Where accused is booked under both UAPA & NDPS Act, custody under NDPS may be extended beyond expiry of 180 days under UAPA: Jammu & Kashmir High Court - The Daily Guardian
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Where accused is booked under both UAPA & NDPS Act, custody under NDPS may be extended beyond expiry of 180 days under UAPA: Jammu & Kashmir High Court

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In a significant, stimulating and serious development, we are seeing how the Jammu and Kashmir High Court in a latest, learned, laudable and landmark judgment titled Arshad Ahmad Allaie Vs UT of J&K & Anr in CRM(M) No. 653/2019 that was reserved on June 24, 2021 and delivered finally on July 6, 2021 has held quite elegantly, eloquently and effectively that when a person is charged both under provisions of the Unlawful Activities Prevention Act (UAPA) and the Narcotics Drugs and Psychotropic Substances Act (NDPS), further custody beyond the period of 180 days (prescribed under UAPA) may be granted under Section 36A of the NDPS Act. Justice Sanjay Dhar who delivered this notable judgment observed thus: “The accused including the petitioner, were not only facing investigation for offences under UAPA Act but they were also being investigated for offences under NDPS Act, as a result of which the Investigating Agency was entitled to seek custody of the accused beyond 180 days subject to fulfillment of conditions laid down in proviso to sub-section (4) of Section 36A of NDPS Act.” In the present case, we see how Arshad Allaie was booked under NDPS Act and an initial remand was sought. Thereafter, provisions of UAPA were added and remand was obtained from a Special NIA Court. However, on the expiration of 180 days custody period under UAPA, the investigating agency approached the Court of Principal Sessions Judge, Jammu under Section 36A of the NDPS Act, seeking extension of investigation period beyond 180 days.

To start with, a Single Judge Bench of Justice Sanjay Dhar of Jammu and Kashmir High Court queers the pitch of this brief, brilliant, balanced and bold judgment by first and foremost observing in para 1 that, “An important question of law that has arisen in the instant petition is “whether an order granting extension of period of custody of accused beyond 180 days passed by a Sessions Court in terms of Section 36-A of Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act” for short hereinafter] in a case where the accused has been booked for various offences under NDPS Act read with offences under Unlawful Activities (Prevention) Act, 1967 [“UA(P) A Act”], is without jurisdiction.”

Needless to say, the Bench then puts forth in para 2 that, “Before answering the aforesaid question, it is necessary to briefly, summarize the facts giving rise to the filing of the instant petition.”

To put things in perspective, the Bench then enunciates in para 3 that, “The record of the case shows that the petitioner along with other accused persons was booked in FIR No.38/2019 for offences under Section 8/21/22/27-A/29 NDPS Act and Section 13, 16, 17 and 21 UAPA Act by Police Station, Jammu. Initially the FIR was registered for offences under Section 8/21/22/27-A/29 NDPS Act only and the petitioner was arrested on 27.05.2019. However, during investigation of the case, offences under Section 13, 16, 17 and 21 UAPA Act were added on 30.07.2019.”

As it turned out, the Bench then observes in para 4 that, “After obtaining initial remand of the accused in connection with investigation of offences under NDPS Act, upon addition of offences under UA(P) Act, remand of the accused from time to time, was obtained by the Investigating Agency from Special Court designated under Section 22 of the National Investigation Agency Act [“NIA Act” for short]. Ultimately, the judicial remand for extending the period of investigation beyond 90 days in terms of Section 43-D of UA(P) Act was granted by the Designated Court under NIA Act, in terms of its order dated 23.08.2019. The extended period of judicial custody of the accused including that of the petitioner expired on 22.11.2019.”

What next followed is then stated in para 5 that, “After the expiry of extended period of custody granted by the Designated Court under NIA Act, the Investigating Agency approached the Court of Principle Sessions Judge, Jammu, with an application seeking extension of period of investigation beyond 180 days in terms of Section 36-A of NDPS Act. The application came to be assigned to learned Additional Sessions Judge, Jammu, who vide his order dated 22.11.2019 extended judicial custody of the accused including that of the petitioner herein for a further period of 20 days. It is this order of learned Additional Sessions Judge, Jammu, which has been challenged by the petitioner through the medium of instant petition.”

On the one hand, the Bench brings out in para 6 that, “The main contention of the petitioner is that the order granting or extending the judicial custody of the accused in the instant case could be passed only by a Special Court Designated under NIA Act and not an ordinary Sessions Judge. Thus, according to the petitioner, the impugned order extending the judicial custody of the petitioner is without jurisdiction and, therefore, non-est in the eyes of law. On this premise, it is urged that once the period of 180 days of petitioner‟s custody had expired, he was entitled to be enlarged on default bail, particularly when he had made an application for grant of such relief before the Designated Court under NIA Act as the investigating agency had failed to file the challan against the petitioner upon the expiry of aforesaid statutory period of 180 days.”

On the other hand, the Bench then also brings out in para 7 that, “The petition has been resisted by the respondents by filing a reply thereto. In their reply, respondents, besides narrating the facts of the case, have contended that the petitioner has not only been booked for offences under UA(P) Act but he has also been booked for various other offences under NDPS Act, as such, the learned Additional Sessions Judge was well within his jurisdiction to extend the custody of the petitioner beyond 180 days in terms of Section 36-A of NDPS Act. It has been averred that the petitioner and co-accused are involved in serious offences relating to narco terrorism as they have links with anti-national elements residing across the border and during investigation of the case, commercial quantity of heroin along with a huge amount of cash has been seized from the possession of the petitioner and his associates. On the basis of these submissions, the respondents have sought dismissal of the petition.”

While taking the right stand, the Bench then thinks it apposite to first state in para 11 that, “Before determining the merits of rival contentions of learned counsel for the parties, we need to notice the relevant provisions governing remand of accused to custody as contained in UA(P) Act and NDPS Act.”

To be sure, the Bench then mentions in para 12 that, “Section 43-D of UA(P) Act provides for modified application of certain provisions of the Code. It reads as under:

“43D. Modified application of certain provisions of the Code.—(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and “cognizable case” as defined in that clause shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),—

(a) the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:—

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:

Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.”

(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that— (a) the reference in sub-section (1) thereof—

(i) to “the State Government” shall be construed as a reference to “the Central Government or the State Government.”;

(ii) to “order of the State Government” shall be construed as a reference to “order of the Central Government or the State Government, as the case may be”; and

(b) the reference in sub-section (2) thereof, to “the State Government” shall be construed as a reference to “the Central Government or the State Government, as the case may be”.

(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in subsections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.””

To state the ostensible, the Bench then brings out in para 13 that, “Clause (b) of sub-section (2) of Section 43D, as quoted above, provides that if it is not possible to complete the investigation within a period of 90 days, the Court, if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the period of 90 days, is empowered to extend the said period up to 180 days.”

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Truth be told, the Bench then specifies in para 14 that, “The ‘Court’ has been defined in Section 2(d) of the UA(P) Act to mean a criminal court having jurisdiction under the Code to try offences under the Act and includes a Special Court constituted under Section 11 or under Section 22 of the NIA Act, 2008.”

As is quite palpable, the Bench then specifies in para 15 that, “From this, it is clear that jurisdiction to extend detention of an accused beyond the period of 90 days in relation to a case where the accused is booked for offences under UA(P) Act, which is included in the Schedule appended to NIA Act, vests with Special Court constituted in terms of provisions of NIA Act.”

Quite rightly, the Bench then puts forth in para 16 that, “So far as the relevant provisions of NDPS Act are concerned, Section 36-A provides for modified application of certain provisions of Code of Criminal Procedure. It reads as under:

“36A. Offences triable by Special Courts.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973—

(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

Provided that in cases which are triable by the Special Court where such Magistrate considers—

(i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detention authorised by him,

that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to “Magistrate” in that section included also a reference to a “Special Court” constituted under section 36.

(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”:

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.”

As we can see, the Bench then observes in para 17 that, “From a perusal of the aforesaid provision it is clear that initially detention of a person, who is booked for an offence under NDPS Act, can be authorized by a Judicial Magistrate for a period not exceeding fifteen days and by an Executive Magistrate for a period not exceeding seven days, where-after, in the cases that are triable by a Special Court, the person detained has to be forwarded to the Special Court having the jurisdiction.”

Quite clearly, the Bench then holds in para 18 that, “Proviso to sub-section (4) of Section 36-A, as quoted above, gives jurisdiction to Special Court to extend the custody of a person who is accused of offences under NDPS Act beyond 180 days up to one year on the report of the Public Prosecutor indicating progress of the investigation and the specific reasons for detention of the accused beyond said period of 180 days.”

Be it noted, the Bench then observes in para 19 that, “Section 36-D of the NDPS Act provides for a situation where Special Courts in terms of Section 36 of the NDPS Act have not been constituted. Since in the Union Territory of Jammu and Kashmir, Special Courts have not been constituted, as such, the aforesaid provision assumes significance. The same is, therefore, required to be noticed. It reads as under:

“36D. Transitional provisions.—(1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989), which is triable by a Special Court shall, until a Special Court is constituted under section 36, notwithstanding anything contained in the Code of Criminal Procedure, 1973, be tried by a Court of Session.

(2) Where any proceedings in relation to any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (are pending before a Court of Session, then, notwithstanding anything contained in sub-section (1), such proceeding shall be heard and disposed of by the Court of Session:

Provided that nothing contained in this sub-section shall affect the power of the High Court under section 407 of the Code of Criminal Procedure, 1973 to transfer any case or class of cases taken cognizance by a Court of Session under sub-section (1).””

As a corollary, the Bench then points out in para 20 that, “From a perusal of the aforesaid provision it becomes clear that every offence under NDPS Act, which is triable by a Special Court, shall, until a Special Court is constituted, be tried by a Court of Session. The question arises whether a Sessions Court would exercise jurisdiction of a Special Court including the jurisdiction to remand the accused to custody during the investigation of the case and take cognizance of offences or would it only hold trial of the offences under NDPS Act as a Court of Session.”

Of course, the Bench then stipulates in para 21 that, “There are divergent opinions of various High Courts on the above issues. Delhi High Court and Punjab & Haryana High Court have taken a view that till Special Court under Section 36 of the NDPS Act is constituted, a Judicial Magistrate/Metropolitan Magistrate can give remand of accused beyond a period of fifteen days under Section 167(2) of the Code as he is empowered to exercise this power under Section 36A of the Act, meaning thereby that a Sessions Court, in cases relating to offences under NDPS Act, cannot exercise powers of a Special Court so far as the same relates to taking of cognizance of offences or remanding accused to custody during investigation of the case. A Full Bench of the Delhi High Court has taken the aforesaid view in the case of Rakesh Kumar vs. The State, 1994 CriLJ 1942. A Full Bench of Punjab and Haryana High Court has taken a similar view in the case of Janta Singh v. State of Punjab, 1996 CriLJ 1185.”

Quite the contrary, the Bench then postulates in para 22 that, “A contrary view on this issue has been taken by Bombay High Court in the case of Suryakant Ramdas and others vs. State of Maharashtra, 1990 (1) MhLj 124, by holding that the Court of Sessions shall have all the powers, duties and obligations which the Special Court has been given and that Sessions Judge was empowered to authorize detention as also to take cognizance of the offences and then proceed to trial by following the procedure prescribed under NDPS Act. A similar view has been taken by the High Court of Madras in P. R. Muthu v. State, 1992 (1) Crimes 1038 and High Court of Kerala In Re: State Circle Inspector of Excise and Ors., 1992 CriLJ 570 and In Re: An Accused, 1992(1) Crimes 1030.”

While then spelling out the right position, the Bench then envisages in para 23 that, “The controversy seems to have been set at rest by the Supreme Court in the case of Supreme Court Legal Aid Committee Representing Under trial Prisoners v. Union of India and others, (1994) SCC 731, by holding that on account of non-obstinate clause in Section in 36D(1)(a) of the NDPS Act, there would be no question of the Magistrate going through the exercise of committal proceedings in respect of the offences triable by the Court of Session in terms of Section 36D of the Act. Para 11 of the judgment is relevant to the context and the same is reproduced as under:

“11. Section 36 provides for the Constitution of Special Courts and Section 36A(l)(a) says that notwithstanding anything contained in the Code, all offences under the Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government. On a conjoint reading of these two provisions it becomes clear beyond my manner of doubt that once a Special Court (or more than one) has been constituted for an area or areas in which the offence has been committed, then notwithstanding anything contained in the Code, the Special Court alone will have jurisdiction and all other Courts exercising jurisdiction prior to the Constitution of the Special Courts will cease to have jurisdiction. Sub-section 36A(1)(a) and (d) which also begin with a non-obstante clause – notwithstanding anything contained in the Code – provide that a Special Court may, upon a perusal of the police report of the facts constituting an offence under the Act or upon a complaint made by an officer of the concerned Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. This is a provision which is analogous to Section 190 of the Code. It is dear from this provision that a Special Court may take cognizance of an offence without the accused being committed to it for trial. Section 36C makes the provisions of the Code applicable to proceedings before a Special Court, save as otherwise provided in the Act, and says that the Special Court shall be deemed to be a Court of Session. That brings us to Section 36D which is a transitional provision. Under Sub-section (1) of Section 36D any offence committed under the Act on or after the commencement of the Amendment Act, 1988, until a Special Court is constituted under Section 36, shall, notwithstanding anything contained in the Code, be tried by a Court of Session. The nonobstante clause in this provision makes it clear that until a Special Court is constituted under Section 36, the Court of Session shall try any offence committed on or after the commencement of the Amending Act and no other Court including the Magistrate’s Court will have jurisdiction to try an offence under the Act. Subsection (2) of Section 36D further provides that nothing in Sub-section (1) shall be construed to require the transfer to a Special Court of any proceeding in relation to an offence taken cognizance of by the Court of Session under Sub-section (1) and the same shall be continued, heard and decided by the latter Court. As we have pointed out earlier before this group of sections came to be introduced in the Act by the Amending Act 2 of 1989 with effect from 29th May, 1989, the offences under the Act were triable by different Courts under the Code depending on the punishments provided therefore. But after the introduction of this group of sections in the Act, the legislature, with a view to speeding up the trial provided for the Constitution of a Special Court and until such Court was constituted it provided by Sub-section (1) of Section 36B that the Court of Session will have jurisdiction to try any offence committed under the Act; the provisions in the Code notwithstanding. The effect of this provision is to vest jurisdiction in the Court of Session alone during the transitional period in respect of offences under the Act even where the punishment prescribed is three years or less. Ordinarily the Magistrate’s Court would have power to try the offence under the Code but by this provision the power is vested in the Court of Session alone and, therefore, the Courts of the Magistrate, 1st Class, Metropolitan Magistrates, Chief Judicial Magistrates and Chief Metropolitan Magistrates would cease to have jurisdiction. Sub-section (1) of Section 36A overrides the provisions of the Code. So, from the date of its introduction on the statute book the Magisterial Courts ceased to have jurisdiction or power to try any offence committed under the Act even if the punishment prescribed is three years or less since any the Court of Session is empowered to deal with such cases. There would, therefore, be no question of the Magistrate going through the exercise of committal proceedings as on account of the nonobstante clause in Section 36D(l)(a), all offences under the Act become triable only by the Court of Session till the Constitution of Special Courts and thereafter by the Special Court. Ordinarily, therefore, cases pending before the Court of Session by virtue of Section 36D(1) would be transferred to the Special Court, but Sub-section (2) of Section 36D carves out an exception in relation to an offence of which the Court of Session has already taken cognizance. Where the Court of Session has already taken cognizance under Sub-section (1) of Section 36D that Court will be entitled to hear and dispose of the case and will not be required to transfer the same to the Special Court of the area by virtue of the exception carved out by Sub-section (2) of Section 36D. On a conjoint reading of Sections 36, 36A to 36D, it seems clear to us that after the insertion of these provisions all offences under the Act have to be tried by the Special Court for the area constituted under Section 36. That is the thrust of Clause (a) of Sub-section (1) of Section 36A. But the legislature was aware that there may be a time-gap between the coming into force of these provisions w.e.f. 29th May, 1989 and the Constitution of a Special Court. This period which is a transitional period is taken care of by Section 36D of the Act. Under this provision during the transitional period offences committed under the Act would be tried by the Court of Session alone notwithstanding anything to the contrary contained in the Code. But once the Special Court is constituted under Section 36 that Court alone would have jurisdiction to try the offences under the Act save and except those in relation whereto the Sessions Court has already taken cognizance. It is not necessary to elaborate on when cognizance is understood to have been taken because that is fairly well- settled by a catena of decisions of this Court, vide decisions based on an interpretation of Section 190 of the Code. Also see para 7 of Kishan Singh v. State of Bihar.” (Emphasis supplied).”

What’s pretty clear is then stated in para 24 that, “From the afore-quoted observations of the Supreme Court, it is clear that until Special Courts in terms of Section 36 of the NDPS Act are constituted, a Court of Session will have jurisdiction not only to try the offences committed under the Act but it will also have jurisdiction to take cognizance of such offences without the necessity of going through the committal proceedings.”

For more clarity, the Bench then postulates in para 25 that, “The position is further clarified by the provisions contained in Section 36-C of the NDPS Act, which provide for application of Code of Criminal Procedure to the proceedings before a Special Court. It reads as under:

“36C. Application of Code to proceedings before a Special Court.—Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.”

It is worth noting that the Bench then lays bare in para 26 that, “From a perusal of the aforesaid provision, it is revealed that only those provisions of the Code would apply to the proceedings pertaining to offences triable by Special Court which are not inconsistent with the provisions of the NDPS Act. It further provides that a Special Court shall be deemed to be a Court of Session. Thus, during the transitional period when a Court of Session fills in the void created by non-constitution of Special Courts, it has to follow the same procedure as prescribed by the provisions contained in NDPS Act read with those provisions of the Cr. P. C, which are not inconsistent with the NDPS Act. The provisions of NDPS Act give jurisdiction to the Court competent to try the offences under the said Act i.e. Special Court to take cognizance of offence as an original court [Section 36A(1)(d)] and to exercise powers of a Magistrate under Section 167 of Cr. P. C [Section 36A(1)(c)]. As a necessary corollary to this, the Sessions Court, while exercising the jurisdiction of a competent court in the absence of a Special Court would also exercise the same powers and follow the same procedure as a Special Court constituted under the Act would do. This is clear from the non-obstinate clause appearing at the fag end of sub-section (1) of Section 36D of the Act. Therefore, the expression “be tried by a Court of Session” appearing in sub-section (1) of Section 36D of the Act has to be given a harmonious and wide construction so as to include within it the power to take cognizance of offences under the Act and to exercise all other ancillary powers of a Special Court.”

Furthermore, the Bench then states in para 27 that, “Once it is concluded that a Court of Session, during the transitional period until constitution of Special Courts, has jurisdiction to take cognizance of offences under the said Act, it can safely be stated that the said Court has also power to grant and extend the period of detention of an accused beyond fifteen days in accordance with the provisions contained in Section 36-A of the NDPS Act. Therefore, I would respectfully beg to differ with the view expressed by the Full Benches of Delhi High Court and Punjab & Haryana High Court and concur with the views expressed of the High Courts of Bombay, Madras and Kerala on this issue.”

No doubt, the Bench rightly observes in para 28 that, “Having held that with respect to the offences under UA(P) Act, the jurisdiction to grant and extend the period of remand vests with the Special Court constituted under NIA Act and jurisdiction to grant and extend remand beyond fifteen days in respect of the offences under NDPS Act vests with the Sessions Court having jurisdiction in the area concerned until a Special Court is constituted, let us now proceed to find an answer to the question of law that has arisen in the instant case.”

Simply put, the Bench then states in para 29 that, “There is no dispute to the fact the petitioner has been booked for various offences under UA(P) Act as well as NDPS Act. Both these legislations are special in nature and provide for constitution of Special Courts. The petitioner was initially booked only for the offences under NDPS Act and, accordingly, he was remanded to custody from time to time by the orders passed by the concerned Sessions Court. Once the offences under UA(P) Act were added, he was produced before the Special Court Designated under NIA Act, at Jammu and his remand in custody was extended by the said Court from time to time, which included the extension of his remand beyond 90 days up to 180 days.”

Quite significantly, the Bench then notes in para 30 that, “It is required to be noticed here that Special Court Designated [3 rd Additional District and Sessions Court (TADA/POTA)] under NIA Act at Jammu is basically a Sessions Court and by virtue of SRO 149 dated 1st of March, 2019, issued by erstwhile Government of Jammu and Kashmir in terms of Section 22 of NIA Act, it has been designated as a Special Court for trial of Scheduled offices investigated by the State police. So the said Court is not only competent to grant remand in respect of the offences under UA(P) Act but it is also vested with jurisdiction to remand accused to custody in respect of the offences under NDPS Act. Thus, no difficulty is posed so far as remand of petitioner to custody by the said Court up to the expiry of 180 days is concerned. Even otherwise, Section 14 of the NIA Act vests jurisdiction with a Special Court to try any other offence while trying offences under UA(P) Act.”

Quite forthrightly, the Bench then specifies in para 31 that, “Section 43-D of the UA(P) Act does not provide for extension of custody of an accused beyond 180 days. Since the investigating agency, in order to complete the investigation, required further custody of the petitioner, as such, it availed the option of seeking further custody of the accused in respect of the offences under NDPS Act, as Section 36A of the said Act makes a provision for extension of custody of an accused beyond 180 days up to one year. The Investigating Agency, accordingly, made an application before Principle Sessions Judge, Jammu. It is clearly indicated in the said application that the Investigating Agency has sought extension of period of custody of the petitioner in connection with investigation of offences under NDPS Act. The Court of 3rd Additional Sessions Judge, Jammu (Special Court under NIA Act) being a Sessions Court, was also competent to adjudicate upon the aforesaid application of the investigating agency but it seems that the application was assigned by Principle Sessions Judge, Jammu, to Additional Sessions Judge, Jammu. As already held, a Sessions Court having jurisdiction in the area concerned has the power to grant and extend the period of custody in a case relating to offences under NDPS Act, as such, there was no legal bar or impediment for the Court of Additional Sessions Judge, Jammu, to entertain and decide the said application. It is so because the accused including the petitioner, were not only facing investigation for offences under UA(P) Act but they were also being investigated for offences under NDPS Act, as a result of which, the Investigating Agency was entitled to seek custody of the accused beyond 180 days subject to fulfillment of conditions laid down in proviso to sub-section (4) of Section 36A of NDPS Act. The ratio laid down by the Supreme Court in Bikramjit Singh’s case (supra) is, therefore, not applicable to the facts of the instant case.”

Due to the aforesaid, the Bench then holds in para 32 that, “For the foregoing reasons, the answer to the legal question formulated in para (1) of this judgment has to be in negative. Accordingly, it is held that in a case where an accused is facing investigation for offences under UA(P) Act together with offences under NDPS Act, concerned Sessions Judge, until a Special Court under Section 36 of NDPS Act is constituted, is vested with jurisdiction to extend the custody of such an accused beyond the period of 180 days subject to fulfillment of the conditions mentioned in proviso to sub-section (4) of Section 36A of NDPS Act.”

It cannot be glossed over that the Bench then stipulates in para 34 that, “So far as proviso to sub-section (4) of Section 36-A of the NDPS Act is concerned, it lays down that if it is not possible to complete the investigation within 180 days, the custody of an accused alleged to have committed offences under NDPS Act can be extended up to one year subject to the following conditions:

(1) there has to be a report of the Public Prosecutor indicating the progress of investigation;

(2) Specific reasons for detention of accused beyond the period of 180 days have to be spelled out.”

Significantly, the Bench then holds in para 36 that, “Learned Additional Sessions Judge, Jammu, has, after taking note of the progress of investigation as indicated in the application of the Investigating Agency and after perusal of the case diary, recorded the reasons for extending custody of the accused including that of the petitioner beyond the period of 180 days. The order has been passed in presence of the accused including the petitioner and, as such, a separate notice was not required to be issued to the petitioner. Thus, I do not find any infirmity or illegality in the impugned order passed by the learned Additional Sessions Judge, Jammu, and the same does not call for any interference by this Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure or in exercise of its revisional jurisdiction.”

In view of the aforesaid, the Bench then holds in para 37 that, “For the foregoing discussion, I do not find any merit in this petition, the same is, accordingly, dismissed.”

It cannot be glossed over that the Bench then minces no words to say upfront in para 38 that, “Before parting, this Court expresses its anguish and dismay for the manner in which the successive governments of erstwhile State of Jammu and Kashmir and Union Territory of Jammu and Kashmir have dragged their feet on constitution and setting up of Special Courts in terms of Section 36 of NDPS Act in this part of the Country. This state of affairs is continuing despite the lapse of more than three decades from the date of enactment of NDPS Act. There is high pendency of cases relating to offences under NDPS Act in the Union Territory and in the absence of Special Courts, these cases are being tried by ordinary Sessions Courts thereby resulting in delay in disposal of these cases. Thus, the very object of the Act is getting defeated.”

Adding more to it, the Bench then hastens to add in para 39 that, “Taking note of the above situation, the Supreme Court has, in the case of Thana Singh vs. Central Bureau of Narcotics, (2013) 2 SCC 590, issued directions to a few States including the State of Jammu and Kashmir to set up Special Courts. Para 15 of the judgment is relevant to the context and the same is reproduced as under:

“15.Therefore, we issue the following directions in this regard:

15.1. Each state, in consultation with the High Court, particularly the states of Uttar Pradesh, West Bengal and Jammu & Kashmir (where the pendency of cases over five years is stated to be high), is directed to establish Special Courts which would deal exclusively with offences under the NDPS Act.

15.2. The number of these courts must be proportionate to, and sufficient for, handling the volume of pending cases in the State.

15.3. Till exclusive courts for the purpose of disposing of NDPS cases under the NDPS Act are established, these cases will be prioritized over all other matters; after the setting up of the special courts for NDPS cases, only after the clearance of matters under the NDPS Act will an NDPS court be permitted to take up any other matter.” (Emphasis supplied)

Even the aforesaid directions of the Supreme Court seem to have fallen on deaf ears of the authorities and the same have been unable to wake up the authorities from the deep slumber.”

What’s more, the Bench then bluntly states in para 40 that, “It is high time that the concerned authorities of the Government of Union Territory of J&K, take immediate steps to set up Special Courts in the Union Territory in consultation with the High Court so that object of speedy disposal of cases relating to offences under NDPS Act is fulfilled and the directions of the Supreme Court are complied with in the right earnest.”

Finally, the Bench then holds in para 41 that, “Copies of this judgment be placed before the Chief Secretary of the Government of Union Territory of J&K, and the Registrar General of the High Court of J&K, for taking immediate necessary steps in the matter.”

No doubt, the Single Judge Bench of Jammu and Kashmir High Court comprising of Justice Sanjay Dhar has stated the precise legal position and made it crystal clear that when a person is charged both under provisions of the Unlawful Activities Prevention Act (UAPA) and the Narcotics Drugs and Psychotropic Substances Act (NDPS), further custody beyond the period of 180 days (prescribed under UAPA) may be granted under Section 36A of the NDPS Act. Justice Sanjay has cited the right reasons as also the relevant case laws and the relevant provisions to back its judgment! Very rightly so!

Sanjeev Sirohi, Advocate,

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Legally Speaking

Not permitting mentally challenged rape victim to undergo medical termination of unwarranted pregnancy violative of her bodily integrity, says Madhya Pradesh HC

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In a well-written, well-articulated, well-reasoned and well-substantiated judgment titled X vs State of Madhya Pradesh and others in Writ Petition No. 12155/2021 that was delivered just recently on July 14, 2021, the Madhya Pradesh High Court has recently, rightly and remarkably observed that not permitting a rape victim, suffering from severe mental problems, to undergo Medical Termination of unwarranted pregnancy would be violative of her bodily integrity which would not only aggravate her mental trauma but would also have devastating effect on her overall health including on psychological and mental aspects. This was held so while allowing medical termination of pregnancy of 23 year old rape victim survivor whose mental age was found to be that of minor, being only 6 years. It was a Division Bench of Madhya Pradesh high Court comprising of Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla who pronounced this brief, brilliant, bold and balanced judgment.

To start with, this latest, learned, laudable and landmark judgment authored by Chief Justice Mohammad Rafiq for himself and Justice Vijay Kumar Shukla of Madhya Pradesh High Court sets the ball rolling by first and foremost observing in para 1 that, “This writ petition has been filed by praying for a direction to the respondents to allow her daughter (hereinafter referred to as “Victim-A”) to undergo medical termination of pregnancy at the State expense. The petitioner has also challenged the constitutional validity of Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (for short “the MTP Act”) to the extent it stipulates a ceiling of 24 weeks for medical termination of pregnancy with the prayer the same be declared as ultra virus Article 14 and 21 of the Constitution of India. The petitioner has also challenged the order dated 6.7.2021 passed by the Third Additional Sessions Judge, Hoshangabad in MJC-R No.207/2021 rejecting application of the petitioner for permission to terminate pregnancy of Victim-A.”

While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “The petitioner is resident of Village Baagratwa, Tehsil Babai, District Hoshangabad of State of Madhya Pradesh. She belongs to Scheduled Tribe community. She is wholly illiterate, living below poverty line. She does not have any moveable or immoveable property. According to the petitioner, she and her husband work as a labourer. Her daughter Victim-A is aged about 23 years and she is mentally retarded. The petitioner and her husband left their village for Ujjain for earning livelihood by doing labour work. When they returned back after some time, the petitioner found that her daughter Victim-A was behaving in a peculiar manner. Their daughter Victim-A informed them in sign language about certain stomach pain. On making further enquiry, she learnt that one of her neighbours had committed rape upon her. She immediately took her to the doctor, who found that she was pregnant. The petitioner lodged a First Information Report with the Police Station Babai. District Hoshangabad, which has been registered for offence under Section 376(2)(1) of the IPC as Crime No.301/2021. The accused was arrested on 20.6.2021. The police got Victim-A medically examined and also obtained the medical report about her mental health. Victim-A was thereafter sent for further medical examination on 22.6.2021, upon which it was confirmed that she was carrying pregnancy of 22 weeks. The petitioner immediately filed an application under Section 3 of the MTP Act on 30.6.2021 before the Judicial Magistrate First Class, Hoshangabad, seeking permission for termination of her pregnancy, who rejected the same on 2.7.2021. Since 3 rd and 4th July, 2021, being Saturday and Sunday, were holidays, the petitioner filed application under Section 3 of the MTP Act with the same prayer before the Third Additional Sessions Judge, Hoshangabad on 5.7.2021, which was registered as MJC-R No.207/2021. The same was however rejected on the very next working day i.e. 6.7.2021 under the ignorance about the latest law whereby maximum length of pregnancy under Section 3(2)(b) of the Act, which was earlier 20 weeks, was raised to 24 weeks by amendment to that effect by the Act 8 of 2021 published in the Gazette of Government of India on 25.3.2021.”

To be sure, the Bench then after observing in para 7 that, “We have given our anxious consideration to rival submissions, perused the material on record and studied the cited precedents.” then goes on to hold in para 8 that, “A perusal of the afore-quoted opinion of the Medical Board in condition no.1 indicates that the survivor is a case of severe mental retardation with behavioral problems. Mental age of the survivor is approximately 6 years. She is unable to take care of herself and therefore, obviously she will not be in a position to take care of the baby, if she delivers the one. In conclusion no.2 of the aforesaid opinion of the Medical Board, the victim-A is opined to be a single live intrauterine fetus of gestational age by USG is 25 week 5 days +/- 2 weeks with the possibility of age being either less or more by 2 weeks, which is indicated by “+/- of 2 weeks”. This is also the opinion given by the Radiologist. We have to therefore now examine whether in the facts like these, this Court would be justified in refusing to grant permission for medical termination of the pregnancy on the law available on the subject.”

It would be instructive to mention here that the Bench then points out in para 9 that, “Section 3 of the MTP Act is relevant for the purpose of deciding the present case, which reads as under:-

“Section 3. When pregnancies may be terminated by registered medical practitioners.-

(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks, in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are of the opinion, formed in good faith, that,-

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health ; or

(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

Explanation 1.- For the purposes of Clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2.- For the purposes of Clause (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

(2-A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.

(2-B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.

(2-C) Every State Government or Union territory, as the case may be, shall by notification in the official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.

(2-D) The Medical Board shall consist of the following, namely-

(a) a Gynaecologist;

(b) a Paediatrician

(c) a Radiologist or Sonologist; and

(d) Such other number of members as may be notified in the Official Gazette by the State Government or Union Territory, as the case may be.

(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.””

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Be it noted, the Bench then found it quite strange as is mentioned in para 10 that, “It is indeed surprising that the Third Additional Sessions Judge, Hoshangabad relied on unamended Section 3 of the MTP Act rather than considering the amended provision, which has now increased the permissible outer limit for termination of pregnancy from 20 weeks to 24 weeks. This means that if the law was correctly read and applied by him, the permission of medical termination of the pregnancy could have been granted as the period of 24 weeks had yet not passed on the date the said Court was approached. Be that as may be, Section 3(2)(b), which is relevant for deciding the medical termination of pregnancy, inter alia provides that subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are of the opinion, formed in good faith that; (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality. The first Explanation thereto relates to Clause (a), which provides that where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. This Explanation may not be relevant for deciding the present case, but the second Explanation of Section 3(2) would in the facts of the present case have bearing on the interpretation of Section 3(2)(i) of the MTP Act, which stipulates that where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. (emphasis supplied).”

To put things in perspective, the Bench then envisages in para 11 that, “Admittedly, in the present case, the Victim-A, daughter of the petitioner, was subjected to rape and according to experts, her mental age is only 6 years and therefore, regardless of her biological age, the consent for sexual intercourse in her case would be irrelevant. The First Information Report was lodged by her mother for the offence of Section 376(2)(1) of the IPC against the accused with the Police Station Babai, District Hoshangabad in Crime No.301/2021. This therefore would bring the case of her daughter within the purview of Explanation (2) which provides that the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman, who in this case is Victim-A. Moreover, what is peculiar about this case is that the Medical Board itself has opined that duration of pregnancy is variable by two weeks. The victim is unable to take care of self, her hygiene is poor, her intellectual abilities are poor, her mental age is only 6 years and therefore, obviously she will not be in a position to take care of the baby, even if she delivers it.”

As it turned out, the Bench then observes in para 12 that, “This Court is cognizant of the fact that the Victim-A is mentally retarded, and her mental age having been adjudged by the experts to be only 6 years, therefore, all the steps on her behalf could be and were in fact taken by her mother, who is her natural guardian. She immediately filed an application before the Court of JMFC, Hoshangabad on 30.6.2021 which was rejected on 2.7.2021 and thereafter, immediately on the very first next working day i.e. on 5.7.2021, she filed the application before the Third Additional Sessions Judge, who being ignorant of the amended provision, which came into effect from 25.3.2021, rejected the same under the misconception that the outer limit for grant of permission of medical termination of pregnancy was 20 weeks and not 24 weeks. Sub-section (4) of Section 3 requires consent of the guardian of a minor, or a major who is mentally ill person. The exceptions to this rule of consent have been given in Section 3(4)(a) of the MTP Act, which provides that when the pregnant woman is below eighteen years of age or is a “mentally ill” person, then consent of her guardian would have to be obtained. Since in the present case the mental age of the Victim-A was determined approximately 6 years, her pregnancy can be medically terminated with the consent of the guardian who is actually natural mother of Victim-A. The permission/consent has to be therefore necessarily assumed.”

While citing the relevant case laws, the Bench then observes in para 13 that, “In Murugan Nayakkar (supra), the petitioner, who was 13 years of age, was a victim of alleged rape and sexual abuse. She preferred a writ petition for termination of her pregnancy. The Medical Board opined that termination of pregnancy at this stage or delivery at term will both have equal risk to the mother. The Supreme Court held that considering the age of the petitioner, trauma which she prima facie suffered due to sexual abuse and the agony she is going through at the present, it would be appropriate to allow termination of pregnancy. In Tapasya Umesh Pisal Vs. Union of India and others (supra), the victim, who was 24 years old, was seeking permission to undergo medical termination of the pregnancy, which had progressed to 24 weeks. The Supreme Court held that it is difficult to refuse the permission to the petitioner to undergo medical termination of pregnancy as it is certain that if the foetus is allowed to be born it would have a limited life span with serious handicaps which cannot be avoided. In Kalpana Singh vs. Government of NCT of Delhi & others (supra), the victim had pregnancy of 25 weeks and 5 days, which was permitted to be terminated medically.”

Adding more to it, the Bench then while citing a landmark case observes in para 14 that, “The Supreme Court in Suchita Srivastava and Another Vs. Chandigarh Administration reported in (2009) 9 SCC 1, held that there is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. Reproductive rights include a woman’s entitlement to carry pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women, there is also a “compelling State interest” in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices. The Lordship further held that ordinarily a pregnancy can be terminated only when a medical practitioner is satisfied that a “continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”. The Explanations to Section 3 however also contemplate termination of pregnancy when the same is the result of a rape or a failure of birth control methods since both of these eventualities have been equated with a “grave injury to the mental health” of a woman.”

Furthermore, the Bench then observes in para 15 that, “This Court in Writ Petition No.20961/2017-Sundarlal Vs. The State of M.P. & others, decided on 6.12.2017, was dealing with the case of minor daughter of the petitioner, who was kidnapped and a First Information Report at his instance was registered under Sections 363, 366, 376 of the IPC read with Section 4 and 6 of the Protection of Children From Sexual Offences Act, 2012 against the accused. The police secured the custody of the minor daughter of the petitioner, who was handed over to the petitioner. On medical examination, she was found to be carrying pregnancy of about 16 weeks. The petitioner being guardian gave consent for termination of the pregnancy of his minor daughter. This Court while directing constitution of a committee of three medical practitioners to form bonafide opinion as to termination of pregnancy and retention of DNA sample of fetus and providing all medical assistance and care to the victim observed as under:-

“12. In Explanation I, the law makers made it clear that where pregnancy is alleged by victim because of rape, a presumption can be drawn that such pregnancy constitute a grave injury to the mental health of pregnant woman. In the present case, this is not in dispute that victim is a minor and petitioner is praying for termination of pregnancy because her daughter is a rape victim. This court in Hallo Bi (supra) (Hallo Bi @ Halima Vs. State of M.P. & others 2013 (1) MPHT 451) opined that we cannot force a victim of violent rape/forced sex to give birth to a child of a rapist. The anguish and the humiliation which the victim is suffering daily, will certainly cause a grave injury to her mental health. Not only this, the child will also suffer mental anguish in case the lady gives birth to a child.””

Going ahead, the Bench then observes in para 16 that, “The Rajasthan High Court in Victim (A) Vs. State of Rajasthan & others, S.B.Criminal Writ Petition No.148/2020, decided on 26.2.2020, was dealing with the case where the Medical Board had opined the age of the fetus to be 23 +/- 2 weeks. Relying on the decision of the Supreme Court in Meera Santosh Pal & others Vs. Union of India & others (2017) 3 SCC 462, where permission was granted for termination of pregnancy of a term of 24 weeks and another judgment of the same High Court in Nisha Vaishnav Vs. State of Rajasthan S.B. Civil Writ Petition No.1271/2019, decided on 29.1.2019, the High Court allowed termination of pregnancy, in view of aforesaid Explanation (2) to Section 3(2) of the MTP Act as it was a case where a minor victim was subjected to rape and held that anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the petitioner.”

As we see, the Bench then observes in para 17 that, “In ABC Vs. State of Chhattisgarh & others, Writ Petition (C) No.2294/2021, vide judgment dated 25.06.2021, the High Court of Chhattisgarh dealing in a case of rape victim bearing pregnancy of 14 weeks and 3 days, relying on the judgment of Supreme Court in Meera Santosh Pal (supra) permitted the termination of pregnancy, holding thus:

“8. The explanation clause of Section 3 of MTP Act takes within its ambit not only the physical injury but also to mental injury and anguish. It is obvious that if the victim is subjected to rape and if she is forced to give birth to a child in the social scenario she has to face a life time anguish apart from the fact the child who is born will also have to face disdain of the society. Under the circumstances, it is directed that the petitioner shall be entitled to Medical termination of pregnancy. In order to carry out the pregnancy State shall form a panel of expert doctors at the District Hospital Durg as early as possible. The hospital shall take due care of the petitioner’s health and provide her all medical support. It is further directed that the DNA of the child shall also be preserved considering the fact that the victim has already lodged a report under Section 373 which will eventually be required at a future date. The petitioner is directed to appear at District Hospital Durg on Wednesday i.e. 23.06.2021.””

Moving on, the Bench then brings out in para 18 that, “The Bombay High Court in X Vs. Union of India & others 2018 (2) Mh.L.J. 46, was dealing with a case of victim who was mentally retarded, deaf and dumb and her pregnancy was of 18-19 weeks. The case of the guardian before the Court, like in the present case, was that the victim was unable to take care of herself and therefore, she would not be able to take care of the fetus. The Court relying on the judgment of the Supreme Court in Suchita Srivastava (supra) held as under:-

“13. The crucial question here is whether permission can be granted to terminate the pregnancy of 22 weeks in this case. The victim in this case is deaf, dumb and mentally retarded; therefore, she is unable to make a choice on her own whether to terminate the pregnancy or to continue with it. She has no such intellectual capacity, therefore, her guardian should be given that right to make choice. This case is also required to be considered from the physical point of view of the victim. Victim is deaf, dumb and mentally retarded. She is unable to take any decision. In fact, she is not even aware that she has been raped and she is pregnant. It has been stated by her guardian and brother that she is not even able to take care of herself. Question therefore arises under such circumstance as to how she would take care of child to be borne? It has been stated in the medical certificate that “On Paediatrics examination, survivor has gross development delay with Down Syndrome”. If we consider “Down Syndrome”, it means “is a genetic disorder caused by the presence of all or part of a third copy of chromosome”. It is typically associated with physical growth delays, characteristic facial features and mild to moderate intellectual disability. The medical literature would show that there is no cure to the “down syndrome”. No doubt, a person with down syndrome may lead a normal life, but in the present case, when the victim is unable to take care of herself, there is every possibility that she will not be able to take care of the foetus. Though the certificate states that the risk of termination of pregnancy is within normal acceptable limits; it would be hazardous to ask her to bear the pregnancy. It is not only dangerous to her, but dangerous to the unborn child also. Apart from danger to the life of the petitioner, this Court has to take note of the psychological trauma the petitioner is undergoing as a result of carrying unwanted pregnancy. The pregnancy of the petitioner is definitely unwanted for her and it is violative of her personal liberty. Since she is unable to take decision due to intellectual disability, her guardian is taking the said decision, which is in the best interest of the victim and her survival. In the circumstances, we do not notice any impediment in permitting petitioner to terminate unwanted pregnancy.” (emphasis supplied).”

Yet while mentioning another case law, the Bench then states in para 19 that, “In Z Vs. State of Bihar and others (2018) 11 SCC 572, the Supreme Court was dealing with a case of mentally retarded rape victim, who was found to be pregnant and was also HIV positive. The issue before the High Court was whether medical termination of pregnancy should be permitted. The High Court having relied on doctrine of “parens patriae” and “compelling State interest” declined medical termination of pregnancy, which had advanced in 23-24 weeks. The Supreme Court on detailed analysis reversed the verdict of the High Court. Explanation 2 to Section 3(2)(b), which has been relied by the learned counsel for the petitioner, was at that time Explanation 1, which provided that where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the same has to be presumed to constitute a grave injury to the mental health of the pregnant woman. The Supreme Court held that once such a statutory presumption is provided, the same comes within the compartment of grave injury to mental health of the victim. Following observations made by the Supreme Court in paras 23 are worth quoting:-

“23. We have already anlaysed in detail the factual score and the approach of the High Court. We do not have the slightest hesitation in saying that the approach of the High Court is completely erroneous. The report submitted by the IGIMS stated that termination of pregnancy may need major surgical procedure along with subsequent consequences such as bleeding, sepsis and anesthesia hazards, but there was no opinion that the termination could not be carried out and it was risky to the life of the appellant. There should have been a query in this regard by the High Court which it did not do. That apart, the report shows that the appellant, who was a writ petitioner before the High Court, was suffering from mild mental retardation and she was on medications and her condition was stable and she would require long term psychiatry treatment. The Medical Board has not stated that she was suffering from any kind of mental illness. The appellant was thirty-five years old at that time. She was a major. She was able to allege that she had been raped and that she wanted to terminate her pregnancy. PMCH, as we find, is definitely a place where pregnancy can be terminated.””

As if this is not enough, the Bench then further adds in para 20 that, “The Division Bench of Bombay High Court in a case on its own motion in XYZ Vs. Union of India and others, 2019 SCC OnLine Bom 560=(2019) 3 Bom CR 400 held that a woman’s decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child. These are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health. The Division Bench referred to certain international treaties concerning human rights. In that context, the Division Bench observed that the pregnancy takes place within the body of a woman and has profound effects on her health, mental well being and life. Thus, how she wants to deal with this pregnancy must be a decision she and she alone can make. The right to control her own body and fertility and motherhood choices should be left to the women alone. The basic right of a woman is the right to autonomy, which includes the right to decide whether or not to get pregnant and stay pregnant.”

It is worth noting that the Bench then observes in para 21 that, “While dealing with Explanation 1 of Section 3(2) of the MTP Act, which after amendment is now Explanation 2, the Bombay High Court in the above case observed that this Explanation expands the concept of “grave injury to mental health” by raising a presumption that anguish caused by any pregnancy as a result of rape shall be presumed to constitute a grave injury to the mental health of a pregnant woman. In fact, the Explanation states that where pregnancy is alleged by a pregnant woman to have been caused by rape, anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of a pregnant woman. Therefore, for the purposes of Section 3(2) of the MTP Act, the expression “grave injury to mental health”, is used in a liberal sense by the legislature itself and further Section 3(3) of the MTP Act, in terms provides that in determining whether continuance of pregnancy would involve such risk of injury to the health as is mentioned in Section 3(2), account may be taken of the pregnant woman’s actual or reasonable foreseeable environment. Section 3(3) of the MTP Act, makes reference not merely to physical injury but also to mental injury. In fact, the aspect of a pregnant woman’s actual or reasonable foreseeable environment has greater nexus to aspect of mental health as compared to physical health, particularly in the present context. This legislative liberality when it comes to expanding the concept of the grave injury to mental health cannot evaporate no sooner the ceiling of 24 weeks prescribed in Section 3(2)(b) of the MTP Act is crossed. If the expression “life” in Section 5(1) of the MTP Act is not to be confined to mere physical existence or survival, then, permission will have to be granted under section 5(1) of the MTP Act for medical termination of pregnancy which may have exceeded 24 weeks, if the continuance of such pregnancy would involve grave injury to the mental health of the pregnant woman.”

Most significantly, the Bench then most commendably holds in para 22 that, “Curial question that we posed to ourselves at the beginning of this judgment still is whether this Court in the facts of the present case, would be justified in refusing to permit medical termination of pregnancy? According to Medical Board, the victim has history of delayed milestone, poor understanding, poor self-care, inabilities to speak, drooling of saliva since childhood. The Medical Board further opined that on examination, it was found that patient is unable to take care of self, her hygiene is very poor and her intellectual abilities are poor. In view of these factors, patient was opined to suffer from SEVERE MENTAL RETARDATION WITH BEHAVIORAL PROBLEMS. The Medical Board was further of the view that mental age of the victim is that of a minor, being only 6 years. According to them, she is unable to take care of herself and, therefore, she would not be able to take care of the fetus. In our considered view, in a situation like this, it would be hazardous to allow her to continue with the pregnancy till full duration. It may even be more dangerous to the unborn child too. In facts like these, this Court cannot lose sight of the psychological trauma the victim would have to undergo all this time. She being not in a position to take a decision due to her intellectual deficiency, decision of her guardian to consent for termination of unwanted pregnancy has to be accepted as a move in her best interest. Not permitting the rape victim in the present case to go in for medical termination of unwanted pregnancy would amount to compelling her to continue to bear such pregnancy for full duration and deliver the child, which would be violative of her bodily integrity, which would not only aggravate her mental trauma but would also have devastating effect on her overall health including on psychological and mental aspects. This is violative of her personal liberty, to borrow the words of the Supreme Court in Suchita Srivastava (supra), (para 22) because “a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India”. In the peculiar facts of the case, her personal integrity has to be respected.”

For the sake of clarity, the Bench then notes in para 23 that, “Explanation 2 to Section 3(2) of the MTP Act has expanded the scope of “grave injury to mental health” by raising a presumption that “the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman”. “Such pregnancy” here refers to pregnancy “alleged to have been caused by rape”. Thus, the legislature has by providing for raising such presumption rather expanded the meaning of the expression “grave injury to mental health” of the rape victim for deciding whether it would constitute a grave risk to the mental health of the pregnant woman in the meaning of Section 3(2)(i) of the MTP Act. The Court would also be entitled to reasonably visualise the environment in which the victim will have to live in immediate foreseeable future to decide the question of her mental health.”

As a corollary, the Bench then holds in para 24 that, “In view of the above discussion, the present writ petition seeking permission for medical termination of pregnancy of the Victim-A, daughter of the petitioner, is allowed. She shall be produced before the Medical Superintendent, Hamidia Hospital, Bhopal by tomorrow, who is directed to ensure the medical termination of the pregnancy of Victim-A under the supervision of the experts at the earliest by taking all the precautions. The Superintendent of Police, Hoshangabad shall arrange for transportation of the Victim-A along with her parents to Hamidia Hospital, Bhopal. It is further directed that DNA sample of the fetus shall be saved for the purposes of evidence to be led by the prosecution before the Court in the criminal case of rape registered in the matter. All expenses shall be borne by the State.”

It is then stated in para 25 that, “Since this Court was persuaded to allow the writ petition on applying provisions of Section 3(2)(i) read with its Explanation-2 to the facts of the case, the question of constitutional validity of Section 3(2)(ii) was left untouched.” Finally, the Bench then states in para 26 that, “The writ petition is accordingly disposed of.”

Overall, it is a very learned, laudable and landmark judgment by a Division Bench of Madhya Pradesh High Court comprising of Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla. It refers to latest and also relevant case laws like Z Vs. State of Bihar and others (2018) 11 SCC 572 Murugan Nayakkar Vs. Union of India & others (2017) SCC Online SC 1902 Meera Santosh Pal & others Vs. Union of India & others (2017) 3 SCC 462 Suchita Srivastava & Another Vs. Chandigarh Administration (2009) 9 SCC 1 Tapasya Umesh Pisal Vs. Union of India & others (2008) 12 SCC 57 XYZ Vs. Union of India & others, 2019 SCC OnLine Bom 560=(2019) 3 Bom CR 400 Kalpana Singh Vs. Government of NCT of Delhi & others, WP(C) No.115/2021 decided on 11.1.2021 Sundarlal Vs. The State of M.P. & others, W.P.No.20961/2017-decided on 6.12.2017 Victim (A) Vs. State of Rajasthan & others, S.B.Criminal W.P.No.148/2020, decided on 26.2.2020 ABC Vs. State of Chhattisgarh & others, W.P. (C) No.2294/2021 decided on 25.06.2021. A right decision was taken to protect the paramount interest of the mentally challenged rape victim and it was very rightly held that not permitting her to undergo medical termination of unwarranted pregnancy would be violative of her bodily integrity. Very rightly so!

Sanjeev Sirohi, Advocate

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Assam-Mizoram border violence: An analysis

Surya Pratap

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Six Assam police officers were killed on July 26 when an ancient boundary issue between Assam and Mizoram erupted in violent violence at a disputed border site. Residents of Assam and Mizoram battled twice in a week over territory in October last year, injuring at least eight people and torching a few homes and small shops. On the 26th of July, Home Minister Amit Shah intervened to restore order.

IN REGARD TO VIOLENCE

Unidentified persons set fire to eight vacant farm cottages near Aitlang stream on Sunday about 11:30 p.m., according to Mizoram deputy inspector general of police (northern range) Lalbiakthanga Khiangte. However, Assam police reported that unidentified protesters threw stones at them on Monday, injuring at least half a dozen of its employees in Cachar district. Locals also said that police officers from Assam were attacked with sticks and rods in Lailapur.

Mizoram Chief Minister Zoramthanga claimed that the Assam government had “intruded” into Mizoram’s territory and displayed “aggression.” “The Government of Mizoram wishes to address the inter-state border dispute with Assam in a peaceful and amicable manner.” Both of the northeastern states’ chief ministers had met.

DISPUTE THAT HAS BEEN GOING ON FOR A LONG TIME

This isn’t a one-time occurrence. It’s been a long-running feud for over a century. The 164.6-kilometer border between Assam and Mizoram is at the centre of the problem. Assam’s Cachar, Hailakandi, and Karimganj districts share a border with Mizoram’s Kolasib, Mamit, and Aizawl districts.

The Northeastern Areas (Reorganisation) Act of 1971 carved out three new states in the region, namely Manipur, Meghalaya, and Tripura, from Assam. The Union Territories of Mizoram and Arunachal Pradesh were also established.

THE HISTORY OF THE DISPUTE

Showdowns between Assam and Mizoram people are less common than, example, Assam and Nagaland residents in the intricate border equations of the Norteast. Despite this, the current 165-kilometer border between Assam and Mizoram comes from the colonial era, when Mizoram was known as Lushai Hills, an Assam region.

The controversy comes from two notifications: one from 1875 that distinguished the Lushai Hills from the Cachar plains, and another from 1933 that established a border between the Lishai Hills and Manipur. According to Mizoram, the boundary should be drawn according to the 1875 announcement. Mizo authorities have previously complained that Mizo society was not consulted when the demarcation was announced in 1933. The Assam administration adheres to the 1933 delineation, which was the source of contention.

Following the Mizo peace treaty struck between the Mizos and the Union government in 1987, Mizoram was proclaimed a state. While the 1933 agreement served as the foundation for the state, the Mizos insist on using the previous boundaries. Along the border, there have been regular conflicts.

DO ASSAM AND MIZORAM HAVE AN AGREEMENT?

Assam and Mizoram have struck an agreement under which the status quo in no-land, man’s or the border area, will be maintained. However, this hasn’t put an end to the squabbles. In 2020, the central government was forced to intervene to break a deadlock after border clashes resulted in an unofficial roadblock on Mizoram’s lifeline, National Highway 306.

Mizoram, a landlocked state, relies on this road to receive supplies from the rest of the country.

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Poverty can be addressed through healing touch of law: MP HC issues directions for implementation of poverty alleviation schemes

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In a well-written, well-articulated, well-reasoned and well substantiated judgment titled Omnarayan Sharma Vs State of MP & Ors in W.P. No. 1930/2020 (PIL) that was delivered on July 6, 2021, the Gwalior Bench of Madhya Pradesh High Court has issued directions to the District Legal Services Authorities and the State Authority for ensuring implementation of poverty alleviation schemes promulgated under provisions of Legal Services Authority Act, 1987 and NALSA (Effective Implementation of Poverty Alleviation Schemes) Scheme, 2015. It must be apprised here that a Division Bench of Madhya Pradesh High Court comprising of Justice Sheel Nagu and Justice Anand Pathak have observed thus:

“Poverty, which is a Problem (Social Evil) can be addressed through Law (with its healing touch) as its solution to achieve the ultimate destination of Development.” It also must be mentioned here that the remarks came in a petition against alleged corruption and illegality committed by state authorities in construction of toilets under Swachh Bharat Mission in Bhind District.

To start with, a Division Bench of Gwalior Bench of Madhya Pradesh High Court comprising of Justice Anand Pathak who has authored this learned, laudable, latest and landmark judgment for himself and Justice Sheel Nagu first and foremost points out in para 1 that, “The present petition under Article 226 of the Constitution of India has been preferred by the petitioner as Pro Bono Publico projecting himself to be a public spirited citizen and has raised the grievance regarding illegality and irregularity committed by the respondents, especially respondents No. 6 to 13 who according to petitioner have not undertaken any enquiry over the complaint of petitioner regarding corruption / illegality committed in construction of toilets under Swachh Bharat Mission.”

To put things in perspective, the Division Bench then puts forth in para 3 that, “Precisely stated facts of the case are that on 31/12/2019, one Ramu Chaudhary, resident of village Etahar, District Bhind registered a complaint on Chief Minister Helpline Portal that Sarpanch, Secretary and other officers of the Gram Panchayat Ater, District Bhind have embezzled public fund in the name of construction of toilets but neither toilets have been constructed nor any amount for construction has been received by 93 beneficiaries. Despite making complaint by the petitioner on behalf of the beneficiaries to Collector, District Bhind no affirmative steps have been taken.”

While dwelling on the petitioner’s grievance, the Division Bench then enunciates in para 4 that, “It is the grievance of the petitioner that in other blocks of District Bhind also corruption and illegality have been conducted in construction of toilets under Swachh Bharat Mission. Petitioner placed the list of beneficiaries (94 in number) vide Annexure P/3, who did not receive the benefits of toilets nor any amount. Petitioner also referred the screen shot of app. (Pandit Deendayal Shram Seva App) to demonstrate that allegedly amount has been received by the beneficiaries but in fact bogus papers have been prepared and amount has been siphoned off.”

As we see, the Bench then puts forth in para 5 that, “Learned counsel for the respondents/State opposed the prayer and placed certain documents on record. It is the submission of learned counsel for the State that immediately after issuance of notice in this writ petition (on 27/8/2020), CEO, Zila Panchayat, Bhind vide order dated 14/1/2021 (Annexure R/1) constituted a committee to look into the complaint made by petitioner. He also

referred the show cause notice issued by same authority to then Panchayat Secretary, Gram Rojgar Sahayak and other Secretaries, who worked at the relevant point of time including the then Supervisor.

Therefore, as per respondents, enquiry is under process. Learned Government counsel assured this Court that due enquiry would be conducted and if any illegality or irregularity is found then same shall be taken care of earnestly and consequent action shall be taken as per enquiry report.”

Needless to say, after hearing learned counsel for the parties and perusing the record as stated in para 7, the Division Bench then lays bare in para 8 that, “This is a case by way of Pro Bone Publico; whereby, petitioner as public interest litigant raised the question of alleged illegality and corruption brewing in the Gram Panchayat Etahar, Tasil Ater, District Bhind regarding implementation of Swachh Bharat Mission Scheme, which is a flagship scheme of Government of India to solve problems of sanitation and waste management in India by ensuring hygiene across the country. Primary object of this scheme is to eliminate open defecation and improve solid waste management. In the challenging period of COVID-19 Pandemic cleanliness and public hygiene assumed much significance. Therefore, it is the solemn duty of the District and Local Administration as well as local self government to look into the effective implementation of this scheme.”

Simply put, the Division Bench then envisages in para 9 that, “National Legal Services Authority (NALSA) under the provisions of Legal Services Authorities Act, 1987 has framed certain schemes encompassing wide range of subjects and the compendium of the said schemes reflects one such scheme namely NALSA (Effective Implementation of Poverty Alleviation Schemes) Scheme, 2015. This scheme is built on the foundation that poverty is a multi dimensional experience and is not limited to the issues of income. Multi dimensional poverty includes issues like health (including

mental health), access to water, education, sanitation, subsidies and basic services, social exclusion, discrimination etc.”

Furthermore, the Division Bench then makes it clear in para 10 that, “Further, in identifying the specific scheme for implementation at the State and District Level, Legal Services Authorities as per NALSA are expected to be cognizant of the fact that various vulnerable and marginalized groups experience poverty in myriad and unique ways.”

Please read concluding on thedailyguardian.com

Be it noted, the Division Bench then points out in para 11 that, “To address this exigency faced by people the Scheme of 2015 as referred above has been conceptualized.

In the scheme, following topics have been discussed: Clause 4.-Objectives of the Scheme:-,

Clause 5.-Identification of Poverty Alleviation Schemes:-,

Clause 6.-Organization of Awareness Programmes:-,

Clause 7.- Legal Services Officers and Para-legal Volunteers:-,

1) Every District Authority and Taluka Legal Services Authority shall designate at least three panel lawyers as Legal Services Officers for

the purpose of this Scheme. 2) District Authorities shall constitute teams of PLVs under a Legal Services Officer to implement this Scheme and the Legal Services Officer will supervise and mentor the PLVs in his team to help the beneficiaries access the various schemes of the Govt.

3) District Authorities shall conduct specialised training programs for panel of lawyers, members working in legal services clinics, members of panchayats, law students and other para-legal volunteers to assist in the implementation of the Scheme, to sensitise them regarding the needs of persons belonging to socially and economically weaker sections and the benefits that they can avail through Poverty

Alleviation Schemes.

Clause 8.- Legal Assistance for Access to Poverty Alleviation Schemes

Legal assistance must be provided to all the Scheme Beneficiaries seeking access to Poverty Alleviation Schemes. Legal Services to be provided by Legal Services Officers or volunteers under this Scheme includes, inter alia:

1) Informing the Scheme Beneficiaries about each of the Poverty

Alleviation Scheme to which they are entitled, and the benefits

thereunder

2) Assisting the Scheme Beneficiary in procuring the documents

required for availing the benefits under any of the Poverty

Alleviation Scheme

3) Informing the Scheme Beneficiary of the name and address of the

designated authority or the officer to be approached for registration

under any of the Poverty Alleviation Schemes

4) Offering to send para-legal volunteers including from the legal

services clinics with Scheme Beneficiaries to the office of the

designated authority or the officer to be approached under any of the

Poverty Alleviation Schemes

5) Informing the Scheme Beneficiary of her option to register a

complaint with the Legal Services Officer or para-legal volunteer,

about any designated authority or officer under any of the Poverty

Alleviation Schemes who refuses to cooperate with the Scheme

Beneficiary in providing her access to the benefits that she is

entitled to under the Poverty Alleviation Scheme.

6) Maintaining a record of all the complaints received under sub-clause(5).

7) Providing Scheme Beneficiaries with the contact number, if

available, of the Legal Services Officer, and availability of the

Legal Services Officer on call during working hours for such Scheme

Beneficiaries to whom contact number is provided.

Clause 9.-Action by Legal Services Officers on complaints;

1) On receiving complaints under sub-clause (5) of clause 8, each

Legal Services Officer shall herself personally accompany the

Complainant Beneficiary to the office of the designated authority or

officer, and assist the Complainant Beneficiary in availing the

benefit that she is entitled to under the Poverty Alleviation Scheme.

2) In case the designated authority or officer fails to register the

Complainant Beneficiary in the Poverty Alleviation Scheme, the Legal

Services Officer shall submit a complaint to the District Authority.

The letter of complaint shall describe the conduct of the designated

authority or officer who refused to register the Complainant

Beneficiary under the Poverty Alleviation Scheme, and circumstances of

such refusal and whether refusal was despite submission of all

necessary documents.

Clause 10.- Action by District Authority and State Authority on complaints:-

1) On receiving a complaint regarding the designated authority or

officer, the District Authority shall seek a report from the concerned

officer regarding the reason for denying the benefits under the

Poverty Alleviation Scheme to the complainant Beneficiary. In the

event that sufficient reason is not provided by the concerned officer

for refusal to register the Complainant Beneficiary in the Poverty

Alleviation Scheme or to provide benefits under the Poverty

Alleviation Scheme, the District Authority shall immediately

communicate to the superior officer in the department the details of

the refusal to provide access to the Poverty Alleviation Scheme.

2) If the superior officer, in the opinion of the District Authority,

also withholds the benefits under the Poverty Alleviation Scheme

without sufficient cause, the District Authority shall then

communicate the same to the State Authority.

3) On receiving such communication from the District Authority, the

State Authority may choose to further pursue the matter with the

concerned department or file appropriate legal proceedings to ensure

that the Complainant Beneficiary receives the benefit under the

Poverty Alleviation Scheme.

4) The District Authority, through para-legal volunteers or legal

services clinics, shall provide regular updates to the Complainant

Beneficiary about the status of the complaint.

Clause 11.-Evaluation of the Scheme:-

1)Every Legal Services Officer shall follow-up with each Scheme

Beneficiary who sought legal assistance under this Scheme and record:

a. if such person was able to register under the Poverty Alleviation

Scheme sought to be registered under and whether such benefits were

being received

b. any grievances experienced by the Scheme Beneficiaries in getting

registered and availing benefits under the various Poverty Alleviation

Schemes.

2) The District Authority shall compile the observations made under

sub-clause (1) for all the Legal Services Officers working under the

Scheme in the district and shall send a copy of such observations in a

complied document to the State Authority every six months.

3) The State Authority shall consolidate the compiled documents

received from all the District Authorities under sub-clause (2) and

hold a meeting every 6 months to review the functioning and

effectiveness of this Scheme. The minutes of such meeting shall be

recorded and published as a public document.

4) If in the meeting under sub-clause (3) the State Authority finds a

substantive or procedural defect in any of the Poverty Alleviation

Schemes which makes seeking benefits under the scheme a problem for

the Scheme Beneficiaries, such defect must be brought to the notice of

the Central Government or the State Government as the case may be for

improving the specific Poverty Alleviation Scheme and / or its

effective implementation.””

To be sure, the Division Bench

then observes in para 12 that, “Perusal of the whole scheme indicates

that certain responsibilities have been bestowed upon the State and

District Legal Services Authorities to train the legal and para-legal

volunteers for providing legal assistance for giving access to

beneficiaries to Poverty Alleviation Scheme and to act upon the

complaints if the benefits have not been extended to him/her or if any

authority refuses to cooperate with the scheme beneficiaries in

providing access to the benefits.”

As it turned out, the Division

Bench then states in para 13 that, “As referred in the Scheme of 2015,

poverty is a multi dimensional experience and it includes basic

services including sanitation etc. and when a duty has been cast upon

Legal Services Authority as per the Legal Services Authority Act, 1987

and Scheme of 2015 then if any complaint is received by the Legal

Services Officer from complainant / Scheme Beneficiary then such

complaint like the present one can be taken care of by the District

Authority as per Clause (9), (10) and (11) of the Scheme of 2015 by

the District Authority and even by the State Authority.”

Quite damningly, the Division

Bench then minces no words to state in para 14 that, “It is being

experienced by this Court that many complaints come regarding poor

implementation, corruption and / or irregularities in Schemes like

MGNREGA and Swachh Bharat Mission regarding construction of toilets or

non-grant of amount to the beneficiaries for construction of toilets,

etc. and by way of Public Interest Litigation, people seek Continuing

Mandamus from this Court, whereas, provisions of Act of 1987 and

Scheme of 2015 are apparently also available to address such

problems.”

Notably, the Division Bench then brings

out in para 15 that, “Clause 10(3) of Scheme of 2015 gives option to

choose between the Persuasion (with the concerned Department) or

Petition (to file appropriate legal proceedings). Here, appropriate

legal proceedings may include complaint before the Lokayukt, if it

comes under the purview of said Authority or private complaint against

the erring persons or to file a Petition on behalf of complainant

under Article 226 of the Constitution of India as Public Interest

Litigation. It can club cause of more than one beneficiaries also.”

In the present context, the

Division Bench then brings out in para 16 that, “Recently, Ministry of

Panchayati Raj, Government of India has undertaken steps in respect of

Online Audit and Social Audit of 20% Gram Panchayats’ in every Janpad

Panchayat and therefore, it appears that Government also intends to

make these Institutions more accountable which are having direct

bearing over day to day welfare of people at large. In pursuance

thereof, a circular has also been issued by Panchayat Raj Directorate,

Madhya Pradesh, Bhopal dated 17/2/2021 to all CEOs of Zila Panchayats

/ Janpad Panchayats to organize camps in this regard.”

Of course, the Division Bench then hastens to

add in para 17 that, “State Authority may contemplate about

preparation of one Software and Mobile Application ( Mobile App.) for

keeping a tab over the complaints received and their outcome. This

Software / Mobile App. may coordinate amongst the concern departments

so that complaints received over the said application (App.) would be

displayed all over. Concerned stakeholders and State Authority /

District Authority would be in a better position to proceed as per the

spirit of Act of 1987 and Scheme of 2015. State Authority even has

power to make regulations as per Section 29-A of the Act 1987 to

provide for all matters for which provision is necessary or expedient

for the purposes of giving effect to the provisions of Act.”

Quite scandalously, the Division

Bench then puts forth in para 18 in simple, suave and straight

language that, “Here, in the case in hand, it appears that certain

beneficiaries allegedly did not receive the benefits under Swachh

Bharat Mission about construction of toilets. As per the allegations,

neither toilets have been constructed by the concern authorities nor

amount has been transferred in their accounts and it is the

allegations that amount of 93 beneficiaries (or may be 94) has been

siphoned off by Sarpanch / Panchayat Secretary / Gram Rojgar Sahayak

etc. Allegations are prima facie serious in nature.”

Quite categorically, the Division Bench then

puts forth in para 19 that, “This Court cannot go into the

authenticity or otherwise of the allegations at this juncture

especially when CEO, Zila Panchayat is seized of the matter vide show

cause notices issued to erring officers / authorities in this regard.

Therefore, at this juncture, any observation would pre-empt the

controversy. However, Collector and CEO, Zila Panchayat, Bhind are

directed to look into the allegations with utmost promptitude and role

of concerned Sarpanch, Panchayat Secretary, Gram Rojgar Sahayak,

Supervisor and any other person involved in the transaction / or

having any responsibility under the Swachh Bharat Mission Scheme

failed or acted mischievously be enquired into in accordance with law.

If any conclusion has not been drawn in the enquiry up till now then

enquiry be conducted expeditiously within two months from the date of

passing of this order and outcome of the enquiry be intimated to the

office of this Court and office shall place the matter under the

caption “Direction” for perusal of this Court and even if conclusion

is drawn then consequential follow up action be informed to office of

this Court.”

Significantly, the Division Bench then

directs in para 20 that, “Before parting, this Court feels it

appropriate to give direction to the District Legal Services Authority

to update the contents of different schemes promulgated under the

different provisions of Legal Services Authority Act, 1987 including

the Scheme in hand i.e. NALSA (Effective Implementation of Poverty

Alleviation Schemes) Scheme, 2015 and ensure that in their respective

jurisdiction (District) Poverty Alleviation Scheme especially Swachh

Bharat Mission Scheme and Mahatma Gandhi National Rural Employment

Guarantee Act, 2005 (MGNREGA), etc. are being properly executed and

intended beneficiaries get the benefits of the scheme and if any

authority refuses to cooperate with the beneficiary in providing him /

her access to the benefits that she is entitled to under any Poverty

Alleviation Scheme, then the responsible authority under District

Legal Services Authority (DALSA) shall proactively take care of the

situation by proceeding as per Clause 9, 10 and 11 of the Scheme,

2015.”

More significantly, the Division Bench then further directs in

para 21 that, “It is further expected from the Authority and its

Office Bearers that they shall constantly organize awareness

programmes as well as training programmes for Panel Lawyers / Legal

Volunteers / Para-legal Volunteers as the case may be in a

constructive and proactive manner. The training must sensitize the

volunteers / activists to the notion that they have to act as Healers

of the Society looking to the great responsibility bestowed upon them

of Poverty Alleviation. Poverty, which is a Problem (Social Evil) can

be addressed through Law (with its healing touch) as its solution to

achieve the ultimate destination of Development.”

Most significantly, the Division

Bench then also directs in para 22 that, “In view of aforesaid

discussion, this Court summarizes the following directions:-

(i) If, any complaint is received regarding inaction, inappropriate

execution, corruption or any matter related thereto which comes under

the purview of Legal Services Authority Act, 1987 and NALSA (Effective

Implementation of Poverty Alleviation Schemes) Scheme, 2015 then

District Legal Service Authority (DALSA) shall proactively take care

of the situation by proceeding as per Clause 9,10 and 11 of the Scheme

of 2015;;

(ii) State Authority / District Authority may file appropriate legal

proceedings as per Clause 10 (3) of Scheme of 2015 by way of complaint

before the Office of Lokayukt as per relevant provisions or may file

Private Complaint against the erring persons or may file a petition if

subject matter requires so by way of a Public Interest Litigation

under Article 226 of the Constitution of India;

(iii) State Authority is requested to contemplate for framing of

suitable regulations as per the provisions of Act of 1987, especially

under Section 29-A for effective implementation of different schemes

of Government of India / State Government fall under NALSA (Effective

Implementation of Poverty Alleviation Schemes) Scheme, 2015. A further

request is made to contemplate about preparation of a Software /

Mobile Application (Mobile App.) for keeping a tab over the complaints

received and their outcome; and

(iv) District Authority and its Office Bearers are expected to

regularly organize awareness / training programmes for Panel Lawyers /

Para-legal Volunteers in a constructive and proactive manner to

sensitize them with the notion that they have to act as Healers of the

Society, looking to the great responsibilities bestowed upon them.

Secretary, SALSA shall coordinate and guide all such awareness /

training programmes.

Moving on, the Division Bench then

holds in para 23 that, “Consequently, petition is disposed of with a

direction to the respondents especially Collector and CEO, Zila

Panchayat Bhind to look into the matter and complete the enquiry, if

not already completed within two months from the date of passing of

this order and if any person is found guilty then consequential follow

up action shall be ensured in accordance with law. If the enquiry is

already concluded then Collector and CEO are directed to place the

enquiry report before the office of this Court so that same can be

placed before this Court for perusal.”

On a final note, the Division Bench while disposing of the petition as stated in para 24 then holds

in para 25 that, “A copy of this order be sent to Principal Secretary,

Panchayat Raj, Government of Madhya Pradesh, Bhopal as well as to

Member Secretary, SALSA, Jabalpur for circulation to all District

Legal Service Authorities (DALSA) for sensitization and implementation

of the concept as referred above by this Court.”

It merits no reiteration that the District Legal Services Authorities and the State Authority must

comply with this brief, brilliant, bold and balanced judgment by a

Division Bench of Gwalior Bench of Madhya Pradesh High Court

comprising of Justice Anand Pathak and Justice Sheel Nagu so that

poverty can be addressed through healing touch of law as has been

directed also. All such measures if implemented honestly in letter and

spirit then it will certainly go a long way in emancipating the

‘poorest of the poor’ which is the crying need of the hour also! There

is no reason why they should not be implemented at the earliest. It

certainly brooks no more delay anymore!

Sanjeev Sirohi, Advocate,

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TWAIL: Historical approach to understanding international law

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INTRODUCTION

Today, the ‘Third World’ country is the term first used by Alfred Sauvy in 1952 which now has come to denote a country which can be categorized as a ‘developing’ country. However, the origins of this term can be traced to the World War/Cold War period when Third World signified the countries who were non-aligned; neither part of the ‘free world’ nor of the ‘communist world’. Scholars vouching for the Third World Approaches to International Law (TWAIL) have stressed on the importance of using the original terminology of ‘Third World Countries’. Global South is another term frequently used as a synonym for Third World countries. The terms North and South emerged during the 1970s but till today no strict definition thereby questioning geographical preciseness of this term.

The Asian-African Conference held in Bandung organised by Egypt, Indonesia, Burma, India, Pakistan, Sri Lanka in 1955 was where Indian PM Jawaharlal Nehru rejected both sides in the ongoing cold war and propounded a principle of ‘non-alignment’. This led to the birth of Non-Aligned Movement (NAM) in 1961. This along with the Organisation of Petroleum Exporting Countries (OPEC), Group 77 shows the building momentum among the Third world countries against the supremacy of the First and Second world countries. Further a rebellious attitude was also shown by the Third World reflected in its calls for a New International Economic Order (NIEO).

TWAIL has undertaken study of international law, its global history, role of international lawyers within the international order, importance of social movements, indigenous people, migrants etc. with a background of such previous organisations who came together with a common agenda. TWAIL has stood as a check to the Eurocentric approach taken by international law over the years. And accelerated efforts to balance out the asymmetries of power. According to Gathii, “TWAIL is a discipline in transition, expansion, definition and internal contestation about the varied agendas of its scholars, all at the same time.” Balakrishnan Rajagopal’s work brings light to the resistance that TWAIL projects to safeguard interests of the third world.

TWAIL was born in 1996 at Harvard Law School when group of students came together to discuss whether if taken a third world approach to international law what might be the major obstacles. The group consisting of Celestine Nyamu, Balakrishnan Rajagopal, Hani Sayed, Vasuki Nesiah, Elchi Nowrojee, Bhupinder Chimni and James Thuo Gathii coined the name of the group as ‘Third World Approaches to International Law’ (TWAIL). Antony Anghie and Chimni coined the terms ‘TWAIL I’ and ‘TWAIL II’: the former consisting of first generation post-colonial and the latter taking cues and developing further scholarship. The struggle of TWAILers II, III, IV and beyond – is to deal with the vestiges of ‘formal’ empire and expanding multi-dimensional forms of ‘informal imperialism’.

APPROACHES TO TWAIL

While discussing about the approaches within TWAIL, Gathii mentions critical, feminist, post-modern, Lat-Crit Theory (Latina and Latina Critical Theory Inc.), postcolonial theory, literary theory, modernist, Marxist, critical race theory among others. With these approaches what is studied is hegemony of dominant narratives along many axes– race, class, gender, sex, ethnicity, economics, trade, etc – and in inter-disciplinary ways – social, theoretical, epistemological, ontological and so on. Gathii discusses some coordinates; strictly refraining from calling them as principles as TWAIL scholarship has always been proposing for an ever-changing methodology and international order. It terms the coordinates as:

History matters: Importance here is given to how history has shaped the current geo-politics. Taking into account history, TWAIL scholars envision to build a south oriented framework for international order.

Empire moves: Imperialism cannot be only located in the country of the British. From local to national, public to private, ideological to material; Empire is traced in each of the components of nation and human life. This coordinate helps the TWAIL scholars to trace the colonial power and its fangs.

South moves: As the North moves, the South also is a term which is dynamic according to local specificities, regional trends, and larger changes to the global economic and political system.

Struggle is multiple: TWAIL is engaged is one fought on multiple fronts and on a diverse and shifting terrain. Thus, TWAIL is a discipline in transition, expansion, definition and internal contestation about the varied agendas of its scholars, all at the same time.

Struggle is here: TWAIL scholars, therefore, the struggle remains, and must remain, always there, and always here. It is, and must always be, about present ‘tactics’, and about a longer ‘strategy’.

CENTRAL THEMES OF TWAIL

As Karin Mickelson argues, history is the most fundamental element of a third world approach to international law. What is important to note here for TWAIL scholarship is the emphasis on seeing international legal history ‘as something alive than dead.’ Makau Mutua’s provocative thesis about redrawing the map of Africa because of the colonial illegitimacy of current borders is yet another example of seeing international legal history as relevant to and constitutive of the present rather than as a relic of the past. Antony Anghie’s book Imperialism, Sovereignty and the Making of International Law, (2005) is the leading TWAIL text revising mainstream international legal history tracing of continuities of coloniality in modern international law.

According to Vikrant Dayanand Shetty, “the ‘post’ in ‘postcolonial’ does not refer to ‘after period of colonialism’ or ‘triumphing over colonialism’ but to the ‘continuation of colonialism in the consciousness of formerly colonized peoples and in institutions imposed in the process of colonization.’” Examples of colonial continuities include, the composition of the UN Security Council, with five veto-wielding Permanent members; the weighted system of voting in the Bretton Woods institutions that gives the world’s richest economies the power to set the economic agenda of the former colonial countries; the rules of customary international law such as pacta sund servanda that bind former colonialized countries to comply with treaties even though they took no part in their formulation or formation; and the fact that self-determination retained the subordinate and dependent position of third world elites to their former colonial powers and to multinational capital interests.

Chimni analyses that, “Today, international law prescribes rules that deliberately ignore the phenomena of uneven development in favor of prescribing uniform global standards.” TWAIL recognises that the domination that US and Europe had over former colonies is in practice till date. In India, it can be seen in the fact that since the British left, we haven’t yet let go of the legal structure that the empire had built for us. India is also still in grips of the Macaulay’s system of Education. She has adopted the foreign terms like ‘secular’ in her constitution, ‘English’ as the official language, morals as per the Christian teachings. As India westernized, she also inherited such institutions which today can be called as the ghosts of the Empire. This has led to many TWAIL and other Indic scholars to question whether since independence has India ever been free. Chimni reiterates that the civilizing mission that the colonisers were on is the same mission with which they are using international law to rehabilitate and govern third world countries especially Africa; thus, legitimizing and justifying both the forms of colonial attitudes. He says, “humanitarianism is the ideology of hegemonic states in the era of globalization marked by the end of the Cold War and a growing North South divide.” This concept of the ‘civilizing mission’ has provided the moral basis of exploitation of the Third World. However, this exploitation, when administered by the colonial power, is legitimate because it is inflicted in self-defence, or because it is humanitarian in character and indeed seeks to save the non-European peoples from themselves. Less is discussed in mainstream international forum on the holocaust that the Victorian Empire committed on the citizens of India. Indian soldiers fought for the British in both World wars; 60,000 sacrificed their lives in world war I itself; she was the second largest contributor to Empire’s War in the 1940s; she bore the brunt of Churchill’s horrifying war policies which aggravated the already existing famine conditions. 5.4 million Indians according to Madhushree Mukherjee were killed amounting to war crimes justified under the garb of colonialism. She writes in her book ‘Churchill’s Secret War’, “if provisions protecting civilians had been in place before the war, the denial policy and the failure of His Majesty’s Government to relieve the famine could conceivably have been prosecuted as war crimes.”

CRITIQUES

TWAIL has failed to produce a single authority but has stirred the waters of international law with the ladle of colonial history. James Thuo Gathii also acknowledges the criticisms levelled against TWAIL on the basis of it being anachronistic, nihilistic and lacking methodological clarity. Secondly, its own critical attitude has been accused of being baseless. The absence of hierarchy and authority has given rise to flexible and fluid ways but has also proved as a disadvantage to organize the movement effectively. However, TWAIL is not a mere deconstructive and oppositional movement or network of scholars, but rather one that sees the potential of reforming if not remaking international law for the greater good. It also questions some third world countries and hence cannot be alleged to have been assuming innocence of these countries.

CONCLUSION

For the first time in history, emerging economies are counterparts on more than half of global trade flows, and south–south trade is the fastest-growing type of connection. South–south and China–south trade jumped from 8 percent of the global total in 1995 to 20 percent in 2016. Emerging economies, led by China and India, have accounted for almost two-thirds of global GDP growth and more than half of new consumption in the past 15 years. The founder of TWAIL Gathii has expressed that TWAIL-ers have transcended boundaries. There have been efforts from non-third world living scholars along with third world living scholars. He calls it a decentralized network which has been given exposure across not only in academies but also as course leaders, council members, etc. Some suggestions toward a new economic world order on the basis of TWAIL are to increase transparency and accountability of international institutions; increasing sensitivity towards problems of the third world; accepting that the solutions applied to western countries aren’t the exact solutions for third world problems; indigenous culture to be used to maximise the reach of international principles; Human Rights should be interpreted by keeping an account of the conditions of the third world countries; accepting that other than minority and acknowledged class there can be oppression of majority in such countries too; Ensuring Sustainable Development With Equity. Such suggestions to make international law more sensitive, equitable and far-reaching can be done only with the help of TWAIL. TWAIL scholars from and outside third world countries need to undertake this task and make the other side of the narrative aware of their side. Ramping up needs to take place since the third world countries are the future of tomorrow.

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Analysing Article 21, humans rights and individual freedom

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

– Oscar Wilde

INTRODUCTION

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

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

STANDPOINT: HUMAN RIGHTS & FEDERAL LAW

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

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

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

PLUGGING GAPS OF CONSTITUTIONALITY: DIGNITY IN DEATH

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

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

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

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

Please read concluding on thedailyguardian.com

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

EPILOGUE

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

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Modern technology and challenges over privacy: An analysis

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INTRODUCTION

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

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

LAWS REGULATING SURVEILLANCE IN INDIA.

Telegraph Act, 1885 

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

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

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

IT ACT, 2000

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

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

IMPACT OF SURVEILLANCE

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

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

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

CONCLUSION AND SUGGESTIONS 

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

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

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