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The emerging connection between crime, fashion and intellectual property right laws

In recent times, Indian fashion designers have become vigilant with respect to their intellectual properties, like their designs, brand trademark, etc. They have started taking steps against infringers of their original work. With the rising awareness of intellectual property rights, designers are getting open to registering their work. It is very important to make the counterfeiters aware of what wrong they are causing to the original designers.

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The term Fashion deserves to be acknowledged with deeper understanding besides being an attribute to be in conformity with recent trends and styles. Fashion plays a vital role in building societal perception and clothing trend contributes in evolution of society by setting vital societal trends. India, promoting use of national Khadi is one such example of how crucial fashion is in uplifting society.

 Today, the change of fashion with every new season, the easy access to fashion trends through social media together with high impact on consumer behaviour has helped society in making fashion law a distinct field in both legal and commercial world globally. Every Indian dreams of wearing designer clothes, Sabyasachi, Rohit Bal, Anita Dongre, Manish Malhotra and many others, to name a few. The most coveted brands such as ‘Burberry’ ‘Gucci’ , ‘Armani’ ‘Louis Vuitton’, ‘Versace’, ‘Hermes’ have gotten into the minds of people all across the globe, to afford these brands might be a big deal for some but the street markets across the country are thriving on first and second copies of these names leading to piracy or lets say duplicity of goods. The critical analysis stems from the assumption that the production of exclusivity of the fashion behaviour is the fuel that moves piracy. Nevertheless, it is precisely at such point that the legal issues involving the protection of the creative industry of fashion design reside. The designer wear is an intellectual property of the designer and there are not many direct legislations available in our Indian legal system to combat such infringement. In light of the lack of intelligent solutions within an economic scope, the common sense soon resorts to the punitive reinforcement of the criminal sanction to recover the institutional stability of a commercial enterprise.

CRIME IN FASHION INDUSTRY

 Fashion piracy happens to be the biggest problem in Indian Fashion industry . The unauthorised copying and duplicity of designer wear which happens to to some one else original work leads to piracy.

 Fashion forgery: It is a close copying or imitation of original fashion design, but isn’t exactly identical and is sold under a different label from that of the original designer at a cheaper price than the original one, ripping off their profits by drawing revenue from their work. As it is not an attempt to pass the original product, it is not illegal, but if a person proves that the resemblance is close to deceive a person, an action can be brought against it. Forever 21 and Zara are the mainstream examples for Knock off products.

 Brand counterfeiting: Brand Counterfeiting is the illegal activity of making and selling an identical copying or imitation of the original product at a cheaper price than the original product, with an intention to infringe the Trademark of the Original designer. Counterfeiting is illegal and millions are spent on litigation by the government and designers to restrict the sale of these products. Louis Vuitton, Chanel, Coach, Gucci, Adidas, have all won judgments in million dollars litigation against the people selling counterfeits of their original designs and products which have caused a loss in revenue to them. Major fashion markets where brand counterfeiting is common are Canal street in New York, Meena Bazaar in Dubai, Linking road in Mumbai, etc. The most common side-effect of counterfeiting is that companies take a hit to their reputation. Since many customers are unaware that the product in their hands is a fake, when the knock-off item fails to work correctly, or it falls apart quickly, or it doesn’t meet their expectations, then the customer will blame the authentic company. According to a research Global Business Survey of 2018, 47% brand are losing their revenues because of counterfeiting alone and one in every three brand faces losses of 10% of their revenue due to these fraudulent activities of infringers.

 Product counterfeiting: Product counterfeiting is manufacturing fake or making unauthorised replicas of real product. They are usually done to ruin the commercial value attached to the original product. It has become a massive market today, no good brand it left being copied. The founder of brand Chanel once said ‘if you are good, you will be copied’. World customs organisation in the year 2017 estimated that product counterfeiting caused an approximate loss of $512 billion in sales to various designers in toto as a lot of money is put in its production.

 INDIAN INTELLECTUAL PROPERTY RIGHT LAW ON FASHION TRENDS

Intellectual Property laws and Fashion are two words wedded to each other, both manifesting creativity and innovation and promoting economic growth. Thus one may notice the huge correlation between the fashion on one hand and Intellectual Property Rights on the other. The plethora of laws namely the Patent Act, Trademark Act, Copyright Act, Designs Act and Geographical Indication of Goods Act seeks to protect the intellectual property rights related to creations of the fashion industry.

UNDER THE LAW OF PATENTS

Patent grants exclusive rights for invention of a product which has a new way to do something or wear something or gives a technical solution behind a problem. Patent can be granted as design patent, utility patent or even plant patent to a person willing to do something extra ordinary with shoes, fibre or textile or anything of utility to the the fashion Industry. Patents are generally granted for a novel invention for the use of public. Bert Rubinsky, CEO of Medical Grade Inventions has been issued Patent by the United States Patent and Trademark Office for using fabric with antimicrobial properties in the year 2013. In India, Orissa’s unique Kotpad tribal textile designs to be patented soon.

UNDER THE TRADEMARKS ACT, 1999

 Trademarks is a sign or a mark which enables to distinguish one good from that of the other. It also includes other forms of mark such as certification marks, collective marks and labels. Trademark identifies the product and its origin, guarantees quality of the product, advertises the product and creates goodwill for the product in the market. Trademark law also helps to make distinguish from genuine products to that of the copied products.Section 2(zb) of the Trademark Act, 1999, defines Trademark as a mark capable of being represented graphically and distinguishing the goods and services of one person from another and may include the shape of goods, their packaging and combination of colours. Section 2(1)(m) of the Trademarks Act, 1999 says that a trademark can includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. This definition of mark indirectly puts Fashion under the ambit of not just Designs Act but also Trademarks Act. A trademark can be any word, name, symbol, design or any colour combination thereof, used in commerce to distinguish and identify goods.

 For Example, the Trademark of “Nike” along with the “distinctive just do it logo ” identifies the garments and sports shoes made by nike and distinguish them from other shows and garments by other companies. In the landmark judgement of Louis Vuitton Malletier v. Atul Jaggi and another, the Delhi High Court restrained the defendants for infringing and passing off their famous trademarks “LOUIS VUITTION” and “LV” by using identical marks and granted damages.

Very recently in the case of Hermes International & Anr. Vs. Riyaaz Nasruddin Amlani & Ors. , the internationally famous French brand Hermes recently filed for a permanent injunction in the Delhi High Court against a restaurant named Social Goregaon, situated in Mumbai, for restraining the defendants from infringing the trademarks and copyright of the trademarks “Hermes”, “duc-carriage with horse logo” and copyright in the photographs of its advertising campaigns and trade dress in its “Evelyne Bag” for preventing the defendants from disparaging and tarnishing the said plaintiff›s trademark. The court made the judgement in favour of the petitioner for due infringement of trademark.

UNDER GEOGRAPHICAL INDICATION ACT, 1999

Geographical Indications of Goods are defined as that aspect of industrial property which refers to the geographical indication referring to a country or to a place situated therein as being the country or place of origin of that product. The Fourth schedule of the Geographical Indication Act provides for a classification of the goods protectable under the Act. Noting India’s diversity in traditional knowledge and other indigenous art forms, the current regime is protected under the Geographical Indication Act, 1999.

Till now about, 20 kinds of GI’s have been registered in respect of textiles in India like Moga silk from Chennai, Kasturi Embroidery from Karnataka, Kutch Embroidery from Gujarat, Madhubani Print from Bihar etc.

UNDER THE DESIGNS ACT, 2000

 Under Section 11 of the Designs Act, a registered design is copyrighted for a period of 10 years from the date of registration of the design. The copyright protection can be further extended for five years. Piracy of a registered design is prohibited under section 22 of the Designs Act – this makes it unlawful for a person to apply the registered design or any “fraudulent of obvious imitation” of the design to any class of articles in respect of which the design has been registered. A person who knowingly facilitates the sale of an article which bears a pirated design is also liable for piracy of the design. This means that retailers who consciously sell articles containing pirated designs can also be punished under the Designs Act. Also under the Designs Act, designs which are applied to a specific class of articles (including garments) can be registered. A design must be registered for a particular class of articles as enumerated in the Third Schedule of the Designs Rules, 2001. ‘Articles of clothes and haberdashery’ fall in Class 02 under the Designs Rules.

 There are two kinds of designs are conceivable in clothes, namely, a drawing applied on any garment and the shape/design of the clothes. An example of the first kind of design is a coat which bears the words, ‘I am lazy’ printed on the front. The shape of the coat may be commonplace such as a typical collared neck long coat.

UNDER THE COPYRIGHTS ACT, 1957

 Section 2(c) of Copyright Act, 1957, refers to a painting, sculpture, drawing (including map, diagram or a chart plan), an engraving of a photograph, work of an architecture any other work of artistic craftsmanship. Copyright protects the design work of the designer. Lifetime and 60 years thereafter is the term of protection granted to a copyright owner for his original artistic work under the Act. The Copyright Act and Design Act overlap each other on the issue of design protection. According to section 15(1) of the Copyright Act, protection under the Copyright Act is not applicable to designs which are registered under the Design Act. Therefore once, a clothes design is registered under the Designs Act, the Copyright Act will not apply to it and work will enjoy protection under the Designs Act. But lets say, if a design, which is capable of being registered under the Designs Act, has not been registered, it will be protected under section 15(2) of the Copyright Act; however, the copyright protection will immediately expire on such design, if the design has been reproduced on more than 50 articles by any industrial process.

 In the landmark case of In Ritika Private Ltd vs. BIBA apparels private ltd., The court gave its decision in favour of Biba Apparels due to the above loophole in our IPR laws as Ritika Pvt ltd had not got its designs copyrighted after their 50 reproduction of the designs expired. The court also made a distinction between designs eligible for copyright protection under the Copyright Act, 1957 and the Designs Act,2000. It held that copyright protects the original expression of the “artistic work” and offers limited protection to the commercial exploitation of the same, whereas the Designs Act is the chief tool to protect industrial application of the design, however the design need not to be always original.

 Similar thing followed in the much popular case of Microfibres v Girdhar, both parties were engaged in the business of upholstery fabrics. The single judge held that the designs of Girdhar were a substantial reproduction of the Microfibres’ artistic works. However, the Copyright protection to the same had ceased because of the applicability of section 15(2) of the Copyrights Act, 1957. They had been reproduced more than 50 times through an industrial process by Microfibre. And since, Microfibres had not sought registration under the Designs Act, the designs were unprotected by the IP regime. This law has been a bad law and needs to amended with immediate affect as with growing population and awareness of fashion, a limit of 50 replicas is very less.

 The designer, Rohit Bal in 2017 was the first designer in India to copyright his entire collection, which was later on followed by other prominent fashion designers, Anju Modi and Anita Dongre, soon followed suit and copyrighted their entire collection ahead of Fashion Design Council of India’s (FDCI) ‘India Couture Week’ of year 2017.

RECOMMENDATIONS

 In recent times, even Indian fashion designers have become vigilant with respect to their Intellectual Properties, like their designs, brand trademark etc. they have started taking steps against infringers of their original work. With the rising awareness of Intellectual Property Rights, designers are getting open to registering their work. It is very important to make the counterfeiters aware of what wrong they are causing to the original designers.The Fashion Foundation of India is doing extra ordinary work in protecting the rights of designers against piracy. Stricter and well defined laws are needed to combat the problem of crime in Fashion Industry in our country as Intellectual property laws are itself something new probably the Indian criminal legislations should take up this issue.A law exclusively for fashion designers’ IPR can also clarify the murky issues in design piracy and infringement of fashion designs relating to clothes.

Not just that even designers and textile businessman are supposed to be told where they go wrong and how they should strategies their work accordingly. Purchasers of the pirated goods should also be made liable along with the sellers, France has similar laws where even the person who consumes pirated goods is punished. The infringers should not just be imposed with fine but also with imprisonment as a penalty. Socio legal groups should step up and volunteer for making designers, small and big scale artisans and businessman aware of their rights and ownership. The concept of brand licensing should be promoted amongst the designers, it is the process wherein a registered proprietor of a trademark authorises a third party to use the mark in the course of trade without transferring the ownership of the mark. The licensing of the trademark allows the registered proprietor to let others use the mark without assigning the ownership of the mark. The proprietor can also put other limitations on the use of the mark through the terms that he puts into the licensing agreement. For example, the proprietor may license a trademark to be used for only particular goods and services. Another aspect to aid this process would be to add specific need based curriculums on fashion laws at law schools in India just like that at Fordham Law School, world’s first Fashion law Institute working in America.

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Legally Speaking

MORE AMMUNITION IN HANDS OF ARMED FORCES: PAKISTAN’S NEW LAW CURBS RIGHT TO FREE SPEECH

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An experiment that has completely failed, the vision of great leaders is futile for the nation for which it was separated from India. Once it was dreamt that nation would be on parity with its big brother India but the present picture is devastating. The nation is harbouring death squads, leaders of the nation turn into a vendor of delusion, on the world map the nation is now undoubtedly recognised as a heaven for terrorists, the conundrum on the Kashmir, the recent failure on weather war and a goof-up reports, the creeping failures, the recent development is the shocking and utterly unreasonable step from the legislatures of the nation and there is not an iota of doubt that democracy is just a misnomer that is not anymore existing in the nation. The nation about which I am talking is now clear to you, it is the Islamic Republic of Pakistan which is a democratic setup atleast as per the constitution of Pakistan but on the ground, it is a failed experiment. The latest development that will give you goosebumps is regarding the step of Pakistani legislatures and a clear violation of International law norms and basic human rights envisaged under Article 19 of UDHR.

A TOOL TO CURB FREE SPEECH: SHATTERING DEMOCRACY IN PAKISTAN

If you think people not responding to your WhatsApp messages and leaving you with blue ticks is an offence, think again. There are people in Pakistan who believe that making memes should be made illegal and criticism should be a criminal offence. If your mind thinking what about the right to free speech and expression don’t worry about it Pakistani legislatures tried every single attempt to curb it. Pakistan’s new bill criminalizes military criticism with two-year imprisonment coupled with a fine of five thousand Pakistani Rupees. The proposed bill already approved and passed by a panel of national assembly-the lower house of the country’s parliament. By approving this bill, the national assembly panel has approved the amendment in the country’s Penal Code and Criminal Procedure Code 198, sanctioning punishment to those who ridicule armed forces through intended criticism. Criminal Law Amendment Bill, 2020 proposes to amend Section 500 of the Pakistani Penal Code (PPC) which envisaged the punishment for defamation. As per the report, the amendment proposes “punishment for international ridiculing of the armed forces etc. Whosoever intentionally ridicules, brings into disrepute or defames the armed forces of Pakistan or a member thereof, shall be guilty of an offence punishable with imprisonment for a term which may extend to two years, or a fine which may extend to five hundred thousand rupees or both.”

The legislation will curb free speech and even constructive criticism against the army by anyone. It is a major question that is unanswered by legislators as to how they will define what will come under intentional criticism and what will not? It is again to be decided by the sole discretion of concerned authority that can lead to abuse of powers.

THE UNREASONABLE REASONING: WHY PROPOSED AMENDMENT IS UNACCEPTABLE

The proposed amendment has faced criticism in Pakistan itself by the opposition leaders. But, the reasoning tabled by the legislature presenting the bill was completely unreasonable and against the rule of law if we need a comparative aspect to analyze the law. The law is fundamentally a gross error and a step by the legislatures to completely curb down the criticism against the military in any way even if it’s a constructive one.

As per the constitution of Pakistan Article 19 already covered the freedom of speech etc. and the instant subject matter is already covered in the aforesaid article. Article 19 is a fundamental right and such rights cannot be taken by the government except is some conditions laid under the Article. Already, the aspect is covered under the Article and hence the proposed criminal amendment bill is futile. The key to catch here is that in the present time there is no law and any issue arises on the said aspect the discretion is on the judiciary to interpret Article 19 but if the proposed amendment comes into effect, then the criticism of the army is a crime and it curbs freedom of speech which violates Article 19 of the constitution as it is not a reasonable exception provided therein in Article 19. The ridiculous step of legislature once again a cause of mockery and high trolling of Pakistan in their won country as well as in the global arena. The law is for the society and not supposed to against the society but there is an exception which is Pakistan as in past also we have seen some absurd and shocking developments.

The proposed amendment is also violating the International law norms and conventions as it is violating the Universal Declaration of Human Rights Article 19 that envisaged the concept of Freedom of speech and expression The only contention to justify the proposed amendment is that it is a reasonable exception to Article 19 of Constitution of Pakistan but the case is it is not the reasonable one. So here, what legislatures have done simply forcing their justification to uphold their will over the choice of the people of Pakistan. Pakistan is known for this democratic setup has witness arrest in past when the military coup was there in the nation so it is not a very abnormal step but it is an unacceptable and unfavourable step of the current regime of the nation. But what the people can do there, simply nothing if you raise the voice you will be killed or if you survive then you need to exile from there. Simply it is a life without freedom but the nation portrayed itself as a life full of freedom. There is an urgent need to ponder upon it.

One of the basic universal human rights is freedom of speech and expression that is available to all of us. Free speech is a necessary precondition to the enjoyment of other rights, such as the right to vote, free assembly and freedom of association, and is essential to ensure press freedom. The newest development in Pakistan is completely a shocking one but these abnormal things are normal in Pakistan. A Parliamentarian from the ruling party in Pakistan introduced legislation that would punish criticisms of the military in the country. With the advent of the new development in Pakistan, it is clear that the democratic setup in-country is just a rubber stamp but the actual power vests in the hand of the Army. According to the report, the bill is proposed to prevent hatred and disrespectful behaviour against the armed forces. It is pertinent to note here that already military in Pakistan has accused of different allegations against everyone who worked opposite to their interest. According to the 2020 World Press Freedom Index, the country ranked 144 out of 180. Pakistan’s military has been accused of pursuing journalists and other members of Pakistan’s civil society who are thought to be acting against them in any way. Reporters Sans Frontieres (RSF), the international organization that publishes the annual World Press Freedom Index (WPFI), commented on the state of press freedom in Pakistan and the role played by the country’s military in curtailing it. RSF noted, “[t]he influence of this military ‘establishment,’ which cannot stand independent journalism, has increased dramatically since Imran Khan became prime minister in July 2018.” Different instances depict where the country stands in terms of freedom to free speech and why the proposed law is just unreasonable. The murder of journalist Daniel Pearl, the killing of activist Karima Baloch, turned Balochistan into the land of missing people and a hotspot for every plausible crime ranging from murder, extortion to rape and many more instances. The list is continuous and so long if I need to put it up but the crux is that behind all this the reason for murders is directly or indirectly has a nexus with raising the voice against atrocities of the Pakistani military. The new legislation is a tool for adding more fuel and ammunition legally in the hands of the Pakistani Army. It is already too strong in the Pakistani setup.

FINAL WORDS

In summation, the proposed amendment is new ammunition in hands of the Army to curb down the expression, voices, dissents and even constructive criticism by anyone including journalists as well. It needs to be noted that the only justification given by the legislature behind this amendment is to curb down the incidents of defamation against the armed force but is for curbing down the right to free speech. This amendment would make it illegal to ask reasonable questions about the military’s alleged involvement in civilian affairs, which is important in Pakistan because the threat of the democratic project being derailed is still present. The proposed amendment is already heavily criticised in Pakistan as the Minister of the ruling party indirectly passed a criticism as “Absolutely ridiculous to criminalise criticism.’

The finality as if the bill converts into law will depend on the subject to approval by the National Assembly and the Senate (upper house of the Parliament). If it gets passed by the upper house then once again free speech gets curbed by the red tape in Pakistan and the seldom exercised right will just turn into a new misnomer in the nation. Parliament must ensure that this bill is either abandoned or dismissed in the interests of democracy.  It is imperative that civil societies across the globe are vigilant in defending the freedom of expression. This is necessary for the enhancement of people’s lives and the creation and maintenance of strong, healthy democratic societies. But in Pakistan all these are just words, it is a hub of global terrorism as proved by UN report.

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Legally Speaking

Specious jury of social media

Our generation has got a new instrument in its hands: The instrument goes by many names and gets a new name every few years. That instrument drives its life from the majestic power of the Internet, and it has no brain of its own; it works as per the command of the user’s brain. Whenever a piece of news comes out, without verifying the veracity of the same, that user is either fuelled by rage or becomes a part of the herd being led by some learned jurymen of social media.

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It is very often that the so-called learned, educated, liberal jury of social media comes to the rescue of oppressed, who at the end of the proper trial comes out to be a perpetrator in the best-case scenario. This article which I am writing may attract undue criticism from self-acclaimed crusaders of liberalism but I must write in contempt of this jury of social media working behind screens, destroying reputations since its inception. To every coin, there are two sides: one is to be praised while the other should be buried fathoms below the ground.

Our generation has got a new instrument in our hands from an early age; the instrument goes by many names and gets a new name every few years. That instrument drives its life from the majestic power of internet, and it has no brain of its own; it works as per the command of the user’s brain. Whenever a piece of news comes out; without verifying the veracity of the same, that user is either fuelled by rage or becomes a part of the herd being led by some learned jurymen of social media.

There have been countless posts which went viral on the internet. Many of them have led to reforms and are to be applauded, they form the bright side of the coin. The other side of the coin, which is not so bright, is run by the learned jurymen of social media and is committed towards spreading either hatred or misrepresenting the facts to catalyse a conclusion which would not have reached if the facts were analysed in toto with an application of mind.

One of the fresh examples of misadventures of this brigade is Sarvjeet Singh Bedi, who was falsely accused by a Jasleen Kaur of molesting him at a traffic signal in Tilak Nagar, Delhi in August 2015; trial went on for 4 years during which she migrated to Canada while accused suffered the wrath of social media which inevitably led to social boycott however some people came forward to his rescue once trial commenced. Thankfully, in the October of 2019, he was acquitted of those charges. The fallibility of social media verdicts is that those people who shared such unverified claim of harassment suffer no consequences, and neither the one who made false accusations with the intent to harm his reputation through the massive reach of social media.

There is another recent case where a 17-year-old boy committed suicide in Gurugram after a girl made serious allegations against him on Instagram. When they checked his Instagram account, they were surprised to see that the minor girl had made serious allegations against him without any evidence. The girl had levelled false allegations against him due to which he faced social ostracization and was trolled by several others with a mammoth of hate messages. He probably unable to deal with them and went under depression, the father has alleged in his complaint.

This has now been a trend on social media, where many start sharing unverified or unproved bits of information; this inevitably leads to the defamation of the accused, who may even not be guilty. This is a disrespect of law and courts, but things haven’t stopped at it. Those social media jurymen are now at the throat of the judiciary, trying to mount pressure upon the Hon’ble Courts to bend down to their demands and their definition of justice, which I without any hesitation say, is flawed at its every corner.

Latest attempt to demean the judiciary can be seen at various social media platforms where it is being discussed that the Hon’ble Gauhati High Court granted divorce in Bhaskar Das v. Renu Das; Mat.App. 20/2019 just because women refused to wear ‘sakha and sindoor’. Those who are sharing or commenting upon this, have they even bothered to go through the text of the judgment? Judgments are not read or analysed in pieces, they are to be gone through in whole to understand the context and meaning of every word.

Let me assist the jurymen of social media on the text of the judgment, as an amicus.

Firstly, the women had filed a fake against her husband, his widowed step-mother and his sisters under section Section 498(A) of Indian Penal Code. The husband and his family members were compelled to apply for pre-arrest bail because of the said criminal case filed by the wife. He along with his family members were acquitted by the trial court. At this juncture, it is pertinent to mention that the Hon’ble Supreme Court in a recent judgment being Rani Narasimha Sastri vs. Rani Suneela Rani, 2019 SCC Online SC 1595 has held that filing of criminal cases like case under Sections 498(A) IPC etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by the wife. The fake complaint, even if considered in isolation, is a very valid ground for the decree of divorce to be passed.

In the background of the complaint filed under section 498(A), the husband contended that the wife compelled him to execute a written agreement to the effect that the couple will stay in a separate rental house together away family members were not to be permitted to come and visit them. The wife categorically admitted in her cross-examination about the presence of the said clause in the said agreement (It is shown below in cross-examination).

Secondly, let us see what the women said in her cross-examination. I’ll mention the relevant piece for the sake of brevity:

-That I am not wearing/putting sindoor right now because I don’t consider him as my husband.

– That it is not a fact that we entered into an agreement after the F.I.R.

-That I have objection regarding divorce in this case as because either he come to Dibrugarh to live with me or otherwise fulfil my demand i.e. monetary demand, only then I will divorce him.”

This shows that she removed her sakha and sindoor as a mark for her desire to end the marriage.

From the last point which I mentioned in cross-examination para, it looks like extortion is going on through filing of fake cases against her husband. When she in her cross-examination, and evidence states it clearly that her removing sakha and sindoor is the symbol of her unwillingness to continue in a marital relation with her husband; there remain no gaps in her intention of getting separated from her husband, and the same was considered was the court as a corroborating evidence not as the primary evidence for granting of the divorce. A fake case under Section 498(A) of Indian Penal Code is enough for the divorce to be granted.

Further perusal of the judgment will inform you of her conduct of separating her husband from his family and not even allowing them to visit him, which she has categorically admitted. It is noteworthy that the widowed step-mother of her husband has no personal source of income and she is a senior citizen and is dependent; therefore, the husband is bound by Maintenance and Welfare of Parents and Senior Citizens Act, 2007 to provide for his mother, and the attempt to keep her away from him with no visitation rights is cruelty, at the very least even if we ignore her stopping her husband to perform his statutory obligations.

She has also filed a case against him under Sections 471/420 of Indian Penal Code, 1860, which are still pending before the court.

She appears to be determined, armed with legal counsel, to extort money out of her husband and make him suffer unreasonably, her evidence and cross-examination stands tall proof of her wicked conduct.

When she herself is admitting in cross-examination that she took off her sakha and sindoor as she no longer considers him her husband, there is no space for the interpretation in that statement for courts. Hon’ble High Court simply referred to this statement of hers in order to corroborate their decision of allowing the appeal.

This is a classic case of misuse of laws by disgruntled wife against the husband; and the social media jury’s reaction of condemning the Hon’ble Judges is a classic example of ‘scandalising of court’, by bringing down the courts respect in eyes of common men and women.

Rhea Chakraborty’s media trial is another example of negative examples of over-active jury of social media. The actress has not yet even been tried by the Hon’ble Court let alone convicted and the whole social media led by a few jurymen went on to assail the reputation of actress and subjected her to mental stress and trauma. This cannot be allowed to happen; people must understand that there is no absolute right of freedom of speech and expression, it is subject to just and reasonable restrictions. The matter is currently sub-judice so it would not be proper for me to comment anymore on it.

I can only hope that this practice of social media will be depreciated in future, and learned jurymen of social media are sacked from their self-claimed judicial roles.

Social media is a place which can be used for much more than spreading hate and misinformation against the Hon’ble Court or some innocent person.

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Analysis of Insurance (Amendment) Act 2021: Effects and implications

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INTRODUCTION

On 1st of February when the Union Budget was presented by Hon’ble Finance Minister, it was made official that the Foreign Direct Investment in the insurance sector will increase to 74% from 49%. While concluding the speech respected finance minister also mentioned that it is proposed to amend the Insurance Act of 1938. This was indicative that such changes were to be brought by the way of amendment only. The said was complied with when on 18th March the Insurance (Amendment) Act 2021 (which was a bill then) got a nod from the Rajya Sabha and has been in effect from the 1st April, 2021.

With the change in composition of FDI limit certain additional regulatory changes were also announced under the new framework which includes A. Foreign ownership and control would be allowed with safeguards; B. The majority of directors on the Board and key management persons would be required to be resident Indians; C. 50% of directors would need to be independent directors; D. a specified percentage of profits of the insurance company would have to be retained as a general reserve.

HISTORY OF ADVENT OF FDI IN INSURANCE SECTOR

India first opened up the insurance sector in the year 2000 under the Atal Bihari Vajpayee government when it allowed private sector firms to set up insurance companies and allowed FDI of 26 per cent. After that, for a long time, there were demands from the industry to further increase this cap to 49 per cent. After many deliberations the amendment of 2015 raised the cap from 26 per cent to 49 per cent.

The amendments of 2015 and 2021 are an enabling amendment that gives companies access to foreign capital if they need it. It is an important shift in stance as the increase in the FDI cap means insurance companies can now be foreign owned and controlled as against the current situation wherein they are only Indian owned and controlled. This will give a foreign company the right to appoint a majority of directors, control the management and the policy decisions taken.

This decision is also a result of COVID-19 Impact on the GDP, and by increasing the FDI in insurance sector government aims at getting a influx of foreign capital in the economy in order to uplift the GDP of the country.

CHANGES BROUGHT BY THE AMENDMENT

The amendments introduced by the 2021 Amendment Act are as follows:

• Firstly, change is brought in section 2, clause (7A), for sub-clause (b) which has been substituted as:

“(b) in which the aggregate holdings of equity shares by foreign investors including portfolio investors, do not exceed seventy-four per cent. of the paid-up equity capital of such Indian insurance company, and the foreign investment in which shall be subject to such conditions and manner, as may be prescribed;”

The amended provision states that limit of foreign investment allowed in Indian insurance companies shall not exceed 74% (previously 49%), and foreign investment in insurance companies shall be “subject to such conditions and manner, as may be prescribed.”

• Secondly, the explanation to Section 27 clause 7 which states the provision which stipulated the requirement for an insurance company incorporated in India to hold assets in trust where at least: (i) 33% capital is owned by investors domiciled outside India, or (ii) 33% of the members of the governing body are domiciled outside India, now stands omitted;

• Thirdly, In section 114 of the principal Act, in sub-section (2), for clause (aaa), the following clause shall be substituted, namely:

“(aaa) the conditions and manner of foreign investment under sub-clause (b) of clause (7A) of section 2;”.

The requirement for the insurance company to be Indian owned and controlled has been omitted, and it has been stipulated that the conditions and manner of foreign investment shall be as prescribed.

IMPACT ON INDIAN INSURANCE COMPANIES

India has more than 60 insurance companies specialising in life insurance, non-life insurance and health insurance. The number of state-owned firms are only six and the remaining are in the private sector. A higher FDI limit will help insurance companies access foreign capital to meet their growth requirements. Insurance is a capital intensive business. Simply put, as an insurance company sells more policies and collects premiums from policy holders, it needs higher capital to ensure that it is able to meet the future claims.

The insurance regulator, Insurance Regulatory and Development Authority of India (IRDAI), mandates that insurers should maintain a solvency ratio of at least 150 per cent. Solvency ratio is the excess of assets over liabilities. Insurance is a long gestation business. It takes companies 7-10 years to breakeven and start becoming profitable. Allowing FDI upto 74 per cent could see more interest from foreign insurance companies who specialise in this business and who bring the so-called ‘patient’ capital.

In addition, the government will prescribe a specific percentage of the profits that will have to be treated as general reserve.

This will ensure that reserves will be available to meet the claims of policy holders regardless of a foreign investors’ own financial condition, Finance Minister Nirmala Sitharaman said Thursday in her reply to the debate on the bill in Rajya Sabha. It will also mean that the government will ensure that only a part of the profit can be repatriated to the foreign promoter and there is sufficient money available with the insurance company to pay every claim.

The government has also reiterated that the provision of Section 27E of the insurance act will continue to be applicable. This means that no insurance company, irrespective of its foreign shareholding, can directly or indirectly invest the money of the policy holders outside India. The insurance companies will also have to ensure that 50 per cent of the directors are independent directors so that insurance companies follow all Indian laws.

WAY FORWARD

The Amendment Act of 2021 has been introduced with the sole motive to increase FDI per cent in the insurance sector for this the Insurance Act, 1938 was amended accordingly, however the onus now lies upon the Regulator which is IRDA. The IRDAI may also prescribe conditions/restrictions with respect to matters such as related party transactions, and payment of dividend by an insurance company having majority foreign investment. However, the extent to which these conditions will be made applicable to insurance companies remains to be seen.

In generally, Higher FDI limits could see more global insurance firms and their best practices entering India. This could mean higher competition and better pricing of insurance products. Policy holders will get a wide choice, access to more innovative products and a better customer service and claims settlement experience. Therefore the amendment brings the new horizons in the insurance sector which the companies will thrive to achieve and benefit the economy.

The government will prescribe a specific percentage of the profits that will have to be treated as general reserve.

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Police personnel cannot be appointed jail superintendent, says Uttarakhand HC

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In a significant judgement pertaining to prisoners rights and affecting them directly, the Uttarakhand High Court has in a latest, landmark, laudable and learned judgement titled Sanjeev Kumar Akash v. State of Uttarakhand & Ors in Writ Petition (PIL) No. 25 of 2021 delivered on 12 April 2021 has held that police personnel cannot be appointed as Jail Superintendent. A Division Bench comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma observed that we have come to the age of “Reformation and Rehabilitation of Prisoners”. It held that the purpose of police is very different from that of Jail Superintendents and as a natural corollary, their trainings and psyche are poles apart. Hence the former cannot possess the position of the latter.

To start with, Chief Justice Sri Raghvendra Singh Chauhan who has authored this notable judgment for a Bench comprising of himself and Justice Alok Kumar Verma of the Uttarakhand High Court sets the ball rolling by first and foremost pointing out in para 1 that, “Mr. Sanjeev Kumar Akash, the petitioner, has filed the present Public Interest Litigation in order to challenge the order dated 12.02.2021, passed by the Secretary, Department of Home, the respondent no. 2, whereby the Officers of the Police Department have been given the additional charge of the office of the Senior Superintendent/Superintendent of Jail at Sitarganj, Haldwani, Haridwar, Dehradun and Roorkee. The petitioner has further challenged the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, the respondent no. 3, whereby the Officers of the Police Department have been transferred, and posted with the additional charge of Senior Superintendent/Superintendent of Jail at various prisons in the State of Uttarakhand.”

While elaborating on the facts of the case, the Bench then enunciates in para 2 that, “Briefly stated, the facts of the case are that, as per the structure in the Department of Prison in the State of Uttarakhand, there are three sanctioned posts of Senior Superintendent of Jail, and nine sanctioned posts of Superintendent of Jail. Out of the nine sanctioned posts of Superintendent of Jail, four posts are to be filled up by way of direct recruitment, and five posts are to be filled up by way of promotion from the post of Jailor. Presently, one post of Senior Superintendent of Jail, and four posts of Superintendent of Jail, have been filled up. Therefore, currently two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail are lying vacant. According to the State Government, considering the difficulties faced in running the Jails properly, it has taken a conscious decision to give additional charge of Senior Superintendent of Jail, and Superintendent of Jail, to officers of the Indian Police Service (IPS). Hence, the present Public Interest Litigation before this Court.”

On the one hand, the Bench first dwells on the petitioner’s contentions in para 3 stating that, “Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has raised the following contentions before this Court :-

Firstly, that the job responsibility and the training of the Police Officers, and those of the Officers of the Jail Administration, stand on different plains. The duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order. On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners. Since the job responsibilities are of different nature, the psychological makeup, the thinking, the conduct of the Police Officers and the Jail Officers, perforce, has to be quite different. Whereas, generally a Police Officer sees an offender as a culprit, as a person who has violated the law, and thus deserves to be condemned and punished, the Officers of the Department of Prison see prisoners as human beings, who have erred, who need to be reformed, who need to be rehabilitated, and brought back as productive members of the society. Thus, the very philosophy behind the interaction between a Police Officer and an offender, and the interaction between a Jail Officer and the prisoner, stand on a different footing. Therefore, one cannot be confused with the other.

Secondly, keeping this distinction in mind, even law has bifurcated these two services into two different classes; the laws have empowered them differently. Therefore, to confuse these two classes would be violative of the fundamental philosophy, which govern these two different services.

Thirdly, this bifurcation of the two departments, and the philosophy behind working of the two departments, is not unique to India. But has universal application throughout the world. According to the learned Senior Counsel, the United Nations has issued “Standard Minimum Rules for the Treatment of Prisoners”, better known as “the Nelson Mandela Rules”. These Rules prescribe the “good principles and practice in the treatment of prisoners and prison management”. Rules 74 to 82 deal with “Institutional Personnel”. Rule 74 provides for “careful selection of every grade of the personnel”. It emphasises “on their integrity, humanity, professional capacity, and personal suitability for the work that the proper administration of prisons depends”. Rule 74(3) further stresses on the need for appointment of prison personnel “on a full-time basis”. Rule 75(2) states that “before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences”. Rule 76 further states that the training referred to in Rule 75(2) shall include, at a minimum, training on “rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners, and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment, or punishment.” Rule 79 further states that “the Prison Director (Superintendent of Jail in India) shall devote his or her entire working time to official duties, and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.”

Relying on the Nelson Mandela Rules, the learned Senior Counsel has emphasised that the Superintendents of Jail are required to undergo a particular training, which will inculcate a sense of dignity of all the prisoners, will make them humane, and sensitise them to the plight of the prisoners, to their families, and to the prison conditions. The learned Senior Counsel has further stressed on the need for appointing the Senior Superintendent/Superintendent of Jail on a full-time basis, rather than on a part-time basis.

Fourthly, referring to the Uttar Pradesh Jail (Group A and B) Service Rules, 1982 (for short “the Rules, 1982”), the learned Senior Counsel has submitted that Rule 3(k) defines the post of “Superintendent, District Jail” to mean “the whole-time Superintendent, Jail appointed in accordance with the 1982 Rules”. According to Rule 5(6) of the Rules, 1982, the post of Superintendent of District Jail is to be filled up fifty percent by direct recruitment, and fifty percent by promotion from amongst the regularly appointed Deputy Superintendents/Jailors with a minimum of five years’ service as Deputy Superintendents, or Jailors or both. Moreover, Rule 14 deals with “determination of vacancies”. Rule 15 deals with the “procedure for direct recruitment”. Rule 16 deals with the “procedure for recruitment by promotion to the post of Superintendent, District Jail”. Therefore, according to the learned Senior Counsel, the procedure for making an appointment to the post of Senior Superintendent/Superintendent of Jail is clearly prescribed by Rules 14, 15 and 16 of the Rules, 1982. These Rules do not permit ad-hoc appointment of Police personnel on the post of Senior Superintendent/Superintendent of Jail. Therefore, the impugned orders are clearly in violation of the Rules, 1982.

Fifthly, even the Code of Criminal Procedure, prevents the keeping of an undertrial prisoner in police custody beyond a stipulated period of time. According to Section 167 of Cr.P.C, an accused cannot be detained in police custody beyond a period of fifteen days. In case the investigation is not completed within a period of ninety days, for offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, the offender would have to be granted bail under Section 167(2)(a)(i) Cr.P.C. Therefore, even the Cr.P.C. does not envisage keeping of undertrial prisoners in police custody for too long a period. Even otherwise, while keeping an offender in judicial custody, he/she cannot be kept beyond a period of sixty days or ninety days in case the investigation were not completed within the stipulated period of time. Moreover, in case the investigation were to be completed within the stipulated period of sixty days or ninety days, and in case bail were not granted by a competent Court, an undertrial is required to be kept in judicial custody. But, by appointing police personnel as Senior Superintendent/Superintendent of Jail, for all practical purposes, the custody is suddenly changed from a judicial one to a police one. Therefore, the learned Senior Counsel submits that the impugned orders violate the letter and the spirit of Section 167 Cr.P.C.

Lastly, despite the fact that a prisoner loses the freedom of movement, he/she continues to enjoy the other fundamental rights, as guaranteed by the Constitution of India. Therefore, Article 21 of the Constitution of India, guaranteeing protection of Life and personal liberty, continues to shine even in the dark corners of a prison cell. According to the learned Senior Counsel, once a procedure has been established by law that too a procedure backed by certain penological philosophy- it cannot be violated by the State. Therefore, the State is legally bound to implement the service rules as contained in the Rules, 1982, to implement the requirements of Cr.P.C, to implement the constitutional philosophy, as embodied in the Preamble of the Constitution of India, and to implement the “Nelson Mandela Rules”. Hence, according to the learned Senior Counsel, the impugned orders deserve to be set-aside by this Court.”

On the other hand, the Bench then further states about the States contention in para 4 wherein it is put forth that, “On the other hand, Mr. Anil Kumar Bisht, the learned Additional Chief Standing Counsel for the State, has raised the following counter-contentions before this Court :-

Firstly, in the order dated 17.11.2006, issued by the Principal Secretary, Uttaranchal Administration, it was clearly mentioned that the Inspector General of Prisons would either be the Secretary, Home, or IAS officers, or of equivalent posts. Similarly, Additional Inspector General of Prisons would be from the post of Additional Secretary, Home/Joint Secretary, Home, or from PCS Cadre. In fact, even presently, the post of the Inspector General of Prisons is occupied by a person belonging to the IPS cadre. Therefore, the appointment of police personnel to the post of Senior Superintendent/Superintendent of Jail can certainly be made from Police Officers.

Secondly, considering the fact that presently there are two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail, which are lying vacant, considering the fact that direct recruitment to these posts would require some time, considering the fact that there is no one in the post of Jailors, who has completed five years of required service for being promoted to the post of Senior Superintendent/Superintendent of Jail, the State is justified in making Police Officers incharge of these two posts on a temporary basis. Therefore, the learned counsel has supported the impugned orders.”

As a corollary, the Bench then brings out in para 5 that, “In rejoinder, Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has pleaded that the letter dated 17.11.2006 does not support the case of the State. For, while the post of Inspector General of Prisons and Additional Inspector General of Prisons may be permitted to be filled up from IPS Officers, the post of Senior Superintendent/Superintendent of Jail is covered by the Rules, 1982. Once the Rules, 1982 have been promulgated, they cannot be diluted by a mere letter issued by the Principal Secretary. In fact, the appointment to the post of Senior Superintendent/Superintendent of Jail has to be strictly in accordance with the Rules, 1982.”

Needless to say, the Bench then after hearing the learned counsel and perusing the impugned orders as stated in para 6, it is then brought out in para 7 that, “Prisons are as ancient as human civilization. Initially, prisons were created as detention centres for detaining those who were threat to the political power. According to the Bhagavata Purana, an ancient text on the life of Lord Krishna, his parents, Devaki and Vasudeva, were imprisoned by Kansa, the King of Mathura. However, over the centuries, prisons were constructed for the purpose of punishing those, who violate the law. Soon the purpose of prisons was changed from detention to punishment. In ancient Athens, Socrates was imprisoned for punishing him for having corrupted the minds of the youth. Long imprisonment sentences catered to the retributory and deterrent theories of punishment.”

Quite alarmingly, the Bench then observes in para 11 that, “In 1835, Lord Macaulay presented a note to the Legislative Council in India as he was shocked by the horrifying and inhumane conditions prevalent in the Indian jails. The next year, on 02.01.1836, Lord William Bentick constituted a “Prison Discipline Committee”. The report of this Committee, submitted to Lord Auckland in 1838, revealed the rampant corruption, the laxity in discipline, and the abuse of men and women, who were imprisoned. However, surprisingly, the Committee rejected the thought of reforming the criminals.”

Going ahead, the Bench then further observes in para 12 that, “Over the years, the “Conference of Experts” held in 1877, and the “Fourth Jail Commission” in 1888, recommended that there should be a uniformity in all the Jails functioning in British India. Since Indians were seen as subjects and not as citizens, since the Britishers saw themselves as the Ruler, they recommended rigorous prison sentences, and even punishments within the confines of the Jails, such as whipping and solitary confinement, and keeping the prisoners in gunny clothing. The outcome of the recommendations of the “Conference of Experts” and the “Fourth Jail Commission” was the enactment of the “Prisons Act of 1894”. The Prisons Act, 1894 continues to govern most of the Jails even today.”

Needless to say, it is quite baffling that why no new Prisons Act has been passed even after 127 years till now? Why our lawmakers care a damn for the prisons? Why they never acted till now to meet the conditions of prisons to the present circumstances and now that of 1894 or 1895?

In this context, it has to be mentioned that the Bench then elucidates in para 13 stating that, “The “All India Jail Committee (1919-1920)” for the first time recommended the reformation and rehabilitation of offenders as one of the objectives of the prison administration. The Committee spoke about the adequate training of the prison staff, and about the separation of executive/custodial, ministerial and technical staff in prison service. The Committee believed that a different sort of training needs to be provided to the prison staff, than the training being provided to the police staff.”

Furthermore, the Bench then mentions in para 14 that, “After independence, a number of Committees have been constituted, beginning with the Jail recommendations made by Dr. W.C. Reckless, a U.N. Expert on Correctional Work. While submitting his report on “Jail Administration in India”, he advocated the reformative theory of punishment; he emphasised on specialized training of correctional personnel; he stressed on the need for a cadre of properly trained personnel staff.”

While underscoring the dire need to ameliorate the condition of prisons and prisoners, the Bench then states in para 15 that, “In 1972, the Ministry of Home Affairs, Government of India, appointed a “Working Group on Prisons”. In its report submitted in 1973, the Committee again emphasised the need for proper training of prison personnel. It also stressed that “prison administration should be treated as an integral part of the social defence components of national planning process”. Thus, the very basis for prison administration was to protect, reform and rehabilitate the prison population. Moreover, the prison population is not a population to be neglected. But it is a population, which needs to be encouraged to be productive. Therefore, skill upgradation is a sine qua non.”

While continuing in a similar vein, the Bench then observes in para 16 that, “In 1980, the Government of India constituted an “All India Committee on Jail Reforms” under the chairmanship of Hon’ble Mr. Justice A. N. Mulla. The Mulla Committee submitted 658 recommendations. According to the Committee, prisons in the country shall endeavour to reform and reassimilate offenders in the social milieu by giving them appropriate correctional treatment. One of the most important recommendations is that “prison services shall be developed as a professional career service. The State shall endeavour to develop a well-organized prison cadre based on appropriate job requirements, sound training and proper promotional avenues. The efficient functioning of prisons depends, undoubtedly, upon the personal qualities, educational qualifications, professional competence and character of prison personnel. The status, emoluments and other service conditions of prison personnel should commensurate with their job requirements and responsibilities. An All-India Service, namely the ‘Indian Prisons and Correctional Service’ shall be constituted to induct better qualified and talented persons at higher echelons. Proper training of prison personnel shall be developed at the ‘national, regional and State levels’.”

Quite significantly, the Bench then lays bare in para 17 that, “On 17.07.2009, the Ministry of Home Affairs, Government of India had written to the Principal Secretary (Prison)/Secretary (Home) (In-charge of Prisons) – All State Governments / UTs DGs/ IGs incharge of prisons- All State Governments / UTs, wherein it had emphasised the large number of judgments delivered by the Hon’ble Supreme Court with regard to the prison administration and the jail system prevalent in India. It had further made certain recommendations as under:-

(i) Establishing well equipped training infrastructure in the State, with adequate skilled and well qualified instructional staff, to cater to the normal needs of basic and in-service training for the prison staff in different discipline.

(ii) Creating adequate posts for prison staff as per norms in different categories, commensurate with operational needs of safe custody, reformation, rehabilitation, health care, legal assistance etc.

(iii) Filling up all the vacancies, presently running up to 17.58% (in 2006) within time bound frame and ensure proper cadre management through timely trainings, promotions, recruitments etc.”

While dwelling on the yeoman role of the Apex Court, the Bench then puts forth in para 18 that, “Over the decades, the Hon’ble Supreme Court has rushed to the rescue of the prisoners. The Apex Court has not only given the protection of Article 21 of the Constitution of India to the prisoners, but has also emphasised on the penological philosophy of reformation, and rehabilitation of the prisoners. It has, thus, stressed on the need for having a well-trained prison staff, who would cater to the needs of the prisoners on a full-time basis.”

Quite pertinently, the Bench then observes in para 19 that, “Recently, in the case of Inhuman Conditions In 1382 Prisons, In re [(2018) 18 SCC 777], keeping in mind the dire necessity of reforming in prison administration, and the prison management, the Hon’ble Supreme Court has constituted a Supreme Court Committee on “Prison Reforms” consisting of : (i) Hon’ble Mr Justice Amitava Roy, a former Judge of the Supreme Court as its Chairperson, (ii) Inspector General of Police, Bureau of Police Research and Development as its Member, and (iii) Director General (Prisons) Tihar Jail, New Delhi as its Member.

The Committee has made the following recommendations with regard to the staffing patterns in the jails:

“RECRUITMENT OF STAFF

The Hon’ble Court may issue following directions in this regard:-

(a) All State Governments will hold special recruitment drives to fill up the existing vacancies in different ranks with the following timelines.

(i) In case of regular recruitment against permanent vacancies, the recruitment process should start within three months and should be completed within one year in the maximum.

(ii) All promotional vacancies should be filled up within six months”.”

Of immense significance is what is then stated in para 20 that, “At the International level, the United Nations has issued the “Nelson Mandela Rules”, which deal with the “Standard Minimum Rules for the Treatment of Prisoners”.

Please read concluding on thedailyguardian.com

As mentioned hereinabove, these Rules prescribe the accepted good principles, and practices in the treatment of prisoners and prison management. Rules 74 to 82 deal with “Institutional Personnel”.”

On these Rules, it is first and foremost stated in para 21 that, “Rule 74 is as under :-

“Rule 74

1. The prison administration shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of prisons depends.

2. The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance, and to this end all appropriate means of informing the public should be used.

3. To secure the foregoing ends, personnel shall be appointed on a full-time basis as professional prison staff and have civil service status with security of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women; employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.””

As we see, the Bench then states in para 22 that, “Rule 75 is as under :-

“Rule 75

1. All prison staff shall possess an adequate standard of education and shall be given the ability and means to carry out their duties in a professional manner.

2. Before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences. Only those candidates who successfully pass the theoretical and practical tests at the end of such training shall be allowed to enter the prison service.

3. The prison administration shall ensure the continuous provision of in service training courses with a view to maintaining and improving the knowledge and professional capacity of its personnel, after entering on duty and during their career.””

As we progress, we see that the Bench then observes in para 23 that, “Rule 76 is as under :-

“Rule 76

1. Training referred to in paragraph 2 of rule 75 shall include, at a minimum, training on:

(a) Relevant national legislation, regulations and policies, as well as applicable international and regional instruments, the provisions of which must guide the work and interactions of prison staff with inmates;

(b) Rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment or punishment;

(c) Security and safety, including the concept of dynamic security, the use of force and instruments of restraint, and the management of violent offenders, with due consideration of preventive and defusing techniques, such as negotiation and mediation;

(d) First aid, the psychosocial needs of prisoners and the corresponding dynamics in prison settings, as well as social care and assistance, including early detection of mental health issues.

2. Prison staff who are in charge of working with certain categories of prisoners, or who are assigned other specialized functions, shall receive training that has a corresponding focus.””

Not stopping, the Bench then adds in para 24 that, “Rule 79 is as under :-

“Rule 79

1. The prison director should be adequately qualified for his or her task by character, administrative ability, suitable training and experience.

2. The prison director shall devote his or her entire working time to official duties and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.

3. When two or more prisons are under the authority of one director, he or she shall visit each of them at frequent intervals. A responsible resident official shall be in charge of each of these prisons.””

Be it noted, the Bench then hastens to add in para 25 that, “Since India is a member of the United Nations, these Rules are equally binding on the country. Therefore, neither these Rules, nor the recommendations of the various Committees, nor the letter issued by the Ministry of Home Affairs, Government of India dated 17.07.2009, can possibly be ignored by the State.”

What’s more, the Bench then observes in para 26 that, “All these recommendations, and Rules are in conformity with the great transformation, which has occurred in the theory of punishment : from the theory of “Retribution And Deterrence”, we have come to the age of “Reformation and Rehabilitation of Prisoners”. These Committee recommendation and the Nelson Rules emphasize the need for carefully selecting the prison personnel, for providing rigorous training, both prior to their joining the service, and subsequent thereto, of the appointment being a full-time, regular appointment. It is only when these factors are inculcated in the prison administration that the prison system succeeds in protecting, reforming and rehabilitating the prisoners. Otherwise, it is a self-defeating proposition.”

Quite remarkably, the Bench then waxes eloquent to hold in para 27 that, “Needless to say, the purpose of the Police is not to reform, or to rehabilitate, but to prevent the occurrence of crime, and to punish the criminals. Therefore, the very training of a police personnel is carried out with a different purpose in mind, and with different goals prescribed by law. Thus, there is a vast difference in the philosophy that permeates the police administration, and the jail administration. Hence, even their training and the psychology of the police personnel and prison personnel are poles apart.”

No less remarkable is what is then divulged in para 28 that, “Keeping the differences in two systems, the Rules, 1982 clearly provide that the post of Superintendent, District Jail should necessarily has to be filled up in accordance with the Rules, 1982. Rule 5(6) of the Rules, 1982 is as under :-

“5(6) Superintendents, District Jails. – (i) 50 per cent of posts in the cadre by direct recruitment through the Commission.

(ii) 50 per cent of post in the cadre by promotion through the Commission from amongst regularly appointed Deputy Superintendents/Jailors with a minimum of 5 years services as Deputy Superintendents of Jailors or both.””

In the same vein, the Bench then points out in para 29 that, “Rule 14 of the Rules, 1982 is as under :-

“14. Determination of vacancies.- The appointing authority shall determine and intimate to the Commission the number of vacancies on the posts of Superintendents, District Jails to be filled during the year of recruitment as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under Rule 6.””

Going forward, the Bench then envisages in para 30 that, “Rule 15 of the Rules, 1982 is as under :-

“15. Procedure for direct recruitment.- (1) Application for permission to appear in the competitive examination for direct recruitment shall be invited by the Commission in the prescribed form which may be obtained from the Secretary to the Commission on payment, if any.

(2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission.

(3) After the results of the written examination have been received and tabulated the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes, and others under Rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.

(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of-marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidate obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. The number of names in the list shall be larger but not larger by more than 25 percent of the number of vacancies. The Commission shall forward the list to the appointing authority.

Note. – The syllabus and rules for the competitive examination shall be such as may be prescribed by the Commission from time to time.”

Also, still ahead, the Bench then states in para 31 that, “Rule 16 of the Rules, 1982 is as under :- “16. Procedure for recruitment by promotion to the post of Superintendent, District Jail.- Recruitment by promotion to the post of Superintendent of District Jail shall be made on the basis of seniority subject to the rejection of the unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time.””

Most significantly, the Bench then minces no words to state it upfront in para 32 that, “A bare perusal of these Rules of 1982 clearly reveals that the post of Superintendent of Jail necessarily has to be filled up either by direct recruitment (fifty percent), or by promotion (fifty percent). The Rules do not permit an ad-hoc appointment from any other service, much less the police service. Therefore, the post can be filled up either directly from candidates from the open market, or from the post of Deputy Superintendents/Jailors having a work experience of minimum of five years. Hence, the appointment of the police personnel, by the impugned orders, is clearly illegal.”

Equally significant is what is then pointed out in para 33 that, “Although the learned counsel for the State has tried to support the impugned orders ostensibly on the ground that the Inspector General of Prisons and the Additional Inspector General of Prisons can be appointed from the IPS cadre, the said argument is clearly untenable. For, once the Rules, 1982, which deal with Group A and B services, clearly provide a procedure for determination of vacancy, and selection and promotion for filling up the post, the said Rules cannot be deviated from. After all, it is a settled position of law that once a procedure has been established by law, it cannot be circumvented from. Therefore, merely because the post of Inspector General of Prisons, and Additional Inspector General of Prisons can be filled up from persons belonging to the IPS cadre, it does not empower the State to fill up the post of the lower echelons by posting police personnel on the post of Senior Superintendent/Superintendent of Jail.”

As a consequence, the Bench then holds in para 34 that, “For the reasons stated above, the impugned order dated 12.02.2021 passed by the Secretary, Department of Home, respondent no. 2, and the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, respondent no. 3, are hereby set-aside. The State is directed to immediately fill up the posts of Senior Superintendent and Superintendent of Jail either through direct recruitment, or through promotion. Since the Rules permit ad-hoc promotion as a temporary measure, even ad-hoc promotions may be granted by the State till regular promotions are made. The said exercise shall be carried out as expeditiously as possible and preferably within one month from the date of receiving the certified copy of this judgment.” Finally, it is then held in para 35 that, “The Writ Petition is, hereby, allowed.”

No doubt, words cannot be adequate to describe the brilliance with which this judgment is written which is par excellence and substantiating them with relevant Rules followed in India and simultaneously backing them up with rules at international level as for instance the Nelson Mandela Rules issued by UN already dwelt in detail above dealing with the standard minimum rules for the treatment of prisoners. It is now abundantly and manifestly clear from the aforesaid discussion that we had on the ruling by a two Judge Bench of the Uttarakhand High Court comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma that police personnel cannot be appointed as jail superintendents.

Sanjeev Sirohi, Advocate,

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Police personnel cannot be appointed jail superintendent, says Uttarakhand HC

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In a significant judgement pertaining to prisoners rights and affecting them directly, the Uttarakhand High Court has in a latest, landmark, laudable and learned judgement titled Sanjeev Kumar Akash v. State of Uttarakhand & Ors in Writ Petition (PIL) No. 25 of 2021 delivered on 12 April 2021 has held that police personnel cannot be appointed as Jail Superintendent. A Division Bench comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma observed that we have come to the age of “Reformation and Rehabilitation of Prisoners”. It held that the purpose of police is very different from that of Jail Superintendents and as a natural corollary, their trainings and psyche are poles apart. Hence the former cannot possess the position of the latter.

To start with, Chief Justice Sri Raghvendra Singh Chauhan who has authored this notable judgment for a Bench comprising of himself and Justice Alok Kumar Verma of the Uttarakhand High Court sets the ball rolling by first and foremost pointing out in para 1 that, “Mr. Sanjeev Kumar Akash, the petitioner, has filed the present Public Interest Litigation in order to challenge the order dated 12.02.2021, passed by the Secretary, Department of Home, the respondent no. 2, whereby the Officers of the Police Department have been given the additional charge of the office of the Senior Superintendent/Superintendent of Jail at Sitarganj, Haldwani, Haridwar, Dehradun and Roorkee. The petitioner has further challenged the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, the respondent no. 3, whereby the Officers of the Police Department have been transferred, and posted with the additional charge of Senior Superintendent/Superintendent of Jail at various prisons in the State of Uttarakhand.”

While elaborating on the facts of the case, the Bench then enunciates in para 2 that, “Briefly stated, the facts of the case are that, as per the structure in the Department of Prison in the State of Uttarakhand, there are three sanctioned posts of Senior Superintendent of Jail, and nine sanctioned posts of Superintendent of Jail. Out of the nine sanctioned posts of Superintendent of Jail, four posts are to be filled up by way of direct recruitment, and five posts are to be filled up by way of promotion from the post of Jailor. Presently, one post of Senior Superintendent of Jail, and four posts of Superintendent of Jail, have been filled up. Therefore, currently two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail are lying vacant. According to the State Government, considering the difficulties faced in running the Jails properly, it has taken a conscious decision to give additional charge of Senior Superintendent of Jail, and Superintendent of Jail, to officers of the Indian Police Service (IPS). Hence, the present Public Interest Litigation before this Court.”

On the one hand, the Bench first dwells on the petitioner’s contentions in para 3 stating that, “Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has raised the following contentions before this Court :-

Firstly, that the job responsibility and the training of the Police Officers, and those of the Officers of the Jail Administration, stand on different plains. The duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order. On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners. Since the job responsibilities are of different nature, the psychological makeup, the thinking, the conduct of the Police Officers and the Jail Officers, perforce, has to be quite different. Whereas, generally a Police Officer sees an offender as a culprit, as a person who has violated the law, and thus deserves to be condemned and punished, the Officers of the Department of Prison see prisoners as human beings, who have erred, who need to be reformed, who need to be rehabilitated, and brought back as productive members of the society. Thus, the very philosophy behind the interaction between a Police Officer and an offender, and the interaction between a Jail Officer and the prisoner, stand on a different footing. Therefore, one cannot be confused with the other.

Secondly, keeping this distinction in mind, even law has bifurcated these two services into two different classes; the laws have empowered them differently. Therefore, to confuse these two classes would be violative of the fundamental philosophy, which govern these two different services.

Thirdly, this bifurcation of the two departments, and the philosophy behind working of the two departments, is not unique to India. But has universal application throughout the world. According to the learned Senior Counsel, the United Nations has issued “Standard Minimum Rules for the Treatment of Prisoners”, better known as “the Nelson Mandela Rules”. These Rules prescribe the “good principles and practice in the treatment of prisoners and prison management”. Rules 74 to 82 deal with “Institutional Personnel”. Rule 74 provides for “careful selection of every grade of the personnel”. It emphasises “on their integrity, humanity, professional capacity, and personal suitability for the work that the proper administration of prisons depends”. Rule 74(3) further stresses on the need for appointment of prison personnel “on a full-time basis”. Rule 75(2) states that “before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences”. Rule 76 further states that the training referred to in Rule 75(2) shall include, at a minimum, training on “rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners, and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment, or punishment.” Rule 79 further states that “the Prison Director (Superintendent of Jail in India) shall devote his or her entire working time to official duties, and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.”

Relying on the Nelson Mandela Rules, the learned Senior Counsel has emphasised that the Superintendents of Jail are required to undergo a particular training, which will inculcate a sense of dignity of all the prisoners, will make them humane, and sensitise them to the plight of the prisoners, to their families, and to the prison conditions. The learned Senior Counsel has further stressed on the need for appointing the Senior Superintendent/Superintendent of Jail on a full-time basis, rather than on a part-time basis.

Fourthly, referring to the Uttar Pradesh Jail (Group A and B) Service Rules, 1982 (for short “the Rules, 1982”), the learned Senior Counsel has submitted that Rule 3(k) defines the post of “Superintendent, District Jail” to mean “the whole-time Superintendent, Jail appointed in accordance with the 1982 Rules”. According to Rule 5(6) of the Rules, 1982, the post of Superintendent of District Jail is to be filled up fifty percent by direct recruitment, and fifty percent by promotion from amongst the regularly appointed Deputy Superintendents/Jailors with a minimum of five years’ service as Deputy Superintendents, or Jailors or both. Moreover, Rule 14 deals with “determination of vacancies”. Rule 15 deals with the “procedure for direct recruitment”. Rule 16 deals with the “procedure for recruitment by promotion to the post of Superintendent, District Jail”. Therefore, according to the learned Senior Counsel, the procedure for making an appointment to the post of Senior Superintendent/Superintendent of Jail is clearly prescribed by Rules 14, 15 and 16 of the Rules, 1982. These Rules do not permit ad-hoc appointment of Police personnel on the post of Senior Superintendent/Superintendent of Jail. Therefore, the impugned orders are clearly in violation of the Rules, 1982.

Fifthly, even the Code of Criminal Procedure, prevents the keeping of an undertrial prisoner in police custody beyond a stipulated period of time. According to Section 167 of Cr.P.C, an accused cannot be detained in police custody beyond a period of fifteen days. In case the investigation is not completed within a period of ninety days, for offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, the offender would have to be granted bail under Section 167(2)(a)(i) Cr.P.C. Therefore, even the Cr.P.C. does not envisage keeping of undertrial prisoners in police custody for too long a period. Even otherwise, while keeping an offender in judicial custody, he/she cannot be kept beyond a period of sixty days or ninety days in case the investigation were not completed within the stipulated period of time. Moreover, in case the investigation were to be completed within the stipulated period of sixty days or ninety days, and in case bail were not granted by a competent Court, an undertrial is required to be kept in judicial custody. But, by appointing police personnel as Senior Superintendent/Superintendent of Jail, for all practical purposes, the custody is suddenly changed from a judicial one to a police one. Therefore, the learned Senior Counsel submits that the impugned orders violate the letter and the spirit of Section 167 Cr.P.C.

Lastly, despite the fact that a prisoner loses the freedom of movement, he/she continues to enjoy the other fundamental rights, as guaranteed by the Constitution of India. Therefore, Article 21 of the Constitution of India, guaranteeing protection of Life and personal liberty, continues to shine even in the dark corners of a prison cell. According to the learned Senior Counsel, once a procedure has been established by law that too a procedure backed by certain penological philosophy- it cannot be violated by the State. Therefore, the State is legally bound to implement the service rules as contained in the Rules, 1982, to implement the requirements of Cr.P.C, to implement the constitutional philosophy, as embodied in the Preamble of the Constitution of India, and to implement the “Nelson Mandela Rules”. Hence, according to the learned Senior Counsel, the impugned orders deserve to be set-aside by this Court.”

On the other hand, the Bench then further states about the States contention in para 4 wherein it is put forth that, “On the other hand, Mr. Anil Kumar Bisht, the learned Additional Chief Standing Counsel for the State, has raised the following counter-contentions before this Court :-

Firstly, in the order dated 17.11.2006, issued by the Principal Secretary, Uttaranchal Administration, it was clearly mentioned that the Inspector General of Prisons would either be the Secretary, Home, or IAS officers, or of equivalent posts. Similarly, Additional Inspector General of Prisons would be from the post of Additional Secretary, Home/Joint Secretary, Home, or from PCS Cadre. In fact, even presently, the post of the Inspector General of Prisons is occupied by a person belonging to the IPS cadre. Therefore, the appointment of police personnel to the post of Senior Superintendent/Superintendent of Jail can certainly be made from Police Officers.

Secondly, considering the fact that presently there are two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail, which are lying vacant, considering the fact that direct recruitment to these posts would require some time, considering the fact that there is no one in the post of Jailors, who has completed five years of required service for being promoted to the post of Senior Superintendent/Superintendent of Jail, the State is justified in making Police Officers incharge of these two posts on a temporary basis. Therefore, the learned counsel has supported the impugned orders.”

As a corollary, the Bench then brings out in para 5 that, “In rejoinder, Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has pleaded that the letter dated 17.11.2006 does not support the case of the State. For, while the post of Inspector General of Prisons and Additional Inspector General of Prisons may be permitted to be filled up from IPS Officers, the post of Senior Superintendent/Superintendent of Jail is covered by the Rules, 1982. Once the Rules, 1982 have been promulgated, they cannot be diluted by a mere letter issued by the Principal Secretary. In fact, the appointment to the post of Senior Superintendent/Superintendent of Jail has to be strictly in accordance with the Rules, 1982.”

Needless to say, the Bench then after hearing the learned counsel and perusing the impugned orders as stated in para 6, it is then brought out in para 7 that, “Prisons are as ancient as human civilization. Initially, prisons were created as detention centres for detaining those who were threat to the political power. According to the Bhagavata Purana, an ancient text on the life of Lord Krishna, his parents, Devaki and Vasudeva, were imprisoned by Kansa, the King of Mathura. However, over the centuries, prisons were constructed for the purpose of punishing those, who violate the law. Soon the purpose of prisons was changed from detention to punishment. In ancient Athens, Socrates was imprisoned for punishing him for having corrupted the minds of the youth. Long imprisonment sentences catered to the retributory and deterrent theories of punishment.”

Quite alarmingly, the Bench then observes in para 11 that, “In 1835, Lord Macaulay presented a note to the Legislative Council in India as he was shocked by the horrifying and inhumane conditions prevalent in the Indian jails. The next year, on 02.01.1836, Lord William Bentick constituted a “Prison Discipline Committee”. The report of this Committee, submitted to Lord Auckland in 1838, revealed the rampant corruption, the laxity in discipline, and the abuse of men and women, who were imprisoned. However, surprisingly, the Committee rejected the thought of reforming the criminals.”

Going ahead, the Bench then further observes in para 12 that, “Over the years, the “Conference of Experts” held in 1877, and the “Fourth Jail Commission” in 1888, recommended that there should be a uniformity in all the Jails functioning in British India. Since Indians were seen as subjects and not as citizens, since the Britishers saw themselves as the Ruler, they recommended rigorous prison sentences, and even punishments within the confines of the Jails, such as whipping and solitary confinement, and keeping the prisoners in gunny clothing. The outcome of the recommendations of the “Conference of Experts” and the “Fourth Jail Commission” was the enactment of the “Prisons Act of 1894”. The Prisons Act, 1894 continues to govern most of the Jails even today.”

Needless to say, it is quite baffling that why no new Prisons Act has been passed even after 127 years till now? Why our lawmakers care a damn for the prisons? Why they never acted till now to meet the conditions of prisons to the present circumstances and now that of 1894 or 1895?

In this context, it has to be mentioned that the Bench then elucidates in para 13 stating that, “The “All India Jail Committee (1919-1920)” for the first time recommended the reformation and rehabilitation of offenders as one of the objectives of the prison administration. The Committee spoke about the adequate training of the prison staff, and about the separation of executive/custodial, ministerial and technical staff in prison service. The Committee believed that a different sort of training needs to be provided to the prison staff, than the training being provided to the police staff.”

Furthermore, the Bench then mentions in para 14 that, “After independence, a number of Committees have been constituted, beginning with the Jail recommendations made by Dr. W.C. Reckless, a U.N. Expert on Correctional Work. While submitting his report on “Jail Administration in India”, he advocated the reformative theory of punishment; he emphasised on specialized training of correctional personnel; he stressed on the need for a cadre of properly trained personnel staff.”

While underscoring the dire need to ameliorate the condition of prisons and prisoners, the Bench then states in para 15 that, “In 1972, the Ministry of Home Affairs, Government of India, appointed a “Working Group on Prisons”. In its report submitted in 1973, the Committee again emphasised the need for proper training of prison personnel. It also stressed that “prison administration should be treated as an integral part of the social defence components of national planning process”. Thus, the very basis for prison administration was to protect, reform and rehabilitate the prison population. Moreover, the prison population is not a population to be neglected. But it is a population, which needs to be encouraged to be productive. Therefore, skill upgradation is a sine qua non.”

While continuing in a similar vein, the Bench then observes in para 16 that, “In 1980, the Government of India constituted an “All India Committee on Jail Reforms” under the chairmanship of Hon’ble Mr. Justice A. N. Mulla. The Mulla Committee submitted 658 recommendations. According to the Committee, prisons in the country shall endeavour to reform and reassimilate offenders in the social milieu by giving them appropriate correctional treatment. One of the most important recommendations is that “prison services shall be developed as a professional career service. The State shall endeavour to develop a well-organized prison cadre based on appropriate job requirements, sound training and proper promotional avenues. The efficient functioning of prisons depends, undoubtedly, upon the personal qualities, educational qualifications, professional competence and character of prison personnel. The status, emoluments and other service conditions of prison personnel should commensurate with their job requirements and responsibilities. An All-India Service, namely the ‘Indian Prisons and Correctional Service’ shall be constituted to induct better qualified and talented persons at higher echelons. Proper training of prison personnel shall be developed at the ‘national, regional and State levels’.”

Quite significantly, the Bench then lays bare in para 17 that, “On 17.07.2009, the Ministry of Home Affairs, Government of India had written to the Principal Secretary (Prison)/Secretary (Home) (In-charge of Prisons) – All State Governments / UTs DGs/ IGs incharge of prisons- All State Governments / UTs, wherein it had emphasised the large number of judgments delivered by the Hon’ble Supreme Court with regard to the prison administration and the jail system prevalent in India. It had further made certain recommendations as under:-

(i) Establishing well equipped training infrastructure in the State, with adequate skilled and well qualified instructional staff, to cater to the normal needs of basic and in-service training for the prison staff in different discipline.

(ii) Creating adequate posts for prison staff as per norms in different categories, commensurate with operational needs of safe custody, reformation, rehabilitation, health care, legal assistance etc.

(iii) Filling up all the vacancies, presently running up to 17.58% (in 2006) within time bound frame and ensure proper cadre management through timely trainings, promotions, recruitments etc.”

While dwelling on the yeoman role of the Apex Court, the Bench then puts forth in para 18 that, “Over the decades, the Hon’ble Supreme Court has rushed to the rescue of the prisoners. The Apex Court has not only given the protection of Article 21 of the Constitution of India to the prisoners, but has also emphasised on the penological philosophy of reformation, and rehabilitation of the prisoners. It has, thus, stressed on the need for having a well-trained prison staff, who would cater to the needs of the prisoners on a full-time basis.”

Quite pertinently, the Bench then observes in para 19 that, “Recently, in the case of Inhuman Conditions In 1382 Prisons, In re [(2018) 18 SCC 777], keeping in mind the dire necessity of reforming in prison administration, and the prison management, the Hon’ble Supreme Court has constituted a Supreme Court Committee on “Prison Reforms” consisting of : (i) Hon’ble Mr Justice Amitava Roy, a former Judge of the Supreme Court as its Chairperson, (ii) Inspector General of Police, Bureau of Police Research and Development as its Member, and (iii) Director General (Prisons) Tihar Jail, New Delhi as its Member.

The Committee has made the following recommendations with regard to the staffing patterns in the jails:

“RECRUITMENT OF STAFF

The Hon’ble Court may issue following directions in this regard:-

(a) All State Governments will hold special recruitment drives to fill up the existing vacancies in different ranks with the following timelines.

(i) In case of regular recruitment against permanent vacancies, the recruitment process should start within three months and should be completed within one year in the maximum.

(ii) All promotional vacancies should be filled up within six months”.”

Of immense significance is what is then stated in para 20 that, “At the International level, the United Nations has issued the “Nelson Mandela Rules”, which deal with the “Standard Minimum Rules for the Treatment of Prisoners”.

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As mentioned hereinabove, these Rules prescribe the accepted good principles, and practices in the treatment of prisoners and prison management. Rules 74 to 82 deal with “Institutional Personnel”.”

On these Rules, it is first and foremost stated in para 21 that, “Rule 74 is as under :-

“Rule 74

1. The prison administration shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of prisons depends.

2. The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance, and to this end all appropriate means of informing the public should be used.

3. To secure the foregoing ends, personnel shall be appointed on a full-time basis as professional prison staff and have civil service status with security of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women; employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.””

As we see, the Bench then states in para 22 that, “Rule 75 is as under :-

“Rule 75

1. All prison staff shall possess an adequate standard of education and shall be given the ability and means to carry out their duties in a professional manner.

2. Before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences. Only those candidates who successfully pass the theoretical and practical tests at the end of such training shall be allowed to enter the prison service.

3. The prison administration shall ensure the continuous provision of in service training courses with a view to maintaining and improving the knowledge and professional capacity of its personnel, after entering on duty and during their career.””

As we progress, we see that the Bench then observes in para 23 that, “Rule 76 is as under :-

“Rule 76

1. Training referred to in paragraph 2 of rule 75 shall include, at a minimum, training on:

(a) Relevant national legislation, regulations and policies, as well as applicable international and regional instruments, the provisions of which must guide the work and interactions of prison staff with inmates;

(b) Rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment or punishment;

(c) Security and safety, including the concept of dynamic security, the use of force and instruments of restraint, and the management of violent offenders, with due consideration of preventive and defusing techniques, such as negotiation and mediation;

(d) First aid, the psychosocial needs of prisoners and the corresponding dynamics in prison settings, as well as social care and assistance, including early detection of mental health issues.

2. Prison staff who are in charge of working with certain categories of prisoners, or who are assigned other specialized functions, shall receive training that has a corresponding focus.””

Not stopping, the Bench then adds in para 24 that, “Rule 79 is as under :-

“Rule 79

1. The prison director should be adequately qualified for his or her task by character, administrative ability, suitable training and experience.

2. The prison director shall devote his or her entire working time to official duties and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.

3. When two or more prisons are under the authority of one director, he or she shall visit each of them at frequent intervals. A responsible resident official shall be in charge of each of these prisons.””

Be it noted, the Bench then hastens to add in para 25 that, “Since India is a member of the United Nations, these Rules are equally binding on the country. Therefore, neither these Rules, nor the recommendations of the various Committees, nor the letter issued by the Ministry of Home Affairs, Government of India dated 17.07.2009, can possibly be ignored by the State.”

What’s more, the Bench then observes in para 26 that, “All these recommendations, and Rules are in conformity with the great transformation, which has occurred in the theory of punishment : from the theory of “Retribution And Deterrence”, we have come to the age of “Reformation and Rehabilitation of Prisoners”. These Committee recommendation and the Nelson Rules emphasize the need for carefully selecting the prison personnel, for providing rigorous training, both prior to their joining the service, and subsequent thereto, of the appointment being a full-time, regular appointment. It is only when these factors are inculcated in the prison administration that the prison system succeeds in protecting, reforming and rehabilitating the prisoners. Otherwise, it is a self-defeating proposition.”

Quite remarkably, the Bench then waxes eloquent to hold in para 27 that, “Needless to say, the purpose of the Police is not to reform, or to rehabilitate, but to prevent the occurrence of crime, and to punish the criminals. Therefore, the very training of a police personnel is carried out with a different purpose in mind, and with different goals prescribed by law. Thus, there is a vast difference in the philosophy that permeates the police administration, and the jail administration. Hence, even their training and the psychology of the police personnel and prison personnel are poles apart.”

No less remarkable is what is then divulged in para 28 that, “Keeping the differences in two systems, the Rules, 1982 clearly provide that the post of Superintendent, District Jail should necessarily has to be filled up in accordance with the Rules, 1982. Rule 5(6) of the Rules, 1982 is as under :-

“5(6) Superintendents, District Jails. – (i) 50 per cent of posts in the cadre by direct recruitment through the Commission.

(ii) 50 per cent of post in the cadre by promotion through the Commission from amongst regularly appointed Deputy Superintendents/Jailors with a minimum of 5 years services as Deputy Superintendents of Jailors or both.””

In the same vein, the Bench then points out in para 29 that, “Rule 14 of the Rules, 1982 is as under :-

“14. Determination of vacancies.- The appointing authority shall determine and intimate to the Commission the number of vacancies on the posts of Superintendents, District Jails to be filled during the year of recruitment as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under Rule 6.””

Going forward, the Bench then envisages in para 30 that, “Rule 15 of the Rules, 1982 is as under :-

“15. Procedure for direct recruitment.- (1) Application for permission to appear in the competitive examination for direct recruitment shall be invited by the Commission in the prescribed form which may be obtained from the Secretary to the Commission on payment, if any.

(2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission.

(3) After the results of the written examination have been received and tabulated the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes, and others under Rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.

(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of-marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidate obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. The number of names in the list shall be larger but not larger by more than 25 percent of the number of vacancies. The Commission shall forward the list to the appointing authority.

Note. – The syllabus and rules for the competitive examination shall be such as may be prescribed by the Commission from time to time.”

Also, still ahead, the Bench then states in para 31 that, “Rule 16 of the Rules, 1982 is as under :- “16. Procedure for recruitment by promotion to the post of Superintendent, District Jail.- Recruitment by promotion to the post of Superintendent of District Jail shall be made on the basis of seniority subject to the rejection of the unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time.””

Most significantly, the Bench then minces no words to state it upfront in para 32 that, “A bare perusal of these Rules of 1982 clearly reveals that the post of Superintendent of Jail necessarily has to be filled up either by direct recruitment (fifty percent), or by promotion (fifty percent). The Rules do not permit an ad-hoc appointment from any other service, much less the police service. Therefore, the post can be filled up either directly from candidates from the open market, or from the post of Deputy Superintendents/Jailors having a work experience of minimum of five years. Hence, the appointment of the police personnel, by the impugned orders, is clearly illegal.”

Equally significant is what is then pointed out in para 33 that, “Although the learned counsel for the State has tried to support the impugned orders ostensibly on the ground that the Inspector General of Prisons and the Additional Inspector General of Prisons can be appointed from the IPS cadre, the said argument is clearly untenable. For, once the Rules, 1982, which deal with Group A and B services, clearly provide a procedure for determination of vacancy, and selection and promotion for filling up the post, the said Rules cannot be deviated from. After all, it is a settled position of law that once a procedure has been established by law, it cannot be circumvented from. Therefore, merely because the post of Inspector General of Prisons, and Additional Inspector General of Prisons can be filled up from persons belonging to the IPS cadre, it does not empower the State to fill up the post of the lower echelons by posting police personnel on the post of Senior Superintendent/Superintendent of Jail.”

As a consequence, the Bench then holds in para 34 that, “For the reasons stated above, the impugned order dated 12.02.2021 passed by the Secretary, Department of Home, respondent no. 2, and the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, respondent no. 3, are hereby set-aside. The State is directed to immediately fill up the posts of Senior Superintendent and Superintendent of Jail either through direct recruitment, or through promotion. Since the Rules permit ad-hoc promotion as a temporary measure, even ad-hoc promotions may be granted by the State till regular promotions are made. The said exercise shall be carried out as expeditiously as possible and preferably within one month from the date of receiving the certified copy of this judgment.” Finally, it is then held in para 35 that, “The Writ Petition is, hereby, allowed.”

No doubt, words cannot be adequate to describe the brilliance with which this judgment is written which is par excellence and substantiating them with relevant Rules followed in India and simultaneously backing them up with rules at international level as for instance the Nelson Mandela Rules issued by UN already dwelt in detail above dealing with the standard minimum rules for the treatment of prisoners. It is now abundantly and manifestly clear from the aforesaid discussion that we had on the ruling by a two Judge Bench of the Uttarakhand High Court comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma that police personnel cannot be appointed as jail superintendents.

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What and why of reservation

The current reservation system in India is vertical for SC, ST, OBC, and EWS, but horizontal for women. In the country, all reservation systems operate together, and reservation in itself means that everything must be fixed. Many Indians claim that the Indian judiciary is biased because there are no judges from the lower castes in the Supreme Court, despite the fact that a number of religious minorities are represented in the top court, such as Parsis and Muslims, but no one from the SC and ST groups.

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INTRODUCTION
Reservation is an affirmative action programme in India that ensures traditionally marginalized groups have representation in education, jobs, and politics. It enables the Indian government to set reserved quotas or seats based on provisions in the Indian Constitution, which lower the qualifications required in examinations, work openings, and other situations for socially and economically backward people. In India, reservation refers to the practice of denying certain groups of people access to seats in educational institutions, government employment, and even legislatures. Affirmative action is another name for it, and the reservation can be seen as constructive discrimination. Reservation is a government policy in India, and it is backed by the Indian constitution

WHY IS THE DEBATE SO ACUTE?
RESOURCES AT STAKE: Reservations favor schooling, housing, and legislative positions, among other things. Where a country’s resources are limited, poverty and malnutrition are common, and unemployment is high, there is bound to be conflict when a policy on resource allocation is implemented. Resources are linked to humans’ basic needs, and when they have to make compromises for them, they will work in any circumstances to reap the benefits.

RADICALLY OPPOSING VIEWS: If you prefer reservations, it means you’ve been taught about the benefits of reservations since you were born as well as the fact that this is a facility that people want to take away from us. They have ruled over us for thousands of years, and now that we have a chance, they want to take it away from us. As a result, the entire community is on high alert, fearful that if anyone opposes, they will strike without even learning the reason for the protest. People who did not receive a reservation, on the other hand, believe that those who did receive a reservation are adequate and are taking our children’s place. Apart from that, they believe there is a massive plot against our culture, caste, and faith

HOW TO DEVELOP AN APPROPRIATE UNDERSTANDING ON THIS ISSUE
It’s best to think about something as neutral when trying to comprehend it. All of the disagreements in this universe arise because we are aware of our advantages and disadvantages. If we consider ourselves to be impartial, we will note that we have benefited illegally from other situations.

IS RESERVATION IS AGAINST EQUALITY?
The NEGATIVE CONCEPT OF EQUILITY; states that there will be no discrimination and that all will be treated fairly. A fair law for all, on the other hand, would not result in an equal outcome since those who have already benefited from the rule gain additional benefits, while those in lower social groups do not have the ability to change their situation.
POSITIVE CONCEPT OF EQUALITY; A positive concept of equality does not imply that rules should be made equal for all; rather, it implies that the distance between poor class people Equality entails taking steps in the direction of disadvantaged groups in order to help them uplift themselves.

POSITIVE DISCRIMINATION IS A CONSTITUTIONAL PROVISION
Article 17: Abolition of “untouchability” and criminalization of its practice in any form. Article 45: Promotion of education and economic interests. Article 330 and 332: Seats in the Lok Sabha and State Assemblies are reserved. Article 16(4): Article 16 guarantees equal opportunity for all citizens in matters relating to employment or appointment to any state office. However, “Nothing in this Article shall preclude the state from making any provision for the reservation of appointment or posts in favor of any backward class of citizens which, in the opinion of the state, is not adequately represented.” (Specific reservation rules for members of Scheduled Castes and Schedule Tribes. In Mohan Kumar Singhania v. Union of India, the Supreme Court explained that Article 16(4) is an enabling provision that gives the state discretion to make any provision or reservation for any backward class of people that, in the state’s view, is not adequately represented in the service of the state. For claiming reservation, Article 16(4) imposes no constitutional obligation or confers any Fundamental Right on anyone. The state government calculates the total population of the backwards class and their inclusion in state facilities, then makes reservations and offers the percentage of reservations. Trilok Nath v. State of J&K
held that state decisions must be justiciable and can be questioned if they are based on irrelevant factors. “Backwardness is not a static phenomenon,” the Court said in Jagdish Negi v. State of Uttar Pradesh. It can’t go on forever, and the government has the right to revisit the situation at any time.”

EXAMPLES OF SOCIAL DISCRIMINATION TRAVANCORE KINGDOM; Travancore is an example of the degree to which castes can be treated unfairly when travelling. You could be shocked to learn that in Travancore, a statute was repealed entirely in 1924. And the legislation stated that women from the lower social classes had no right to cover their breasts in public areas, and if they do, they must pay a breast tax. NA DA R CA S T E O F TAMILNADU: The controversy occurs over whether or not women of the backwards class have the right to wear fabric to cover their bodies, and the tension of this dispute skyrockets in 1859 when two women are hanged to death for wearing cloth on their upper bodies. Following this event, the king orders that the women of this group can cover their upper body parts.
Dr B.R. AMBEDIKAR: Dr Ambedkar has done more for Indian women than anyone else. He was the last and 14th child of his family; his father, belonging to the Scheduled Caste community, was a soldier in the British army. As his father was a soldier, Ambedkar got the chance to study in a school. He has written in his biography that he “was the only student in that school who belonged to the Scheduled Caste community, and that when the school’s peon was absent, he was denied water to drink”.
When he passed fourth grade, the entire community rejoiced because for the first time in that society, a small class part had passed. After that, this child had completed a double doctorate from England.

MEANS OF SOCIAL JUSTICE: AFFIRMATIVE ACTION
When a welfare state exists, some action can be taken for the poor group of the main section that gives them a special benefit for all policies. This is known as affirmative action. HORIZONTAL RESERVATION; Women and physically handicapped people can currently take advantage of horizontal reservation. VERTICAL RESERVATION: Vertical reservation occurs when an individual jumps from his reserved seat to a general seat based on his qualifications. The current reservation system in our country is vertical for SC, ST, OBC, and EWS, but horizontal for women. In our country, all reservation systems operate together, and reservation in itself means that everything must be fixed. Many Indians claim that the Indian judiciary is biased because there are no judges from the lower castes in the Supreme Court, despite the fact that a number of religious minorities are represented in the Supreme Court, such as Parses and Muslims, but no people from the SC and ST groups.

RESERVATION AND AFFIRMATIVE ACTION IN INDIA
Articles 332- 334 of the Indian constitution address reserved seats in the Lok Sabha and Rajya Sabha, respectively, and article 243 addresses reserved seats in Panchayati Raj. Article 16 deals with racial discrimination in government jobs. Whenever there is a reservation in every school or college, it is made under Article 15 or, whether it is a minority institution, under Article 30. Extra hostels and fellowships must be given for students from low-income families. There are many laws that protect the rights of SC/ST people and women. There are numerous commissions, such as the SC/ST Commission and the OBC Commission, whose aim is to investigate the growth of their respective communities.


CONCLUSION
Society develops beyond any of these things: you must combine the two or you will not be long enough. The physical need for both merit and social justification in balance We will not be able to progress as a nation unless we have merit. Merit should be followed by merit, but it is also important to follow the mechanism of social justice, so that those who are left behind in the country are those who are left behind in the country, so who are you going to develop together in any way? As a result, it is important to ensure that the balance is accompanied by fairness, justice, and justice. Our reservation system is working well, but it could be better: if reservations satisfy people who need to meet them, I’m not angry at the fact that the reservation is not so angry, so I need to speak with the creamy layer. As a result, the reservationists must discuss the creamy layer. Can leave the reservation facility so that the reservation reaches the individual who is actually needed.

Articles 332-334 of the Constitution address reserved seats in the Lok Sabha and Rajya Sabha, respectively, and article 243 addresses reserved seats in Panchayati Raj. Article 16 deals with racial discrimination in government jobs. Whenever there is a reservation in every school or college, it is made under Article 15 or, whether it is a minority institution, under Article 30. Extra hostels and fellowships must be given for students from low-income families. There are many laws that protect the rights of SC/ST people and women. There are numerous commissions, such as the SC/ST Commission and the OBC Commission, whose aim is to investigate the growth of their respective communities.

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