It is most heartening to note that none other than the Supreme Court itself has in a learned, laudable, landmark and latest judgment titled Abhishek Singh Chauhan vs Union of India in Writ Petition (Criminal) No. 40/2022 and cited in 2022 LiveLaw (SC) 608 that was finally delivered on July 13, 2022 directed State-wise clubbing of the FIRs that were filed against an accused in different states. The key point of this judgment as stated in the very outset of this learned judgment is that, “FIRs lodged against accused under various provisions of the Indian Penal Code (Section 420 IPC etc) and other State enactments in various states – Directs clubbing of all the FIRs State-wise, which can proceed together for one trial as far as possible – Multiplicity of the proceedings will not be in the larger public interest. Referred to: Amish Devgan vs. Union of India (2021) 1 SCC 1.”
At the outset, this brief, brilliant, balanced and bold judgment authored by a Bench of Apex Court comprising of Justice AM Khanwilkar and Justice JB Pardiwala sets the ball rolling by first and foremost putting forth in the opening para of this notable judgment that, “In this writ petition filed under Article 32 of the Constitution of India, the principal relief claimed by the petitioner is regarding clubbing of all the FIRs registered in different States and for grant of bail respectively. The details of said FIRs are as follow: –
SI. NO. FIR NO. DATE OFFENCES POLICE STATION
1. RC/40/S/2014 5.6.2015 S. 420, 120B & 34 IPC S. 4, 5 & 6 prize chits and money circulation schemes (Banning Act, 1978) CBI/SCB/SIT Kolkata
2. 338/2018 12.09.2018 S. 420, 406, 120-B IPC Pindwara, Sirohi
3. 552/2016 15.04.2016 S. 420, 409 IPC S. 3 & 4 of The Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 Ramnagar, Chandrapur
4. 533/2017 29.07.2017 S. 420, 504, 506, 34 IPC Nahol, Sholapur
5. 467/2017 08.08.2017 S. 3 & 4 of The Maharashtra Protection of Interest of Depositors Sholapur ( in Financial Establishments) Act, 1999 Bijapur Naka,
6. 915/2016 09.11.2016 S. 420, 409, 120B & 34 IPC S. 6 Madhya Pradesh Investor Protection Act, 2000 Kotwali, Sehore
7. 51/2017 08.2.2017 S. 420, 409, 120B & 34 IPC S. 6 Madhya Pradesh Investor Protection Act, 2000 Byawara Rural, Rajgarh
8. 03/2017 08.03.2017 S. 420, 409, 120B & 34 IPC S. 6 Madhya Pradesh Investor Protection Act, 2000 EOW, Bhopal
9. 146/2017 04.04.2017 S. 120B, 420 &34 IPC The Chhattisgarh Protection of Depositors Interest Act, 2005 Surajpur.”
10. 127/2017 10.04.2017 S. 420 & 34 IPC The Chhattisgarh Protection of Depositors Interest Act, 2005 Kanker
11. 240/2017 16.04.2017 S. 420 IPC Bemetara
12. 161/2017 21.04.2017 S. 420 IPC Baloda, Baloda Bazar
13. 176/2017 02.05.2017 S. 420 IPC Tila Nebra, Raipur
14. 591/2019 06.08.2019 S. 420 & 34 IPC Raigarh Kotwali, Raigarh
15. 79/2019 10.08.2019 S. 420 IPC Geedam, Dantewada.
As things stand, the Bench then points out in the next para of this judgment that, “It is noticed that the crime registered in the State of West Bengal has been investigated by C.B.I. and chargesheet has also been filed in connection with the said case. We are also informed by the learned Additional Solicitor General that the trial has also commenced in that case. As a result, no direction can be issued for clubbing of other cases with the said case being investigated by the special Investigating Agency i.e., C.B.I.”
Furthermore, the Bench then discloses in the next para of this learned judgment that, “As regards crimes registered against the petitioner in the State of Maharashtra, Madhya Pradesh and Chhattisgarh in each of these States, the trial will proceed before the Special Court under the special enactment, namely, Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999, Madhya Pradesh Investor Protection Act, 2000 and Chhattisgarh Protection of Depositors Interest Act, 2005 respectively.”
Quite frankly, the Bench then deems it apposite to note in the next para of this robust judgment that, “The cases in the concerned States, to be tried by the Special Court can be conveniently clubbed, for being tried together as has been directed in the case of Radhey Shyam vs. State of Haryana & Ors.in Writ Petition (Crl.) No.75/2020 vide Order dated 12.05.2022.”
Most significantly and also most remarkably, the Bench then minces no words to hold forthright in the next para of this learned judgment that, “Following the exposition of this Court in Amish Devgan vs. Union of India & Ors. (2021) 1 SCC 1, we deem it appropriate in exercise of power under Article 142 of the Constitution of India, to direct clubbing of all the FIRs State-wise, which can proceed together for one trial as far as possible, as we are of the opinion that multiplicity of the proceedings will not be in the larger public interest. We may hasten to add that the concerned States have no objection for abiding with such dispensation.”
To put it differently, the Bench then observes in the next para that, “In other words, the offence registered in the State of West Bengal being RC/40/S/2014 dated 05.06.2015 registered with CBI/SCB/SIT, Kolkata, will proceed before the concerned Court in the State of West Bengal independently. Similarly, the FIR registered at Pindwara, Sirohi, State of Rajasthan being FIR No. 338/2018 dated 12.09.2018 shall proceed before the concerned jurisdictional Court in that State itself being the only case registered in connection with the Indian Penal Code (IPC) offences in that State and cannot be clubbed with the cases pending in other States, as the same will have to proceed under the special enactment of the concerned State.”
To put things in perspective, the Bench then envisages in the next para of this judgment that, “As regards three cases registered in the State of Maharashtra, the same will have to proceed under the special enactment [Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999] before the special Court. It can be conveniently proceeded together. Accordingly, the subsequently registered FIRs being FIR Nos. 533/2017 dated 29.07.2017 registered at Nahol, Sholapur and 467/2017 dated 08.08.2017 registered at Bijapur Naka, Sholapur, need to be clubbed with FIR No. 552/2016 dated 15.04.2016 registered at Ramnagar, Chandrapur.”
As it turned out, the Bench then specifies in the next para of this noteworthy judgment that, “On the same pattern, the subsequently registered two FIRs – (FIR Nos. 51/2017 dated 08.02.2017 registered at Byawara Rural, Rajgarh and 03/2017 dated 08.03.2017 registered at EOW, Bhopal) in the State of Madhya Pradesh need to proceed together with FIR No. 915/2016 dated 09.11.2016 registered at Kotwali, Sehore being the earliest FIR registered under the special enactment – Madhya Pradesh Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000, before the jurisdictional special Court at Sehore.”
While continuing in the same vein, the Bench then underscores in the next para of this brief judgment that, “Similarly, the subsequently registered FIRs (FIR Nos. 127/2017 dated 10.04.2017 registered at Kanker, Distt. Kanker, 240/2017 dated 16.04.2017 registered at Bemetara, Distt. Bemetara, 161/2017 dated 21.04.2017 registered at Baloda, Baloda Bazar, Distt. Janjgir-Champa, 176/2017 dated 02.05.2017 registered at Tila Nebra, Raipur, 591/2019 dated 06.08.2019 registered at Raigarh Kotwali, Raigarh and 79/2019 dated 10.08.2019 registered at Geedam, Dantewada, Distt. Dantewada) in the State of Chhattisgarh need to be clubbed with FIR No. 146/2017 dated 04.04.2017 registered at Surajpur, Distt. Surajpur under the special enactment – Chhattisgarh Protection of Depositors Interest Act, 2005 as applicable to the State of Chhattisgarh, to be tried by the jurisdictional special Court at Surajpur, Distt. Surajpur.”
Most remarkably, the Bench then hastens to add in the next para of this laudable judgment that, “In each of the States, where directions for clubbing of FIRs is being passed, the subsequently registered FIRs shall be treated as statements under Section 161 of the Code of Criminal Procedure (Cr.P.C.). The investigating officer in criminal case arising from the first FIR in the concerned State, as referred to above, will be free to file supplementary chargesheet after collation of all the records concerning other FIRs in the respective States, which are clubbed in terms of this order. In the event, the investigating officer in other FIRs had already filed the police report under Section 173 of the Cr.P.C. before the concerned Court and the concerned Court had taken cognizance thereof, the said FIRs and criminal cases would also stand transferred and merged/clubbed alongwith the first criminal case FIR No. 552/2016 dated 15.04.2016 registered at Ramnagar, Chandrapur (State of Maharashtra); FIR No. 915/2016 dated 09.11.2016 registered at Kotwali, Sehore (State of Madhya Pradesh); FIR No. 146/2017 dated 04.04.2017 registered at Surajpur, Distt. Surajpur (State of Chhattisgarh) registered in the respective State, as referred to above, to be proceeded with in accordance with law. The investigating officer in the stated case (principal case to which the subsequent FIRs would stand merged/clubbed), will be free to file supplementary chargesheet on the basis of material collated during investigation of other FIRs.”
As we see, the Bench then states in the next para that, “Needless to observe that the other offences not part of the special enactments can also be tried by the special Court under the concerned State legislation.”
For sake of clarity, the Bench then clarifies in the next para that, “It is clarified that this direction is limited to general offences, the offences under the IPC and the offences under the special State legislations; and not offences concerning the Prevention of Money Laundering Act (PMLA), 2002, which have to proceed under a separate legislation and of which the investigation is done by a separate investigating agency.”
Most commendably, the Bench then states unambiguously in the next para that, “In other words, all cases in the State of Maharashtra will stand clubbed with FIR No. 552/2016 dated 15.04.2016, registered with Police Station Ramnagar, Chandrapur, and to be tried by Special Court at Chandrapur ( Maharashtra ). Similarly, all criminal cases arising from the FIRs filed at the different point of time in the State of Madhya Pradesh will stand clubbed with FIR No. 915/2016 dated 09.11.2016, registered with Police Station Kotwali, Sehore – to be tried by Special Court, Sehore (Madhya Pradesh); and in the State of Chhattisgarh on the same lines will stand clubbed with FIR No. 146/2017 dated 04.04.2017 registered with Police Station Surajpur – to be tried by Special Court at Surajpur (Chhattisgarh).”
Most forthrightly, the Bench then makes it indubitably clear by pointing out in the next para that, “If the accused has been granted bail in connection with the principal FIR or criminal case arising therefrom, in which the other FIRs/criminal cases will stand clubbed/merged in terms of this order, the bail so granted must enure in his favour until the Court of competent jurisdiction cancels the same owing to supervening circumstances including breach of bail conditions. In case, no bail has been granted in the principal FIR (case), the appellant may apply for the same before the jurisdictional court competent to try the principal crime. That be decided on its own merits.”
What’s more, the Bench then directs that, “The writ petition is disposed of in the above terms.”
Finally, the Bench then concludes by holding in the final para of this sagacious judgment that, “Pending application(s), if any, shall stand disposed of.”
In conclusion, I am just falling short of words to appreciate, applaud and admire the thorough professional manner in which this most commendable judgment has been drafted by two most competent Judges of the Apex Court – Justice AM Khanwilkar and Justice JB Pardiwala. One fervently hopes that in case of Nupur Sharma who is facing most serious death threats, rape threats and what not too will get the much needed relief strictly on merits and I am sure Justice JB Pardiwala and Justice Suryakant will review their stand on this case also which attracted so much limelight but about which I will not like to discuss here.
It is again good to note just like in case of Zee News anchor Rohit Ranjan was granted protection most commendably by a Bench of Apex Court comprising of Justice Indira Banerjee and Justice JK Maheshwari against the multiple FIRs that were lodged against him over an alleged doctored video of Rahul Gandhi’s speech that was telecasted in a DNA show on July 1, 2022 similarly in Mohammed Zubair case also who is an eminent journalist we see that the Supreme Court Bench comprising of Justice Dr DY Chandrachud and Justice AS Bopanna have noticed a “vicious cycle” and has most commendably granted another bit of temporary relief to him until the next hearing. He has already got bail from the top court in a sixth case in UP but is under arrest in a case registered in Hathras. The Apex Court has clearly directed that no action on Zubair till July 20.
It is unquestionable that his lawyer who is none other than the eminent and senior lawyer Vrinda Grover has very rightly maintained that, “This kind of targeting must end. This is an abuse of the process of law.” Why can’t Centre amend our penal laws to ensure that this abuse is ended forthwith? Why Centre always forwards hundred reasons for not doing so? Why can’t it act promptly on this also?
Needless to say, Zubair has rightly sought bail and cancellation of all six FIRs that were registered in Sitapur, Lakhimpur Kheri, Ghaziabad, Muzaffarnagar and Hathras districts. This alone explains why I openly bat for this same treatment to be accorded for Nupur Sharma also who too faces death threats, rape threats from terror groups who most cowardly killed first Umesh Kohle on June 21 in Amaravati in Eastern Maharashtra and then most dastardly beheaded Kanhaiya Lal and decapitated his hand also in Udaipur in Rajasthan which no civilized person of any religion can ever justify under any circumstances! But alas! That was not to be and she was denied any relief and squarely blamed for the terror attacks by a Bench of Apex Court comprising of Justice JB Pardiwala and Justice Surya Kant who are both very competent Judges and in line to become the next CJI in the days to come yet they have grievously erred in squarely blaming Nupur Sharma and denying her any relief which she sought so very desperately! It must be said upfront that, “A terror act done by any person of any religion cannot be justified on any ground whatsoever!” I still hoope they will review their stand now.
Coming back to Zubair case, the cycle started from Delhi as mentioned in NDTV website where it is pointed out that, “Mr Zubair, co-founder of fact-checking site Alt News was originally arrested there on June 27 in a case over a four-year-old tweet that had an image from a 1983 movie. Then he was arrested in a case in Sitapur in UP over calling some Hindu right wing leaders “hatemongers”.” He too has faced so much of harassment when couple of cases were lodged against him and this “open abuse of the due process of law” must end forthwith!
All said and done, one can only say that this “open abuse” and “complete mockery and brazen trampling” shamelessly of “the due process of law” by intentionally lodging FIR in different states to harass the person against whom it is lodged needs to be plugged right now so that no litigant has to face endless troubles openly by running from pillar to post in different States most shamelessly, senselessly and stupidly with our Apex Court also in some cases like that of Nupur Sharma failing to rise to the occasion and in Zubair case also we see that he has faced so much of endless hassles before Supreme Court finally stepped in just because Centre turns a Nelson’s eye to it and Supreme Court also finds it best to not ruffle feathers of the Centre. But this must definitely change now especially when eminent lawyers like Kapil Sibal, Vrinda Grover, Aman Lekhi, Gautam Bhatia and many others keep raising their voice on this most strongly for which they definitely deserve to be applauded, admired and adored as they don’t want status quo to continue even after more than 75 years of independence!
On a final note, at the cost of repetition it must be said again that the Centre must amend our penal laws by which there should be clubbing of cases and no individual is required most stupidly, shamelessly and senselessly to keep running from one state to another on same charge and facing endless harassment from police and different courts also which is the biggest mockery of our legal system and also our democratic system where the legal rights of individual must be always accorded the highest priority and not the lowest priority! There can be definitely just no denying or disputing it! I fervently hope that Centre led by our Hon’ble PM Narendra Modi will at least now wake up its ideas on this and act most promptly and most decisively so that no citizen is ever again made to suffer immeasurably for no fault of his/her just because Centre since last 75 years has refused to do just nothing on this! His policy advisers too must guide him properly on this so that a common person is no more made to beg before different Courts like a beggar begs most helplessly! Let’s fervently hope so!
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SHINDE VS THACKREY – DISSENT OR DEFECTION…?
On 21 June 2022, an unprecedented political movement took place in Maharashtra and once again pop-up the 10th Schedule or anti defection law.
Initially Shinde faction case was seeming like usual case of Anti defection but as it took root of the case, it got wider scope to decide few questions of law accordingly,
On 25th of June, Maharashtra Speaker Zirwal issued disqualification notices under the 10th Schedule to Shinde faction after the party sought their disqualification from the state assembly for the wants of non-joining of party meeting even after issuance of whip. Now the notice has been challenged before hon’ble Supreme Court stating failure to attend a party meeting or expression of disagreement with certain policies of the party cannot be a ground to disqualify under para (a) or 2(b) of tenth schedule of the Constitution, however, multiple petitions have been filed by the both the parties before Supreme Court on various ground and is pending before the court for considering whether the matter be referred to Constitutional Bench or not.
Since the Thackrey led MVA Government had majority & the act of rebel Sena leader Shinde has aided to dis- Stabled the government, in such a case does the act of team Shinde fall under the “act against the party”? if yes then right to dissent has no meaning. Because the team Shinde neither voted against the party or has given up their membership. The act of Shinde team seems to be against party policy & not against the party therefore, the friction between right to dissent & Anti defection has taken place.
Right to freedom of speech & expression vs Right to dissent –
The question of law rises here in the present case is whether right to dissent, with voice of majority fall under the ambit of right to dissent or not, if yes then whether the Tenth schedule violating the Basic Structure of the constitution. Because when we call right to dissent is right to freedom of speech & expression, it would gross violation of art. 19 (1) a of the constitution & when there is violation of any provisions of the fundamental rights would be violating the basic structure of constitution & when any law is against the basic structure of the constitution is deemed to be void.
During the hearing of the Shinde’s petition Senior Counsel Harish Salave strongly stressed on Voice of Dissent and Voice of Majority and Minority tyranny and said that voice of dissent can not be suppressed in a democracy.
In Kihota Hollohon Vs Zachilhu and Others, 1992 SCC Supp. (2) 651, the Tenth Schedule was challenged on the ground that, it violates the democratic rights of elected members of Parliament and the Legislatures of the States. It violates the freedom of speech, freedom of vote and conscience of a member. Rejecting the plea, the Apex Court held that, the provisions of Tenth Schedule do not suffer from the vice or subverting democratic rights of elected members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience. In India the freedom of speech of a member is not an absolute freedom. The provisions of the Tenth Schedule do not purport to make a member of a House liable in any ‘Court’ for anything said or any vote given by him in Parliament or State Legislature. It cannot be said that Article 105 or 194 is a source of immunity from the consequences of unprincipled floor crossing. That’s why the provisions of paragraph 2 of the Tenth Schedule do not violate any rights or freedom of elected members of Parliament or State Legislatures under Article 105 or Article 194 of the Constitution, and is thus constitutionally valid.
Inner Party democracy –
In any democratic set up voice of dissent that too when supported with Majority should be accepted along with voice of consent. Disaccord be accepted with accord, in true sense that would be the beauty of a democratic set up.
Till date it has been observed that any dissent against a party policy deemed to be anti-defection but mere dis agreement with party policy or every disaccord cannot be held as voice against party.
Gehlot vs Pilot-
In 2019-20 Pilot group had a rebellion attempt against Gehlot and was facing disqualification by the Speaker C.P. Joshi, wherein it was challenged before the Rajsthan High Court and The Raj High Court had framed 13 issues, question of law. However, in a settlement all such disqualification notices were withdrawn and the issue of Inner party democracy and Voice of Dissent remain unanswered.
Whip versus Disqualification
Another important question of law is regarding Whip “Whether Whip as an instrument of party discipline only applied to the action expected out of legislators inside the house? In this regard I remember, A proposed solution that had created the controversy was suggested by Manish Tiwari, Member of Parliament, Lok Sabha. The suggestion is relating to constitutional amendment to limit the scope of paragraph 2 (1) (b) of the bill. The Bill proposed by Manish Tiwari limits disqualification under Paragraph 2 (1) (b) to be a possible sanction only if the member dissents against a Whip issued in the following instances.
motion expressing confidence or want of confidence in the Council of Ministers,
motion for an adjournment of the business of the House,
motion in respect of financial matters as enumerated in Articles 113 to 116 (both inclusive) and Articles 203 to 206 (both inclusive),
The propositions made by Constitution (Amendment) Bill, 2010 are similar to the recommendations made by the Dinesh Goswami Committee on Electoral Reform where it was suggested that disqualification must be imposed only in case of vote of confidence or no-confidence motions. By limiting the ambit of disqualification, this bill seeks to make the necessary change of creating greater room for policy expression, fearless debate and discussion in the Parliament. Such a law would liberate legislators from the whip imposing fear of losing their membership except in cases where the life of the government is threatened by a no-confidence motion, money bills and some crucial financial matters.
Dissent as Right to freedom of Speech & expression –
The Constitution (Fifty-Second Amendment) Act, 1985 which has since popularly come to be known as the Anti-Defection law, has been the subject matter of a controversy from the very beginning. It has been questioned on several grounds viz, that it is violative of the basic structure of the Constitution, that it is violative of the fundamental principles of parliamentary democracy, its violate democratic rights of the elected members of parliament and the legislatures of the State, and is destructive of the freedom of speech, right to dissent, freedom of vote and conscience, it violates the freedom under Articles 105 and 194 of the Constitution.
Now considering the act of rebel Sena leader, CM Shinde and his group neither left the party at his will nor talked against party.
Because, considering entire facts on record, the act of Shinde Faction, Certain disagreements with Party Policy does not amount to Anti defection or all the dissent does not amount to anti defection same was observed in the case of In Balchandra L. Jarkiholi Vs B.S. Yeddyurappa 2011.
Delivering the dissenting judgement, Mr. Justice N. Kumar of the High Court set aside the impugned disqualification order of the Speaker and held that an act of no confidence in the leader of the legislative party does not amount to his voluntarily giving up the membership of the political party. Similarly, the act of expressing no confidence in the Government formed by the party, with a particular leader as Chief Minister, would not also amount to voluntary act of giving up the membership of the political party. Deserting the leader and deserting the Government is not synonymous with deserting the party. Dissent is not defection and the Tenth Schedule while recognizing dissent prohibits defection. Right to dissent is the essence of democracy, for the success of democracy and democratic institutions honest dissent has to be respected by persons in authority. which was later confirmed by hon’ble Supreme Court.
Therefore, if we believe in Democracy, should also believe in Right to Speech & Expression ensured as fundamental right under Article 21 of the constitution of India, should believe in Party Democracy, & if Right to speech is recognized under party democracy then dissent is not defection. if dissent is not defection, then Para 2 (1) a of the tenth schedule of the constitution violating the Basic Structure of Constitution.
The Maharashtra Political crisis case has great potential to the hon’ble Supreme Court to decide the much waited and unanswered question of law ,which had paved multiple time in Indian politics , Would hope that the Supreme Court will constitute the Constitutional Bench with 05 or more judges and deliver another landmark judgment.
The Author is practising advocate at Bombay High Court.
COURTS OUGHT NOT TO SUBJECT TO JUDICIAL SCRUTINY, WHAT IS ESSENTIALLY A PURELY POLITICAL BARGAIN
Welfare measures are political bargains struck by a thinking electorate: The various ‘welfare measures’ (pejoratively called ‘freebies’ by the Petitioner), are political bargains between the ‘electorate’ and the ‘elected’. The ‘electorate’ is capable understanding the terms of this bargain and its implications, which is why we have constitutionally mandated ‘universal adult franchise’. Such decisions are neither justiciable, nor do they exist any judicially manageable standards for such determinations.
Judicial reassessment of such issues makes the court enter into political thicket: A judicial scrutiny of such bargains necessarily presupposes that the electorate is incapable of making an informed decision and makes the court enter into a political thicket, which this Hon’ble Court has refused to do repeatedly. This is because the judicial wing of the state has neither the expertise or the democratic mandate to dictate the terms of the political bargain between the electorate and the elected.
Restrictions envisaged limit right under Article 19(1)(a) and not covered by Article 19(2): The making of promises of welfare measures and the hearing of such promises are both protected under Article 19(1)(a) of the Constitution. Restriction on such speech does not fall under any of the eight heads of exceptions under Article 19(2). In any case, it is impermissible to restrict freedom of speech and expression by judicial directions and the same can only be done by way of a law passed by Parliament/legislature.
If court inclined to examine, it will be in fitness to first refer the matter to Constitution Bench to determine if such issues can be gone into by the Court. In case, this Hon’ble Court is still inclined to consider the legality of welfare measures, it is prayed that the preliminary issue of whether such issues can be adjudicated by Courts ought to be referred to a Constitution Bench.
Public Interest Foundation v Union of India, (2019) 3 SCC 224 where a Constitution Bench of this Court refused to issue directions barring election candidates with criminal antecedants on the ground that the said power was exclusively with Parliament (Paras 105-107, 118-119)
Asif Hameed & Ors. v. State of J & K, 1989 Supp (2) SCC 364 (Paras 17-19)
Welfare measures are in tandem with the socialist and welfare objectives of the Constitution and necessary for ensuring equality and achieving economic development
We have given ourselves a welfare/socialist state whose objective is to promote and achieve social/economic justice and equality, which is realized through welfare measures: The preamble to the Constitution is categorical about the nature of the Indian state (being socialist) and its objectives, which include, inter alia, social/economic justice and equality. These objectives find an echo in various directive principles of state policy such as Articles 38, 39, 39A, 41, 42, 43, 43A and 47 which inter alia, call for securing for citizens the right to adequate means of livelihood for all citizens and equitable distribution of material resources of the community for the common good.
Successful examples of Welfare measures include PDS for food, provision of night shelters for the homeless, free/subsidized education at the school and college level, free drinking water, mid-day meals and many more.
The Scandanavian Countries in particular that offer high amounts of social support in particular, free and equal access to social services, regardless of income or economic need. The essential elements of this modeal are large public sector, broad universal services, productive investment in health education and job training and strong work incentives with progressive taxation. These countries have some of the highest human development index in the world.
Welfare measures develop ‘capacity’ of the people, enabling them to contribute to economic growth: The characterization of ‘welfare measures’ as ‘freebies’ overlooks the fact that such measures are essential for developing ‘capacities’ of the people of the country and hence generate a workforce which can then contribute to economic growth. Given the vastly inequitable distribution of wealth in the country, but for government support, the majority cannot develop any ‘capacity’ to be able to generate wealth.
Our collective consciousness is replete with examples of poor children who have risen from the humblest backgrounds to achieve excellence in various fields. In many of these cases, this has been facilitated by because of the so called ‘freebies’ that have provided opportunities of earning and improvement in standard of living would be restrict to the very few at the top with the wherewithal to develop their ‘capacities’.
In any case, social welfare measures will not cause undue financial strain on the economy: This is because the Fiscal Responsibility and Budget Management Act, 2003 and such similar legislative measures at the state level that restricts the deficits that a government can run. Hence, all social welfare measures will be managed within this framework and the limits imposed thereby.
Privacy implications in India of the overturning of Roe v Wade in the US
The journey from the winters of 1973 to the summer of 2022.
June 24, 2022 witnessed perhaps one of the single-most momentous blowbacks to the notion of privacy, the consequence of which would certainly send ripples across the globe both on an ideological and a judicial-legal plane. On this day, the Supreme Court of the United States of America on this day overturned the watershed case of legal and feminist jurisprudence, Roe v. Wade of 1973 (“Wade”), effectively disrobing women in the country from exercising the erstwhile right to abort. The ramification of this ruling underlines a particularly interesting conundrum – in the wake of Big Tech collecting, storing, and processing personal data and information incessantly and sharing the same with law enforcement agencies (“LEAs”) as and when mandated, how can the most vulnerable and sensitive aspects of a person’s personal life be afforded protection to in the absence of adequate safeguards?
It is common knowledge that the tracking and storage of personal data and information accompany with it a saddening saga of squander and abuse – history is witness to this. With the over-ruling of Wade, it is now open season, wild-wild-west – the LEAs theoretically have a free hand to collect location data, forage through text messages and SMSes, dig through web-browser histories, online purchases, and personal e-mails, and use period-tracking apps surreptitiously to prosecute not only the users but also the intermediaries who may provision the said services.
The logical, unfortunate conclusion to the series of events that may potentially transpire hereon would be an absolute nightmare for all the people and families who were promised significant reproductive autonomy in the US for the past five decades. To chill reproductive freedoms, we may now even notice medical and health services providers track pregnant patients and LEAs exploit tools of surveillance to enforce existing abortion laws.
CALM BEFORE THE STORM?
If a report from Vice News were to be believed, accessing data troves in the US is an absolute breeze – for as meager as $160, one could access a week’s worth of data of the credentials and the geo-indicators of people who visited Planned Parenthood facilities (an American NGO which provides for sexual healthcare services). One possible reason why such a glaring infraction of personal privacy exists in the US in broad daylight is because of a ‘gray area of the law’. This gray area pertains to the Health Insurance Portability and Accountability Act, 1996 (“HIPPA”) which covers such data or information that is shared by the individual with a doctor. However, HIPPA does not secure any such data or information which is shared with a third-party. Hence, taking into consideration the possibility that third-party apps may share such data or information with yet another third party, the risk of abuse is glaring, to say the least.
There are two consequential takeaways for policymakers closer to home in India here. First and foremost, the guardrails for the protection and preservation of personal data and information in India are starkly lacking. And, second, in the absence of an omnibus privacy legislation, individuals and their data are at the mercy of private parties and the government to be exploited and be capitalized on.
Certainly, the Supreme Court of India did affirm that the Right to Privacy forms an integral part of the Right to Life and Liberty guaranteed by Law under Article 21 of the Indian Constitution – certainly no two thoughts about it. However, because of its delicate nature, the degree of safety and consideration that protection of medical data warrants is a notch above the safety standards mandated by the protection of general data. Taking into consideration the rapid growth of the Indian telemedicine market, the onus falls upon the Government to ensure that the prospective economic benefits of the proliferating market segment do not imperil the tenets of the Right to Privacy, especially that of health data. A nuanced and considered approach is the call of the day.
FLAWS IN THE INDIAN MEDICAL DATA POLICY FRAMEWORK
Perhaps the most pertinent issue in the framework as it stands today is the ambiguity in the understanding of ‘health data’ or ‘medical data’ and what it constitutes. Case in point, the Information Technology Act, 2000 (“IT Act 2000”), along with the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“SPDI Rules”), accords the status of sensitive personal data or information (“SPDI”) merely on such data which are either related to the physical, physiological, or mental health of an individual. However, the current legal framework does not require such data to be anonymized – hence, it is quite feasible for any entity (government or third-party) which is in possession of such un-anonymized data to ascertain who it pertains to and mine such data, thereby risking misuse.
Despite several administrative attempts, the foul of conceptual legislative clarity remains. For instance, let us take into consideration three frameworks that pertain to or which touch upon personal health data, namely – the ‘Strategy Overview: Making India a Digital Health Nation Enabling Digital Healthcare for all’ document of the National Health Authority, dated July, 2020 (“NHA Strategy Overview”), the draft Digital Information Security in Healthcare Act, 2018 (“DISHA”), and the draft Data Protection Bill, 2021 (“DPB”). In the NHA Strategy Overview, “personal health data” encompasses information and data relating to the medical conditions and subsequent treatments undertaken by a party. In comparison to the standards of the NHA Strategy Overview – where on the one hand, the DPB covers only information regarding the physical or mental health of the individual, on the other, the DISHA goes a notch up and deals with data extracted from body-part donations and data derived from medical tests and bodily examinations as well. The discordance and dichotomy in the data protection frameworks indeed are glaring. Worse still, none of them reflect upon the surveillance misuse that can manifest from the status quo!
It indeed is well established that policy frameworks conceptualize data in general, and medical data in specific, as an incorporeal, intangible resource and an effective enabler for economic progress. Data is predominantly understood as a resource (like oil), available for human extraction, and exists independent of the bodies producing it. The present-day health data policy framework in India is inordinately concentrated on the data and information that is collated and collected by primary healthcare service providers (like hospitals and medical establishments) or secondary healthcare service providers or healthcare-related service providers (like insurance companies). We today have smartwatches and mobile apps which gather data on and monitor a person’s activity levels, heart rates, sleep cycles, and daily moods, and which also can track period-cycles. Hence, the draft DISHA-DPB framework presents a thought-provoking policy and legal lacuna – with the growing use of these smartwatches and third-party apps, can the law protect from exploitation the digital footprint of an individual that is left behind?
Yet another species of unease that arises is the difficulty in dealing with the unfettered access to medical data and information that the government (both at the Central and the State level) and LEAs can procure either from third-party apps or from IoT devices. To cite an instance, it is common knowledge that in the wake of the Covid-19 pandemic, both the Central as well as several State Governments used platforms and apps to track and contain the infection. What is perhaps not so commonly known is that for all the virtue and nobility that such contact tracing mechanisms may have brought about, they also institutionalized mass surveillance to a very large extent – one needs to understand that most of these apps often devolved into mechanisms of trickery by surveilling, monitoring and controlling the movement of individuals in the cloak of ‘lockdown enforcement’. Add to this, by way of the mandate provisioned in the proviso to Rule 6(1), and in Rule 6(2), of the SPDI Rules – sensitive personal data and information (including medical and health data) which is shared by an individual with third-party apps and platforms can legally be procured by LEAs without the explicit permission of the individual to whom such data belongs to. This gives rise to a certainly worrying trend, especially when you look at it from the privacy lens!
WHERE CAN WE GO FROM HERE: STEPS FOR THE TIMES AHEAD
In no uncertain terms, the pressing priority of the day in the Indian data-landscape is for lawmakers to cogitate considerately upon a definition of ‘health data and information’. A good starting point to fortress individual rights over their personal health would be to place digital health data and information collected by third-party apps and platforms, as well as by IoT devices, under the ambit of the draft DPB-DISHA framework.
Subsequently, legislative intent must deliberate over the fact that a certain category of health data is more intimate and sensitive than others (like, mental health issues faced by an individual vis-à-vis the height of that person) and may necessitate a higher degree of care and protection. Hence, to ensure that the individual possesses absolute and unqualified autonomy over such data of such a delicate character, a graded approach to health data is necessary.And lastly, lawmakers in India must take into account that in the wake of ‘data-sharing and interoperability’ practices, the policy-framework governing health data and information does not trade off privacy principles in the veneer of supposedly facilitating public welfare. Both healthcare service providers, medical insurance providers, and other healthcare-service providing third parties should enact protective policies which ought to be designed to keep a tight lid on sensitive personal health data and information and associated medical records and histories. Along these lines, to take a cue from the European General Data Protection Regulation (“GDPR”), wherein data subjects have the ‘right to erasure’ as protected under Article 17 and Recital 65, GDPR – in India as well, individuals should also have the right to ensure that their sensitive personal data and information is erased if and where the said individual objects to the collection or processing of her/his health data and information.
The United States’ decision of Dobbs v. Jackson Women’s Health Organization (the regressive U-turn precedent to Wade) did ensure for certain one thing – that the frigidity of the winters of 1973 would certainly chill the spine of women fifty odd years after, in the summer of 2022. Trust, accountability, and transparency – at a time we need them the most are indeed the absolute, dire necessity of the moment.
CODE ON WAGES: AN IMMACULATE REFORM?
No establishment which depends for existence on paying fees less than living wages to its workers has any right to continue. By living wages, it is meant more than the bare subsistence level- the wages of decent living” – Franklin D. Roosevelt
The multiplicity of labour laws and their compliance burden has often been cited by domestic industries and foreign investors as an obstacle to investment. With the objective of increasing investor confidence and simplifying and rationalising the existing labour laws, the government announced an amalgamation of 44 labour laws into 4 codes, namely on (i) wages; (ii) industrial relations; (iii) social security and welfare; and (iv) occupational safety, health and working conditions. The Code on Wages 2019, the first amongst the four codes, was enacted to amend and consolidate the laws relating to wages and bonus and matters connected therewith or incidental thereto. This code consolidates four major legislations namely the Payment of Wages Act, 1936, Minimum Wages Act, 1948, Payment of Bonus Act, 1965 and Equal Remuneration Act, 1976 which basically regulated the wages received by the workers.
Recently, it had been in news that the Government is eyeing to enforce these legislations shortly. In the backdrop of this development it becomes essential for one and all to become aware of some of the problematic elements of the Code and the Draft Central Wage Rules such that one may be prepared to deal with the same and if required devise appropriate ways to mitigate its effects.
AREAS FOR RECONSIDERATION AND IMPROVEMENT: FIXATION OF NATIONAL LEVEL FLOOR WAGE
In 2018, the Government of India constituted an Expert Committee under the Chairmanship of Dr. Anoop Satpathy for fixing the National Minimum Wage. In the final report titled Report of the Expert Committee on determining the Methodology for Fixing the National Minimum Wage of January 2019, the committee submitted its recommendations after considering the existing labour conditions, the guidelines of the Indian Labour Conference of 1957 and the Supreme Court case of Workmen v. Reptakos Brett & Co., and fixed the National Minimum Wage equal to Rs. 375/ per day, irrespective of the sector of employment, skill or whether the place of employment was rural or urban. However, the recommendation, was not incorporated in the Code and the National Floor Minimum Wage was fixed as low as Rs. 178 per day, perhaps less than even the existing wage rate at certain places.
Section 9 of the Code provides for the determination of a National-level floor wage, which would basically set a minimum benchmark for payable wages. For the purpose of making the quantum of wages reasonable as well as uniform this is a welcome policy measure introduced by the Government. In that regard, Rule 3 of the Draft Central Rules states, that the size of a general working class family would be deemed to be 4 members, wherein the earning member would be counted as 1 consumption unit, spouse as 0.8 and 2 children as 0.6 consumption unit each. This is where some problem creeps in to the Code. This calculation does not account for the elderly and other dependents who are generally present in an Indian family. Even as per the data available from the 2011 Census, the average household size in India was 5 (exact mean value 4.8). Thereafter, the said rule refers to a requirement of 2700 calories per day per consumption unit, which again is barely enough in consideration of the nutritional requirements. It is assumed that women will consume 20% less and children will consume 40% less than that assigned for a male member, thus making the law insensitive to women and static and unresponsive to the increasing nutritional requirements of growing children (a 14-year-old child may not have the same diet as that of 7-year-old child). Though this rule might not lead to nutritional deficiencies per se, yet provided the opportunity, it might neither contribute expectedly in improving the condition of health and malnutrition among women and children nor in improving the social status of women in the society.
Further, the method provided for calculating house rent as 10 percent of food and clothing expenditure disregards the realities of workers living in cities and the existing cost of living and might fail to ensure them liveable housing conditions. Lastly, the provision for setting aside 25% of minimum wages for expenditure on children’s education, medical needs, recreation and to meet contingencies, also appears to be insufficient, as the difference in cost rises to over seven times in urban centres, where the average expenditure in government hospitals is Rs 7,189 as against Rs 42,540 in private hospitals.
Observing the high costs of education, medical facilities etc. these days, the provisions do not seem adequate.
PERIODICITY OF FIXATION OF FLOOR WAGE
Rule 11(4) of the Draft Central Rules states, that the Central Government “may” revise the floor wage, ordinarily every five years and also “periodically” undertake to adjust the variations in the cost of living, in consultation with the Central Advisory Board. Use of these uncertain terms open scope for delay in the process of revision and can lead to interpretations and misinterpretations that may result in stagnation of floor wage rates in future and thus defeat the purpose of floor wage rates itself. Thereafter, even the period of revision of floor wages coincides with the period of revision of minimum rate of wages and since former is the point of reference for the latter, the periodicity of revision of floor wages should be shortened, for the expected realisation of its raison d’être.
BONUSES TO ALL
Initially the scope of guaranteed bonus (not linked to the performance of an individual) was restricted only to those employees who earned up to Rs 21,000 per month. The new Code refers to stipulation of a wage threshold by the appropriate government, and employees whose wages did not exceed this amount would be entitled to a guaranteed bonus which would be in the range of 8.33 percent to 20 percent, depending upon the allocable surplus available in the organisation. However, the Code provides that even those employees who earn above this threshold, would be entitled to receive a bonus (in the same percentage range) and the amount payable would be calculated as if their wage was such an amount, so determined by the government or equal to the minimum wage fixed by the appropriate government, whichever would be higher. Now this, would not only dilute meritocracy and add to an organisation’s cost burden but also lead to issues in compliance, for Companies having operations in different states of the Country, if the different state governments fix a different ceiling for payment of bonus. Thus, employees receiving the same pay might become eligible for different amounts of bonuses.
CODE SANS WAGE THRESHOLD
Obligations relating to payment of minimum wages have been extended to all employees that is individuals even in administrative and managerial roles, without any wage threshold, as per Section 5 of the Code. In comparison, the existing Payment of Wages Act currently extended only to those individuals whose wages did not exceed Rs 24,000 per month. Since no such wage limit has been contemplated by the Wage Code, these provisions might consequently be applicable even to senior employees, including even the one’s in the highest position in the organisation. This makes matters cumbersome and onerous for employers, especially when it comes to re-devising and structuring the pay and other benefit agreements of those senior employees, considering such arrangements generally involve claw back and other deduction provisions (which take away a substantial part of that which has been given to them), which may not be consistent with this law.
The Code on Wages, 2019 is no less, than a landmark in the Indian Labour industry, especially with respect to the extent of simplification it has brought with respect to the various enactments, by meticulously consolidating the same in one single enactment. The new Codes are about to be enforced shortly but yet there are certain aspects which are problematic and require reconsideration. Firstly, neither the quantum National Floor Wage corresponds with the guidelines of the Expert Committee nor does it acknowledge the ordinary Indian family size and structure and adequately account for the actual needs and requirements of its beneficiaries.
Secondly, use of uncertain terms with respect to the periodicity of wage revisions and coinciding periods of revision of National Floor Wages and Minimum Wage Rates can lead to misinterpretations and consequently result in stagnation and delay in the process of revision of wages. Thirdly, issues such as lack of wage threshold and lastly, provision for payment of bonus to all, adds further uncertainty in the law and results in increased costs for the employers, thereby defeating one of the very fundamental objective of introducing this Code itself, that is of increasing the ease of doing business in India and providing an employer friendly work environment to the investors.
Delhi HC facilitates school admission
While emerging as a very strong voice for the voiceless, the Delhi High Court in an extremely laudable, learned, landmark and latest judgment titled Kamini Arya Through Perokar vs The State NCT Of Delhi in Bail Appln. 2165/2022 pronounced as recently as on August 3, 2022 has taken suo motu cognizance to facilitate admission of an 8 year old child to school which could not be facilitated for the reason that her parents were in judicial custody in a murder case since July 2021. It must be mentioned here that the Single Judge Bench of Hon’ble Ms Justice Swarana Kanta Sharma minced just no words to espouse child’s cause while observing that, “The court is of the opinion that the child must get admitted in a school at the earliest so that shadow of no unpleasant happening falls upon the child’s life to darken her future.” It is also most pleasing to learn that the Delhi High Court in this notable case made it absolutely clear that the child, being an individual Indian citizen, enjoyed the Fundamental Rights including the Right to Education and that the welfare of child should not only be considered in cases dealing with family disputes but also like the present one.
At the outset, this most commendable, cogent, courageous, composed and convincing judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma sets the ball rolling most promptly by first and foremost putting forth in para 1 itself that, “The present application has been filed by the petitioner seeking interim bail for two weeks in FIR No. 323/21 registered at P.S. Mohan Garden under sections 302/365/292/397/411/120-B/201 & 34 of the Indian Penal Code, 1860 (‘IPC’). The petitioner and her husband, who is the co-accused in the aforementioned FIR, have been in judicial custody since 11.07.2021. The application has been moved by the mother of the child on the ground that she is concerned about the admission in a school of her child, who is about 8 years of age. It is stated that without her presence, she cannot be admitted in any school.”
No doubt, the grounds forwarded by the mother of the child are bona fide and worth considering seriously by the Court. The child is just about 8 years of age and so definitely the mother’s presence is inevitable to get the child admitted to school. This was considered seriously also by the Court!
To put things in perspective, the Bench then envisages in para 2 that, “The interim bail application of the petitioner has been dismissed by the ld. ASJ, Dwarka Court, vide order dated 21.05.2022 wherein the ld. ASJ opined that the ground on which the petitioner has approached the court for bail, i.e. getting her daughters admitted to school, is not of such a nature which can be termed as a compelling circumstance or intolerable grief. The application was thus dismissed by the ld. ASJ.”
As it turned out, the Bench then points out in para 3 that, “The court is informed by the learned counsel for the applicant that the elder sibling of the child is studying in the secondary school branch of Co-Ed Pry. School, West Zone, New Delhi – 110059. It is prayed that the child in the present case may be admitted in Nursery Class in the aforementioned school.”
As we see, the Bench then discloses in para 4 that, “In the present case, it has come to notice of the court that the applicant, i.e. the mother of the minor child, is in judicial custody due to her alleged involvement in the murder of an old lady whose body parts were severed and disposed of in a drain.”
As things stand, the Bench then brings out in para 5 that, “During the course of arguments on the bail application a query was put forth by this court and the court was informed that the presence of the applicant/mother is not required for admission of the child in the school and the Aadhaar Card of the mother shall suffice. The same has been duly verified by the Investigating Officer (IO) who has filed a reply from the Principal of SDMC, Co-Ed Pry. School, West Zone, New Delhi – 110059, wherein it is stated that the child’s admission can be done without the Aadhaar Card if the child has a certificate bearing the child’s date of birth from any government institution. It is further stated that any local guardian of the child can also get him/her admitted in school.”
While unequivocally underscoring the huge importance of education in a child’s life, the Bench then opines in para 6 that, “In my opinion, education is the first step towards tackling social evils, especially poverty, inequality and discrimination. Every child, irrespective of caste, religion, sex, or economic background has been guaranteed right to education. An educated individual can make informed decisions, first for themselves, and then be able to contribute constructively towards the progress of the nation and society at large.”
While sending out the most simple, straightforward and strong message to all the Judges, the Bench then mandates in no uncertain terms in para 7 that, “Once it comes to the notice of the court that a child or an individual is deprived of a fundamental right, the courts have to ensure that the fundamental right is enforced and there is no impediment for any individual to enjoy the same. The court should not fail in its duty at any point of time in this regard.”
Most remarkably, the Bench then further adds in para 8 that, “Right to Education is a fundamental right guaranteed to every citizen under Article 21-A of the Constitution. A child must not suffer the consequences, on account of their parents having been in judicial custody for a crime which is yet to be adjudicated upon by the court. This court is duty bound to enforce fundamental rights of every citizen and in this case right to education of the child.”
Most forthrightly, the Bench then also unambiguously maintained in para 9 that, “The Constitution guarantees protection of independent identity and individuality to every Indian citizen. Constitution of India is the supreme law of the land and this court is bound to protect the rights of every individual enshrined and guaranteed by the same. Especially in the present case, where the right to education of a child is at stake, it is imperative that the court intervenes timely and upholds the right envisaged in the Constitution to protect the future of the child.”
Needless to say, the Bench then notes clearly in para 10 that, “This court is of the opinion that the child must get admitted in a school at the earliest so that shadow of no unpleasant happening falls upon the child’s life to darken her future.”
Most significantly, the Bench then state in para 11 what constitutes the cornerstone of this learned judgment that, “At the cost of repetition, it is opined that in the present case, the child is an individual Indian citizen and enjoys her own Fundamental Rights given to her by virtue of her being born in India, Right to Education is the child’s fundamental right. In the present unpleasant situation of the case, the court has to become the voice of the voiceless child. The parents are in judicial custody and the prime concern of the parents is education of the child. It is not only in cases dealing with family disputes that the rights and welfare of the child should be considered but also in the cases as the present one, the courts can become and act as the parent of the child and ensure that the child is not deprived of its Fundamental Right to Education. Depriving any child of education due to family circumstances should not be allowed to every extent possible. An educated child educates the entire family and becomes an asset to the nation.”
Quite forthrightly, the Bench then directs in para 12 that, “In the circumstances, at this stage, this court feels the need to exercise its discretionary powers under Article 226 of the Constitution of India and take suo-motu cognizance to facilitate the child’s admission in a school so that the child does not lose out on the current academic year i.e. 2022-23. It is therefore directed that the SHO concerned will get the child admitted to the school adjacent to the senior branch of the school in which the older sibling of the child is already enrolled and pursuing her education.”
Furthermore, the Bench then lays down in para 13 that, “The Principal of the school will extend full cooperation for the admission of the child. A compliance report will be filed within 10 days. The identity of the child and the school in question is not being mentioned in this order to protect the privacy and dignity of the child.”
What’s more, the Bench then aptly points out in para 14 that, “It is submitted by the counsel for the petitioner that the petitioner is satisfied with the relief that has been granted. Considering the petitioner was seeking bail only on the ground that she needed to fulfil her responsibilities as a parent and get her child admitted to school, permission is now sought by the counsel of the petitioner to withdraw the present application.”
As a corollary, the Bench then reveals in para 15 that, “In view of this order, the learned counsel for the applicant states that she is satisfied with the order and does not press her application at this stage. Permission is sought to withdraw the same.”
In this context, the Bench then quite ostensibly directs in para 16 that, “In terms of the above, the application is dismissed as withdrawn.” Finally, the Bench then concludes by holding in final para 17 that, “Ordered accordingly.”
All told, it definitely merits no reiteration that all the courts must in similar such cases emulate what the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma of Delhi High Court has laid down so elegantly, eloquently and effectively in this noteworthy case! In essence, the Courts must definitely become the voice of the voiceless as we see so very ostensibly in this leading case. It also must be definitely underscored that the Courts must also prima facie ensure that the process itself does not become the punishment due to which the long term interest of the child gets jeopardised. No doubt, we saw how in this case the Delhi High Court so very commendably took suo motu cognizance to facilitate the school admission of the child whose parents are in custody and thus ensured that the paramount interest of the child to education is safely protected. Of course, it must be said that this is definitely the best way in which ideally all the Courts in our country must always act and not just turn away their face citing process, procedure etc! There can be certainly just no denying or disputing it!
PRADHAN MANTRI AWAS YOJANA: RS 8.31 LAKH CR INVESTMENT APPROVED
In Finance Minister Nirmala Seetharaman’s words, India stands on the threshold of Amrit Kaal, or the ‘Era of Elixir’. Regarding the country’s real estate sector, we can be a little more restrained with such definitions. Still, there is little doubt that the industry has made remarkable progress since it attained independence 75 years ago. Real estate has not been left behind – quite the contrary.
This once hugely beleaguered sector has made history-defying forward strides, especially in the last 8-10 years.
Today, massive transformation across sectors and industries has assured India a recognizable position in the new world order. The real estate sector features prominently in this revitalized avatar of a country on the move. Let’s reflect on what has transpired over the years and take a look at what lies ahead for the sector.
The Winds of Change
As India’s population grew over time, cities expanded to create habitable localities and industries for its economic upliftment. Chandigarh was the first planned city of independent India – one of the successful trials of urban planning and modern architecture. To address the ever-increasing need for housing, the government set up institutions like the Housing and Urban Development Company (HUDCO), City Industrial and Development Corporation (CIDCO), and the National Housing Bank (NHB).
The liberalization of policies in the 1990s facilitated significant changes in the real estate sector. Many international companies jostled to establish businesses in India, triggering a consistently increasing demand for commercial and residential real estate.
The rapid growth of the IT-ITeS sector resulted in the expansion of new urban centres across major cities like Bengaluru, Chennai, Hyderabad, Kolkata, MMR, NCR, and Pune. These cities were the first to witness changing skylines and rapid vertical development.
At the turn of the century, the sector was further invigorated when foreign direct investments allowed the entry of global investors. This catalysed the development of malls and other organized retail spaces across the country.
PMAY: With the Pradhan Mantri Awas Yojana (PMAY) program, the social housing sector – mainly aimed at the economically weaker sections – has gathered momentum over the last decade. PMAY was launched with a specific and ambitious target to provide Housing for All by 2022. In the country’s urban areas, the development has been tangible.
CLSS: To provide momentum to affordable housing and generate demand for it, the government has provided for subsidized interest to be paid to financial institutions lending to borrowers in this housing category. The cost of ownership became easier on prospective buyers and empowered women with the social security of having their own homes – a significant sea-change in a once highly patriarchal society.
Smart Cities Mission: The Smart Cities mission aims to develop 100 cities that are technology-enabled to drive economic growth and offer significantly improved quality of life to citizens. Currently, there are 5,151 projects under this mission across the identified cities, with investments to the tune of INR 2,05,018 crores.
Various reforms and structural changes implemented in the government have been instrumental in altering the real estate sector. Today, we use terms such as governance, transparency, and accountability, and stakeholders are evaluated on these parameters.
Many corporate business houses have also ventured into the sector. Prominent and listed real estate players are successfully gaining market share and helping the industry consolidate – a much-needed process that steadily eliminates unwholesome elements and the shenanigans for which they were known.
Some of the significant reforms in recent times and their effects:
GST: This taxation reform was conceived and implemented to enable a uniform tax code across the country. Completed real estate projects are exempted from GST, and affordable housing projects are levied with GST of only 1% to keep the momentum of demand high.
REITs: Real Estate Investment Trusts (REITs) have emerged as another option for Indian investors to add real estate to their portfolios for better diversification and risk mitigation. The REITs operational in India today are mainly in the commercial office segment. The total market cap of these REITs is estimated at INR 60,584 crores.
RERA: Perhaps the most significant post-independence reform to impact the Indian real estate sector was implementing the Real Estate Regulation Act. This Act aims to safeguard the interests of homebuyers and investors and make developers accountable for their projects. The Act makes all relevant project details, including the approvals and permissions, available at homebuyers’ fingertips and provides a mechanism for redressing complaints and grievances.
RERA establishes specific standards for the construction and development of real estate that aim to improve transparency in real estate transactions. It has given homebuyers several rights and has set forth specific laws and regulations that all developers must observe.
In the five years of its existence, 87,124 projects and 65,500 agents have been registered across the country. The regulator has successfully disposed of 97,404 complaints, paving the way for a stronger and more resilient real estate sector.
RERA is in many ways still a work-in-progress, with loopholes and lacunae getting addressed along the way. However, it is safe to say that it is the one regulatory reform that has genuinely empowered real estate end-users and investors.
THE ‘AMRIT KAAL’ WAY FORWARD
As the nation progresses rapidly and requirements evolve, real estate products, services, and assets will grow too. Many new-age real estate asset classes such as senior living and student housing are already gaining momentum. Data centres, warehousing, and industrial parks are the new buzzwords in the sector. They will gain further traction as the incumbent government focuses on its visions of Atmanirbhar Bharat and India becoming a USD 5 trillion economy.
NOT A HOME RUN YET
As these sectors and economic activities rev up, housing for the workers they employ will pose a significant challenge. The government has already laid the framework for affordable rental housing and invites private participation, but there is still a lack of clarity. ARHCs (Affordable Rental Housing Complexes) are now among the most urgent needs in post-Independence India – and the government’s Housing for All vision.
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