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Telephonic message which does not clearly specify the offence, cannot be treated as an FIR: SC

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Without mincing any words and without leaving any space for confusion of any kind, the Supreme Court has most recently on March 23, 2021 in a latest, learned, laudable and leading judgment titled Netaji Achyut Shinde (Patil) Vs. State of Maharashtra in Criminal Appeal No. 121 of 2019 With Criminal Appeal No(s). 328 of 2021 observed unambiguously that a telephonic message which does not clearly specify the offence cannot be treated as an FIR. In this case, the murder accused viz Samadhan Shinde, Netaji Achyut Shinde and Balasaheb Kalyanrao Shinde were convicted by the High Court. The Trial Court had acquitted Netaji and Balasaheb and convicted Samadhan. The High Court confirmed the conviction of Samadhan and reversed acquittal of others. While upholding the High Court judgment, the Apex Court Bench observed that the physical presence of the accused at the site of the actual commission of the crime and the deposition of independent witnesses about their role, clearly establishes that it was for the purpose of facilitating the offence, the commission of which was the aim of the joint criminal venture.

To start with, the ball is set rolling in para 1 of this brief, brilliant and balanced judgment authored by Justice S Ravindra Bhat for himself, Justice L Nageswara Rao and Justice Hemant Gupta wherein it is put forth that, “The appellants, in these two appeals, impugn a common judgment of the Aurangabad Bench of the Bombay High Court convicting them of committing the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. One appellant (all of them hereafter referred to by name), the second accused Samadhan Shinde, was convicted by the trial court, while the other two were acquitted. These acquittals were reversed by the impugned judgment which convicted all the accused (first accused Netaji Achyut Shinde (Patil), second accused Samadhan Shinde, and third accused Balasaheb Kalyanrao Shinde (Patil), [hereafter referred to as A-1, A-2 and A-3 or by their names as Netaji, Samadhan and Balasaheb].”

To put things in perspective, the Bench then lays bare in para 2 that, “A first information report (FIR 80/2011) was registered at Kallam police station, alleging the commission of offences punishable under Section 302 read with Section 34 IPC, i.e., the murderous attack on one Suhas, the deceased. The statements of eyewitnesses as well as the dying declaration by the deceased Suhas were relied on in the charge sheet which was subsequently filed, implicating the accused. The learned Additional Sessions Judge, Osmanabad (hereafter “the trial court”) framed charges against the accused for the offences alleged against them. All accused pleaded not guilty and claimed trial. The prosecution examined 21 witnesses in support of the charges. The defence of the accused was denial, and that they were falsely implicated due to political enmity and property dispute. The trial court, on consideration of the evidence led by the prosecution, convicted A-2 Samadhan; it however, found the evidence against A-1 Netaji Shinde and A-3 Balasaheb Shinde to be doubtful and acquitted them.”

What next unfolds is then stated in para 3 that, “The High Court granted the state leave to appeal; A-2 Samadhan too appealed against his conviction and sentence. The High Court by the impugned judgment reversed the acquittal of A1 and A3 and affirmed the conviction of A-2 Samadhan. All three are therefore in appeal.”

While elaborating on the chain of events, the Bench then enunciates in para 4 that, “The prosecution alleged that on 5.7.2011, at about 5.30 PM at Shivaji Chowk, in front of one Raviraj Beer Bar at Kallam, district Osmanabad, all the accused appellants further to their common intention assaulted the deceased, Suhas and inflicted serious injuries with a sword as well as by fist blows and kicks. At about 7.15 PM, Suhas succumbed to his injuries, at the S.R.T.S. Medical College and Hospital, Ambajogai. Based on a complaint lodged by P.W.1 Ramhari Shinde, the FIR was registered at 11.45 PM at Kallam police station. The FIR alleged the involvement of the four individuals- i.e. the three appellants/accused persons, and one Anant Balasaheb Shinde; he could not however be charged and tried, as he absconded. The FIR was registered upon the complaint lodged at 11.45 PM hours of Ramhari Ganpatrao Shinde, resident of village Kothala, Kallam stating that he was a social worker. The complainant, PW-1 Ramhari Shinde’s brother, Prakash had two sons; (the deceased Suhas and one Vikas). Ramhari Shinde was Taluka President of the Nationalist Congress Party for Kallam, Chairman of Kallam Taluka Market Committee, and Sarpanch of his village; the deceased was taluka Vice President of the Youth Nationalist Congress party. He admitted that there was a police post near the Shivaji statue at Kallam. He was informed about the incident by PW-2, Balasaheb Kshirsagar. PW-2 deposed that he was in front of Padmasinh Patil Complex, which is in Shivaji Square. When the deceased was getting down from his motorcycle in front of Raviraj Beer Bar, the accused and absconding accused went there on a motor cycle, with a sword in hand. He gave sword blows on the face, neck and hand of the deceased and the other accused gave fist blows and kicks to the deceased. PW-2 stated that the deceased fell down. As he was crossing the road to reach the spot where Suhas was, he heard the accused saying that they would kill Suhas. Suhas got up and ran towards Sonar Galli. On the way, the absconding accused Anant warned bystanders not to intervene, or he would stab them. All accused followed the deceased Suhas, as he entered Kothavale Jewellers. PW-2 stated that Satish Tekale and Pradip Mete were present and when they asked the accused what they were doing, one of the accused asked to bring a motorcycle. Upon this, one of them brought a motorcycle (No.MH- 25/W-1744 which had the photograph of Anant Chonde on the front). All four accused left on that motorcycle. PW-2 then telephoned PW-1 Ramhari Shinde, and· informed about the incident; thereafter he went to Kothavale Jewellers, where Suhas was lying with injuries. Pradip Mete and Satish Tekale took the deceased to the government hospital; the doctor asked them to take the injured to Ambajogai for further treatment. Accordingly, Ramhari, Vikas Barkul, Prashant Lomate and Satish Tekale took Suhas in the ambulance. At about 7.45 p.m., PW-2 learnt about the death of the deceased. During cross examination, PW-2 admitted that Ramhari (PW-1) was his maternal uncle. He stated that he did not inform the police immediately, though the police station was nearby. He further stated that 50-100 persons had gathered at the place of the incident. PW-3 Balkrishna Gangadhar Bhawar admitted to being the President of the Indian Nationalist Congress party for Kallam district and that he did not report the incident to the police, despite witnessing the incident. PW-4, similarly, corroborated the testimony of PW-2 and PW-3.”

Of course, the Bench then states in para 5 that, “The prosecution relied on the testimonies of P.W.2 Balasaheb Kshirsagar, P.W.3 Balkrishna Bhawar, P.W.4 Shivraj Ritapure and P.W.18 Ravindra Mohanlal Oza as eye witnesses to the incident. The other main eyewitnesses were the doctor PW-12, who conducted the post-mortem report. PW-19 and PW-20 were police officers who deposed during the trial. Besides their statements, exhibits such as blood-stained clothes worn by the accused, and material objects i.e. weapons, blood stained soil, etc were produced.”

Pertinently enough, the Bench then observes in para 6 that, “The trial court treated the first information received at 17:45 hours on 05.07.2011 as the first information, and discarded the FIR recorded later during the night, at 11:30 PM. It rejected the accused’s argument that the eyewitnesses were all partisan and therefore, unreliable. Yet, based predominantly on the medical evidence, which it read as negating any role of the accused Netaji (A-1) and Balasaheb (A-3),the trial court acquitted them of the charges levelled. It further held that in the absence of any injury of the kind attributed to these accused (who are also appellants before this court), no finding of their culpability, to warrant a conviction, could be returned. As far as A-2, Samadhan is concerned, the trial court held him guilty, on account of his participation with the absconding accused, i.e. Anant, with whom he went away on a motorcycle, driven by him (i.e. Samadhan).”

Going forward, the Bench then specifies in para 7 that, “An appeal was preferred by Samadhan, and the state (which was given leave to appeal by the High Court), against the findings of the trial court, absolving Netaji and Balasaheb. At the High Court, these findings of acquittal were reversed; they were convicted of the offences charged, on an overall appreciation of the prosecution evidence. It was held that the trial court completely overlooked the depositions of eyewitnesses and gave no reasons why their statements were to be cast aside, and that it erred in giving overall primacy to medical evidence. The testimonies of eyewitnesses, some of whom had no connection with the deceased, as well as the recoveries made pursuant to the accused’s statements, during investigation, had been ignored. On an overall appreciation and analysis of the evidence, therefore, A-1 and A-3 were convicted; A-2 Samadhan’s conviction was affirmed.”

While striking the right chord and the right note, the Bench after listening to both sides then enunciates in para 21 that, “The first issue which this court considers is whether the appellants are correct, in arguing that the initial intimation received by the police on telephone (at 5.45 P.M.) on the day of the incident, constituted an FIR. According to counsel, the information about the attack was sufficient, and the entry made in the police register was sufficient to be treated as an FIR. It was submitted that the subsequent statement (registered late in the night at 11.45 P.M.) of the complainant, had to be treated as a statement under Section 161 of the Cr.PC. A cryptic phone call without complete information or containing part-information about the commission of a cognizable offence cannot always be treated as an FIR. This proposition has been accepted by this Court in T.T. Antony v. State of Kerala 5(2001) 6 SCC 181 and Damodar v. State of Rajasthan 6 (2004) 12 SCC 336. A mere message or a telephonic message which does not clearly specify the offence, cannot be treated as an FIR.” The last line of this para is very significant and forms the bedrock of this notable judgment also!

As it turned out, the Bench then points out in para 23 that, “Exhibit 85 – extract of the police station diary, Item 39 has been extracted above). That entry at 17.45 hours merely states that Ravi Harkar and Vishwajeet Thombre informed telephonically that two persons arrived on a motorcycle and assaulted one individual at the corner of municipal council complex. This intimation per se is incomplete. The subsequent entries relevant for this purpose are numbers 42 at 18.45 hrs (enclosing the recording receipt of MLC from the Rural Civil Hospital Kallam) that one Suhas had been seriously injured and shifted to Ambajogai for further treatment. Enquiry was handed over to HC Bansode. The next entry talks of arranging bandobast at Kothala. Entry 50 recorded the departure of striking force of PSI Karle which left for Kothala. The last relevant entry is at 23.45 hrs, which is the complaint that ultimately got converted into the FIR, recorded by PW-1. This lists out the details of the accused and the incident.”

As we see, the Bench then points out in para 24 that, “It is quite evident from the record, therefore, that the intimation given by two individuals – Ravi Harkar and Vishwajeet Thombre merely set out the bare facts of an attack; the information was incomplete; neither the name of the victim nor the names of the alleged attackers nor even the precise location where the incident occurred were mentioned. Applying the tests indicated by the judgments of this Court (referred to previously), this court is of the opinion that the High Court, in the appeal before it, correctly inferred that the first information recorded at 17.45 hrs could not be treated as an FIR. In these circumstances, the details of the event which occurred, the nature of the attack, the place of the attack, the names and identities of the accused were set out fully when PW-1 recorded the statement at 23.45 hrs – that constitutes the FIR.”

More pertinently, the Bench then makes it a point to mention in para 25 that, “This court is also of the opinion that there is no merit in the arguments that the police sought to improve the initial version and somehow roped in the accused falsely. In this regard, the reliance placed upon Entry 39 at Ex. 85 which talks of two assaults (in the initial telephonic intimation) is unfounded. Quite often, depending upon how and what people see and perceive about an incident, when they narrate it subsequently, the rendition might not be accurate in describing the sequence or even the facts completely. Much would depend on the relative distances and the angles where those individuals might have been placed or located, relative to the incident or event. Therefore, the inclusion or omission of more than two accused cannot be a matter of grave suspicion. It may be in the given case, an aspect to be kept in mind when other circumstances pointing to false implication might well exist. Per se, however, it cannot be said that the omission to mention four assailants falsifies the prosecution story.”

It is worth noting that it is then envisaged in para 28 that, “It is evident from the record that PW-2, PW-3, PW-4, PW-6 & PW-18 were eye witnesses according to the prosecution. The deposition of PW-2 (closely related to PW-1) and that of PW-4 appears to have been doubted to some extent by the Trial Court. However, what is clear from the entire reading of the record – including the judgment of the trial court is that there is no doubt that PW-6, PW-2 and PW-18 had in fact witnessed the entire incident. PW-18, Ravindra Oza, owned Raviraj Beer Bar and was clear about the assault by a sword by the absconding accused. He also mentioned that the present appellants had assaulted Suhas with fist blows. PW-6, Satish Shahji Tekale was standing in front of a tea stall when Suhas burst in, running from Shivaji Chowk. He was bleeding and was chased by the appellants and Anant Shinde who were shouting loudly that Suhas ought to be caught and killed. PW-6 claimed that he and one Pradip Mete intervened and, in the meanwhile Suhas entered “Kothavale Jewellers”, after which all the accused left on a motorcycle. The deposition of PW-6 was corroborated by that of PW-18; the latter also deposed the number of the motorcycle (No.MH-25/W-1744) by which the accused went after the attack.”

What’s more, it is then noted in para 29 that, “PW-5 was the owner of the shop “Kothavale Jewellers” and though not a direct witness, immediately witnessed the events connected with the incident. He deposed as to Suhas entering the shop and asking him to save him. He also deposed that Suhas was severely bleeding and that some people had surrounded his shop and one was armed with a sword. He deposed that the absconding accused had also given him (Suhas) sword blows and further that he had been chased by them. PW-5 also deposed that Satish Tekale and Pradip Mete took Suhas to the hospital.”

It cannot be glossed over either that it is then pointed out in para 34 that, “Here, the physical presence of the accused (including Appellant Nos. 1 and 3) at the site of the actual commission of the crime and the deposition of independent witnesses about their role, clearly establishes that it was for the purpose of facilitating the offence, the commission of which was the aim of the joint criminal venture. The presence of these accused, to facilitate the execution of the common design amounts to actual participation in the criminal act. The evidence – i.e. the exhortation by these accused, their active role in attacking the deceased, chasing him and leaving the crime scene together, clinches that there was a consensus of the minds of persons participating in the criminal action to bring about a particular result. It was this aspect which the trial court glaringly overlooked, and instead, misdirected itself grossly in focusing upon the first intimation, treating it as the FIR, and therefore, proceeding to doubt the prosecution version. It found no lacunae in the testimonies of the eyewitnesses discussed above. However, proceeding on the thesis that the first intimation was the FIR, and that it did not describe the role of four persons, but only mentioned two, the trial court acquitted the two accused.”

Most pertinently, the Bench then holds in para 38 that, “This court, after considering the reasoning in the impugned judgment, is of the opinion that the High Court was quite correct in reversing the acquittal of the two appellants who are now before this court. The eyewitness testimonies which clearly implicated them in the crime, established their participation, and the depositions which showed that they played a part in achieving the common intention of carrying the murderous assault on the deceased, Suhas, was overlooked by the trial court for trivial and immaterial reasons. The appreciation of the evidence and all the circumstances appearing from the record, was clearly unreasonable and irrational. The High Court quite correctly reversed the acquittal, and recorded the conviction against all the appellants.”

As a corollary, the Bench then points out in para 39 that, “For the above reasons, there is no merit in the present appeals; they are dismissed without order on costs.”

In conclusion, the three-Judge Bench of Apex Court comprising of Justice S Ravindra Bhat, Justice L Nageswara Rao and Justice Hemant Gupta leaves no room of doubt whatsoever while deciding this latest judgment that telephonic message which does not clearly specify the offence cannot be treated as an FIR. The Apex Court Bench has thus rightly accorded the reasons also in this regard. So there is no reason why it must not be adhered to in totality as laid down by the three Judge Bench in this notable case so explicitly, elegantly and effectively.

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Policy & Politics

RS 2 lakh crore outlay announced for PLI schemes

Tarun Nangia

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budget 2021

Keeping in view India’s vision of becoming ‘Atmanirbhar’ and to enhance India’s Manufacturing capabilities and Exports, an outlay of INR 1.97 lakh crore (US$ 26 billion) has been announced in Union Budget 2021-22 for PLI schemes for 13 key sectors of manufacturing starting from fiscal year (FY) 2021-22.

(Source: Concerned implementing Ministries/ Departments)

The 13 key sectors include already existing 3 sectorsnamely (i) Mobile Manufacturing and Specified Electronic Components, (ii) Critical Key Starting materials/Drug Intermediaries & Active Pharmaceutical Ingredients, (iii) Manufacturing of Medical Devices and 10 new key sectorswhich have been approved by the Union Cabinet in November 2020. These 10 key sectors are:

(i) Automobiles and Auto Components, (ii) Pharmaceuticals Drugs, (iii) Specialty Steel, (iv) Telecom & Networking Products, (v) Electronic/Technology Products, (vi) White Goods (ACs and LEDs), (vii) Food Products, (viii) Textile Products: MMF segment and technical textiles, (ix) High efficiency solar PV modules, and (x) Advanced Chemistry Cell (ACC) Battery.

PLI Scheme for an additional sector, Drones and Drone Components, has also been approved by the Union Cabinet in September 2021. With the announcement of PLI Schemes, significant creation of production, employment, and economic growth is expected over the next 5 years and more.

The PLI schemes are being implemented by the concerned Ministries/ Departments. A statement on details received from concerned Ministries/Departments regarding investment made by various sectors after 1st April, 2021, to avail Production Linked Incentive (PLI) scheme is placed in the table below:

There is no plan to relax Production Linked Incentive Scheme for White Goods.

This information was given by the Minister of State in the Ministry of Commerce and Industry, Som Parkash, in a written reply in the Lok Sabha today.

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Policy & Politics

RS 56,000 CRORE RELEASED TO CLEAR DUES TO EXPORTERS

Tarun Nangia

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Government has released Rs 56,027 crore in order to clear pending export incentive dues to exporters, which is for various Schemes namely: Merchandise Exports from India Scheme (MEIS) – Rs 33,010 crore, Service Exports from India Scheme (SEIS) – Rs 10,002 crore, Rebate of State and Central Taxes and Levies (RoSCTL) – Rs 5,286 crore, Rebate of State Levies (RoSL) – Rs330 crore, Remission of Duties and Taxes on Exported Products (RoDTEP) – Rs 2,568 crore and other legacy Schemes like Target Plus Scheme (TPS), Focus Product Scheme (FPS) etc. – Rs 4,831 crore. This includes support for exports made under RoDTEP and RoSCTL Schemes during the 4th quarter of FY 2020-21. It is estimated that such benefits would be disbursed to more than 45,000 exporters, out of which around 98% may fall in the Micro, Small and Medium Enterprises (MSME) category.

Clearance of dues under these Schemes is dependent on meeting the eligibility criteria by the applicant exporter, whose applications are scrutinized for any deficiency. The process of approval of complete applications under these Schemes varies. In certain Schemes, such as MEIS, ROSCTL and ROSL, online applications are largely system approved, whereas for SEIS, TPS, FPS online applications require manual scrutiny and examination of documents. Accordingly the detail of exporters’ dues state-wise isnot maintained.

To reach the target, some of the key schemes/interventions taken by the Government are:

i. The Foreign Trade Policy 2015-20 has been extended upto31.03.2022 to provide a stable regime during the COVID-19 pandemic, wherein Schemes such as the Advance Authorization Scheme and the Export Promotion Capital Goods (EPCG) Scheme are being implemented to enable duty free import of raw materials and capital goods for export production.

ii. Remission of Duties and Taxes on Exported Products (RoDTEP) Scheme has been introduced with a budget of Rs 12,454 crore for FY 2021-22.

iii. Rebate of State and Central Levies and Taxes (RoSCTL) Scheme for apparel and made-up exports has been extended till March 2024 with existing rates.

iv. Transport and Marketing Assistance (TMA) scheme for specified agriculture products is being implemented to provide assistance for the international component of freight and marketing of agricultural produce and to promote brand recognition for Indian agricultural products in the specified overseas markets.

v. A common digital platform for Certificate of Origin (CoO) has been launched to increase Free Trade Agreement (FTA) utilization by exporters.

vi. Monthly monitoring of exports for 200 countries and 31 commodity groups is being done.

vii. Under the aegis of “Azadi Ka Amrit Mahotsav”, VanijyaSaptah was celebrated during 21-26th September 2021 to reach out to members of industry, exporters, association and State/Union Territory Governments for awareness and interaction on exports and various export related issues.

viii. In order to leverage full export potential, districts are being promoted as Exports Hubs by identifying products and services with export potential of each district.

ix. Exports of services is being supported through negotiating meaningful market access through multilateral, regional and bilateral trade agreements and through participation in and organization of international fairs/exhibitions like the Global Exhibition on Services.

x. An ‘Action Plan for Champion Sectors in Services’ to give focused attention to identified Champion Services Sectors through identified nodal Ministries/Departments is also in place.

xi. Assistance is being extended to exporters under the Market Access Initiative (MAI) scheme for various activities such as export market research, product development, product registration, organizing / participating in fairs, exhibitions and Buyer Seller Meets (BSMs) abroad, Reverse Buyer Seller Meets etc.

xii. In order to have a coordinated and focused attention on development of export infrastructure, a working group on infrastructure up-gradation has been constituted under National Committee on Trade Facilitation (NCTF) and a National Trade Facilitation Action Plan (NTFAP) has been formulated. This includes measures for improving road and rail connectivity to ports and smart gates at sea ports.

This information was given by the Minister of State in the Ministry of Commerce and Industry, Anupriya Patel, in a written reply in the Lok Sabha today.

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Policy & Politics

CONSTITUTIONALITY OF MARITAL RAPE IN INDIA: AN ANALYSIS IN THE LIGHT OF ARTICLES 14 & 21

Raju Kumar

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Recently, Chhattisgarh High court ruled that the sexual intercourse between man and wife is not rape even if it is done by force. In India, primarily Section 375 of Indian Penal Code (herein after referred as IPC) deals with the rape. The codified section of 375 includes all forms of sexual assault which involves all nonconsensual intercourse with a woman. Section 375 of the IPC reads as “Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:…….”— However, exception 2 of this section exempts unwilling sexual intercourse between a husband and a wife when it is done with over fifteen years of age and thus the act is protected from prosecution. According to the current prevailing law, it is presumed that a wife has already delivered his perpetual consent to have sex with her husband when she enters into marital relations. Around the globe, almost all countries have criminalized the marital rape. However, India is among the other thirty-six countries that still have not criminalized the marital rape. But, it is also notable that Supreme Court of India in the Judgment of Independent Thought v. Union of India, have criminalized the unwilling sexual contact with a wife between the age of fifteen and eighteen years. In this article, we will see the constitutional validity of Exception 2 of the Section 375.

VIOLATIVE OF ARTICLE 14 OF THE INDIAN CONSTITUTION.

Article 14 of the Indian Constitution states that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. In one hand, where the constitution provides equality to all, on the other hand, the criminal law discriminates the female who have been raped by their own husbands.

This law finds its footprint in the colonial era. At that time the women were treated as a cattle and this law is based on the “Doctrine of Coverture”. However, the time has been changed now and women must get their rights which are enshrined under the Constitution of India.

Exception 2 of Section 375, is inconsistent with the provision of Article 14 insofar it is discriminatory in nature. This section creates two different classes of women based on the marriage status. This classification is constitutionally invalid and is inconsistent with the doctrine laid down in the judgment of Budhan Choudhary v State of Bihar and State of West Bengal v. Anwar Ali Sarkar, where it was held that the classification should have some rational nexus to the objective that the act seeks to achieve. However, in the current scenario, exception 2 of section 375 doesn’t qualify the ‘reasonable test’ as it simply exempts husbands from punishment, which is totally contradictory with the objective. Furthermore, this exception also encourages husbands to establish forcefully sexual intercourse with their wives, as the act of husband is neither discouraged nor penalized by the law. Therefore, no rational nexus can be inferred between the classification created by this exception and the underlying objective of act. Thereby, it doesn’t satisfy the ‘reasonableness test’ and therefore it is violative of Article 14 of the Indian Constitution.

VIOLATION OF ARTICLE 21.

Article 21 of the Indian Constitution states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” Supreme Court while interpreting the clause of Article 21, in the judgment of State of Karnataka v. krishnappa, it was observed that “Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female”. Furthermore, in the same judgment the court further observed that whenever a non-consensual sexual intercourse takes place, it amounts to physical as well as sexual violence. Later on, Supreme Court in the year 2009, in the judgment of Suchita Srivastava v. Chandigarh Administration, while dealing with Article 21, equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity.

Recently, Supreme Court in the year 2018, in the landmark judgment of Justice K.S. Puttuswamy (Retd.) v. Union of India, recognized the ‘right to privacy’ as a fundamental right. Furthermore, it was also observed that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations”. The above decision of the court doesn’t create any difference between married and unmarried women. Therefore, it is applicable universally and a woman doesn’t losses the rights enshrined under article 21 after the marriage.

Moreover, exception 2 is also inconsistent with Article 21’s ‘right to live with a healthy and dignified life’ as held in the judgment of C.E.S.C. Ltd. v. Subhash Chandr.

CONCLUSION

The above discussion clearly shows that exception 2 of section 375 clearly violates Article 14 and 21 of the Indian Constitution. Renowned scholar Dr. Br. Ambedkar once observed that “I measure the progress of a community by the degree of progress women have achieved”. In India, which is always knows for its vast diversity and culture, such laws prevailing is a dark side of it. Women should not be treated merely as an object. They must be stand on equal footage. Now, it is high time when Indian criminal jurisprudence should strike it down.

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Policy & Politics

Femtech Apps: An Analysis

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INTRODUCTION

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

ARE WOMEN, COMMODITIES MASQUERADING AS USERS FOR FEMTECH APPS?

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

APERTURES IN REGULATORY STANDARDS AROUND THE WORLD

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

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

ABSENCE OF DATA GOVERNANCE FRAMEWORK IN INDIA

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

THE ROAD AHEAD

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

CONCLUSION

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

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

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Policy & Politics

Vehicle Scrappage Rules’ Enforcement in current times

Anu Bhuvanachandran & Anju Joseph

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

Srcapping Policy

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

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

ELIGIBILITY TO GET SCRAPPED

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

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

END OF LIFE OF YOUR VEHICLE

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

VEHICLE SCRAPPER FACILITY AND PROCEDURE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DISPUTES & ADJUDICATION

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

DRAFT RULES AND PANDEMIC

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

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

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

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

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

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Policy & Politics

Back from the brink: Positivity is the key

Anil Swarup

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

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

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

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

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

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

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

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

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

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

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

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

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