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Tax litigation in India

As per the litigation trend in courts, it appears that the government is adamant to pursue several litigations pertaining to transitional credit. Despite a settled position in law that credit is a vested right, there are several restrictions imposed on its transition, including restriction to transition cesses, imposition of timelines to transition, restriction to make multiple revisions. The government, in this regard, has placed itself into an unnecessary conundrum.

Kamal Sawhney

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Tax certainty is the foundational principle of a conducive tax jurisdiction. Uncertainty is bound to arise in any tax jurisdiction – whether it be issues arising out of legislation, implementation or interpretation. But what makes a tax jurisdiction stand out as conducive to businesses in comparison to others is the efficiency and effectiveness of its dispute resolution mechanism. No business would be comfortable to invest huge amounts in a tax jurisdiction where 8-10 years is the average period for conclusion of a tax dispute. Clear tax policy and a non-adversarial tax administration is a pivotal factor for any country to be considered as a preferred tax jurisdiction. Therefore, the situation of tax litigation becomes relevant.

India, as we know, is infamous as a complex tax jurisdiction and for huge pendency of tax litigation. If we look at the statistics of the pending cases, the numbers have only increased over the years. In Direct Tax domain itself, the pendency of cases at various appellate levels has increased from 3.86 lacs cases as of 2016 (as per the CBDT Committee Report dated 05.09.2016 on Litigation Management) to 4.83 lacs cases as of 2020 (as per Finance Minister’s Speech on Union Budget 2020-2021). In the Indirect Tax domain, the Government claims that the ‘Sabka Vishwas Scheme’ has helped resolving around 1.9 lacs cases and reduced the litigation pendency by 60% but one cannot lose sight of the litigation generated from the scheme itself.

Pendency of cases is a quantitative aspect. It is equally important to test our progress qualitatively as a tax jurisdiction. While the Indian tax judiciary has contributed tremendously to the jurisprudence in the international tax discipline, but our tax judiciary is still plagued with futile and repetitive issues that makes it evident that we have not matured as a tax administration.

The Government’s vision towards rising the ranks on the Ease of Doing Business List and the resolve to foster a non-adversarial tax regime to attract more investment in the economy is not consistent with the adversarial mindset of the tax authorities on the implementation front and to some extent, even with the tax policies and legislation. This is also one of the reasons why several efforts of the Government, from time to time, towards reducing tax litigation and towards speedy disposal of pending litigation have failed. What India most crucially requires is a change in the mindset of its Tax Authorities. Courts have rightly and consistently pointed out that a tax litigation is not equivalent to a lis or dispute between two parties in a civil litigation. The tax authorities and the taxpayers are not adversaries in a civil litigation, rather tax litigation, including appeals, is merely an administrative act of adjusting the taxpayer’s tax liability. This difference ought to be understood and practiced in the right spirit by the tax authorities.

There are certain issues in both direct and indirect tax domains discussed below which are worth highlighting to understand where the Government and the tax authorities have failed us as a tax jurisdiction.

Failure on the Tax Policy Front

The goods and services tax (GST) regime which was introduced in India with effect from 01st July, 2017 with the objective to achieve simplification in the existing tax regime, widening of tax base, and most importantly, to mitigate the cascading effect of various indirect taxes by way of subsuming different kinds of indirect legislations. With the above introduction, it was promised by the Government of India that this is a one stepforward towards improving the ease of doing business in India. However, even after 3 years since implementation, GST in India still seems very far from achieving most of the stated objectives and its avowed promises to businesses.

Even the flexibility to undertake business activities freely within the boundaries of the country is not completely available under the GST regime on account of mandate to obtain separate registrations for operations in different States and treating the said registrations as distinct persons for the purposes of GST. While this may have been necessary to implement elimination of cascading effect of taxes, the legislature failed to comprehend that there may be business situations where a particular business entity might want to close operations in a particular State and shift its focus to their business in another State. To cater to this scenario, the extant provisions of law does not provide for a mechanism to transfer to input tax credit available to an entity registered in one State to another registration of the same entity in a different State. This leads to a situation where the input tax credit of one State is bound to lapse, despite there being a vested right in the said credit. In this regard, in a recent ruling by Andhra Pradesh Authority of Advance Ruling, it has been held that when a business of a company registered in one State is transferred as a ‘going concern’ to its registration in another State, the business will also be permitted to transfer the unutilized input tax credit as well. However, it still needs to be seen whether a similar position may be adopted where business decides to close its operations in a particular State, leaving aside the fact that the said ruling is itself prone to challenge in appeal by the Government.

Unnecessary Blocking of Capital

Under the direct tax domain, the most common dispute between the tax authorities and the taxpayers is on the possession of the disputed tax demand. Supreme Court, High Court and even Departmental Circulars have consistently maintained the legal position that where an addition/disallowance is covered in the favour of the taxpayer by the appellate orders in taxpayer’s own case or by the decisions of jurisdictional High Court or Supreme Court, the tax authorities ought not to recover such demand. Despite clear legal position, it is a recurring issue for the taxpayers where stay applications are rejected, coercive recovery is made and even legally entitled refunds for other assessment years are adjusted against such irrecoverable demand. When such kind of recovery becomes regular, year after year, in both the domains – direct and indirect tax, the businesses are drained of their limited pool of working capital and the impact is such that in many cases, the businesses have to fall back upon their foreign parent entity.

If we specifically discuss about the GST regime, although one of the stated and primary objectives was to eliminate cascading effect of taxes, there have been several artificial restrictions around availment of input tax credit, despite the input expenditure being arguably in relation to one’s business. Further, the credit of input taxes are being provisionally allowed, and notices are being issued to the businesses on account of mis-match on the portals. Despite the businesses make payment of taxes to their suppliers, the credit is being denied on account of failure on the part of the suppliers to report such supplies on the GST portal. While the purpose of implementation of such matching criteria under GST can be fathomed, it also needs to be appreciated that the businesses have almost negligible control over their suppliers who work independently, and the mismatch may be on account of several factors beyond their real control. The availability of their free capital to the businesses is severely hampered on this account.

Further relevant to highlight is the consistent position of our country that domestic taxes should not be exported out of country. However, in many scenarios, even in cases of export of goods and services which are zero-rated supplies under the GST regime, the businesses are not able to claim refund of taxes which form part of the said supplies. This is on account of creation of notional place of supplies to eliminate a particular transaction from the category of ‘export’ despite earning foreign exchange on the transaction. Apart from this, a further restriction to seek refund on export has been imposed by way of recent amendment made to Rule 89(4) of the CGST Rules to provide for a notional value to the ‘turnover of zero-rated supply of goods’.

Futile and Long Drawn Litigation Approach of the Government

The litigation cost incurred by businesses in India are also considerably high. As per the litigation trend in courts, it appears that the Government is adamant to pursue several litigations pertaining to transitional credit. Despite a settle position in law that credit is a vested right, there are several restrictions imposed on its transition, including restriction to transition cesses, imposition of timelines to transition, restriction to make multiple revisions. The Government, in this regard, has placed itself into an unnecessary conundrum. Credit, after all, is tax paid to the government and in line with the stated principles of elimination of cascading effect of taxes, credit should not be denied. The position adopted by the Government dilutes the stated objectives of GST and is increasing litigation for businesses. Even in respect of the amnesty scheme introduced for settling the legacy disputes under erstwhile indirect tax laws, the executive function of the Government has been rejecting the declarations filed by the businesses on several technical and procedural grounds. In some cases pending before High Courts, the designated committee have rejected to allow the adjustment of predeposits made in pursuant to the interim orders of the Tribunal despite a express sanction under the Scheme, or rejected on the grounds of non-filing of separate declarations for multiple SCNs covered in a single pending appeal before the Tribunal. Such a position has unnecessarily taken away the very purpose of amnesty i.e., to reduce litigation. The said trend shows the mindset of the Government to deviate from the clearly stated objective of putting an end to lengthy litigation and on the contrary, is adding to the burden of High Courts which are already crumbling under heavy pendency.

Another futile litigation is on the taxpayer’s struggle to obtain its legally entitled refunds after getting an addition deleted in appeal. In case a tax addition is deleted in appeal, the authority is mandated as per law to give effect to the appellate order and issue the resulting refunds to the taxpayer. This is a clear statutory mandate but despite such mandate, there is a regular litigation against the inaction of the tax authorities in not giving effect to appellate orders and issuing consequential refunds. The tax authorities have acted perversely to the extent where on one hand they do not give effect to the appellate orders, due to which a demand is reflected instead of refunds, and on the other hand, the authorities adjust the same non-existent demand with refunds determined for the taxpayer in other assessment years. Such litigation friendly tax administration creates a highly discouraging business environment.

Biased and Unilateral Approach of the Executive Function

The administration of GST regime by the executive has also been biased in favour of the revenue ever since its introduction. In this scenario, while the law has been entirely transformed, the executive has always been against the businesses, which is leading to a situation which is not conducive to do business in the country. For illustration purposes, it may be worthy to refer to the anti-profiteering law under the GST regime which has been administered in a manner contrary to a long line of judgments where it was held that there should be sufficient guidelines within the law for its administration, more so when such legal regime entails civil consequences, and in the absence thereof, the said law would itself fail. Despite there being complete absence of any mechanism prescribed under the law for computation of profiteering, the authorities have been acting whimsically in computing profiteering amounts against businesses, leading to complete arbitrariness in the claims made against the businesses. With the long periods of anti-profiteering investigations preferred by the authorities, the businesses have been forced to keep their sale prices constant despite an actual verifiable increase in their cost. Further, the executive has been adamant to impose further levies on the businesses under the garb of anti-profiteering provisions despite a demonstrable transfer of benefits accruing to the business on account of GST implementation or on account of reduction in rate of taxes under the GST regime. The said implementation is arguably a clear violation of the fundamental rights to do business as enshrined in the Indian Constitution and is also contrary to the freedom to earn profits from one’s business, which stands severely curtailed.

Failing Alternative Dispute Mechanism under the Income Tax Act

Finance Act 2009 introduced an alternative dispute resolution mechanism under the Income Tax Act for foreign companies and transfer pricing assessments in order to facilitate expeditious disposal of disputes on a fast track basis. Under the alternate route, Appellate Commissioner level was replaced by the Dispute Resolution Panel (DRP) which is constituted by a collegium of three Commissioners of Income Tax. In order to further align the DRP route with the Government’s intent to minimise litigation, further amendment was made vide Finance Act 2016 to prohibit the tax department from filing appeals against the assessment orders passed in pursuance of the DRP directions.

If the ground reality be witnessed, taxpayers expect relief from DRP only in case the disputed addition is favourably decided by appellate orders in taxpayer’s own case for other assessment years and such appellate order has attained finality. If such appellate order has further been appealed by the department, a relief cannot be expected even in that situation. A major reason is that the DRP does not recognises itself as a quasi-judicial appellate body and considers itself not bound by the principle of judicial precedents. With the Revenue’s right to appeal against DRP directions being taken away, further decline was witnessed in taxpayer favouring DRP directions in order to keep the issues alive in appeal. Surprisingly, DRP has even mentioned this as a reason for not giving relief in some of its directions.

This was not the case with the Appellate Commissioner route, not to this extent at least. If a favourable order is obtained by the taxpayer before the appellate commissioner, major litigation can be reduced at the tribunal level because the Revenue would not be able to appeal in many cases wherein the tax effect is less than INR 50 lacs, as per the existing CBDT Circular. On the other hand, under the DRP route, with higher number of unfavourable DRP directions, taxpayers’ appeals are bound to travel to the tribunal where the average pendency period is much higher than at the Appellate Commissioner level.

Launched as a speedier remedy, DRP has instead become merely an extension of assessment proceedings. The only apparent benefit to a taxpayer is that it reaches the Tribunal stage faster than earlier, but that benefit is insignificant because the time advantage, when compared to the time taken in disposal of appeals before Appellate Commissioners, is very minimal.

Hasty approach in introducing new taxes creates uncertainty, attracts litigation and hinders investment

Further relevant to highlight is the hasty approach of the Government in introducing the Equalisation Levy for taxing the digital economy. It is not denied that the digital economy in-effect is failing the existing nexus/ business connection rules in the domestic income tax law and the permanent establishment (‘PE’) rules in the bilateral tax treaties thereby avoiding imposition of tax on income in the source countries. The need to tax the digital economy is legitimate. However, taking unilateral tax positions on the untapped income and denying existing treaty benefits will adversely affect the digital economy.

OECD/G-20 countries had recommended in their report that measures like ‘Equalisation Levy’ may be introduced in domestic laws but subject to existing tax treaty obligations. The levy is clearly a short-term measure to compensate for the Government’s inability to impose tax on the digital economy as per the existing income tax provisions. But keeping the levy outside the purview of the Income Tax Act amounts to an indirect violation of the existing tax treaty obligations. Following are some of the conceivable adverse consequences on the digital economy which has the potential to attract huge litigation as well as investment attrition in the sector:

  1. Denial of treaty benefits to the foreign taxpayers which will lead to double taxation on the same income in India as well as their resident country
  2. Seeks to tax even extra-territorial transactions wherein both the e-commerce operator and the user of the services could be non-residents but the user either subscribes to the services or procures the services even once using an Indian IP address;
  3. Absence of clarity on the computation the tax base for the levy;

In addition to the above, the widened scope of the levy has been introduced during the Covid-19 Pandemic when the businesses are already bleeding. It was practically impossible for the taxpayers to even comply with certain preliminary requirements of obtaining a PAN and an Indian Bank Account due to the restricted functioning of the Embassies and the Government Departments. Despite this situation and the constant requests from the Industry for extension, the date for deposit of first instalment of the levy, i.e., July 7 was not extended by the Government. The taxpayers are bound to be noncompliant and knock the doors of the Courts to avoid any adverse implications due to delay.

Concluding Remarks

 A cumulative impact of the above issues, inter alia, on the businesses is to take a direct hit at the decision to continue such business operations in India. While India has one of the largest pool of readily available and cheap resources for facilitating business activities, there is no real sense of ease of doing business in India, as compared to several other jurisdictions including Singapore, which has a stateof-the-art infrastructure coupled with transparent regulations, rule-following and market-based economy. The mention of Singapore is very relevant today because India is consistently losing out to Singapore on major investments. Majority multinationals today prefer Singapore for setting up their holding companies. Even Indian Start-ups are setting up their headquarters in Singapore.

If we compare the direct tax regime, the highest corporate tax rate goes up to 30% in India which reaches merely 17% in Singapore. The tax on capital gains and dividend income is Nil in Singapore. This itself makes Singapore the most conducive tax jurisdiction for setting up holding companies and owning IP and other intangibles.

If we compare the indirect tax regime, while India has chosen to implement a varied rate of taxation coupled with an online compliance system, with tax rates going as high as 28%, Singapore chose to implement a similar online compliance system with a unified taxing regime fixed at 7%.

While cost of compliance and tax rates are important factors for making Singapore a tax efficient jurisdiction, even in terms of political and economic stabilities, rule of law, global integration, Singapore stands well above India.

Therefore, a major overhaul is required in the Government’s approach to achieve the position of a conducive tax jurisdiction and a preferred investment destination for multinationals. Hon’ble CJI Shri S.A. Bobde, at the 79th foundation day celebrations of Income Tax Appellate Tribunal, while referring to the ancient tax laws in India, said the following which is relevant to this issue: “Tax should be collected from people like honey bee draws nectar from flowers without harming it”. This line says a lot about the role of the Government and the tax administration and the approach it should adopt of ensuring facilitation of conducive environment for business and not destruction of the same.

 Kamal Sawhney is a Partner at PDS Legal. He is an Arguing Counsel before the Supreme Court of India and High Courts.

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Legally Speaking

Analysing Article 21, humans rights and individual freedom

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“Death must be beautiful. To lie on soft brown earth, with grasses waving above one’s head, and listen to the silence. To have no yesterday, no tomorrow. To forget life, to forgive life, to be departed.”

– Oscar Wilde

INTRODUCTION

The grimace compounding the affliction implicating faith & culture economizing on the despair from the clutches stands out to be a serene sojourn. The complacency in setting to work the health crisis nonetheless politics has doomed the fraternity squandering the attainment. People & their rights must be magnanimous at front & centre. Dignity in casualty is recognized around the world. The cremation of the dead bodies in Covid-19 is not an easy tribulation. The Hygiene Protocols ambling wrapping dead bodies to discerning handing over the bodies to the families increase the efficacy of transmitting body fluids. According to the World Health Organisation plebeians intimidated of their emancipations incarcerated are prone to getting tremendous exposure. The scale of devastation brought on by the second wave of Covid continues to snuff out lives, upend healthcare systems & dwindle the economy broke out with negligence, callousness evincing response as people reckoning with the grief of catastrophe that’s still unfolding.

Emotions Coexist as they aren’t linear or unitary bringing about guilt unobtrusive on some days & overbearing on others. Losing a beloved one is one of the extensively gruelling situations even under the best of episodes. Every congregation brings into the world its sermon to soothe the concussion, Hindus gathering to burn carcasses along the Ganges River to the Jewish folklore of amassing solace at shack during a seven-day mourning stint, Islamic legislation, as in many kith & kin surmises, the management of uneventful is the theme of distinct policies that strive at pledging the elegance and deference of the dead as well as for their living comrade. The disposition and swivel scale of the prevailing pandemic, however, has concocted miscellaneous qualms, asceticism, and straight rumours in Muslim-majority states as well as for Muslim communities around the realm. Oftentimes bar and the legal sorority have beefed up the liberties which are equated to dead soul from stature of the dead person to decent interment. Anticipating the incessant phenomenal pestilence “COVID 19”, the situation has become very catastrophic, and the conundrum of this dilemma makes it a more chaotic one. The horrendous and ungrammatical crisis of sufferers and dead bodies provoke the compunction of the very validity of rights that are functional to dead persons in the glimmer of the status quo.

STANDPOINT: HUMAN RIGHTS & FEDERAL LAW

Human dignity reinforces the right to life in portion the state has an optimistic obligation to insulate & respect life. The Rights are extensive, interdependent & mutually supplementary.

Humanitarian organisations especially the Red Cross (ICRC) evolved a compatriot & drudged knack in disaster supervision and tragedy riposte, catastrophe vindication, and humanitarian forensics. This experience is amassed from quite 150 years of operating in conflict zones and from an operative composure in additional 90 countries, mounting the ICRC to fetch effective recommendation and attend to state authorities & (NSAGs) in the retort to the getaway. UDHR ascribes kinsfolk subsist to be put up with autonomous and equal in dignity and rights” (Article1). These rights are “inalienable” to every person. The Human Rights Convention are for infractions of the treaties outlined in the testimony, while the assertions can be bought in by any victim of the violation a defunct person cannot do the same. The resolution 2005 on human rights & forensic science played up the primacy of distinguished human remains antidote, acclimating adequate composure & discarding similarly as of reverence for the clans’ desire. Geneva Convention 1949 certifies everyone to the dispute forthwith foster the deeds seized to patrol the annihilated – counteracting ill-treatment.” Even in modern days, international humanitarian legislation puts up to corroborate that even during the crossroads of war and conflict; the dead bodies of the combatants are not disdained out of vengeance and enmity. International Human Rights Law recognizes discretion on rights neither arbitrary nor discretionary based on scientific testimony. The convention I of Geneva (Article 17), Convention III of (Article 120), Convention IV (Article 130), Article 8 Additional Protocol II, Cairo Declaration Article 3 on Human Rights & other relevant legitimate instruments, furnish for the honourable entombment of the combatants and prisoners of war. The veneer of the lifeless person ought to be cherished even during the times of crusade & discord, there could be no justification to divest an individual who withers in the eternity of peace of the identical right of a respected burial and funeral rites, which the person would have otherwise been entitled to, if not for the pandemic.

According to Cal Health “Cremation” ensues in three strides the constriction of the core of a bygone human to its indispensable components via immolation, transferring or the body during incineration to elicit the system, processing of the remains after exile from the funeral courtyard. “In a country statute which stymies the establishment or upkeep in any one township of surplus than one crematory for the cremation of mortal cadavers cannot be bolstered as a police measure as against a cemetery association located near another crematory and in close proximity to several cemeteries and in a neighbourhood where there are, but irregular dwelling-houses and no buildings devoted to any business except that of burying the dead.”

PLUGGING GAPS OF CONSTITUTIONALITY: DIGNITY IN DEATH

The pestilence hasn’t only exemplified spirit, security and financial crisis, yet a crisis of conviction in the decisive crusade of humans. The Right to Life being an inclusive concept, affirms no soul shall be pillaged of life or liberation or property befitting mulled over the spectrum of Article 21 by insinuating the medication of cadavers in the additional terms – “The perspective of repudiation whacked by Article 21, whether such deprivation is permanent or temporary.” Life sans status is an icky debacle & verve that congregates cessation with dignity is a virtue to be yearned for and a juncture for celebration”.

Article 21, the kick pin of all other rights renders no soul ought to be knocked off of life or liberty by dint of the ‘procedure’ recounted in Article 21 has been skimmed into the ‘due procedure’ by the Supreme Court and implied treatment must be fair, just & reasonable. Over the epoch, the Supreme Court has deciphered Article 14 & 21 to entail myriad privileges within its ruffle.

The Apex Court adduced quoting that illustrated “life” in additional words: “Something more than mere animal existence. The inhibition against its forfeiture amplifies to all those limbs and faculties by which existence is relished. The overhead equally hampers the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul articulates with the outer world” congruently conserving the term ‘life’ meant the freedom to dwell with grace & the analogous embargoing stalled drudgery. The Article flexures “some of the finer graces of benevolent refinement, which propels life worth living” & an intensified notion of cinch may credit “society” of the apprehensive person. Eventually, dignity isn’t the sole sleuth to a living man but after his demise was put as deposition by the Supreme Court has been overstepped in Satyama Dubey v. U.O.I.

Further, the court ratified the diverse undertakings stripped away by the Police and the local body for procuring an adequate crypt to an abandoned dead person, according to the pious morality to which he belonged. The petition was disposed of based on affidavits. The hegemonies, & culture, the indistinguishable compassion with which a living being is anticipated to be cared for, should also be magnified the ones who are dead”. Praxis and heredity stances are innate to the ultimate ceremony of an individual’s vivacity. The decent interring is sketched in Article 25 that waives for leeway of conscience & autonomous profession, practice and propagation of faith subject to civil declaration, righteousness & vigour in Part III of the Constitution. Regime edicts overriding canonical practices for lifeless torsi should in no way be deemed discriminatory but must be a commensurate standard to impede disorders and casualties on the pretext of the virus, while simultaneously assuring public protection and economic wellbeing of India.

Please read concluding on thedailyguardian.com

It is vital to think back that is ephemeral and is the modus Vivendi to steering the ragged waters of rash, individually but concurrently.

EPILOGUE

The contemporary catastrophe dissembles as a spur transgressing the rights of a lifeless person despite on fleek backing of the legal bracket. The Conclusions sound prettier than the present is as the crisis is deep & has led to reports of untold human grief. Death has taken its toll as the health system crumbles the lives could be saved however policy stiffness cropping up blazing pyres shaping the vicinity between the living & the dead. A two-pronged strategy effectuating even-handed botch vaccine allotment must be carried out & tapering off SARS COV 2 transmission whilst the vaccine is rolled out.

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Legally Speaking

Modern technology and challenges over privacy: An analysis

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INTRODUCTION

Privacy has always been concerned in this technical era. On one hand, where it has been simplified our life, on the other hand, it has always been questioned over Privacy. Once again the privacy concern has become a burning and sensational topic which is being discussed around the globe. Recently, an investigation by international media has revealed that more than 50,000 phone numbers across the globe have been targeted for hacking through the spyware called ‘Pegasus’, which has been developed by the Israeli firm NSO Group. Furthermore, Over 300 Verified phone numbers used by ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, rights activists, and others, were targeted using this malware. 

It has once again called the regulations for surveillance in India. In India, Communication surveillance takes place primarily under two laws one being the Telegraph Act, 1885 and the other being the Information Technology Act, 2000. On one hand, The Telegraph Act deals with the interception of calls, while on the other hand, the IT Act deals with surveillance of all electronic communication. Although, it is also notable that India still lacks a comprehensive data Protection law to fill the gaps in the existing frameworks for surveillance. 

LAWS REGULATING SURVEILLANCE IN INDIA.

Telegraph Act, 1885 

Section 5 (2) of the Telegraph Act states that “On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order….”

Under this provision, the government has been authorised to intercept calls only in certain situations like when it is in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states or public order, or for preventing incitement to the commission of an offense. Moreover, an additional proviso under section 5(2) states that this lawful interception can’t take place against journalists provided that “press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.”

Hon’ble Supreme Court while dealing in the case of Union for Civil Liberties v. Union of India (1996), finds the absence of procedural safeguards in the provisions of the Telegraph Act. In the same judgment, the Hon’ble court also laid down certain guidelines for interceptions. The court observed that authorities who are engaged in interception were not even maintaining adequate records and logs on the interception. Furthermore, the court also states that “Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to a sold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of Subrosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day”. The guidelines by the Hon’ble Supreme Court formed the basis of introducing Rule 419A in the Telegraph Rules in 2007 and later in the rules prescribed under the IT Act in the year 2009.

IT ACT, 2000

Furthermore, to address electronic surveillance, Section 69 of the Information Technology and Information Technology (Procedure for Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009 were enacted. Under the IT Act, all electronic data transmissions are permitted to be intercepted. So, in terms of the Pegasus spyware, it may be legal. Both the IT Act and the Telegraph Act would have to be invoked by the government. Furthermore, in addition to the restrictions imposed by Section 5(2) of the Telegraph Act and Article 19(2) of the Indian Constitution, Section 69 of the IT Act adds another dimension that broadens it — interception, monitoring, and decryption of digital information “for the investigation of an offence.”

Significantly, it does away with the condition precedent established by the Telegraph Act, which requires “the occurrence of a public emergency in the interest of public safety,” broadening the scope of powers under the law.

IMPACT OF SURVEILLANCE

There are plethoras of examples in this world where personal data are misused for many different reasons. Many people and organizations are under surveillance which is vocal and takes active participation against the criticism of the ruling political party. These things make us understand the impact of surveillance on our freedom of privacy, freedom of speech, and expression and curtail our fundamental rights. Surveillance poses threat to press freedom. The World press freedom index published by Reporters without borders ranked India 142 Out of 180 countries in the year 2021. The press needs greater liberty on privacy and speech because these two enable good reporting. They secure journalists against the threat of government reprisal against honest reporting. 

A report on Privacy rights and protection was published by Forrestor, an American company in the year 2019, In India, the laws which allow the government to conduct surveillance over its citizens are very clearly undermining the laws related to the data privacy to its citizens. In the case K S Puttaswamy v. Union of India, the Hon’ble Supreme court of India held that the right to privacy is a fundamental right that comes under the domain of articles 14, 19, and 21 of the constitution but there is a lack of data protection law in India. In absence of this kind of law, it becomes just an executive order which allows the agencies to encroach on the privacy of their citizens. Also, it is very important to note that people who are under surveillance are unaware of the fact that agencies are monitoring them. In the absence of privacy laws, the security of journalists whose work criticizes the government and their safety is jeopardized. In the case of Ritesh Sinha v. State of Uttar Pradesh, the Apex court held that the right to privacy is not an absolute right, it is also subject to restrictions as with other fundamental rights. It was asserted that the right to privacy is not absolute and must bow down to compelling public interest. We still need a number of judicial pronouncements to determine how the right to privacy operates in a practical scenario. Since there is a lack of Judicial pronouncement, the court relies on the German principle “test of proportionality”. This test is used by different countries for the determination of conflicting rights. The Hon’ble supreme court has applied this principle in various cases such as Chintaman Rao v. State of Madhya Pradesh, state of Madras V. V.G. Row, etc to balance between the rights and limitations. In this principle, there are four stages to determine the balance of rights and limitations. The legitimate goal stage, suitability, necessity stage, and balancing stage that help us to strike balance between the two. But this is only effective when a particular case comes under the cognizance of court. 

The Surveillance uproar the spread of Authoritarianism in the government system because the executive uses excessive power on the citizens and impacts personal lives. When it is carried out entirely by the executive curtails article 32 and article 226 of the constitution as it happens in secret and thus affected person is unable to show their breach of rights. This not only violates the ideals of due process of law but it is also against the requirement of procedural safeguards as held in the case of K.S Puttaswamy v. Union of India. 

CONCLUSION AND SUGGESTIONS 

To implement the ideals of due process of law and to satisfy the requirements of procedural safety and natural justice, there needs to be judicial observation. The judiciary is the competent body to determine whether specific instances of Surveillance are proportionate or not to balance the government’s objective and the rights of the individuals. The judicial investigation into the Pegasus hacking is important because the leaked database of targeted numbers includes the phone number of a sitting Supreme court Judges, which again raises the question of the Independence of the judiciary in India. 

In India surveillance reform is the need of the hour, the existing protections are weak and the proposed legislation related to personal data fails to consider surveillance of the citizens. We need greater transparency in our system, governmental agencies are only accountable to the government itself. For the protection of National security, the government is bound to do smaller infringements of Fundamental rights and surveillance reform should incorporate ethics of surveillance which includes the moral values of how surveillance regulates. The government of India is in process of enacting a law for the purpose of protecting of personal data of the citizens. There is an urgent need to include privacy as a fundamental right and to provide a defining mechanism to strengthen the rights of the citizens and to provide a remedy in case of violation. 

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Cinematograph Amendment Bill 2021: An analysis

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Cinematograph Act 1952 establishes Central Board of Film Certification (CBFC), commonly known as the Censor Board. The Board is responsible for issuing certificates to films and has the power to deny their certificate (Section 5A). Section 6(1) of the Act empowered the Central Government to re-examine and cancel the certificate issued by CBFC. Supreme Court in the case of K.M. Shankarappa diluted the provisions of Section 6. The court held that the provisions of Section 6 are restrictive of Article 19(1)(a) of the Constitution.

The new Cinematograph (Amendment) Bill, 2021 attempts to dilute the judgment of the Supreme Court and aims to get back its revisionary powers. This will provide extraordinary powers to the Central Government by creating one more level of Censorship. This year Central Government passed an ordinance, the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 which abolished the Film Certification Appellate Tribunal (FCAT). The proposed bill also aims to convert this ordinance into regular law by placing it in legislation. FCAT was solemnly established to resolve the issues related to the certification of Films. With its abolishment, the filmmakers have to approach High Court in case the Censors Board denies providing certification or provides with some ratification. This will also increase the burden of High Courts. Ultimately, this leading to a delay in a Film release.

Article 19(1)(a) of the constitution says, “All Citizens shall have Right to freedom of Speech and Expression.” Article 19(2) of the Constitution empowers the State to restrict Freedom of Speech and Expression provided that the restrictions are legitimate. Supreme Court in K.M. Shankarappa v. Union of India held, “words contained in the main portion of Sub-section (1) of Section 6 of the Act and in the first proviso thereto are opposed to the basic structures of the Constitution and as such the words “or has been decided by” and “or as the case may be decided by the Tribunal” contained in the main portion of Sub-section (1) of Section 6 and the words “or to whom a certificate has been granted as the case may be” as contained in the first proviso to Section 6(1) of the Act, are unconstitutional as the same are violative of the basic structures of the Constitution.”Supreme Court in many of its Judgments has discussed the importance of Movies as a medium of Freedom of Speech and Expression. Supreme Court in the Rangarajan case regarded Movies as an effective medium to raise any general concern.The proposed amendment is an attempt to overutilize the powers provided under Article 19(2) of the Constitution.

If the bill becomes an act then it will nullify the Supreme Court Judgment. The autonomy of the Censor Board will be deduced. The Central Government will have the power to strike down any certificate issued by CBFC. This also induces the concept of dual Censorship, limiting the Freedom of Speech and Expression. Justice Mudholkar in Sakal v. Union of India rightly said, “The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.” The abolishment of FCAT will further increase the backlog of High Courts and will lead to an unnecessary delay in the release of Films.

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Andhra Pradesh High Court issues guidelines for prompt transmission of bail orders

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Andhra Pradesh High Court

While granting bail to an accused under The Narcotic Drugs and Psychotropic Substances Act, 1985, the Andhra Pradesh High Court in a cogent, composed, commendable and convincing judgment in Criminal Petition No. 3933 of 2021 delivered on July 22, 2021 has taken a very serious note of the significant delay in issuing the certified copies of the orders. A Single Judge Bench comprising of Justice Lalitha Kanneganti of Andhra Pradesh High Court minced just no words to make it pretty clear that, “Disposal of bail application without furnishing the order copy within a reasonable time will not place the accused in a better position.” Justice Lalitha also observed that despite the conscious recognition of several pending cases, it is difficult to issue the order copies within a short period due to staff shortage. She has rightly diagnosed the root problem which must be addressed now without any further delay!

Needless to say, we all saw how just recently the Chief Justice of India NV Ramana too did not lag behind in a notable case titled IN RE: DELAY IN RELEASE OF CONVICTS AFTER GRANT OF BAIL in Suo Motu Writ Petition (Civil) No. 4/2021 while taking took serious note of this major shortcoming or lacuna. CJI led Bench of Apex Court comprising also of Justice L Nageswara Rao and Justice AS Bopanna had expressed the Court’s willingness to evolve a system to electronically transmit bail orders directly to prisons so that prison authorities will not delay the release of prisoners awaiting a certified copy of the order. Accordingly, a scheme called “FASTER” which implies “Fast and Secure Transmission of Electronic Record” is being considered which will be used to communicate all orders to concerned jail authorities without waiting. This will certainly benefit the under-trial prisoners/accused and so has to be lauded in no uncertain terms!

To start with, the ball is set rolling in para 1 of this latest, learned, laudable and landmark judgment authored by a Single Judge Bench of Andhra Pradesh High Court comprising of Justice Lalitha Kanneganti wherein it is put forth that, “This petition is filed under Sections 437 and 439 of Code of the Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking regular bail to the petitioner/ A-2 in connection with Crime No.38 of 2020 of Mothugudem Police Station, East Godavari District for the offence punishable under Section 20(b)(ii)(C) r/w Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity “NDPS Act”).”

While elaborating on the prosecution version, the Bench then lays bare in para 2 that, “The case of prosecution is that on 03.09.2020 on credible information about illegal transportation of ganja, the respondent Police rushed to Daralamma Temple, outskirts of Polluru village of Chinturu Mandal and while conducting vehicle check at about 11.00 AM, they found a Bolero pick-up van bearing registration No.AP 24 TB 1550 coming from Donkarai proceeding towards Lakkavaram Junction. On seeing the police, the inmates of the said Bolero van tried to escape from the spot, but the police apprehended them and on search, they found 300 KGs of ganja. The police seized the contraband, registered the crime, arrested the petitioner and remanded him to judicial custody on the same day.”

As we see, the Bench then mentions in para 3 that, “Heard Sri G.Venkata Reddy, learned counsel for the petitioner and the learned Public Prosecutor for the respondent-State.”

While on the one hand, the Bench enunciates in para 4 that, “Learned counsel for the petitioner/A-2 submits that the petitioner has nothing to do with the alleged offence and in fact, the petitioner was engaged by A-1 on payment of Rs.15,000/- who accompanied him. Further the officer who acted as a gazetted officer while conducting the search and seizure is a veterinary doctor and the said doctor is not a competent person to act as a gazetted officer under Sections 42, 43 and 50 of the NDPS Act. Learned counsel for the petitioner further submits that the entire investigation is completed and the petitioner is languishing in jail from 03.09.2020.”

As against what is stated above, the Bench then points out in para 5 that, “On the other hand, the learned Additional Public Prosecutor submits that on 13.10.2020 charge sheet was filed.”

To put things in perspective, the Bench then while taking a holistic view holds in para 6 that, “Taking into consideration the fact that the entire investigation is completed and charge sheet is filed and further the petitioner is languishing in jail from 03.09.2020, this Court deems it appropriate to grant bail to the petitioner. However, on certain conditions.”

Adding more to it, the Bench then further holds in para 7 that, “Accordingly, the petitioner/ A-2 shall be enlarged on bail on execution of self bond for Rs.2,00,000/- (Rupees two lakhs only) with two sureties for a like sum each to the satisfaction of the Court of the Additional Judicial First Class Magistrate, Rampachodavaram. On such release, the petitioner shall appear before the Station House Officer, Mothugudem Police Station, East Godavari District, once in a month till completion of trial.”

Be it noted, the Bench then envisages in para 8 that, “This Court having criminal roster from the last couple of months has noticed that in spite of best efforts by the Registry, there is significant delay in issuing the certified copies of the orders. This Court is conscious of the large number of cases pending before the Court, due to dearth of staff, it is difficult to issue the order copies within a short span of time. In cases, where the accused are entitled for statutory bail as they are languishing in jail for more than 60, 90 and 180 days, when default bail is granted, it was brought to the notice of the Court that there was considerable delay in dispatching the copy of orders. Hence, this Court feels that an alternative mechanism shall be evolved to address the plight of these undertrial prisoners/accused. Recently, the Hon’ble Apex Court has also taken a serious note of this issue.”

More significantly, the Bench then underscores in para 9 that, “Protection of personal liberty of an individual is undeniably a constitutional duty of this Court. Our criminal justice system always gives paramount consideration to the protection of the rights of the accused. Article 21 of the Constitution of India mandates that the personal liberty of an accused can be curtailed only after strict compliance with the procedure established by law. Sections 438 and 439 of Cr.P.C. ensures that the accused is not deprived of his personal liberty arbitrarily. The Hon’ble Apex Court in catena of cases has held that speedy adjudication process is one of the main facets that constitute the essence of access to justice and without it, access to justice as a constitutional value will be a mere illusion. Denial of this right undermines public confidence in the justice delivery system. It is also settled law that the right of an accused to have his bail application heard by the Court within a reasonable time has been entrenched as a constitutional liberty. At the same time, disposal of bail application without furnishing the order copy within a reasonable time will not place the accused in a better position. Mere emphasizing that an accused has an indefeasible fundamental right to bail itself is not sufficient without furnishing the copy of the order.”

Most significantly, what forms the cornerstone of this notable judgment is then elaborated upon in para 10 wherein it is held that, “This is high time the Courts shall address these issues with a progressive approach by adopting the innovative methods. Recently Andhra Pradesh High Court implemented a procedure whereby the concerned Court Masters are uploading the daily proceedings / orders / judgments on the same day. This Court deems it appropriate to issue the following guidelines.

(a) Parties/Advocates shall download the order copy from the High Court’s Website along with case details which are available in the case status information.

(b) While filing the memo on behalf of accused for furnishing sureties, the Advocate shall State in the memo that he/she has downloaded the order copy from the High Court’s Website. The concerned Administrative Officer / Chief Ministerial Officer of the Court shall verify the order from the High Court’s Website and make an endorsement to that effect and then shall place the same before the Court.

(c) The Public Prosecutor shall also obtain necessary instructions in this regard and assist the Court.

(d) The Presiding Officer on the same day shall dispose of the same and dispatch the release order to the concerned jail authorities forthwith through email or any other electronic mode.

(e) In cases of anticipatory bail, the burden to verify the authenticity of the copy is on the concerned Station House Officer and if necessary, he should obtain necessary instructions from the Public Prosecutor’s Office and complete the process on the same day expeditiously as per law.

(f) Registrar (Judicial) shall communicate copy of this order to (1) The Principal Secretary for Home Affairs, Andhra Pradesh; (2) The Director General of Police, Andhra Pradesh; (3) The Director of Prosecution, who in turn shall sensitize the Police Officers / Station House Officers / Public Prosecutors and ensure implementation of this order.

(g) Registrar (Judicial) shall communicate copy of this order to all the Principal District Judges in the State, who in turn shall sensitize all the Presiding Officers and ensure implementation of this order.

(h) Registrar (Judicial) is further directed to circulate the copy of this order to all the Bar Associations in the State through the Principal District Judges, so that they can effectively address their clients’ cause.

(i) Registrar (Judicial) shall also issue a separate notification in this regard and the same shall be displayed in the High Court’s Website.”

It is worth noting that the Bench then makes it clear in para 11 that, “This order shall come into force from 26.07.2021.”

Furthermore, the Bench then also directs in para 12 that, “The Judicial Officers in the State shall bring to the notice of the Registrar (Judicial), the issues / hitches, if any, in implementing the directions of this Court. In case of anticipatory bails, the Police Officials shall bring to the notice of the Public Prosecutor, High Court about their difficulties in implementing the orders of this Court and the Registrar (Judicial) and learned Public Prosecutor shall place the same before this Court by the next date of hearing i.e. 31.08.2021.”

For the sake of clarity, the Bench then sought to make it clear in para 13 that, “These directions will be in force until further orders or suitable Rules are framed in this regard.

Please read concluding on thedailyguardian.com

It is needless to mention, if any clarification or modification is required for effective implementation, they will be examined accordingly on the next date of hearing.”

While adding a word of advice, the Bench then stipulates in para 14 that, “In spite of all odds, determined efforts are required for achieving the goal. Ways and means have to be found out by constant thinking and monitoring. It is the responsibility of all the stakeholders to uphold the public confidence in the justice delivery system by giving timely justice which includes furnishing the copies of orders/judgments.”

Finally, the Bench then holds in para 15 that, “Post on 31.08.2021.”

In summary, para 10 which forms the bedrock of this noteworthy judgment dwells on the guidelines that the Andhra Pradesh High Court have issued to implement a procedure whereby the concerned Court Masters are uploading the daily proceedings / orders / judgments on the same day. This is necessary also so that the undertrial prisoners/accused don’t keep languishing in jails even after they have been granted bail as we keep seeing also due to lack of implementation of such procedures as the Andhra Pradesh High Court has elaborated upon in this case. Even Supreme Court three Judge Bench led by CJI NV Ramana has expressed its concern on prisoners languishing in jail even after they have been given bail and so this need to be implemented at the earliest!

It brooks no more delay anymore! This is exactly the crux of this notable judgment also by a Single Judge Bench of the Andhra Pradesh High Court comprising of Justice Lalitha Kanneganti. Copies of orders/judgments also must be furnished in time so that the faith of the people in the justice delivery system does not crumble!

Sanjeev Sirohi, Advocate

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Advocates have right to practice before maintenance tribunals: Delhi High Court

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

In a major relief for lawyers all across the country, the Delhi High Court has just recently on April 16, 2021 in a courageous, cogent, convincing, commendable and composed judgment titled Tarun Saxena vs Union of India & Ors in W.P.(C) 4725/2021 & CM APPLs. 14574-75/2021 has declared as ultra vires Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which bars lawyers from representing parties in matters before the Maintenance Tribunals. It must be apprised here that this commendable judgment is in line with the judgment that was notably delivered by a

Division Bench of the Kerala High Court in March 2021 stating clearly

that the provision is ultra vires of Section 30 of the Advocates Act, 1961.

In hindsight, it may be recalled that in a groundbreaking judgment which is also a grand victory for advocates,

the Kerala High Court had just recently on March 30, 2021 in a latest, learned, laudable and landmark judgment titled Adv KG Suresh vs The Union of India and 3 others in WP(C)No. 21946 of 2011(S) has declared as unconstitutional the bar on lawyers representing parties in matters before the Maintenance Tribunals constituted under the Maintenance Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act). It

also rightly held that, “Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961.” A two Judge Bench of Kerala High Court comprising of Chief Justice S Manikumar and Justice Shaji P Chaly pronounced this pathbreaking judgment thereby allowing a writ petition filed in 2011. This latest, learned, laudable and landmark judgment by the Delhi High Court further endorses this notable judgment of the Kerala High Court. While relying considerably on the aforesaid superb decision of the Kerala High Court, Justice Pratibha M Singh too while endorsing it lock, stock and barrel observed most convincingly that, “Since Section 17 has been declared ultra vires Section 30 of the Advocates Act, 1961, it would obviously mean that an advocate would have the right to represent parties before the Tribunal under the Act. Ordered accordingly.”

To start with, a Single Judge Bench of the Delhi High Court comprising of Justice Pratibha M Singh who has authored this oral judgment and the hearing has been done through video conferencing as pointed in para 1, then while stating the purpose of the petition puts forth in para 2 that, “The present petition has been filed challenging order dated 26th March, 2021 passed by the ADM, Karkardooma Courts under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter, ‘Act’).”

While dwelling on the grievance of the petitioner, the Bench then observes in para 3 that, “The grievance of the Petitioner in this case is two-fold:- (i) that advocates are not being permitted to appear before the Tribunal; and (ii) that evidence is not being permitted to be led before the Tribunal.”

As we see, the Bench then brings out in para 4 that, “Insofar as the first issue is concerned, ld.

Counsel for the Petitioner relies upon the judgment of the Kerala High Court in Adv. K.G. Suresh v. Union of India & Ors. [W.P.(C) No. 21946/2011, decided on 30th March, 2021]. He submits that Section 17 of the Act has been declared to be ultra vires Section 30 of the Advocates Act, 1961.”

Furthermore, the Bench then observes in para 5 that, “Insofar as the second issue is concerned, the submission of ld.

Counsel for the Petitioner is that under Section 8(3) of the Act, the Tribunal has to permit the leading of evidence in support of the parties’ case and a direction in this regard may be passed.”

On the other hand, the Bench then points out in para 6 that, “Mr. Singh, ld. Counsel appearing for the Union of India, submits that under Section 8, the Tribunal follows summary procedure. Discretion is left to the Tribunal to follow the procedure in accordance with law considering the facts and circumstances of each case.”

Going ahead, the Bench then discloses in para 7 that, “Mr. Shukla, ld. Counsel points out that the order under challenge, i.e., order dated 26th March, 2021, wherein the ADM has merely directed the filing of the applications by the parties, was listed today at 02:00 pm.”

Quite aptly, the Bench then enunciates in para 8 that, “Firstly, this Court has perused the judgment of the Kerala High Court. The operative portion of the said

judgment reads as under:-

“57. As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals. By virtue of Section 30 of the Advocates Act, 1961, coming into force, from 15.06.2011, the restriction imposed is taken away and in such circumstances, Article 19 of the Constitution of India, which guarantees the freedom to practice any profession, enables the Advocates to appear before all the Courts and the Tribunals, subject to Section 34 of the Advocates Act, 1961.

In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the

Tribunal/ Appellate Tribunal/Court, constituted under Act 56 of 2007.

Accordingly, this writ petition is allowed.””

As a corollary, the Bench then envisages in para 9 that,

“In view of the above, since Section 17 has been declared ultra vires Section 30 of the Advocates Act, 1961, it would obviously mean that an advocate would have the right to represent parties before the Tribunal under the Act. Ordered accordingly.”

Be it noted, the Bench then enunciates in para 10 that, “Insofar as the second issue is concerned, Section 8 of the Act reads as under:-

“8. Summary procedure in case of inquiry

1. In holding any inquiry under section 5, the Tribunal may, subject to any rules that may be prescribed by the State Government in this behalf, follow such summary procedure as it deems fit.

2. The Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

3. Subject to any rule that may be made in this behalf, the Tribunal may, for the purpose of adjudicating and deciding upon any claim for maintenance, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the

inquiry.”” Of course, the Bench then hastens to add in para 11 that, “A perusal of the above provision shows that firstly, the procedure contemplated under Section 8 is a summary procedure. Secondly, it is an ‘Inquiry’ and not an adjudication which is usually done by the Courts. An ‘Inquiry’ is to be held under Section 5 to determine the amount payable.”

It is worth noting that the Bench then mandates in para 12 that, “Under The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules (Amendment) Rules, 2016, the steps to be taken as part of the Inquiry, include:

• Verification of the title of the property and the facts of the case as stated in the application by the concerned SDM, within 15 days from the receipt of the application.

• Submission of the report by the SDM to the Deputy Commissioner/DM for final orders, within 21 days from the receipt of the application/complaint.

• If, on receipt of the report, the Deputy Commissioner/DM is of the opinion that any child/legal heir of a senior citizen/parents is not maintaining the senior citizen/parents or is ill-treating him/her while continuing to occupy the premises of the senior citizen, show cause notice is to be issued by the DM as to why the child/legal heir should not be evicted.

• In the show cause notice, the ground on which eviction is proposed to be made should be specified so that the child/legal heir can respond appropriately.

• The show cause notice would call upon all persons who are either occupying the premises or claim interest in the premises, to provide reasons as to why they should not be evicted. Such a show cause would give at least 10 days’ time to the recipient of the notice to respond.

• As per Rule 22 (3)(2), the Deputy Commissioner/DM would consider the case put up by the noticees, including any evidence which may be produced, and after giving a hearing, pass a reasoned order on eviction.

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• Insofar as the nature of evidence is concerned, the Act or The Delhi

Maintenance and Welfare of Parents and Senior Citizens Rules

(Amendment) Rules, 2016, do not specify as to whether the evidence

should be oral/documentary.

The statutory scheme, as set out above, itself shows that the process

is time sensitive and is summary in nature.”

To put things in perspective, the

Bench then while citing the relevant case law observes in para 13

that, “The constitutional validity of Rule 22(3) and 22(4) of The

Delhi Maintenance and Welfare of Parents and Senior Citizens Rules

(Amendment) Rules, 2016, has been upheld by a Division Bench of this

Court in Aarshya Gulati (Through: next friend Mrs. Divya Gulati) &

Ors. v. GNCTD & Ors. [W.P.(C) 347/1028, decided on 30th May, 2019],

wherein the Court has observed as under:

“60. Now the question is whether the State Government could have

formulated a summary procedure for eviction. We must bear in mind the

objective for which the Parliament has enacted the Act, that is

because of withering of the joint family system, a large number of

elderly are not being looked after by their family. Consequently, many

older persons, particularly widowed women are forced to spend their

twilight years all alone and are exposed to emotional neglect and to

lack of physical and financial support which clearly reveals that

ageing has become a major social challenge and there is a need to give

more attention to the care and protection of the older persons. Though

the parents can claim maintenance under the Code of Criminal

Procedure, 1973, the procedure is both time consuming as well as

expensive. Hence, a need was felt to have simple, inexpensive and

speedy mechanism for parents / senior citizens to claim maintenance.

The Act also provide for protection of the life and property of the

senior citizens / parents. The “protection of property” must be

understood to mean where a senior citizen retains the property in his

name and possession for his welfare and well being.

61. So, the objective of the Act being, to provide inexpensive and

speedy procedure for the protection of life and property of the senior

citizens from the children / legal heirs, who are expected to maintain

parents / senior citizens by providing the basic amenities and

physical needs but refuse or fail to maintain / provide basic

amenities which conduct shall amount to ill-treatment and

non-maintenance and shall be a ground for parents / senior citizens to

seek eviction of children / legal heir from the property, which is the

only way for them to seek protection of their property so that, they

continue to have shelter over their head, and sustain themselves

independently without interference from their children / legal heirs.

Further, a senior citizen cannot knock the door of civil Court to

fight a legal battle to obtain the possession of the property as the

jurisdiction of the Civil Court is barred under Section 27 of the Act.

In this regard, we may refer to the judgment of the Punjab and Haryana

High Court in the case of Justice Shanti Sarup Dewan, Chief Justice

(Retd.) and Anr. (supra) wherein in para 37 it is held as under:

63. So, it must be held that the Act empowers the State Government to

formulate summary procedure for eviction of children / legal heir of

senior citizens, in the eventuality of ill-treatment or

non-maintenance of Sr. Citizen / Parents.

66. In the case in hand, it is seen that the Parliament has expressed

itself through the Act, the objective of which has already been

narrated above. It is seen from the objective of the Act and from

Section 22 whereby the State Government has been empowered to

prescribe “a comprehensive action plan for providing protection of

life and property of Senior Citizens”. This being so, the protection

of life and property basically pertains to law and order, which is a

State subject. Therefore, the obligation to prepare Action Plan has

been put on the State Government. So, it follows that a policy has

been determined by the Parliament for the protection of life and

property of the Senior Citizen by the District Magistrate on the basis

of Action Plan / Rules framed by the State Government. The action plan

to be prescribed is the one, which is speedy and to be implemented by

the District Magistrate, that is by an authority other than Civil

Court, as the jurisdiction of Civil Courts is barred. So, the

confirmation of such a power, even on an administrative authority, is

justified. While exercising the powers bestowed under the Act / action

plan / rules, the District Magistrate / Deputy Commissioner ceases to

be an administrative authority as understood in normal parlance (even

though there is no bar). He performs quasi-judicial functions as

different from administrative functions. Further, the rules framed by

the Government of NCT of Delhi, indicate the parameters on which the

District Magistrate / Deputy Commissioner shall act, which includes,

on an application by Senior Citizen / Parent(s) for eviction of his /

her son, daughter or legal heir from his / her property (as defined

under Section 2(f) of the Act of 2007), the District Magistrate, after

getting the title of the property verified through SDM, and on

consideration of the provisions of the Act of 2007, and forming an

opinion that the son, daughter or legal heir are ill treating him /

her by occupying their property, after following the principles of

natural justice, by giving hearing to all persons concerned, pass an

order of eviction.”

Thus, the remedy provided under the Act and the Rules is a ‘simple’,

‘inexpensive’ and ‘speedy’ remedy. The provisions have to be thus

interpreted in this context.””

Quite remarkably, the Bench then

holds in para 14 that, “In the present case, vide impugned order dated

26th March, 2021, the Tribunal has directed as under:

“Case called applicant presented HC order which says an councillor or

relative can represent applicant’s case in maintenance Tribunal, 10

minutes was given to applicant to submit application in writing.

Applicant gave an application stating that Mr. Sanjeev

Kumar is my choice to represent him in Maintenance Tribunal case.

Tribunal allowed applicant’s choice Mr. Sanjeev Kumar

to represent the case. Mr. Sanjeev Kumar was allowed to submit his

application in writing within 10 days, whatever applicant wants to

record as evidence. Respondent No.1 Mrs. Vinita Saxena wanted she had

already submitted an application. She was advised to submit her

submission to tribunal once again.

Respondent Ms. Taruna Saxena submitted that she

was not allowed to enter the house to haste after her father

applicant.

All applicant and respondent were advised to submit

application to Tribunal before 6th April, 2021. The next hearing of

case would be heard on 16th April, 2021, 1400 hrs.”

From the above, it is clear that the Tribunal has allowed the parties

to submit applications specifying as to what evidence they wish to

lead. The procedure being summary in nature, there is no doubt that

the Tribunal is vested with the power to exercise discretion upon the

facts and circumstances of each case. In a particular case, if the

Tribunal is of the opinion that the attendance of the witnesses and

proving of documents is required, it has the power under Section 8(2)

of the Civil Court for the purpose of taking evidence on record and

enforcing attendance of witnesses. This, however, would not mean that

in every case, the Tribunal would have to record oral evidence or take

on record documentary evidence. The nature of the proceedings itself

being summary, the discretion vests with the Tribunal to adopt the

procedure as may be suitable to the facts and circumstances of each

case. Moreover, even if lawyers are allowed to represent the

litigants, the summary procedure cannot be permitted to be converted

into a long-drawn trial and adjudication, so as to defeat the very

purpose of the legislation itself.”

To be sure, the Bench then points out

in para 15 that, “In the present case, the Tribunal has allowed

parties to file their applications in respect of any evidence which

they wish to record. The said applications would thus be considered in

accordance with law, in terms of the provisions of the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007 and the Rules made

thereunder.”

Finally, the Bench then holds in para 16

that, “With these observations, the present petition, along with all

pending applications, is disposed of.”

In a nutshell, this latest, learned,

laudable and landmark judgment by a Single Judge Bench of the Delhi

High Court comprising of Justice Pratibha M Singh has declared as

ultra vires Section 17 of the Maintenance and Welfare of Parents and

Senior Citizens Act, 2007 which bars lawyers from representing parties

in matters before the Maintenance Tribunals. In other words, lawyers

are fully entitled to represent parties in matters before the

Maintenance Tribunals. Very rightly so!

Sanjeev Sirohi, Advocate,

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Extrajudicial killings and law enforcement: An analysis

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INTRODUCTION

Another Encounter occurred yet again and the Rule of Law is still in handcuffs. Recently, Vikas Dubey a man who is not just an ordinary gangster but also had deep political connections was allegedly killed in an encounter (extra judicial killing) by the UP police and was deprived from fair trial mandated under Article 14, 21 and 39 of the Constitution of India. This very act of “extra-judicial killing” hampers the fundamental principles of a democratic, secular, and liberal state and is also violative of domestic rights, Indian penal provisions, human rights and humanitarian laws.

Right to life is a most essential fundamental right of any individual, without which no other rights can prevail. Extra judicial killings is a violation of this right and is designated as an act of killing a person by the law enforcer to stop the offender from undergoing the judicial process. This unlawful killing by the state forces is illegal in every aspect even in the cases where the accused was entailed in the most flagrant crime.

REASONS BEHIND THE INCREASING CASES OF EXTRA JUDICIAL KILLINGS

There are a lot of reasons behind the increasing rates of extra-judicial killings in India but some of the main reasons due to which encounters are at a search are discussed below:

1. Public Support: It emerges out of a lack of faith in the judiciary because many people believe that the courts will not provide timely justice. And the fact of getting away with the cold-blooded murders is the key reason behind police getting bolder day by day and has started killing people at their will.

2. Political Support: Many political leaders project encounter numbers as their achievement in maintaining law and order in the society and getting away with these problems.

3. Rewards: The police forces in India are often rewarded and awarded for encounters. Along with this the government also provides promotions and cash incentives to the team involved in such encounters.

4. Ineffective Institutions: The institutions set up for this purpose, such as the National Human Rights Commission and the state human rights commissions have been redundant for many years. The judiciary is being fully empowered to take up such cases in suo-moto power; however, this practice is rarely seen today. .

5. Hero Worshipping: The police have become heroes in the society, as people see them doing the job of cleaning up the Indian society by killing the criminals. They are also projected several times as heroes on the silver screen with big budget films made on them showcasing their “heroic” acts. Amidst the entire hero worshipping, the people, the media and even the judiciary seem to cast aside the fact that the killings are suspect unless they have been properly investigated and the real story is established.

ANALYSIS

Rights of Police authorities:

The police officials possess the right to injure or kill the criminal, for the sole purpose of self-defence or at the time where it is imminently necessary for the maintenance of peace and order in the society and for the safety and security of the people. In India, every human being has a right to private defence which is also a natural and an inherent right of an individual provided to them under Section 96 of the Indian Penal Code (IPC).

However, the Supreme Court in Extra Judicial Execution Victim Families Association v. Union of India ruled that the right to private defence cannot be used for retaliation but can only be exercised to defend oneself and the distinction has to be drawn between the private defence and the use of excessive force.

Also, the police authorities has the right under Section 46 of Criminal Procedure Code(CrPC) to use force, which can even extend up to the cause of death of a person, or as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life. Thus, there is no provision prevailing in the country, which directly empowers the lawful authorities to encounter an offender irrespective of the grievousness of the crime committed by the person.

CONSTITUTIONAL PROVISIONS

India was intended to be a country governed by the rule of law according to the design established by the Constitution of India. As per the procedure rule of law, the constitution is the supreme power of the land and the legislative and the executive derive their authority from the constitution. In India, there is a procedure of criminal investigation prescribed by the law which is embedded in the constitution under Article 21, as the right to life and personal liberty. It is fundamental, non-degradable and is available to every person. Even the state does not have the authority to violate the right. Hence, it is the responsibility of the police officials to follow the constitutional principles and uphold the rights of life provided to every individual whether an innocent or a criminal.

SUPREME COURT GUIDELINES

The Supreme Court in the year 2014 in the case of PUCL v. State of Maharashtra dealt with numerous writ petitions questioning the genuineness of 99 encounter killings by the Mumbai Police in which approximately 135 alleged criminals were shot dead between the years 1995-1997. In this case the SC laid down certain guidelines which will act as a standard procedure to be followed for thorough, effective, and independent investigation in the cases of death during the police encounters. Some of the guidelines include the process for recording tip off (intelligence) regarding the criminal activities pertaining to the commission of a grave criminal offence. It also includes the guidelines to inform NHRC or State Human Rights Commission to report the encounter death.

CONCLUSION AND WAY FORWARD

After analysing the rights of the police, the increasing cases of extra judicial killings in India, and the constitutional duties listed in the Indian Constitution, there are some loopholes in the system that needs to be identifies and corrected. The procedure should be transparent, and the act of encounter killing must be investigated independently as they affect the credibility of the rule of law. There is a need of an hour to ensure that there exists a rule of law in the society that needs to be adhered to by every state authority and the masses collectively. There is a need to ensure proper physical custody of the accused in order to prevent any attack by them on the police personnel. Moreover, there is a dire need for complete overhauling of the criminal justice system and bringing out required police reforms. There should be Standard guidelines that need to be laid down to train the police personnel in a better way and equip them with all relevant skills so that they are in a position to effectively tackle every dreadful situation. The most important thing is the Human rights angles need to be kept in the mind while dealing with arrested individuals/persons.

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