of central agencies. We already have shared a lot of data with NIA,” Behera said, adding there was a good likelihood that gold smuggling in Kerala has links with the sleeper cells of radical outfits with pan-India, even international footprint. And it is not surprising that links are emerging connecting terror funding with gold smuggling, as the yellow metal has always been a source for mobilising money, along with drugs and counterfeit notes. Clearly, those agencies involved in terror activities need funds to fight their court cases and other activities which cannot be raised only through donations, he said.
As per records available from sources in the Customs Department, the figures for gold seized in Kerala clearly indicate a rise in smuggling of gold. One of the reasons cited is the rise in import duty on gold from an already high 10 per cent to 12.5 per cent in 2019, apart from 3 per cent GST. The tax on gold in UAE at 5 per cent is perhaps the lowest in the world.
2019-20 – 540 kg (4 airports)
2018-19 – 251 kg (4 airports, Kannur started function in December 2018)
2017-18 – 103 kg (3 airports)
It has been the contention of some of the investigating agencies that smuggling cannot happen without the support officers in the Customs Department.
The state government has come under considerable heat because of the alleged involvement of Chief Minister Pinarayi Vijayan’s former principal secretary and top bureaucrat M Sivasankar with some of the accused in the gold smuggling case. Quick to distance itself from the likely political fallout, the state government suspended the officer. The NIA has got the custody of many suspects arrested by the customs department for gold smuggling. The agency also grilled Sivasankar for two full days this week.
Now, as the NIA tightens the screws and builds a watertight case by connecting the dots between gold smuggling and terror funding, there will be many casualties. Sure, the central agency sleuths are working the case backward, but there is nothing untoward in that as long as the basic premise is on solid ground. It may be a matter of time before it emerges that gold is the new instrument of transaction for terror, especially given the backdrop of meagre liquidity in the postdemonetisation days.
The big question is whether there will be a more comprehensive investigation that covers aspects that do not fall under the purview of the NIA. Because, the smuggled gold could also have gone as payment to officers and politicians for favours rented. Then, the investigation should bring under its purview corrupt practices allegedly followed in awarding lucrative contracts, loss to the state exchequer by way of appointing big consultants and the connection between these two strands.
Just as the NIA strives to link gold smuggling with terror funding, it will take the involvement of another agency like the Central Bureau of Investigation (CBI) to connect the dots. Because, there seems to be a lot of dubious looking dots that appear all over the place and this simply cannot be coincidental.
Kerala’s terror cases and NIA
Kerala has had a long tryst with the NIA right from the days of its inception following the 2008 Mumbai terror attack to combat terror in India. Founding Director General Radha Vinod Raju, though from the J&K cadre, hailed from Kochi. In that team, heading the terror financing and fake currency cell was another officer from Kerala cadre Loknath Behera, now DGP-Kerala.
NIA turned its lens on Kerala when Thadiyantavide Naseer with his LeT connections was found scouting for wannabe jihadis to fight wars in Iraq and Syria. It was NIA that busted terror camps in Vagamon, Narath and Kanakamala. By unravelling the deep-rooted terror links involving young couples getting converted the terror way to turn jihadis in distant lands, NIA ruffled the feathers of quite a few mainstream politicians in the state.
The special court for NIA cases convicted 13 of the 31 accused in the infamous `palm chopping case’ of July 2010 (members of the Popular Front of India had attacked T J Joseph, then professor at Newman College, Thodupuzha, and chopped off his palm for compiling a question paper that contained material insulting the Prophet). It was widely discussed as to how the masterminds walked free.
In November 2019, the NIA court in Ernakulam awarded 14 years› RI to the first accused in the Kanakamala IS case – for hatching a conspiracy, including through social media platforms and later meeting at Kanakamala in Kannur on October 2, 2016, to plan terror attacks in Tamil Nadu and Kerala against Jews, RSS leaders, BJP leaders, judges and police officers.
The Gold Trail
According to World Gold Council statistics, demand for gold in India declined from 760.4 tonnes in 2018 to 690.4 tonnes in 2019, though in value terms it was up three per cent, from Rs 211,860 crore to Rs 217,770 crore respectively. But gold imports, that account for the entire requirement, apart from smuggled gold, as per the Ministry of Commerce and Industry data, gold imports in June 2020, were down 77.42 per cent against a year ago. And things were no better in the preceding months, mainly on account of Covid-19.
However, much of the gold that comes into India finds no place in official records. IMPACT, a Canadian agency that tracks worldwide movement of contraband gold, says in its November 2019 report titled ‘Golden Web: How India became one of the world’s largest gold smuggling hubs’ that India meets 25 per cent of its annual requirement of 1,000 tonnes via the smuggled route and cautions that the leading global gold manufacturing centre must take action to address the weakness in its supply chain. The report acknowledges that refined gold is being smuggled into India primarily from the UAE. ‘’India is at the heart of a web of illicit trade of gold, with threads spanning the gold and almost certainly financing conflict and corruption,’’ highlights the report.
Excerpts from the remand petition filed by NIA’s chief investigating officer on 21 July
‘’It is submitted that Swapna Prabha Suresh (A-2), Sandeep Nair (A-4) and other accused had conspired together and separately at various places in Kerala to damage the monetary stability of India by destabilising the economy by smuggling large quantities of gold from abroad and it is suspected that they had used this proceeds of smuggling for financing terrorism through various means. These deliberate acts of using the diplomatic baggage of UAE as a cover to transact illegal business may have serious repercussions in the diplomatic relations with the government of UAE and it is prejudicial to the monetary and economic security of India as well. Further, the involvement of other people in to this crime as well as the end users and beneficiaries need to be ascertained.
It is further submitted that during the custodial interrogation the role played by other associates came in to light including one Ramees KT who is one of the kingpin in this case. Sandeep Nair (A-4) stated that Ramees KT insisted for smuggling gold in large quantity and maximum numbers during the lock down period as the financial position of the country is weak etc. A-4 also stated that KT Ramees commands and always moved with a group of persons and have contacts abroad. Steps are under progress to join the said KT Ramees in the investigation of this case.’’ (sic)
Timeline of the diplomatic channel gold smuggling saga
June 30: Diplomatic baggage consignment containing 30 kg of gold from Dubai, addressed to the UAE Consulate (Thiruvananthapuram) Charge D’ Affaires Rashed Khamis al Shameli, reaches Trivandrum International Airport. Customs Department refuses clearance based on alert.
July 5: Consignment opened, after getting necessary MHA, UAE Consulate clearance, 30.25 kg of gold found hidden along with plumbing materials.
July 6: Sarith PS, former PRO of UAE Consulate who had turned up to get consignment released, taken to Customs Office, Kochi for questioning, arrested. Co-accused Swapna Suresh, Sandeep Nair found absconding.
July 10: NIA files case to investigate terror finance behind gold smuggling case.
July 11: NIA takes into custody Swapna, Sandeep from Bengaluru.
July 13: NIA probe team gets Swapna, Sandeep in custody for 8 days till July 21. Customs team arrests known offender Ramees K T, said to be the brain behind the smuggling racket and one who was pushing large volumes of gold during the Covid-19 lockdown period.
July 14-18: Customs pick up a number of suspects, many of them known gold smugglers.
July 19: News break of Faisal Fareed arrest in Dubai police on Friday. Allegations made about his involvement with known names in Malayalam film industry.
July 20: The name of yet another link surfaces – Rabbins from Muvattupuzha, said to be the man sent to Dubai by the hawala dealers in Kerala to supervise Fareed,
July 21: NIA gets custody of Swapna, Sandeep extended till July 24. Stage set for DRI to enter fray as records emerge of illegal holdings in land, deposits in bank lockers.
July 23: NIA questions senior bureaucrat M Sivasankar about his relationship with the main accused in the case, Swapna, Sarith and Sandeep, seeks CCTV footage of his office adjoining the CM›s office in the Secretariat.
July 27/28: Sivasankar questioned by NIA in Kochi; no clean chit even after 25 hours of grilling over three days.
RERA complaint disposals: Uttar Pradesh & Haryana come out on top
RERA disposes of 48,556 complaints in three years, 57% resolved in last one year.
The fruits of the Real Estate Regulatory Authority (RERA) are becoming evident three years after it came into force. As many as 48,556 complaints were disposed by the respective state authorities as of July 2020, according to the Data by Ministry of Housing and Urban Affairs. Out of this, nearly 57%cases or approx. 27,581 complaints were resolved in the last one year alone. One of the main aims of RERA is to address consumer complaints from the real estate sector.
Uttar Pradesh takes the lead with as many as 18,509 cases disposed of by the UP- RERA authorities so far, against a mere 5,989 cases a year ago. Haryana is second with nearly 9,919 cases disposed of currently as against 3,123 cases in the corresponding period of 2019. Maharashtra›s MahaRERA has so far disposed of nearly 7,883 cases.
KK Khandelwal, Chairman, Haryana’s RERA department H-RERA this writer, “Execution of disposed complaints is doing well. In as many as 138 cases, there is a stay order from the High Court. The introduction of H-RERA has led to builders submitting all the information about the project before starting construction, this itself solves half the problems that used to crop up in times before the introduction of RERA. Construction now happens as per building plan, the builder-buyer agreement that is signed has all the information and hence there is less room for misinterpretation and misuse of the agreement unlike earlier times when the agreements were loosely worded.”
RERA has powers to check and monitor the quality commitments made on paper by the builder.
When this writer asked that there have been instances of use of ground water by builders which led to cracks in building walls, Khandelwal said that consumers should know that there is complete ban on use of ground water by builders, and if he has found to using ground water in violation of the laws, he is bound remove any defects that crop up in the building for a period of five years since construction.
On the Pradhan Mantri Awas Yojana (PMAY) and Deen Dayal Jan Awas Yojana (DDJAY) front too, Haryana was doing well with as many as 1 lakh housing units of two and three bedroom under construction at a price point of Rs. 35 lakh.
Speaking on the disposal of RERA complaints in Uttar Pradesh, Balwinder Kumar, Member, and UP-RERA, told this writer, “Disposal of complaints has gone well and now our focus is on execution of the orders passed”
Project & Agent Registrations
The 24% growth in project registrations under RERA in a year pertains to around 43,208 projects by the end of July 2019 to nearly 53,364 projects as of date. The States with maximum project registrations currently include Maharashtra, Gujarat, Karnataka, Madhya Pradesh, Uttar Pradesh, Telangana and Tamil Nadu. Cumulatively, these seven states account for a significant 85% share with nearly 45,278 registered projects. Maharashtra tops the list with nearly 25,604 project registrations, said Anuj Puri, Chairman, Anarock Property consultants.
Interestingly, UP has seen the least annual growth of 5% in project registrations. In July 2019, around 2,676 projects were registered in the state – currently, the number stands at approx. 2,818 projects. Evidently, developers in the state were more focused on project completions than on new launches.
Among these top 7 states, Telangana saw the highest yearly growth of 79% in project registrations – from 1,064 projects in July 2019 to over 1,902 projects now. Tamil Nadu recorded a 54% yearly jump – as on July 2019, the state has 1,064 projects registered which have increased to 1,635 projects this year.
In terms of agent registrations, there has been a 20% increase in a year – from 34,182 registered agents towards July-end 2019 to nearly 41,143 agents as of July 2020.
High-scoring States Maharashtra is the frontrunner with the maximum number of project and agent registrations, setting a high benchmark for other states to emulate. MahaRERA continues to be the ‘poster-child’ of RERA implementation:
As on 4th July 2020, Maharashtra saw the registration of 25,604 projects and 3,999 agents.
Gujarat saw 7,210 projects and 1,178 agents registered.
In Karnataka, 3,446 projects and 1,916 agents have been registered as of July 2020.
In Uttar Pradesh, 2,818 rojects and 3,808 agents have been registered.
Madhya Pradesh saw total registrations of 2,663 projects and 677 agents.
Other states catching up in project registrations include Chhattisgarh, Rajasthan, Tamil Nadu and Telangana which saw 1,142; 1,243; 1,635 and 1,902 projects registered respectively.
Tarun Nangia is the host and producer of Policy & Politics.
Custodial deaths in India: A detailed discussion
Thomas Fuller once famously quoted ‘Be you never so high, the Law is above you.’ In the preceding months, the issue of custodial death has certainly come to light. Whether it is the heart-wrenching incident which took place in Tamil Nadu concerning the sad demise father-son duo during police custody or the encounter of Vikas Dubey or the fiasco concerning George Floyd, the police has indeed considered itself to be above the law. The Rule of Law, which is embodied in the Constitution of India itself, states that no man is punishable or made to suffer except in a breach of law established through legal procedure in a court of law. The custodial deaths, which involve death of suspects/accused persons in police custody, are the exact anti-thesis of the Rule of Law. Custodial deaths not only expose the glaring violations of the provisions of law in the statute books but also the Rule of Law, which is considered to be the bedrock or the very soul of a legal system. This Article discusses the derogation of the Rule of Law in light of the recent custodial deaths.
The incident in Tamil Nadu, as reported by the media, involved Jeyaraj and his son Bennix, who were taken into custody by the police. In custody, the accused were harassed by the police and on complaining, they were beaten for long hours resulting in profuse bleeding. They were taken to the hospital next day where they succumbed to their injuries. In another incident which involved the renowned gangster Vikas Dubey, the police encountered him while transporting him to prison. These are among the 1500+ cases of custodial deaths which occur in India every year. There have been multiple incidents, including aforementioned, of accused persons being punished by the police without adherence to the law. Any punishment or suffering meted out to any person without legal proceedings is a violation of the Rule of Law and strikes at the very foundation of our legal system.
At this juncture, it is essential for the reader to understand what is meant by the Rule of Law. According to International Bar Association, the Rule of Law is the foundation of a civilized society. It is the most important set of legal principles which have been adopted in almost every legal system, be it the United States, United Kingdom or India. It can be said that the Rule of Law comprises of the most basic fundamentals including human rights which shall be present in any democratic nation irrespective of the prevailing laws, traditions and culture existing therein.
The Rule of Law establishes a transparent process accessible and equal to all and ensures adherence to principles that both liberate and protect. The Rule of Law, as propounded by eminent English jurist A.V. Dicey, states “that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land”. This rule basically means that you and I can be punished only if we have breached a provision of law, we have been fairly tried in a court of law according to the procedure laid down by the law and condemned guilty by such courts. It is pertinent to mention that not everyone can decide if a law has been breached but only such persons who have been authorized by law.
However, the Rule of Law is not only limited to the principle stated in the preceding paragraphs. The concept of Rule of Law, which is a part of the basic structure of our Constitution has been substantially enlarged. Tom Bingham, an eminent judge in England having served as Lord Chief Justice of England and Wales, included proper exercise of powers fairly, in good faith and without abuse, some basic human rights and right to fair trial as a part of the Rule of Law. If a nation does not adopt these principles, it cannot be said to have complied with the Rule of Law. In the incident which took place in Tamil Nadu and Vikas Dubey’s encounter, following are the violations of Rule of Law:
First, the Rule devised by Dicey states that no man is punishable or made to suffer except in a breach of law established through legal procedure in a court of law has been severely violated. Let alone being made to suffer or punished for flouting lockdown norms, the accused persons have been brutally murdered after hours of beating in Tamil Nadu. Similarly, Vikas Dubey was killed during transportation to the prison by the police. The question or stage of subjecting the accused to a trial in the court of law did not even arise. In an offence where the court has to try and punish accused persons, the police has condemned the same persons to death themselves. Such grave injustice meted out to the deceased persons shall be condemned and the policemen guilty of such a shameful act shall be punished.
Second, the Police had an obligation to exercise its powers in good faith and fairly and not abuse these powers. The Police, whose duty is maintenance of law and order, is no way empowered to harass or torture suspects. On the contrary, the Police can only detain the accused persons or suspects while the case is adjudicated upon by the courts. Abusing prisoners, beating, torturing or killing them is a gross abuse of power which shakes the confidence people impose in the police.
Third, there are certain human rights which are so essential to human life that even if they have not been expressly granted to people, they are assumed to be available to every person in a democratic nation. Law cannot be simply what is dictated by political authority. It must include certain basic elements of human life. These rights include right to life and liberty, no punishment without law, prohibition of torture, freedom of speech and expression, right to education etc. Any violation of such rights strikes at the very existence of mankind. Any violation of these rights delivers a blow to the Rule of Law. Harassing, torturing, beating or murdering, in extreme cases, detainees certainly violates the right to life and liberty along with the prohibition of torture.
Fourth, every nation guarantees a right to fair trial to the accused. Any person so arrested by the police must be presented before the court, which shall in turn, as per the due course of law, try the accused person and pronounce its verdict. In Tamil Nadu, the accused persons were tried and condemned to death by the police itself. Vikas Dubey was subjected to the same. The detainees were not even given the liberty or chance to enter the court of law for a fair trial. At the very first stage of criminal proceedings when a person is arrested, the persons were punished with death by the police.
The aforementioned instances show the blatant multi-faceted violations of the Rule of Law. It is pertinent to mention that the countries which have ranked at the bottom of Rule of Law Index (World Justice Project) include Pakistan, Afghanistan and Congo. India is ranked 68th among 126 participants. It would be a shame to see India, our great nation, sharing its great history and time-honoured society with such unstable, undemocratic and tyrannical nations. The police has enjoyed unfettered powers and has time and again violated the law. Our government must bring changes in the law, stricter surveillance of police actions/inactions and increased accountability. As John Locke quoted ‘wherever law ends, tyranny begins’. The tyranny of the police has begun and it must be brought to an end.
Siddharth Srivastava is an Advocate practising at Delhi High Court and is Partner at Seven Seas Partners LLP.
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