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Policy & Politics

Representation of People’s Act 1951

Defamatory campaigns, expenditure limit, advertising , paid news and promotion.

Varun K Chopra and Gurtejpal Singh

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The menace of paid news rears its ugly head during elections throughout India. From Local Body elections to Parliamentary elections, the Candidates are increasingly misusing mass media to influence elections in their favour.

The Press Council of India in its report on paid news has observed that the malady of paid news goes beyond the corruption of individual journalists and media companies and has become pervasive, structured and highly organized. The definition of paid news, as endorsed by the Election Commission of India is “any news or analysis appearing in any media (Print and Electronic) for a price in cash or kind as consideration”.

Though printed on the same page, there is a stark distinction between News and advertisements. News is meant to be fair, balanced and neutral in contrast to paid advertisements speaking highly of particular brands, products, persons etc. The amalgamation of news and advertisement leads to the unholy nexus called ‘paid news’. Innocent readers including voters, who rely on the truthfulness of a news article are constantly coming across such paid news in favour of a particular party or candidate. Such readers can hardly distinguish between actual news and the advertisement of a particular party or candidate published as a news article.

Countering Paid News

The practical difficulty in countering the expanse of paid news is due to lack of any mechanism to prove and punish the perpetrators including politicians, journalists, media outlets etc. The Election Commission of India has published considerable literature and an array of instructions on paid news over the years. Media Certification and Monitoring Committees (‘MCMC’) have also been constituted to monitor political advertisements during election campaigns. However, due to lack of any effective enforcement mechanism the directions have been circumvented without much effort.

Provisions enacted to curb Paid News and prevalent loopholes and workarounds

Some Provisions enacted and measures taken by the Election Commission of India to curb Paid News –

S. 127A of the Representation of People Act, 1951 (‘RP Act’) make it mandatory for a publisher of an election advertisement, pamphlet etc to print the name and address of the publisher as well as printer.

S. 171 H of Indian Penal Code– Prohibits anyone to incur expenditure on advertisement for a candidate without his authority. The offence is non-cognizable and punishment for the same is fine which may extend to Rs. 500/-.

 Section 77 and 78 of the RP Act 1951 mandate a candidate to maintain and lodge an account of all the expenditure in connection with the election incurred or authorized by him.

 Inclusion of expenditure as a candidate’s notional expenditure in cases where advertisements are promoting that candidate are published and actual expenses are not revealed.

Constitution of Media MCMC at District, State and ECI to inter alia precertify political advertisements and scrutinize all media to monitor and locate political advertisements / paid news cloaked as actual news coverage from the date of filing of nomination by the candidate till the completion of elections. Recognizing the expanding clout of social media in Electoral Campaigns, the Commission has also added a Social Media expert to MCMCs.

Despite various provisions and instructions, parties, candidates, journalists and media houses find it easy to bypass such provisions. Some examples of how the aforesaid provisions are made ineffective –

When false / fabricated / paid material is published in newspapers or TV it is often presented as an actual news article. The requirements under S. 127A of the RP Act, 1951 is only applicable to Advertisements and not news articles.

Being a criminal offence, the standard of proof in S.171H is strict. The minuscule punishment also doesn’t deter any offenders. A candidate willing to run a paid news campaign can ask any person to get certain paid news published in a newspaper willing to publish such material. Firstly, this detaches the candidate from having knowledge the act and in worst case scenario the person who actually made payments is caught, he would get away with a mere fine of Rs. 500

Despite S. 77 and 78 of the RP Act, 1951 mandating that Election Expenditure incurred or authorized by the candidate or his election agent by maintained and lodged, it does not bring within its purview any covert transaction undertaken by an agent of the candidate. The Hon’ble Supreme Court in Indira Gandhi v. Raj Narain had held that taking advantage or failure to disavow the same would not lead to a conclusion that either the candidate or his agent had authorized the same. In light of the judgement, it is clear that even if candidate has knowledge of the expenses being incurred for paid news by his agents or he knowingly takes advantage of the same, unless and until direct or implied authorization by the candidate could be shown.

Similarly, the limits on expenditure provided by the Election Commission have barely been followed. Candidates use covert means and ‘well-wishers’ funded by the candidate or party himself to make arrangement for majority of the campaign. As cited above, in case the candidate has not directly paid for the news, linking the same to the candidate is not easy despite such ‘news’ blatantly canvassing for the particular candidate.

A sizeable portion of offending content arises from social media. However, in absence of any amendments in the 1951 Act to include social media, the Commission in consultation with Internet & Mobile Association of India (IAMAI) issued a ‘Voluntary Code of Ethics’ before General Election 2019. This Code was to ensure that ECI could seamlessly notify any infarctions of Electoral Laws to Social Media platforms and the platforms were to make sure that all social media political advertisements were pre-certified by the MCMC. However, the use of social media during the silence period by candidates or political parties to appeal to voters was not prohibited.

 Moreover, there is no specific legislation prohibiting dissemination of fake news / libellous content on social media. The spread of fake news / defamatory campaigns is often by the workers of parties or persons linked to politicians benefitting from the same. However, by its very nature, it is very tough to trace when, how and by whom a certain message originated. Moreover, the persons and parties benefitting from such campaigns can always deny knowledge or authorisation for them.

Therefore, the present legal framework is being bypassed by candidates, political parties, journalists etc.

Narottam Mishra Case

 The Election Commission on 23.06.2017 passed an Order under Section 10A of the RP Act 1951 disqualifying Dr. Narottam Mishra for three years from the date of the Order for incurring expenditure and exceeding the limit prescribed by the EC on publication of around 42 ‘paid news’ items in various dailys.

That the EC’s findings came up for challenge before Hon’ble High Court of Delhi. That the Ld. Single judge of the High Court dismissed the Writ Petition filed by Dr. Mishra and upheld the Order passed by EC inter alia on the grounds that Dr. Mishra had knowledge of the publications, he failed to disavow the said publications and knowingly took advantage of the expenditure.

However, the Hon’ble High Court of Delhi’s division bench in Appeal quashed the Order of Election Commission after relying on the judgement in Indira Gandhi v. Raj Narain (Supra.) and holding that to establish disqualification under Section 10 of the RP Act 1951 two things have to be established firstly, that the expenditure incurred by the candidate was beyond the limit prescribed, and secondly, that the expenditure was incurred / authorized to be incurred by the candidate.

The Division bench of the Hon’ble High Court held that from the facts, it could not be established that Dr. Mishra had knowledge of the publication or implied authorisation to incur the expenditure and therefore, EC’s order could not be sustained. The matter is presently pending as a in a Civil Appeal before the Hon’ble Supreme Court. The decision in the matter may well decide the future and standard of proof for paid news in Elections.

Differential treatment of Television and Print media

Section 126 of the RP Act, 1951 prohibits any public meeting, campaigning or publication of material related to election on television or cinema during the 48-hour silence period, however, it does not prohibit publication on print or social media. This anomalous situation was inter-alia subject to scrutiny by Committee to examine Section 126 of the RP Act 1951 constituted by the Election Commission of India.

The Committee had noted that during the 48-hour prohibited period during which no campaigning is permitted, there are many indirect methods adopted by candidates and political leaders which may directly or indirectly influence the minds of voters in favour or against some party/candidate. It was observed that in recent elections political parties had used print media during the prohibited period since the same was not covered under Section 126. To address the issues the committee had suggested amending section 126 of the RP Act 1951 to include “publication, publicising or disseminating any election matter by means of print or electronic media.” as an offence.

The Election Commission has pushed for various legislative reforms including making paid news an electoral offense attracting disqualification. The Commission since 2011 has been proposing to the Ministry of Law and Justice, Govt of India to amend the RP Act 1951 and make publishing and abetting the publishing of Paid News an Electoral Offence under chapter – III of Part VIII of the Act. Thereafter, in February 2020, the Commission in a meeting with Ministry of Law reminded the Ministry of around 40 proposals for electoral reforms which have been pending since long including appropriate legislative amendments to classify paid news as an electoral offence / corrupt practice.

However, the legislature is yet to effectuate the recommendations of the commission.

Conclusion

The Election Commission is aware of the challenge being faced by democracy due to Paid News. However, despite various directions and recommendations, the present legal framework around the issue remains inadequate and insufficient.

Unless the ‘Paid News’ is classified as an offence and such offence is made a corrupt practice resulting in disqualification, present measures to curb it will remain toothless.

1. Report on Paid News – Press Council of India – 30.07.2010

2. No. 491/Media/2011 (Advt) – ECI Letter – 16.08.2011

3. No. 491/Paid News/2012/ Media – ECI Letter – 27.08.2012

4. No. 491/Paid News/2019/ Communication – ECI Communication – 25.02.2019

 5. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1

6. Dr. Narottam Mishra v. Election Commission of India 2018 SCC OnLine Del 9075

7. Rajendra Bharti v. Dr. Narottam Mishra & Anr. C.A. No. 812/2019

8. The Representation of The People Act, 1951 (Act No.43 of 1951)

9. https://eci.gov.in/files/ file/9276-report-of-thecommittee-on-section126-of-the-representationof-the-people-act-1951/

10. No. 3/1/2011/SDR – ECI Letter – 03.02.2011

11. No. ECI/PN/24/2020 – Press Release by ECI – 18.02.2020

Varun K Chopra is an Advocate practising at the Supreme Court of India and Gurtejpal Singh, Advocate.

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Policy & Politics

Femtech Apps: An Analysis

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INTRODUCTION

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

ARE WOMEN, COMMODITIES MASQUERADING AS USERS FOR FEMTECH APPS?

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

APERTURES IN REGULATORY STANDARDS AROUND THE WORLD

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

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

ABSENCE OF DATA GOVERNANCE FRAMEWORK IN INDIA

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

THE ROAD AHEAD

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

CONCLUSION

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

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

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Policy & Politics

Vehicle Scrappage Rules’ Enforcement in current times

Anu Bhuvanachandran & Anju Joseph

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

Srcapping Policy

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

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

ELIGIBILITY TO GET SCRAPPED

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

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

END OF LIFE OF YOUR VEHICLE

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

VEHICLE SCRAPPER FACILITY AND PROCEDURE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DISPUTES & ADJUDICATION

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

DRAFT RULES AND PANDEMIC

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

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

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

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

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

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Policy & Politics

Back from the brink: Positivity is the key

Anil Swarup

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

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

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

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

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

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

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

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

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

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

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

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

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Policy & Politics

Self-proclaimed appearance of Param Bir Singh

Vijay Darda

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

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

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

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

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

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

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

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

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

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

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

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

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Policy & Politics

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Policy & Politics

Musings of a BSF officer’s daughter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The author is a practicing advocate at the Delhi High Court 

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