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Widow loses right in property inherited from previous husband on valid remarriage: Chhattisgarh HC

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In a significant development which shall greatly impact women, the Chhattisgrah High Court has just recently on June 28, 2021 in a learned, latest and landmark judgment titled Loknath v Shribachahh Kumar Bhoi & Ors in Second Appeal No. 356 of 2001 held quite clearly that the effect of a valid remarriage is that the widow loses her right in the property inherited from her previous husband and that the same cannot be said to be established unless strictly proved under the statutory requirements. It must be also apprised here that a Single Judge Bench of Justice Sanjay K Agrawal has observed quite categorically that, “The effect of the valid remarriage is the widow losing her right in the property inherited from the previous husband. Therefore, when remarriage is set up as a defence, it has to be strictly proved looking to devastating consequence to be befallen upon widow in shape of depriving her right to property.” This significant development culminated in a second appeal concerning a suit property wherein one Ghasi (one of the sons) had died in the year 1942 leaving behind a widowed wife and a daughter. According to the plaintiff, since the widowed wife had entered into second marriage in 1954-55, she ceases to have any interest in the suit property as she did not become the full owner of the suit property by virtue of Section 14(1) of the Hindu Succession Act, 1956.

To start with, Justice Sanjay K Agrawal of Chhattisgrah High Court sets the ball rolling by first and foremost observing in para 1 that, “This second appeal preferred by the original plaintiff / legal representatives of the plaintiff / appellants herein was admitted for hearing on 4-11-2015 by formulating the following three substantial questions of law: –

“1. Whether the learned lower appellate Court was justified in law in reversing the decree passed by the trial Court by recording a finding of partition prior to death of Ghashiram in 1942 in the absence of there being any issue framed?

2. Whether the learned appellate Court was justified in law in holding partition amongst Mohan Abhiram Goverdhan and Jeeverdhan in the absence of legally admissible evidence in that regard?

3. Whether the plaintiff is entitled to declaration that after death of Ghashiram in 1942, defendant Kiyabai and Sindhu were not entitled to any share in the joint family property of Mohan Ghashiram, Goverdhan and Jeeverdhan?”

(For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court.).”

While mentioning about the suit property, the Bench then elucidates in para 3 stating that, “The suit property was originally held by Sugriv, he had four sons namely, Mohan, Abhiram, Goverdhan and Jeeverdhan. Mohan died issue-less, whereas Goverdhan had one son Loknath who is the plaintiff herein and Ghasi, son of Abhiram, died in the year 1942. Defendants No.1 and 2 are wife and daughter, respectively, of Ghasi. Defendant No.1 died during the pendency of civil suit, whereas defendants No.3 to 6 are sons and daughter of Jeeverdhan. The dispute relates to the share of Ghasi who died in the year 1942.”

For the sake of clarity, it must be mentioned her that defendant No. 1 is Kiya who is wife of Ghasi (dead) and defendant No. 2 is Sindhu (daughter) of Ghasi (dead).

While elaborating on the plaintiff’s version, the Bench then mentions in para 4 that, “It is the case of the plaintiff that since Ghasi died in the year 1942 and his wife defendant No.1 entered into second marriage in the year 1954-55 in chudi form, therefore, she ceases to have any interest in the suit property and would be governed by clause 29 of the Raigarh State Wajib-ul-arz and as such, she did not become the full owner of the suit property being not in possession of the property held by Ghasi by virtue of Section 14(1) of the Hindu Succession Act, 1956. Therefore, defendants No. 1 & 2 have no right and title over the suit property situated at Village Chichor Umariya in Account Nos.276 & 277 and as such, defendants No. 1 & 2 be restrained from interfering with the possession of the plaintiff and the plaintiff be declared to be the title holder.”

While then elaborating on the version of defendant No. 1 and 2, the Bench then notes in para 5 that, “Defendants No.1 & 2 have filed their joint written statement and opposed the averments made in the plaint stating inter alia that after death of Ghasi, defendants No.1 & 2 have succeeded the property and are in continuing possession of the same. They have further pleaded that the order of the Tahsildar dated 28-5-1984 entering their names in the revenue record is in accordance with law and there is no illegality in the said order. Defendant No.1 has never entered into any second marriage and as such, the civil suit deserves to be dismissed.”

To put things in perspective, the Bench then observes in para 6 that, “The trial Court after appreciating oral and documentary evidence available on record partly decreed the suit holding that clause 29 of the Raigarh State Wajib-ul-arz applies in the present case and defendant No.1 had already entered into second marriage in 1954-55 and as such, she would only be entitled for 5 khandi of land for maintenance. In the appeal preferred by defendant No.2 questioning the judgment & decree of the trial Court, the first appellate Court allowed the appeal of defendant No.2 and held that in the light of Section 14(1) of the Hindu Succession Act, 1956, Kiya Bai – defendant No.1, had become full owner of the suit property on coming into force of the Hindu Succession Act, 1956 and therefore the plaintiff is not entitled for any decree and set aside the judgment & decree of the trial Court, feeling aggrieved against which this second appeal has been preferred by the plaintiff in which substantial questions of law have been formulated which have been set-out in the opening paragraph of this judgment for the sake of completeness.”

While elaborating more after hearing both the sides, the Bench then while going into the nitty-gritty observes in para 10 that, “The suit property was originally held by Sugriv, as noticed hereinabove, he had four sons namely, Mohan, Abhiram, Goverdhan and Jeeverdhan. Mohan died issue-less. Abhiram had one son Ghasi, who died in the year 1942, whose wife and daughter are defendants No.1 and 2, respectively. Defendant No.1 Kiya Bai died during the pendency of civil suit. Goverdhan had one son namely, Loknath, who is the plaintiff herein. Defendants No.3 to 6 are sons and daughter of Jeeverdhan. The dispute relates to the share of Ghasi who died admittedly, in the year 1942. It is the case of the plaintiff that since the suit property was undivided amongst Mohan, Abhiram, Goverdhan & Jeeverdhan and since Ghasi died in the year 1942, defendants No.1 & 2 would get no share in the property being governed by clause 29 of the Raigarh State Wajib-ul-arz, as such, defendants No.1 & 2 had no right except the right of maintenance in terms of the 5 khandi of land which has been given to defendant No.2, therefore, decree for declaration of title declaring the mutation order dated 28-5-1984 in favour of defendants No.1 & 2 and for restraining them from interfering with the possession shown in the suit property – Account Nos.276 & 277 be passed. It was also pleaded that defendant No.1 – wife of Ghasiram, lived in Village Chichor Umariya till 1954-55, but immediately after the marriage of her daughter defendant No.2, she married some one else in chudi form and left the village and as such, she will not get any share in the suit property.”

Needless to state, the Bench then makes it known in para 11 that, “Defendants No.1 & 2 filed their separate written statement jointly stating inter alia that defendant No.1 after the death of Ghasi in the year 1942, remained in the village and stayed in the house left by Ghasi and she never remarried, though she left the village for some time, but she never remarried and since partition has already took place in the lifetime of Ghasi, S/o Abhiram, therefore, after death of Ghasi, defendants No.1 & 2 remained in possession of the suit property by cultivating the suit land and the name of defendant No.1 has also been recorded in the revenue records vide order dated 28-5- 1984 in few rounds of revenue proceeding, as such, the plaintiff is not entitled to get the order of mutation annulled and for permanent injunction.”

As it turned out, the Bench then discloses in para 12 that, “The trial Court held that since defendant No.1 remarried in chudi form in 1954-55 and defendants No.1 & 2 were not in possession of the suit property and the suit property was the joint family property, therefore, clause 29 of the Raigarh State Wajib-ul-arz would prevail and defendants No.1 & 2 are not entitled for any share in the property which the first appellate Court reversed holding that during the lifetime of Ghasi and during the lifetime of his father Abhiram, the suit property was partitioned and defendant No.1 remained in possession of the suit property after the death of her Ghasiram – her husband and father of defendant No.2, and after coming into force of the Hindu Succession Act, 1956 with effect from 17-6-1956, defendant No.1 became the full owner and as such, the plaintiff is not entitled for any decree and accordingly, allowed the appeal and set aside the judgment and decree of the trial Court. Though the plaintiff pleaded that during the lifetime of Ghasi / his father, the suit property has not been partitioned, but the first appellate Court on the basis of appreciation of oral and documentary evidence on record has clearly reached to the conclusion that the property was partitioned and on partition, the suit property fell in the share of Ghasi and after his death, on behalf of defendants No.1 & 2, plaintiff Loknath was in cultivating possession over the suit land.”

To be sure, the Bench then points out in para 13 that, “Plaintiff Loknath (PW-1) in his cross-examination para 8 has clearly admitted that he used to cultivate the land and in lieu of cultivation, the crop is given to defendants No.1 & 2 and once the revenue litigation started, he stopped giving crop. Likewise, Janardan (PW-2) has stated that Goverdhan, who is plaintiff’s father, used to cultivate the land on behalf of defendants No.1 & 2 and the crop is being given in lieu of cultivation.”

On similar lines, the Bench then adds in para 14 that, “Similarly, defendant No.2 Sindhu (DW-2) in her examination-in-chief has clearly admitted that after the death of her father, for two years, her mother cultivated the suit land and thereafter, Goverdhan – father of the plaintiff, started cultivation and used to give crop in lieu of cultivation of the suit land. Even on the suggestion made on behalf of the plaintiff, defendant No.2 maintained that for 2-3 years her mother cultivated the suit land. Even the other witness Aanandram (DW-2) has also stated that after the death of Ghasi, on behalf of defendant No.1 being widow, Goverdhan – father of the plaintiff, used to cultivate the land and give the share of her crop in lieu of cultivation.”

To state the obvious, the Bench then points out in para 15 that, “As such, there is overwhelming evidence available on record to hold that after death of Ghasi , defendant No.1 cultivated the land for some time and thereafter, on her behalf, the plaintiff’s father started cultivating and used to give share of crop in lieu of cultivation of her land. Therefore, it is established position on record that the suit land fell in the share of Ghasi after partition during the lifetime of Ghasi and after death of Ghasi defendant No.1 came in possession of the suit land and on her behalf, the plaintiff’s father was cultivating the land and giving the share of crop to defendant No.1. It is also established position on record that defendant No.1 remained in possession of the suit land till her death i.e. during the pendency of civil suit, as her name was deleted by order dated 9-5-2000. Therefore, the fact remains that defendant No.1 remained in physical position of the suit land even after coming into force of the Hindu Succession Act, 1956 and her limited right, if any, has ripened into absolute title by virtue of Section 14(1) of the Hindu Succession Act, 1956 (for short, ‘the Act of 1956’).”

Simply put, the Bench then states the ostensible in para 16 that, “At this stage, it would be appropriate to notice Section 14(1) of the Act of 1956 which states as under: –

“14. Property of a female Hindu to be her absolute property.— (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.— In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.””

Quite rightly, the Bench then mentions in para 17 that, “On a careful perusal of the aforesaid provision, it is quite vivid that under Section 14(1) of the Act of 1956, to get attracted, the property must be possessed by the female Hindu on coming into force of the Act of 1956. The object of this provision is firstly, to remove the disability of a female to acquire and hold property as an absolute owner and secondly, to convert any estate already held by woman on the date of commencement of the Act as a limited owner, into an absolute estate.”

In a similar vein, the Bench then further adds in para 18 that, “In Mayne on Hindu Law, 15th Edn., page 1171, qua Section 14(1) of the Act of 1956, it is stated as under: —

“on a reading of sub-section (1) with Explanation, it is clear that wherever the property was possessed by a female Hindu as a limited estate, it would become on and from the date of commencement of the Act her absolute property. However, if she acquires property after the Act with a restricted estate, sub-section (2) applies. Such acquisition may be under the terms of a gift, will or other instrument or a decree or order or award.””

While quoting the relevant judgments, the Bench then specifies in para 19 that, “Their Lordships of the Supreme Court in the matter of Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and others (1970) 1 SCC 786 while considering the meaning of “any property possessed by a female Hindu” quoted with approval the following words of Justice P.N. Mookherjee in the matter of Gostha Behari v. Haridas Samanta AIR 1959 Cal 557 (at page 559): “The opening words in “property possessed by a female Hindu” obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female’s possession when the Act came into force. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word “possession” in its widest connotation, when the Act came into force, the section would not apply.”

and Their Lordships held :

“In our opinion, the view expressed above is the correct view as to how the words “any property possessed by a female Hindu” should be interpreted.””

Furthermore, the Bench then adds in para 20 that, “In Eramma (supra), the Supreme Court held that the property possessed by a female Hindu as contemplated in the Section is clearly the property to which she has acquired some kind of title whether before or after the commencement of the Act and negatived a claim under Section 14(1) of the Act in view of the fact that the female Hindu possessed the property on the date of the Act by way of a trespass after she had validly gifted away the property, and further held that the need for possession with a semblance of right as on the date of the coming into force of the Hindu Succession Act was thus emphasized.”

Quite clearly, the Bench then points out in para 21 that, “In the matter of Dindayal and another v. Rajaram AIR 1970 SC 1019, it was held that before any property can be said to be “possessed” by a Hindu woman as provided in Section 14(1) of the Hindu Succession Act, two things are necessary (a) she must have a right to the possession of that property, and (b) she must have been in possession of that property either actually or constructively.”

While citing another relevant case law, the Bench then hastens to add in para 22 that, “Thereafter, in the matter of V. Tulasamma and others v. Sesha Reddy (Dead) by LRs. (1977) 3 SCC 99, their Lordships considered the real nature of incidence of Hindu widow’s right of maintenance and scope and ambit of Section 14(1) of the Act of 1956 and held as under: –

“The words “possessed by” used by the Legislature in Section 14(1) are of the widest possible amplitude and include the State of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.””

Going ahead, the Bench then points out in para 23 that, “In the matter of Sadhu Singh v. Gurdwara Sahib Narike and others AIR 2006 SC 3282 , the Supreme Court pointed out the essential ingredients in determining whether sub-section (1) of Section 14 of the Act of 1956 would come into play and held that the antecedents of the property, the possession of the property as on the date of the Act and the existence of a right in the female over it, however limited it may be, are the essential ingredients in determining whether sub-section (1) of Section 14 of the Act of 1956 would come into play. It was further held that if she takes it as an heir under the Act, she takes it absolutely.”

On similar lines, the Bench then recalls in para 24 that, “Similar proposition has been laid down by the Supreme Court in the matter of Sri Ramakrishna Mutt represented by Manager v. M. Maheswaran and others (2011) 1 SCC 68 reiterating and reaffirming the principles of law laid down in Gummalapura Taggina Matada Kotturuswami (supra).”

Moving on, while citing a relevant case law, the Bench then mentions in para 25 that, “In the matter of Shyam Narayan Singh and others v. Rama Kant Singh and others 2018(1) RCR (Civil) 981 : 2017 SCC OnLine SC 1985, the Supreme Court while considering the provision contained in Section 14(1) of the Act of 1956 held as under: –

“5. On an analysis of Section 14(1) of the Hindu Succession Act of 1956, it is evident that the Legislature has abolished the concept of limited ownership in respect of a Hindu female and has enacted that any property possessed by her would thereafter be held by her as a full owner. Section 14(1) would come into operation if the property at the point of time when she has an occasion to claim or assert a title thereto. Or, in other words, at the point of time when her right to the said property is called into question.

Please read concluding on thedailyguardian.com

The legal effect of Section 14(1) would be that after the coming into operation of the Act there would be no property in respect of which it could be contended by anyone that a Hindu female is only a limited owner and not a full owner. (We are for the moment not concerned with the fact that Sub-section (2) of Section 14 which provides that Section 14(1) will not prevent creating a restricted estate in favour of a Hindu female either by gift or will or any instrument or decree of a Civil Court or award provided the very document creating title unto her confers a restricted estate on her). There is nothing in Section 14 which supports the proposition that a Hindu female should be in actual physical possession or in constructive possession of any property on the date of the coming into operation of the Act. The expression ‘possessed’ has been used in the sense of having a right to the property or control over the property. The expression ‘any property possessed by a Hindu female whether acquired before or after the commencement of the Act’ on an analysis yields to the following interpretation:

(1) Any property possessed by a Hindu female acquired before the commencement of the Act will be held by her as a full owner thereof and not as a limited owner.

(2) Any property possessed by a Hindu female acquired after the commencement of the Act will be held as a full owner thereof and not as a limited owner.””

In the context of this present case, the Bench then waxes eloquent to state in para 26 that, “Reverting to the facts of the present case in the light of the aforesaid proposition of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), admittedly, Ghasi died in the year 1942 by which his widow Kiya Bai – defendant No.1 became the limited owner of his share by virtue of the provisions contained in Section 3(2) of the Hindu Women’s Rights to Property Act, 1937 and after coming into force of the Act of 1956 and by operation of Section 14(1) of the Act of 1956 with effect from 17-6-1956, her limited right in the suit property would blossom into absolute estate as contemplated by Section 14(1) of the Act of 1956 and she would become absolute owner of the suit property as on date.”

Quite forthrightly, the Bench then points out in para 28 that, “Since in this case, defendant No.1 had already became limited owner before the coming into force of the Act of 1956 and thereafter, her limited right has became ripened into absolute right, clause 29 of the Raigarh State Wajib-ul-arz would not be applicable, as such, the arguments based on this point, is rejected.”

Adding more to it, the Bench then observes in para 29 that, “Now, one more objection is that since defendant No.1 Kiya Bai had already entered into marriage with some one else in 1954-55 after marriage of her daughter, therefore, she had lost her right over the property deserves to be noticed. In para 5 of the plaint, it has simply been stated that defendant No.1 – widow of Ghasi, remained at Village Chichor Umariya till 1954-55, but after marriage of her daughter – defendant No.2, she left the village after marrying some one else in chudi form, which defendants No.1 & 2 have clearly and specifically denied.”

It is worth noting that the Bench then makes it a point to mention specifically in para 30 that, “At this stage, it would be appropriate to notice Section 2 of the Hindu Widows’ Remarriage Act, 1856 (for short, ‘the Act of 1856’) which states as under: –

“2. Rights of widow in deceased husband’s property to cease on her remarriage.—All rights and interests which any widow may have in her deceased husband’s property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her remarriage cease and determine as if she had then died; and the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same.””

In addition, the Bench then states in para 31 that, “Section 6 of the Act of 1856 states about ceremonies required for remarriage which is as under: –

“6. Ceremonies constituting valid marriage to have same effect on widows marriage—Whatever words spoken, ceremonies performed or engagements made on the marriage of a Hindu female who has not been previously married, are sufficient to constitute a valid marriage shall have the same effect if spoken, performed or made on the marriage of a Hindu widow; and no marriage shall be declared invalid on the ground that such words, ceremonies or engagements are inapplicable to the case of a widow.””

As a corollary, the Bench then states in para 32 that, “Thus, according to Section 6 of the Act of 1856, in case of remarriage, all the formalities for marriage are required to be proved. Section 6 of the Act contemplates the performance of almost the same ceremonies, which are required in the case of the marriage of Hindu female. In order to prove the remarriage, performance of all the ceremonies will have to be done in her remarriage. There can be no valid marriage in any form without a substantial performance of the requisite religious ceremonies. The performance of ceremonies, therefore, is necessary for the completion of the marriage. The effect of the valid remarriage is the widow losing her right in the property inherited from the previous husband. Therefore, where remarriage is set up as defence, it has to be strictly proved looking to devastating consequence to be befallen upon widow in shape of depriving her right to property.”

Quite significantly, the Bench then observes in para 33 that, “Reverting to the facts of the present case, finally, in the light of the aforesaid proposition, it would be apparent that in order to prove the fact of remarriage, the plaintiff (PW-1) in his statement in para 1 has simply stated that after marriage of defendant No.2, defendant No.1 has remarried some one else and left the village and in para 6 of his cross-examination, he was not able to even tell the name of person whom defendant No.1 has remarried and he has also clearly stated that he had not seen defendant No.1 remarrying in chudi form and even failed to state the date and year when Kiya Bai – defendant No.1 remarried in chudi form. Janardan (PW-2) has stated that defendant No.1 absconded with one Gumpatiya Baba, but in cross-examination he has failed to state particulars about the marriage and failed to state about the marriage of defendant No.1 with that person (Baba). Likewise, Khaju (PW-3), who is a hearsay witness, has clearly stated that he was informed by the villagers that Kiya Bai had remarried someone else and has left the village, but he also failed to clearly state about the particulars of marriage and about the person with whom Kiya Bai is said to have performed second marriage.”

Most significantly, the Bench then while continuing further holds in para 34 that, “As such, there is no adequate pleading with regard to remarriage of Kiya Bai with any person and therefore there is neither pleading of remarriage of Kiya Bai with someone nor there is admissible evidence on record to hold that Kiya Bai had remarried and lost her right to the property, as it has already been held that the effect of remarriage would be, widow loses her right in the property inherited from her husband and unless the fact of remarriage is strictly proved after observing the ceremonies required as per Section 6 of the Act of 1856, the fact of remarriage cannot be said to be established by which the right to property, which is a constitutional right, is lost that too by widow. Therefore, the finding recorded by the first appellate Court that the suit property fell in the share of Ghasi and after death of Ghasi, defendant No.1 remained in physical possession of the suit land and by virtue of Section 3(2) of the Hindu Women’s Rights to Property Act, 1937, defendant No.1 Kiya Bai became the limited owner of the property during her lifetime till the coming into force of the Act of 1956 and after coming into force of the Act of 1956, she became the absolute of the suit property, is correct finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record. I do not find any perversity or illegality in the said finding recorded by the first appellate Court. The substantial questions of law formulated are answered accordingly.”

As a consequence, the Bench then holds in para 35 that, “Resultantly, the first appellate Court is absolutely justified in granting the appeal dismissing the suit filed against the defendants and as such, the second appeal deserves to be and is accordingly dismissed leaving the parties to bear their own cost(s).”

Finally, the Bench then holds in para 36 that, “Decree be drawn-up accordingly.”

In essence, the crux of this notable judgment by a Single Judge Bench of the Chhattisgarh High Court is that widow certainly loses her right in property inherited from previous husband on valid remarriage. But a rider has been added here for the benefit of widow that the remarriage must be strictly proved which must be valid also and it cannot be mere gossip only that can deprive her of the right in property inherited from previous husband on remarriage. We have seen how the relevant judgments and relevant points have been forwarded by Justice Sanjay K Agrawal who has authored this leading judgment which we have already discussed hereinabove!

Sanjeev Sirohi, Advocate,

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Policy & Politics

Femtech Apps: An Analysis

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INTRODUCTION

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

ARE WOMEN, COMMODITIES MASQUERADING AS USERS FOR FEMTECH APPS?

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

APERTURES IN REGULATORY STANDARDS AROUND THE WORLD

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

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

ABSENCE OF DATA GOVERNANCE FRAMEWORK IN INDIA

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

THE ROAD AHEAD

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

CONCLUSION

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

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

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Policy & Politics

Vehicle Scrappage Rules’ Enforcement in current times

Anu Bhuvanachandran & Anju Joseph

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

Srcapping Policy

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

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

ELIGIBILITY TO GET SCRAPPED

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

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

END OF LIFE OF YOUR VEHICLE

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

VEHICLE SCRAPPER FACILITY AND PROCEDURE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DISPUTES & ADJUDICATION

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

DRAFT RULES AND PANDEMIC

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

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

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

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

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

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Policy & Politics

Back from the brink: Positivity is the key

Anil Swarup

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

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

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

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

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

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

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

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

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

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

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

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

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Policy & Politics

Self-proclaimed appearance of Param Bir Singh

Vijay Darda

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It’s been great that at long last you have turned in, Mr Param Bir Singh! Greetings to you on behalf of the people of Maharashtra! Your appearance calls for a celebration! Your appearance day should be celebrated the same way as that of saints and sages. The date of your appearance has also been recorded in the book of history. Yes, of course why not? How hard you got the police and intelligence agencies to chase you, how many of them got dead tired chasing you and how many of them were reduced to tears! You are in a class beyond compare! Actually we were anxiously waiting for you for a long time! Better late than never! At last you have turned in. Is your appearance any less than a miracle?

Mr Param Bir Singh, I was really longing for you. Everyone was wondering where you went missing? How did you vanish into thin air? Did anyone cause your disappearance? How would you have dodged the red corner notice? Have you changed your appearance? Did you undergo plastic surgery? Tell you what! Your disappearance fired up people’s wildest imaginations! Everybody had something to say about you! Someone said you were staying in Belgium. Someone else said you had relocated to London. Some people claimed with great pride about having tea and breakfast with you. What could we have done? Just kept listening..!

Whom could we have trusted? We just had faith in you and also believed that one day you will definitely come and tell us how you managed to escape the eyes of your department as well as dodge the smart agencies of your country. I think you should conduct training camps for police and intelligence agencies to see what vanishing tricks can be employed. Once the detectives of the agencies become aware of your art, learn your skills and master the nuances, it will become easier for them to nab the accused.

The art of dissimulation that you have demonstrated has failed even Anil Kapoor of Mr India and Amitabh Bachchan of Bhootnath fame. Both of them acted wonderfully on screen. Actually you did all that stuff too, though off screen. I want to thank you that you have also exposed some time-honoured institutions. The first is that the Mumbai police, which is equated to the Scotland Yard police, can so badly be defeated by its single officer in a game of hide and seek. You have also busted the myth of the invincibility of the intelligence agencies which consider themselves as ‘Turram Khan’ or supreme ones. You have proved to them that just one police officer can send them on a wild goose chase. The agencies kept running from post to pillar yet drew a blank. The court declared you a fugitive but amidst all this drama you were relaxing in Chandigarh. How amazing, isn’t it! Wow! I feel like doffing my hat to your skills. People are asking a wrong question: Who among you all three– you, police and intelligence agencies is the most powerful?

You are the emperor of the police department. Even the ones who witnessed your mood swings don’t know who you are, how you are, where you have come from and where you are going to go. Only the emperor can know this. You have also proved that it is not only difficult but impossible to catch the don. I am just astonished to think as to what would have happened if you had not appeared? Those who were saying that they will confiscate your property are ignorant. They don’t know who you are!

By the way, I want to advise your police and intelligence agencies that they must celebrate your appearance day. Your appearance is nothing less than an official celebration. I just want to say that what has passed in six months is a matter of letting bygones be bygone! The government should feel relieved and thankful that your appearance has saved it a lot of labour, time and resources in locating you. You have also benefitted those ensconced in power.

So say with love: Glory to Param Bir Maharaj’s appearance day! And be least bothered about those who have filed a case against you and some policemen for demanding Rs 15 crore from a builder. Now cases keep getting registered! You accused Anil Deshmukh of extorting Rs 100 crore and others accused you of seeking Rs 15 crore as bribe. Now understand that the greater the status, the greater the allegation! God alone knows the truth..!

And of course, one should really learn from you the art of executing somersault on tamarind leaves. The tamarind leaf is very small and no one can be a better acrobat than the one who can execute a somersault on it. That’s why this Hindi phrase ‘Imli Ke Patti Par Gulati Marna’ which means somersaulting on the tamarind leaf. I remembered this adage because your lawyer stated before the Chandiwal Commission that you do not have any specific evidence regarding the allegation in which you had accused Anil Deshmukh of extorting Rs 100 crore a month. You had levelled this allegation on the suggestion of some officials! Oh wow Param Bir Singh! You were the police commissioner.

As you already know that allegations require solid evidence, yet you acted like a child. Initially, you were breathing fire against the former minister, but you executed a reverse somersault when you found yourself on a sticky wicket. You are a great acrobat indeed!

I have just one request to make. Kindly don’t share and teach this magical art to other police officers because what you did has put our police system to shame! Don’t know how many skeletons in the cupboard have tumbled out and are still tumbling out. You are indeed a blessed soul, Param Bir..!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

Param Bir Singh is unique indeed. There is no other like him! He has immense potential to vanish into thin air like Mr India! The magic of staying out of sight of the police department of which he is a top officer and dodging all the government agencies is really unmatched. His appearance is no less than a miracle and calls for celebration!

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Policy & Politics

ILLEGAL USE OF LICENSED WEAPON PER SE NOT OFFENCE UNDER SECTION 27 UNLESS MISDEMEANOUR UNDER SECTIONS 5/7 PROVED: SC

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It is extremely significant to note that the Apex Court just recently on November 26, 2021 in a learned, laudable, landmark and latest judgment titled Surinder Singh vs State (Union Territory of Chandigarh) in Criminal Appeal No. 2373 of 2010 has made it absolutely clear that illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27 of the Arms Act, 1959 (“Act”). The Apex Court also observed that at best, it could be a ‘misconduct’ under the service rules. It must be also mentioned here that the Bench of Apex Court comprising of CJI NV Ramana, Justice Surya Kant and Justice AS Bopanna in this present matter was considering a criminal appeal against Punjab and Haryana High Court’s order dated May 19, 2010 (“impugned order”).

To start with, this notable judgment authored by Justice Surya Kant for CJI NV Ramana, himself and Justice AS Bopanna sets the ball rolling by first and foremost observing in para 1 that, “Appellant-Surinder Singh has laid challenge to the judgement dated 19th May 2010 of the High Court of Punjab and Haryana, whereby, the order of his conviction and sentence dated 25th July 2006 passed by Learned Additional Sessions Judge, Chandigarh was confirmed. The Appellant has been convicted under Section 307 of the Indian Penal Code, 1860 (hereinafter ‘IPC’) and Section 27 of the Arms Act, 1959 (hereinafter, ‘Arms Act’), and sentenced to rigorous imprisonment of 3 years for both the offences, with a direction that sentences will run concurrently.”

While elaborating on the facts of the case, the Bench then envisages in para 2 that, “The prosecution case in brief is that, on 10th July, 1999, Mansur Ali, Advocate (Complainant) was sitting at his residential office alongwith his clerk Maler Singh (PW-3), giving dictation to his steno, R.K. Sood (PW4). At about 5:30 PM, the Appellant, who was then a Head Constable in Chandigarh Police, entered the residential office of the Complainant in an inebriated condition and stating that he was a beat officer of the lane, asked for a glass of water. He thereafter sat across the Complainant and after consuming the water served to him by Balbir Singh (PW5), pulled out his service pistol and threatened the Complainant by pointing the pistol at him and stated that “there are 10 bullets in this gun and I will kill 20 people today”. Appellant also asked the Complainant to stand and raise his hands. At the same time, he directed Maler Singh and R.K. Sood to step outside the office, to which they complied. In the meantime, the Appellant moved around the table, towards the Complainant, pulled the lever and made himself ready to fire. Sensing the seriousness of the situation, Complainant lunged at the Appellant and pushed his hand towards the ceiling, which resulted in the bullet, fired from the pistol, hitting the ceiling of the office.”

While continuing in a similar vein, the Bench then enunciates in para 3 that, “The Appellant then attempted to fire a second time, however, he was unable to and in the said exercise a bullet fell from his pistol. By that time, the ladies of the house had entered the office and raised a holler. Panicstricken, Appellant rushed out of the office, leaving behind his wireless set on the table of the Complainant and his scooter outside the house. No injury was caused to the Complainant. The incident was then reported to the police. Upon receiving the information, about 10-15 minutes later, police officials arrived at the house of the Complainant and F.I.R. was lodged against the Appellant, whereafter, the police officials sprang into action and the Appellant was arrested by SI Ramesh Chand (PW6), who found the Appellant near the Masjid of Sector 20A, with the pistol still in his hand. Appellant was then taken for medical examination where he refused to give his urine or blood samples.”

Furthermore, the Bench then states in para 4 that, “The investigation ensued in light of the above-stated facts, and upon collection of substantial evidence, the charge sheet was filed against the Appellant. The case was committed to the Additional Sessions Judge, Chandigarh, and charges under Section 307 IPC and Section 27 of the Arms Act were framed. The Appellant abjured his culpability and claimed trial.”

Simply put, the Bench then lays bare in para 9 that, “Since there is no dispute regarding the presence of the Appellant at the residential office of the Complainant at the time of the incidence, or that the bullet was fired from his service pistol, the pivotal question before the Trial Court was, whether the Appellant fired the pistol, and if so, was the weapon used with the intent to kill the Complainant. The Trial Court observed that the prosecution witnesses had, by and large, supported the prosecution version and that no reason was adduced to depict why the Complainant would want to falsely implicate the Appellant. Although the Trial Court noted that there were some inconsistencies in the statement put forth by the prosecution witnesses, however, the same were held to be minor contradictions brought about naturally due to the passage of time. The Court found version of the Defense to be “a patch of lies and figment of imagination”, and rejected the same in its entirety.”

What’s more, the Bench then reveals in para 10 that, “As far as the charge under Section 27 of the Arms Act was concerned, the Trial Court observed that the Appellant had used his service pistol without any prior permission and for an illegal purpose. The act of firing by the Appellant was thus held to be in contravention of Section 27 of the Arms Act. The Trial Court therefore convicted the Appellant under Section 307 IPC and Section 27 of the Arms Act and awarded a sentence of rigorous imprisonment for 3 years.”

Needless to say, the Bench then states in para 11 that, “Discontented with his conviction, the Appellant preferred an appeal before the High Court of Punjab & Haryana. The High Court upon reappraisal of the evidence, sustained conviction and the consequential sentence imposed by the Trial Court and dismissed the appeal.”

Be it noted, the Bench then observes in para 30 that, “The Appellant was admittedly a police official at the time of the incidence and the arms and ammunitions used for the commission of the offence, were placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited under Section 5 of the Arms Act. It appears that the Trial Court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the Statute, which has been enacted to provide a licensing/regulatory regime, to enable law-abiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain categories of firearms, unless authorized by the Central Government. In other words, illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27, without proving the misdemeanor under Section 5 or 7 of the Arms Act. At best, it could be a ‘misconduct’ under the service rules, the determination of which was not the subject of the trial.”

As a corollary, the Bench then observes in para 31 that, “In light of the afore-stated discussion, we find that the order of the Trial Court in convicting the Appellant or of the High Court in maintaining such conviction under Section 27 of the Arms Act, is unwarranted and unjust. Accordingly, the Appellant is acquitted of the charge under Section 27 of the Arms Act.”

Most significantly, the Bench then holds succinctly in para 35 what forms the cornerstone of this brief, brilliant and balanced judgment that, “Adverting to the facts of the case in hand, we are of the considered view that at this stage, the sentence awarded to the appellant is no longer in degree to the crime which he has committed. Remitting the Appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice due to following mitigating factors:

a. No motive or element of planning has been proved by the Prosecution in the present case which indicates the possibility that the offense could have been committed on impulse by the Appellant. Hence, the culpability of the offender in such situations is less than that which is ascribed in premeditated offenses as the commission of planned illegal acts denotes an attack on societal values with greater commitment and continuity in comparison to spontaneous illegal acts.

b. Even though the factum of injury may not have a direct bearing on a conviction under Section 307 IPC, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 IPC, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant.

c. Appellant has already undergone a sentence of 3 months and 19 days. Additionally, despite the occurrence taking place in 1999, there is no indication that Appellant has been involved in any untoward activity before or after the incident. This highlights the Appellant’s good character and indicates that the incident can be interpreted as an isolated lapse of judgment. Further, the Appellant’s clean post-incident behaviour suggests that he is rational individual who is capable of responding to the social censure associated with the offence. Hence, the passage of a long time period coupled with a clean record, both before and after the incident is definitely a factor that calls for mitigation of sentence.

d. Barring this particular incident wherein he was under the influence of alcohol, the Appellant had an unblemished service record with sixteen good citations in his favour. This indicates that he was a valuable member of society than the present criminal incident might lead one to assume. This is not to say that courts should draw up a social balance sheet when sentencing, but only to take these positive social contributions as a factor for mitigation of sentence.

e. Lastly, it is to be noted that the Appellant was suspended in the year 1999 and has also been subsequently dismissed from service in the year 2007. Hence, this should also be considered as a reasonable factor for mitigation because the dismissal and the consequent loss of social security benefits such as pension, also construes as a form of social sanction.”

Finally, the Bench then aptly holds in para 36 that, “Consequently and for the afore-stated reasons, the criminal appeal is partly allowed. While the conviction and sentence awarded to the Appellant under Section 27 of the Arms Act is set aside, his conviction under Section 307 IPC is maintained. The sentence under Section 307 IPC is however reduced to the period already undergone. Since, Appellant is on bail, his bail bonds are discharged.”

To sum it up, the Apex Court thus makes it distinctly clear in this leading case that the illegal use of licensed weapon is per se not an offence under Section 27 of the Arms Act unless misdemeanor under Section 5 or 7 of the Act is proved. Of course, all the Courts whether they are Trial Courts or High Courts must always abide by what the three Judge Bench of the Apex Court comprising of CJI NV Ramana, Justice Surya Kant and Justice AS Bopanna have held so clearly, categorically and convincingly also in this noteworthy case! There can be just no denying it!

Even though the factum of injury may not have a direct bearing on a conviction under Section 307 IPC, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 IPC, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant.

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Policy & Politics

Musings of a BSF officer’s daughter

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An important part of being raised as a BSF officer’s kid was to get acquainted with the vagaries and challenges of a borderman’s job and to learn about their life-threatening situations along India’s international borders in states and union territories afflicted with insurgency and terrorism.

The task of protecting the borders stretched to the protection of villages in those areas from the enemy’s nefarious designs and activities.

In border areas, phenomena such as cross-border shelling and infiltration were routine and seldom shocked or demoralized a borderman’s family. Bordermen knew places they were posted to quite well. In several instances, their understanding was better than that of the locals, having researched every nook and corner, ditch, tunnel and ridge and topographical feature.

My father, Late Shri RS Mehta, who retired from the Border Security Force (BSF) as an Inspector General (IG), belonged to one of the first batches of officers to join the force. As a result, right from the time of BSF’s founding in 1965, he was passionately involved in the process of giving the force a shape, identity and a clear direction in over three decades of service. He held many key positions in the organization up to, and including, the Commanding Officer of a battalion.

During his very eventful career with the force, he conducted several counterterrorism operations in Jammu & Kashmir as well as planned and executed many counter-insurgency operations in the Northeastern part of India. These experiences were to later come in handy when, as a senior officer, he was instrumental in formulating many protocols and policies relating to securing the Nation’s borders.

My father used to tell us that bordermen had clearly defined protocols to deal with residents of border villages. A key part of their duty was to maintain an excellent rapport with the local population to win its faith and confidence. Moreover, in certain areas of the country, this also involved making sincere attempts to expedite the integration of the locals into the national mainstream.

I recall my father narrating his experience during his tenure as a young Commanding Officer (CO) posted at Dera Baba Nanak in Punjab’s Gurdaspur district, where he was instrumental in organizing several sports and cultural programmes for the villagers. He would always encourage them to wholeheartedly participate and excel in such events organized by BSF to become model citizens. Various prizes, certificates of merit and goodies were given to participants to build strong linkages. Papa also mentioned his efforts to work closely with Sub-Divisional Magistrates (SDMs) and Tehsildars to provide to the border villages basic facilities such as schools, dispensaries, etc., and to resolve any immediate problems that they might be facing.

Undeniably, the rapport that a borderman shares with the local population can hardly be replicated by the police or other law-enforcement agencies. In a similar vein, inhabitants of rural habitations secured by BSF feel inclined to provide security-related information, updates on border activity and other intelligence inputs.

I chanced to accompany my father to one of his border inspection tours of a remote area in Jammu & Kashmir. Certain pockets in the mountainous regions of Gul and Kishtwar were becoming host to terrorist camps. Our convoy comprising four to five vehicles swerved through the ravines of the majestic Himalayas. In a lonely spot, just by the waterfall, seeing an elderly lady walking by herself, Papa asked the driver to stop for a breather, rolled down his window and asked her, “Amma, sab theek hai na?” (Hope all is well?). To which she replied, “Ethe bus butte he butte ne!” Once the convoy started moving again, I asked my father what she meant and he laughingly told me that her evasive answer implied that there was nothing to tell as there were “only pebbles and more pebbles” in that area.

When we halted for the night at a BSF base camp, we were informed that there were many interceptions of our wireless network by the miscreants who had even challenged the inspecting officer to locate their camp and visit them for a cup of tea! Thanks to his knowledge of the culture and traditions of the area, and other information related to the region, it was possible for my father to deduce that local herdsmen, with their routine cross-border travels and nomadic way of life, had allied with the enemy. Consequently, they were providing strategic support to the miscreants from across the border.

Having understood the root of the problem, the force could carry out combing operations in the region, freeing it of the anti-national forces and, thus, cleansing the area of any terrorist camps.

It would not be wrong to say that the rigorous training of a borderman, his vast experience at the border in different terrains and familiarity with the people living in border villages, make him fit to fulfill his role of securing areas not just along the border but also beyond.

Recently, the Ministry of Home Affairs has issued a notification to widen BSF’s jurisdiction for seizure, search and arrest up to 50 kilometres from the international border in the states of Assam, West Bengal and Punjab.

On October 11, 2021, the Ministry of Home Affairs, Govt. of India announced that it was amending a 2014 notification related to the jurisdiction of the BSF to exercise its powers in states that are on the international border. This notification replaces a 2014 order under the BSF Act, 1968, which also covered the States of Manipur, Mizoram, Tripura, Nagaland and Meghalaya. It also specifically mentions the two newly created union territories of J&K and Ladakh. The BSF can carry out search and seizure operations to check and combat smuggling, illegal entry of migrants and other nefarious activities.

The Central Government’s decision to thus extend the area of jurisdiction of the BSF is, therefore, a welcome step. It will enable our bordermen to carry out combing and search operations in more areas and help the state governments concerned in weeding out anti-national elements to greatly reduce threats to national security. Further, having a centralized chain of command makes the BSF well-equipped and competent to handle issues relating to border security and to also secure the areas adjoining and adjacent to the borders.

As someone rightly noted a long time ago, the price of liberty is eternal vigilance.

The author is a practicing advocate at the Delhi High Court 

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