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Aryan Khan’s case is not a lone example of a

name connected to Bollywood being allegedly
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Letter from the Editor

NEW TAKE ON
SECOND KASHMIR WAR
Inderjit Badhwar

M
ILITARY historian and author lishment cutting across army, navy and air
Shiv Kunal Verma has just released force. Verma answered several questions about
his own take on the Indo-Pakistani his new book in response to a request sent to
war of 1965 in a best-selling him by India Legal.
book—1965: A Western Sunrise. But first, a brief background to the conflict
Major Agha H Amin, a retired Pakistani mili- that will put the questions and answers that
tary officer writes his critical review of Verma’s follow, in a clearer perspective:
book: “This is a very interesting new addition On August 5, 1965, between 26,000 and
to books on 1965 war. The writer gives very 33,000 Pakistani soldiers crossed the Line of
interesting background details to each relevant Control dressed as Kashmiri locals headed for
person or subject.” various areas within Kashmir and set the stage
And it is even more relevant today in light for what has now come to be called the Second
of the escalation of Kashmir War—ano-
tensions once again Although there are earlier books and studies on the ther attempt by Pak-
along the Line of istan to grab the In-
A FRESH
Control with Pakistan.
1965 war, Verma’s advantage lies in his being a his- dian state of Jammu
PERSPECTIVE
Military historian and Although there torian and journalist who has covered conflicts live & Kashmir through
author Shiv Kunal Verma have been several ear- and has sources within the military establishment. military means.
(below left) has just lier books and studies Indian forces, tipped
released his own take in this particular conflict, Verma’s advantage off by the local populace, crossed the ceasefire
on the Indo-Pakistani
war of 1965 in a
lies in his being both a historian as well as a line on August 15. A massive armed conflict
best-selling book— journalist who has covered conflicts live and raged on the sub-continent for the next six
1965: A Western Sunrise has excellent sources within the military estab- months threatening not only the regional bal-
ance of power but also the geopolitical stability
of South Asia.
The result of Sino-India Conflict of 1962, in
which the Indians suffered humiliating defeats,
encouraged Pakistan to attack and try and dec-
imate what it thought was a weakened and
demoralised Indian army. Pakistan’s bravado
also emanated from a renewed military self-
confidence: A modernised Army, to which USA
had contributed substantially, added to her
confidence. By 1965, she had been able to
acquire an edge over India in armour, artillery
and air-power. This sense of superiority
prompted Pakistan to plan aggression on Kash-
mir in 1965. It was a three-phased programme.
In the first phase, the Indian capacity to react
was tested in the Rann of Kutch. In the second
phase, trouble was fomented in Kashmir to
weaken the Indian hold. In the third phase,

| INDIA LEGAL | October 25, 2021 3

Letter from the Editor
an attempt was made to bottle up the Indian
Army in Kashmir by sealing the supply line in
Chhamb-Jaurian sector of Jammu.
According to the official website of the
Indian Army, Pakistan suffered heavily in men
and material in spite of her superiority in arms
and equipment. It is estimated that the Pakis-
tan Army lost 5,988 soldiers and many more
were wounded. India lost 2,735 men and 8,225
were wounded. Indian tank losses were 80 as
against 475 of Pakistan.
Finally, a ceasefire was agreed upon with
effect from September 23, 1965, with UN eff-
orts. The Tashkent Declaration and the subse-
quent agreement between the two countries led
to the disengagement of forces and their with-
drawal to positions occupied by them before
August 5, 1965. This restored peace in the sub-
continent for some time.
D
efense analysts and journalists argue
even today about who ultimately won
decisively. In fact, the 1965 war wit-
nessed some of the largest tank battles since
World War II. At the beginning of the war, the
Pakistani Army had both a numerical advan-
tage in tanks, as well as better equipment. The
consensus is that India came out on top.
Verma points out that in 1962, the Chinese wanted to occupy certain
areas and stamp their authority on India’s psych and they succeeded, but
three years later, despite being flush with US weaponry and tacit support
of China and Britain, Pakistan couldn’t make headway in any of the sectors.
According to the Library of Congress Coun-
try Studies conducted by the Federal Research
Division of the United States: “The war was
militarily inconclusive; each side held prisoners
and some territory belonging to the other.
Losses were relatively heavy—on the Pakistani
side, twenty aircraft, 200 tanks, and 3,800
troops. Pakistan’s army had been able to with-
stand Indian pressure, but a continuation of
the fighting would only have led to further
losses and ultimate defeat for Pakistan. Most
Pakistanis, schooled in the belief of their own
martial prowess, refused to accept the possibil-
ity of their country’s military defeat by “Hindu
India” and were, instead, quick to blame their
failure to attain their military aims on what
they considered to be the ineptitude of Ayub
Khan and his government.”
4 October 25, 2021
Verma says that though
every war is obviously dif-
ferent, even if the drum-
beats are much the same,
the scale on which the
1965 war was fought
numbs the mind. Few
people realise it even now
but it was the Indian Navy
which set the ball rolling
by conducting an exercise
off the Kathiawar Coast.
Former New York Times reporter Arif Jamal
wrote in his book Shadow War: “This time,
India’s victory was nearly total: India accepted
cease-fire only after it had occupied 740 square
miles though Pakistan had made marginal
gains of 210 square miles of territory. Despite
the obvious strength of the Indian wins, both
countries claim to have been victorious.”
Devin T Hagerty wrote in his book South
Asia In World Politics: “The invading Indian
forces outfought their Pakistani counterparts
and halted their attack on the outskirts of
Lahore, Pakistan’s second-largest city. By the
time United Nations intervened on September
22, Pakistan had suffered a clear defeat.”
In his book National Identity and Geopoli-
tical Visions, Gertjan Dijkink writes: “The
superior Indian forces, however, won a decisive
Paintings: courtesy Gp Cap Deb Gohain, Priyanka Joshi and Col Arul Raj
victory and the army could have even marched
on into Pakistani territory had external pres- ture, Pakistan’s capital of the Punjab when the 1962 against the Communist Chinese, the one
sure not forced both combatants to cease their cease-fire was called, and controlled Kashmir’s equation that began to change dramatically
war efforts.” strategic Uri-Poonch bulge, much to Ayub’s was the relationship between Pakistan and the
An excerpt from Stanley Wolpert’s India, {Pakistani leader General Ayub Khan} PRC. President Ayub Khan, having jumped
summarising the Indo-Pakistani war of 1965, chagrin.” into bed with the Americans in the mid-1950s,
says: “In three weeks the second Indo-Pak War Here are the answers from author Shiv was quick to realise that the bread may taste
ended in what appeared to be a draw when Kunal Verma to questions from India Legal: better if it buttered on both ends and the love
the embargo placed by Washington on U.S. Q. What inspired you to write a book on this affair with the Chinese started. By ceding the
ammunition and replacements for both armies war theatre which most Indians as well as the Shaksgam Valley to the PRC, the relationship
forced cessation of conflict before either side world believe had little or no significance for was further strengthened. My book highlights
won a clear victory. India, however, was in a the geo-political future of the subcontinent? the fact that Operation Gibraltar was actual-
position to inflict grave damage to, if not cap- A. After India’s virtual non-performance in ly the brainchild of Mao Dezong, who had a
| INDIA LEGAL | October 25, 2021 5
Letter from the Editor

PAKISTAN'S great impact on Bhutto, the then foreign minis-
FAILED PLAN ter of Pakistan. Zulfikar Bhutto then bypassed
The masterplan of Ayub and encouraged Major General Malik,
Operation Gibraltar.
GOC 12 Division, to start dreaming big. 1965
Verma’s book
highlights the fact that was always going to be India’s acid test!
it was actually the The books have been David Davidar’s idea
brainchild of Mao right from the start. Aleph has quite a stable of
Dezong, who had a outstanding writers and it’s a privilege to be
great impact on
counted amongst them. I also had an exception-
Zulfikar Bhutto, the
then foreign minister al editor in Pujitha Krishnan, with whom I have
of Pakistan now worked on three books (Courage & Convic-
tion: Gen VK Singh; 1962: The War That Wasn’t
and now 1965: A Western Sunrise). If you also
count The Long Road to Siachen (Rupa & Co.)
then that’s four books in all so far under their
combined banner.
Q. As a military historian, how would you rate
the significance of the 1965 conflict as com-
pared to conflicts in 1947-48, 1962, 1971 and the
Kargil War of 1999?
A. Every war is obviously different, even if the
drumbeats are much the same. The scale on
which 1965 was fought numbs the mind. Few
people realise it even now but it was the Indian
Navy which set the ball rolling by conducting an
exercise off the Kathiawar Coast. Given Bhutto’s
own family history (his father was the prime
minister of Junagadh in 1947) INS Vikrant-
borne Sea Hawks and Alizes in the region off
Badin would have given him a few sleepless
nights. Then the Kanjarkot incident happened
and it was the ideal opportunity for General
Musa (the Pakistani chief ) to test out the new
doctrines that had been put in place with the
arrival of US equipment post-SEATO and the
CENTO Agreements. The spotlight then shifted
to Kargil; then Op Ablaze saw complete mobili-
sation, followed by Op Gibraltar. Caught on the
back foot, the Indians then hit back and took
Haji Pir and the Kishenganga bulges, Pakistan
then launched Op Grand Slam aimed at over
running Chhamb-Jaurian and cutting off
Akhnur, followed by the immediate air battles;
then the push forward in the Lahore and Sialkot
sectors—Dograi, Barki, Khem Karan... plus also
the Rajasthan Sector. It was phenomenal stuff
followed by the damp squib of Tashkent!
Q. Did this war have any real winners or losers
in terms of territory, manpower, prestige and
regional standing?
A. Unfortunately we tend to look at a war much
like we think back on a cricket match—runs
scored, wickets taken, aircraft downed, tanks
shot up, number of men killed, square miles
held, etc. Fact is, nations go to war with a clear
cut objective, and if that aim is met, you’ve won,
otherwise it’s a meaningless exercise with a lot
of misery and pain attached. In 1962, the Chi-
nese wanted to occupy certain areas and stamp
their authority on our psych and they succeeded
beyond their wildest dreams. Three years later,
despite being flush with US weaponry and the
tacit support of China and I would even add the
British to the list, Pakistan failed to make any
headway in any of the sectors. In the Rann of
Kutch where they held every geographical
advantage over the Indians, they went to town
claiming a huge victory. Trouble with propa-
ganda is that sooner or later you start believing
it yourself. Reality then creeps up and bites you
on your backside.
Q. Apart from soldiers who lost their lives,
were there any other commanders who
emerged as war heroes in terms of tactical,
planning, execution and standing?
A. My books look at the war from the Indian
perspective but today one has a fair idea of
what happened on the Pakistani side as well.
The few heroes that did emerge were the com-
manding officers and some of the younger offi-
cers. Frankly, though General Harbaksh Singh
had his moments, the entire top brass was a
miserable failure. With the benefit of hind-
sight, we can analyse what went wrong, etc, but
by and large, the top leadership in 1965 was
nearly as bad as the leadership in 1962. The
Indians not even getting to the Ichhogil Canal,
except for Dograi and Barki in the Bari Doab,
and failing to get past Chawinda in the Rachna
Doab tells its own story. The complete lack of
cohesion between the IAF and the Army bor-
dered on the criminal.
Q. Did the two warring sides start out with
any military or strategic positioning?
A. Before the 1965 war, the main threat from
the Pakistanis seemed to stem from the then
state-of-the-art Patton tanks—both the M47
and M48s—and the F-86 Sabre Jets and F-104
Starfighters that were equipped with fancy
stuff like the Sidewinder Missiles, etc. There
was also a lot of emphasis on mechanised
forces, and as I said before, new doctrines of
warfare that were being put into place.
However, what actually saved the day for
Pakistan was the quantity of artillery guns at
their disposal. The Pakistani defensive system,
especially in the Lahore sector, that was built
around the Ichhogil Canal, also stood the test.
Anyone looking at the map of the Punjab
will realise that armoured operations would
sooner or later get compartmentalised and
that is what happened, especially since the
Indian commanders preferred to fight a war
of attrition.
Q. Was this a testing time for any new weapon-
ry and did it prepare both sides for the
1971 war?
A. Having fought a war of attrition, the Indians
then had the Pakistanis on the ropes. General
JN Chaudhuri, the Army chief, then came up
with the crowning blunder of his career when
he told Prime Minister Lal Bahadur Shastri
that India was running low on ammunition
when in reality not even 15% had been expend-
ed as against Pakistan which had shot off close
to 85% of its stock. Why Chaudhuri chose to
duck when he should have gone to the jugular,
only god and he knows. Had the conflict con-
Verma says one can now analyse what went wrong, but by and large, the top
leadership in 1965 was nearly as bad as the leadership in 1962. The Indians
not even getting to the Ichhogil Canal, except for Dograi and Barki in the Bari
Doab, and failing to get past Chawinda in the Rachna Doab tells its own story.
tinued, Pakistan’s war-making ability would
have been severely dented and who knows,
maybe the millions who lost their lives in East
Pakistan six years later may have been spared
what was nothing but a ruthless genocide. But
then these are the “ifs” and “buts” of history...
Q. How many years did you spend researching
this conflict and what kind of research was
involved and how would you rate this latest
book in comparison to your previous books?
A. Research is an ongoing thing, especially
when it comes to conflicts and these are of
interest to you. 1965 took two years to write,
while the maps and accumulation of photos
also took a fair amount of time. How does one
rate one book against another? You simply can-
not, for each work has its own dynamics and
while you’re bent double over it, your entire
being is focused on that period of time. But
yes, 1962 was a difficult book to write and I
guess it really set the tone. 1965, in many ways,
was just a continuation of the same story. I also
think a lot of the research for my earlier films
also helped, for a lot of people who had fought
in the 1965 war were close family friends, if not
part of one’s extended family in the Army. It’s
been a long journey—but a satisfying one.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

6 October 25, 2021 | INDIA LEGAL | October 25, 2021 7

 Contents
OCTOBER 25, 2021 Gargantuan Calisthenics 32
The delay in the
reconstitution of
parliamentary panels
Chief Patron Justice MN Venkatachaliah has riled the
Opposition, but
Editor Inderjit Badhwar
VO LUME XIV I SS U E 5 0 reconstituting them is
Senior Managing Editor Dilip Bobb a huge task. It is time
Deputy Managing Editor Shobha John
to rethink the tenure
and procedure of
Executive Editor Sujit Bhar appointment of
Deputy Editor Prabir Biswas the members
Junior Production Executive Shivangi Mugloo OPINION
Deputy Art Editor Amitava Sen
Farmers and the Courts 24 ENVIRONMENT
Editor (Digital) Vikram Kilpady

34
The observations made by the Supreme Court have ignited

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8 October 25 2021 | INDIA LEGAL | October 25, 2021 9

 Courts

Delhi HC T he Delhi High Court bench of Chief Justice

DN Patel and Justice Jyoti Singh dismissed a
dismisses petition challenging the appointment of Gujarat-
cadre IPS officer Rakesh Asthana (below left) as
challenge to the police commissioner of Delhi. This order was
appointment on a petition filed by Sadre Alam.
of Delhi
Petitioner’s lawyer BS Bagga contended that
Asthana’s appointment was in contravention of
Rule 56(d) of the Fundamental Rules issued by
Police chief the Department of Personnel and Training,
Rakesh wherein it is specified that no officer can be
granted an extension of service beyond the age
Asthana of retirement of 60 years. He further contended
Allahabad HC stays order SC says no to use of
granting bail to ex-UP barium nitrate in
minister Gayatri Prajapati firecrackers
that Asthana’s appointment had been made in
violation of directions issued by the apex court in
the case of Prakash Singh vs Union of India.
Senior Advocate Prashant Bhushan, for inter-
venor NGO Centre for Public Interest Litigation,
claimed that no UPSC panel was formed for
selection of the Delhi police commissioner.
He pointed out that the UPSC must first pre-
pare a list of candidates and the government
could select one out of those three, but the three
names must come from the UPSC. He said this
was another violation.
Solicitor General Tushar Mehta, appearing for
the centre, said that the petition was manifestly
an outcome of some personal vendetta against
Asthana. He said that eight other appointments
had been made after the Prakash Singh case in
the similar manner as Asthana, which were not
challenged by “public-spirited citizens”. He
added that this was a PIL in a service matter,
which could not be maintained in the light of
various decisions passed by the top court of
the country. He also said that directions issued
in the Prakash Singh case applied only to the
directors general of police of states and not to
Union territories.
also be from fuljhaddi (sparklers), etc
and does not need noisy crackers.”
The cour t noted that Senior Advo-
cate Gopal Sankaranarayanan had
Delhi HC asks bar associations to give
suggestions on security at court complexes
T
he Delhi High Court recently directed
all Delhi district court bar associations
to file their suggestions as affidavits or
report on the issue of maintaining safety
and security at all court complexes in the
capital. On September 30, the division
bench of Chief Justice DN Patel and
Justice Jyoti Singh had taken suo motu
cognisance of the shootout inside the
Rohini Cour t (below) complex on Sep-
tember 24, 2021, which left three people
dead and one woman lawyer injured.
The bench tagged the instant suo
motu matter with a petition filed by a
practising advocate Deepa Joseph
through advocates Robin Raju and
Blessan Mathews, stating that “recurrent
incidents of shootouts in court premises
are causing serious fear in the minds of
petitioner and thousands of other fellow
legal professionals practising in District
courts of Delhi”.
The bench issued notice to the Delhi
police commissioner and the Bar Council
of Delhi, while taking note of the “valu-
able suggestions” enumerated in the plea
for ensuring safety and security of the
district courts in Delhi, which, inter alia,
includes:
(a) A strict instruction to all the police
personnel deployed at court entrances to
ensure mandatory checking of the ID
cards of each and every lawyer who
enters the court premises.
(b) To make the level of security and
frisking of lawyers at district court com-
plexes at par with the Delhi High Court
and the apex court.
(c) To ponder over the decision on instal-
lation of biometric punching device at the
entrance gates of all the courts.
(d) To take strict disciplinary action
against those officers who do not imple-
ment the aforesaid direction with utmost
diligence and seriousness.
(e) A direction to the Bar Council of Delhi
Punjab and Haryana
High Court grants
protection to Yuvraj
Singh over arrest in
caste remark case
T he Punjab and Haryana High Court
directed that in case cricketer
Yuvraj Singh is arrested on joining the
probe, he should be released on inter-
im bail upon furnishing bail and surety
bonds, while noting that the Haryana
Police was seeking only “formal
arrest” of Singh in an alleged casteist
remark case.
Senior counsel Puneet Bali add-
ressed arguments in reference to what
constitutes an offence under Section
3(1)(r) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atro-
cities) Act, 1989. He submitted that
what Singh intended by using the word
(bhangi) in the video recording of the
conversation between him and his
friend did not intend to promote feel-
ings of enmity, hatred or ill-will against
members of the SC/ST community. The
word was used only in the context of

T he Allahabad High Court stayed a July 30, 2021
order granting bail to former Uttar Pradesh (UP)
cabinet minister Gayatri Prajapati (below) by an
MP/MLA Court in Lucknow in a cheating-extortion
case. Justice Rajeev Singh passed the order while
hearing a petition from UP which pleaded for cancella-
tion of bail granted to Prajapati.
The counsel for the state contended that the
MP/MLA Court did not consider Prajapati’s criminal
T he Supreme Court recently refused
permission to the use of barium
nitrate in firecrackers. The bench of
Justices MR Shah and AS Bopanna
observed: “We cannot celebrate at the
cost of lives of others. From where do
we get that celebration can only be
from noisy crackers? Celebration can
placed on record an additional affidavit
on the basis of a CBI report and what
has transpired is indeed very disturb-
ing. Justice Shah found the reply filed
by the manufacturers surprising which
says that “when they found to have
purchased a huge quantity of barium,
it’s to be kept in godown, but not
manufactured.”
to issue an advisory to ask their respec-
tive members to cooperate with police
personnel deployed at the entrance of
court complexes.
Supreme Court quashes plea by six convicts
against sentence
an inebriated person, the counsel said.
The counsel further submitted that
in any case there was no mens rea
behind the usage of the word, which
was used in a casual conversation
pertaining to a marriage of a friend
who does not belong to the SC/ST
community. He also submitted that
even as regards the provisions of the

T
past and a case was pending against Prajapati wherein Senior Advocate he Supreme Court dismissed the The Court further observed that IPC that the petitioner has been
a woman had been administered some intoxicant and Dushyant Dave, appear- criminal application of six convicts the material on record definitely estab- accused of committing offences under
raped by Prajapati as well as other accused and ing for association- who had challenged the sentence awar- lishes the fear created by the accused. Sections 153-A and 153-B of the
obscene photos of the victim had been clicked. On the respondent TANFAMA, ded to them by the trial court, and up- If the witnesses felt terrorised and Code, it is obvious that in the context
basis of the same, she was being requested the Court to held by the Calcutta High Court. frightened and did not come forward that the word was used, there was no
blackmailed and forced to have let the manufacturers The bench of Justices UU Lalit, S for some time, the delay in recording intention and no promotion of enmity
sexual intercourse with Prajapati only use barium nitrite Ravindra Bhat and Bela M Trivedi obser - their statements stood adequately between different groups on the ground
and other accused. He also infor- now. To which Senior ved that there was some delay in recor- explained. of religion, place of birth, race, resi-
med the Court that a case was Advocate Gopal Sanka- ding the statements of the concerned Nothing has been brought on record dence, language, etc., and no act was
already lodged in the matter against ranarayanan replied that eye-witnesses, but mere factum of delay to suggest that during the interregnum, committed prejudicial to maintenance
Prajapati subsequent to the order of they cannot use any bar- by itself cannot result in rejection of the witnesses were carrying on their of harmony.
the Supreme Court. ium element. their testimonies. ordinary pursuits, the bench noted.

10 October 25, 2021 | INDIA LEGAL | October 25, 2021 11

Lead/ My Space/ Drug Abuse Dr Swati Jindal Garg
I
T is said that every time you cross
a barrier, the drug increases in
value-and rightly so!! This quote
aptly explains how the drug trade
has grown into such a gigantic
criminal enterprise sprawling
across the globe. With multiple arrests
happening from Bollywood, it is becom-
ing more and more difficult to deglorify
drug abuse.
Several Bollywood celebrities have
vouched for the fact that drug culture
prevails at a large scale in Bollywood,
and without it, it is difficult to get
accepted in the hallowed portals of the
La La land! The most recent controver-
sy in this is that of Shah Rukh Khan’s
son Aryan Khan who the Narcotics
Control Bureau (NCB) took into cus-
tody following a drug bust on a cruise
ship off the coast of Mumbai.
Aryan Khan’s case is not a lone case
in this context. There have been multi-
ple other cases in the recent past involv-
ing big Bollywood names that have
been allegedly involved in drug culture.
The biggest name
in this is that of
Sanjay Dutt who
Bollywood has already faced allegations of drug addiction involving stars such as (from unsure life,” said the
has opened up left below) Sanjay Dutt, Fardeen Khan and Armaan Kohli. Whenever any drug peddler is
about his arrested, it is discovered that he was supplying drugs to Bollywood celebrities.
BUSTED IN
BOLLYWOOD
Aryan Khan’s case is not a lone example of a name connected to Bollywood
being allegedly involved in drug culture. There have been multiple other cases
linked to the film world in Mumbai. The NDPS Act must be re-examined
carefully to curb drug menace as the present law is easily misused
12 October 25, 2021
encounter with drugs in various inter-
views. Rajkumar Hirani’s 2018 film
Sanju is a much acclaimed movie that
shows the journey of the actor through-
out his life and also portrays how he
came out of his addiction. Dutt is now a
part of the drug-free India campaign
promoted by The Art of Living
Foundation.
Fardeen Khan, who was arrested in
2001 while he was in possession of 9
grams of cocaine, also decided to under-
go a detox programme and was later
granted bail with immunity in 2012.
The actor is now concentrating on his
health in order to make a comeback.
Another yesteryear star Armaan
Kohli was also arrested in August 2021
after the NCB conducted a raid in his
house in Juhu, Mumbai, and recovered
a small amount of drugs from his house.
The star immediately shot to fame after
his appearance in Big Boss where he got
involved with Tanisha Mukherjee, Ka-
jol’s sister. The Rhea Chakraborty case is
also a recent one—in fact one that is still
going on in the courts of law and the
final verdict in the same is yet to come.
With Rhea, reportedly, claiming that
Sushant Singh Rajput was addicted to
Marijuana, the drug abuse in Bollywood
immediately came back into focus espe-
cially when Rajput was found dead
under mysterious circumstances in his
own rented apartment. Bollywood’s link
to drugs is not new and there have been
confessions and arrests of film stars in
the past. In fact, whenever any drug
peddler is arrested, it is immediately
discovered that he was supplying drugs
to Bollywood celebrities. There are a
number of celebrities who claim that
drugs are an intrinsic part of their cre-
ative routine and that they can’t “man-
age without them”.
Actor Kunicka Lall has reportedly
said that Bollywood is not the only
industry that has a drug connection. “In
today’s time, we are living a highly
stressful life coupled with aspirations.
Drugs are everywhere—be it media, cor-
porate world, or Page 3 parties. Bolly-
wood has always been an
insecure place with an
actress. She also men-
tioned that today’s stars
| INDIA LEGAL | October 25, 2021 13
Lead/ My Space/ Drug Abuse/ Dr Swati Jindal Garg

need to maintain their physique and
alcohol is not an option for them; so the
only option they are left with, which will
help them not to put on weight, yet give
that effect is drugs. Kunicka further said
that the CBD oil which was mentioned
in Rajput’s case is used for relaxation.
She recalled the time when her co-actor
Jackie Shroff freely indulged in hash on
the sets of his film. “Jackie Shroff
smoked hash but that did not affect his
work; though he would have mood
For example, in Colombia, producing a
gram of cocaine costs less than produc-
ing a pound of coffee; however the price
of cocaine ends up to be much higher
due to the risk involved in transporting
and selling it. The market value of drugs
also depends on the laws of demand and
supply, and as the demand for drugs is
inelastic due to its being addictive, the
suppliers have the luxury of charging
whatever they want for their goods.
person from the producing/manufac-
turing/cultivating, possessing, selling, “suspicious transactions” constituting
purchasing, transporting, storing, offences under the NDPS Act. Its prose-
and/or consuming any narcotic drug or cutor also told the court that there is
psychotropic substances. The NCB was prima facie material in the form of
set up under the Act, with effect from WhatsApp chats showing a nexus of
March 1986. The Act is a step in the respondents (the three arrested on
right direction as India had no legisla- Sunday, October 4) “with peddlers and
tion regarding narcotics until 1985. suppliers on a regular basis”.
In 1994, a committee was set up to The central government has to take
establish how the exploitation of this the initiative to amend the NDPS Act as
law could be stopped. The NDPS Act the drug menace is spread across states

swings,” she said and added: “Ganja is
part of our culture and if you go to
Kumbh, you will get ganja and charas
worth crores of rupees and if you go to
Kumbh Mela you will find ganja on
your plate. So what’s the big deal?”
she said.
The connection of drugs with Bolly-
wood is so strong that there are even
drugs that are named after some Bolly-
wood celebrities. Actor Kangana Ranaut
reportedly made a statement in the
media recently that 99% of Bollywood
takes drugs and demanded a drug test
on them while clarifying that she does
not do drugs.
All drugs have a market value that
I
n India, the major percentage of
addicted teens hail from West
Bengal and Andhra Pradesh (60%)
and 35% of them come from Uttar Pra-
desh and Haryana. Another statistic
worth noting is that out of the 7% peo-
ple in India that commit suicide, 3.3%
were under the influence of drugs. The
consumption of these drugs may be
through various methods like smoking,
injecting or snorting, depending upon
the personal preference of the consumer.
Some of the most popular drugs are Co-
deine, Fentanyl and Fentanyl analogs,
Heroine, Morphine, Opium, Oxycodone
HCL, Hydrocodone bitartrate, LSD, etc.
The Narcotic Drugs and Psychotro-
was then amended to say that it was the
quantity of drugs that would determine
the extent of punishment. So, if self-use
is proven then the punishment is much
lesser. In 2001, this was amended again
to distinguish between personal con-
sumption and commercial use. Six years
ago, the death sentence was also done
away with.
The problem with this law unlike
other laws is that while in other laws
the rule is innocent until proven guilty,
here it is guilty until proven innocent.
On the other hand, loopholes in the
NDPS Act, 1985, enable drug mafia to
go scot-free even after being arrested by
the police and are a big cause of con-
NOT AS ACCUSED
Actors (clockwise from left) Deepika Padukone, Sara Ali Khan and
Shraddha Kapoor were summoned by the NCB to provide their inputs
Section 67 of the NDPS gives the which relates to consumption of any
power to any officer to summon any- narcotic drug or psychotropic substance
body under any offence if the officer and Section 35, which is a presumption
thinks that the person’s input will be of culpable mental state.
important in cracking the cases. Hence, The NCB has also claimed that am-
actors like Deepika Padukone, Sara Ali ong the seized drugs at the cruise ship
Khan, Shraddha Kapoor were sum- are 13 grams of cocaine, 5 grams of
moned in the Bollywood drug probe mephedrone, 22 pills of MDMA (Ecs-
linked to the death of tasy)—all categorised as
Rajput, but not as “intermediate” quanti-
accused in the case. ty—and 21 grams of
charas, which fall in the
and requires stringent laws to curb it.
We must learn from the UAE and other
Muslim countries where drug menace is
very low due to stringent laws. The mo-
ment there is a problem we come up
with a law, thinking that it will make the
problem go away. There are several laws
which are floating around, which do not
serve any legal purpose and are easily
misused. The need of the hour is not
only legislation but also stricter imple-
mentation in order to curb the menace
of drug abuse that is making our next
generation weak and redundant. The
answer is not to pass a new law, or
“Bollywood clean-up” as some are dub-
bing this, but to re examine this NDPS

not only depends on their composition
but also on their geographical location.
14 October 25, 2021
pic Substances Act, 1985, commonly
referred to as the NDPS Act, prohibits a
With actor Rhea Chakraborty (above) reportedly claiming that Sushant Singh Rajput
(left) was addicted to marijuana, the spotlight was once again thrown on Bollywood’s
alleged drug link, especially after Rajput’s death under mysterious circumstances.
I
cern in dealing with the drug menace. n the latest Aryan
The drug mafia, through its ped- Khan case, he and
dlers, exploits the weak links of the Act. seven others have
The Act is stringent for peddlers who been charged with vari-
are caught with higher quantity of ous sections of the
drugs and they are booked under non- NDPS Act. The NCB
bailable offences, but those peddlers has invoked four sec-
who are caught with less quantity are tions of the NDPS Act
booked in bailable offences and come so far, including Section
out of prison within days. Fifty nine
grams of marijuana and a small amount
8(c) that has wide pro-
visions for producing,
of psychotropics was found from one of manufacturing, possess-
the dealers in the Rhea Chakraborty
case. The law says that possession of
ing, selling, purchasing,
transporting, using,
ganja (cannabis) up to 1 kg is allowed. consuming, importing,
Mafia and peddlers are well aware of exporting narcotic drug
this fact that even if they are caught in or psychotropic sub-
the process, they will be out within days stances. Section 8(c) has
and it will not affect their business. been read with three
other sections, namely
Section 20(b), which
relates to the use of
cannabis, Section 27,
category of “small” law carefully.
quantity as per the The persons who are drafting the
NDPS Act. While the legislations should not only be good
NCB has not clarified drafters but should also have the skill
from whom and where and deep understanding of the subject
these drugs have been at hand. Opinions and views of experts
seized, the court was in the field concerned should also be
told that the offences considered while making laws so that
Actor Kunicka Lall against Khan are bail- the practical aspects of a problem are
reportedly said that able. It is also notewor-
thy that since the cate-
not ignored and the ground reality is
always kept in sight. While a perfect leg-
Bollywood is not gory of cannabis is islation that is make keeping all these
the only industry “small” as per the NDPS
Act, the maximum pun-
points in mind is likely to bring positive
results, a defective legislation not only
that has a drug ishment would be six shatters the hopes of the legislators, but
connection and months or a fine of Rs also leads to chaos, miscarriage of jus-
10,000 or both. tice and injustice to the victims of such a
drugs are every- Section 27, which is poorly drafted law.
where—be it media, a charge for consump-
tion, has a maximum —The author is an Advocate-on-
corporate world or charge of one year. The Record practising in the Supreme Court
Page 3 parties. central agency said of India, Delhi High Court and all dis-
that it was investigating trict courts and tribunals in Delhi
| INDIA LEGAL | October 25, 2021 15
Spotlight/ India Legal Show

A MENACING HIGH
T
HE Aryan Khan case has

Drug abuse is not cool any more. It has become a dangerous and been grabbing the head-
lines for its legal pyrotech-
life destroying indulgence and young adults are being drawn into its nics and star value. How-
ever, despite the legal
vortex. The drug market in India has grown by 455% in the last cacophony, the seriousness
three years and the Narcotics Control Bureau is fighting the of substance abuse has not been lost to
many. Though the focus has been on
menace with the stringent NDPS Act. APN channel did an Bollywood and the metros, in reality,

in-depth discussion on the issue of substance abuse and the NDPS
Act on its special show India Legal. The show was moderated by
the channel’s Editor-in-Chief, Rajshri Rai. A report:
By Sanjay Raman Sinha
the malaise of illicit drugs has spread its
tentacles to smaller towns. Drug abuse
and trafficking have increased exponen-
tially since 2020 and various drug en-
forcement agencies, especially the Nar-
cotics Control Bureau (NCB), are grap-
pling with this scourge.
Umakant Mishra, former Assistant
Director, NCB, has first-hand experi-
ence in drug trafficking control. He
said: “Worldwide, drug problems
gained a high from 2017 onwards.
Cambodia, Thailand and Myanmar are
crucial to drugs supply in India. India
is a transit country; drugs pass from
here and are also consumed in the
process. Although we have 4,000 years’
tradition of drug consumption, it was
more on a religious and cultural level.
In the 1980s, the drug problem became
serious and consumption too has
steadily increased. Drug trafficking got
a fillip due to international reasons too.
Bumper harvests in Afghanistan also
gave rise to drug trafficking and
consumption.”
While arrests of high-profile alleged
drug abusers and recovery of “small
quantities” of drugs are a good exercise
for the NCB, the question remains whe-
ther the law has been successful in
stamping out drug peddlers and reha-
bilitating addicts.
Justice AK Sharma, former judge of
the Madhya Pradesh High Court, said:
“When the Narcotic Drugs and Psycho-
tropic Substances (NDPS) Act, 1985,
was promulgated, it was felt that the
Umakant Mishra, former Assistant Director, NCB, said that drug consumption is
increasing and people caught should be thoroughly questioned to unearth the drug
supply chain and consumer and peddlers should be penalised.
drug menace would get controlled. But another. However, no large-scale data is
the law was quite technical and officers available for injectable drug use among
of the NCB found it hard to understand children and adolescents in India. A few
it. There was a web of formalities as sample studies and case reports point to
well. This made the working of the drug abuse as an addiction mode for
NDPS Act on the ground non-efficient. children and young adults. In short,
Now with training and orientation of drug abuse among children across social
officers, the situation has improved. classes is a harsh reality.
Technical formalities are being followed Dr Sajeela Maini, Senior Consultant
and the implementation has become for De-addiction, Sir Ganga Ram Hos-
fairly good. Another problem is that the pital, has been handling drug abuse
end-users get caught, while the suppli- cases of children as well as adults. She
ers escape the net of law. The end-users said: “A worrisome trend is that children
should always tell the authorities about as young as 10 years are getting entan-
suppliers and get them nabbed. An eye gled in drugs. In this regard, parents
should also be kept on groups who need to be alert for tell-tale signs. Both
influence drug abuse.” alcohol and drug usage are on the rise.
A disturbing fact is the rising inci- Children first consume cigarettes and
dence of drug abuse among children. then move on to drugs. The child often
The All-India Institute of Medical behaves strangely, he becomes aggres-
Sciences has published findings that sive, has red eyes, spends more time
show that nearly 100% of India’s street alone in rooms and washrooms. Parents
children abuse one form of substance or should watch out for these signs.”

16 October 25, 2021 | INDIA LEGAL | October 25, 2021 17

Spotlight/ India Legal Show
Once a drug abuser gets arrested,
another set of problems arise for him.
He is slapped with charges under the
NDPS Act and then begins the legal bat-
tle for bail, which is often exceedingly
difficult to get.
Amit Kumar, Advocate General,
Meghalaya, is an expert on NDPS mat-
ters. He said: “Users get arrested more
than suppliers. This is because the drug
business runs like a pyramid. Users are
more than suppliers and manufacturers
even less. So, the police catches the user
more often and in larger numbers. The
user should be interrogated to know the
manufacturer-supplier link and the
racket be busted. Under Section 37, bail
conditions are stringent. A liberal app-
roach in matters related to NDPS is not
encouraged. To decide bail, it is neces-
sary to take on record the arguments of
the public prosecutor. Without it, no
bail decision can be made. Under Sec-
tion 37(2), the accused is considered
guilty till proven innocent. This is
reverse to the settled assumptions of the
general law code. These injunctions of
law cover consumers, suppliers and
manufacturers. As the consumer is the
victim, leniency is needed. The maxi-
mum punishment for the consumer is
Dr Sajeela Maini, Senior Consultant for De-addiction, Sir Ganga Ram Hospital, said
a worrisome trend is that children as young as 10 years are getting entangled in drugs
and parents need to be alert for tell-tale signs.
18 October 25, 2021
Justice AK Sharma, former judge of the Madhya Pradesh High Court, said that the
accused who want to opt for drug de-addiction should be guided towards rehabilitation
and there should be a consequent relaxation in jail term as well.
one year, so the court should liberally Umakant Mishra said: “Drug con-
grant bail to persons consuming drugs. sumption is increasing as more and
Pre-trial punishment in the form of a more drugs are finding its way in India.
prolonged judicial custody or jail is not The recent haul of around 3,000 kg of
correct in law.” heroin from a container at Mundra port
in Gujarat is a case in the point. Now
F
rom cannabis, cocaine and heroin realising the sensitivity of the case, the
to synthetic drugs, consumption National Investigation Agency is doing
has increased manifold in India a probe. Recently, there have been
in recent years. So has the conviction many such drug seizures. These show
in drug-related crimes. Data shows an how drugs are funnelled via India or
11% increase in drug conviction rates into India. This has spiked drug con-
since 2016. sumption. Rave parties are sympto-
matic of this phenomenon. People
caught should be thoroughly questioned
to unearth the drug supply chain and
consumer and peddlers should be
penalised. The existing quanta of pun-
ishment for consumption is a minimum
of six months and a maximum of one
year. This was not the case when the
law came in force. Initially, the mini-
mum punishment under the NDPS Act
was five years, irrespective of the
amount seized. This was later changed.
The law is evolving since 1985 and has
been amended thrice. With every
amendment, there is some improve-
ment. It is not that the addict is getting
a raw deal. At two levels, he gets
benefitted. There is a provision that
after trial, the judge can send the
accused to a drug rehabilitation facility
instead of jail. This is immunity
from prosecution.”
Amit Kumar, Advocate General, Meghalaya, said that users get arrested more than
suppliers as the drug business runs like a pyramid. Users are more than suppliers and
manufacturers even less. So, the police catches the user more often in larger numbers.
Another problem that negatively
impacts the NDPS legislation is the
absence of distinction between a con-
sumer and an addict. The existing defi-
nition of an addict is neither medical
nor legal. During the discussion of the
Bill in 1985, the words “consumer” and
“addict” were used interchangeably.
This has persisted and this grey area
has now created a legal loophole.
However, Maini disagrees. “Crime
and addiction go hand in hand in many
cases. An addict turns supplier when
he runs short of money. We should
catch the peddlers and suppliers to get
to the root of the supply chain. The
punishment of one year is also too less.
A stronger deterrent is needed.’’
WhatsApp chats have now become
fashionable as material evidence. When
can these chats be held as a valid piece
of evidence? Can law enforcement
agencies charge a person on the basis of
electronic evidence?
Amit Kumar said: “If on the basis of
WhatsApp chats drug consumption,
procurement or sale/purchase is con-
firmed, then under Section 27 of the
Evidence Act, punishment may be
given. The consumer-peddler category
is a grey area. If a peddler gets caught
with sufficient proof, then he won’t
come under the six-month-to-one-year
punishment bracket. There is a provi-
sion for 10 years’ jail term as well. If a
person is caught with commercial quan-
tities of drugs, then he attracts harsher
punishment.”
Under the NDPS Act, statements
taken in custody are used by investigat-
ing agencies to bolster their case and
intimidate people since they were held
as admissible evidence. Fortunately, in
Toofan Singh’s case, the Supreme Court
held that these statements were not
admissible. As a result, a large number
of accused have been released on bail.
Umakant Mishra talks about the rel-
evance of custodial statements. “After
the Toofan Singh judgement, the state-
ment of an accused recorded in custody
has no validity. Corroborative evidence
is needed, otherwise people will be
pressurised in custody to give state-
ments. Supportive evidence is needed in
all cases.”
W
hat propels a young adult
into the murky and deadly
world of drug abuse? How
does his personality change after he
starts taking drugs? Dr Maini said: “The
desire for adventure and experimenta-
tion leads him on and on into the murky
and lethal world of substance abuse.
Talking of rave parties, they are the hot-
beds of drug consumption. Drugs are
readily available here. The youngster
takes drugs first as an experimentation
and due to peer pressure as well. When
he first starts taking drugs, he cuts him-
self off from his near and dear ones. He
becomes aloof. However, this is an
effect. When someone is diagnosed as a
drug addict or even as a beginner of
drug abuse, he is given treatment at
two levels. First, he is counselled and
then medications are administered. So,
it is the mind-body complex that is
treated. It is not very difficult to kick the
habit; it takes 7 to 10 days and the with-
drawal symptoms wane off in a short
period of time.”
The deterrent and the reformative
aspects of the NDPS law have been a
moot point right from its formative
stages. Even now, the law has not been
properly internalised. Judges, seemingly
uninformed about the larger objectives
of the legislation, don’t weave rehabilita-
tion into their judgments.
Justice Sharma admitted: “Rehabili-
tation should be considered at the judg-
ment level. The accused who want to
opt for drug de-addiction should be
guided towards rehabilitation and there
should be a consequent relaxation in jail
term as well. Private rehabilitation clin-
ics are expensive. The government
should open treatment centres and fund
them properly.”
When the NDPS Act was put in
force, there was no provision of rehabili-
tation. The law was later amended for it.
But the rehabilitation clause has not
been successful at the ground level.
“There is a problem of where to keep the
accused, in this case, the drug addict. At
the district level, some drug treatment
centres should be established. Drug
treatment is not possible in jail where
other inmates are present. But now
social organisations are coming to the
fore and taking initiatives for drug
addicts’ rehabilitation.”
Cases like that of Aryan Khan are
warning signals of the epidemic propor-
tions that substance abuse may finally
take. The case is also a barometer of
inherent legal inconsistencies and fail-
ings of the NDPS Act. On both fronts,
proactive and corrective action is the
need of the hour.
| INDIA LEGAL | October 25, 2021 19
Courts/ Strictures to the Media

Arjun Jain objected to

Tourism Pvt. Ltd. to conduct and man-
age entertainment shows onboard
“Empress Cruise Ship” chartered by
the coverage on the
Mumbai cruise drug raid
by India Today News
Network that had shown
him as the mastermind
who organised the event
on the ship. He alleged
that this had impinged
on his right to privacy
and prejudiced the
minds of the investigat-
ing agency.
and reportages in relation to him. news broadcasting, were already in place.
News Broadcasting and Digital Stan- ASG Chetan Sharma, appearing on
dards Authority, an independent body set behalf of the centre, backed Bhambani to

RESTRAINING
Cordelia Cruise. The Cruise was raided
by the Narcotics Control Bureau (NCB)
on October 2, which seized contraband
and arrested Aryan Khan, son of Bolly-
wood star Shah Rukh Khan, amongst
up by the News Broadcasters Association,
is tasked with the job of considering and
adjudicating complaints about broad-
casts. Advocate Nisha Bhambani, appear-
ing on the behalf of the Authority, had
state that they have already framed rules
to ensure that not only is reporting done
in a responsible manner but that no prej-
udice is caused to citizens in respect of
any ongoing investigation against them.

ORDERS
other accused. submitted that effective guidelines by way

The courts have often found the conduct of the media
sensationalist and biased rather than neutral. This was
seen in the Aryan Khan, Devangana Kalita, Disha Ravi and
Sushant Singh Rajput cases
Jain was aggrieved by the coverage of
India Today News Network pertaining to
the raid, which had insinuated that he
was the mastermind who had organised
the event. He argued that even though
he was neither a director nor an associ-
ate director in M/s Namascray Experi-
ence Pvt, India Today News Network
had broadcasted and published news on
its channels and digital platforms which
purportedly showed him as an associate
director of the company.
of News Broadcasting Standards Regu-
lation and the Code of Ethics and Broad-
casting Standards which encompassed a
wide range of principles to self-regulate
E
ven though the centre has felt that
there is no need for reforms by
legislation, time and again the
courts have found the conduct of the
media sensationalist, encouraging biased
or emotionally loaded impressions of
events rather than neutrality, hence caus-
ing manipulation. There have been three
other cases where the courts reprimand-
ed the media—Devangana Kalita case,
Disha Ravi case and the Sushant Singh
Rajput case.

R
Furthermore, Jain had been projected In 2020, Devangana Kalita, a former
ECENTLY, the Delhi High by the Network as having previous crimi- MPhil student from JNU, garnered na-
Court directed that “all nal antecedents, and by way of direct tional attention when she took part in
media houses ought to and indirect innuendoes linked him to anti-CAA and NRC protests at Delhi.
MEDIA TRIAL
Arjun Jain (right)
exercise restraint while the alleged seizure of drugs. This, he Following this, she was arrested in May
went to Delhi HC reporting on matters which alleged, had impinged on his right to pri- 2020 and charged under the Unlawful
aggrieved by are still under investigation vacy and also prejudiced the minds of “The same (using media to influence pub- Activities (Prevention) Act (UAPA). Ka-
reports on India
Today TV linking
by any statutory authority”. the investigating agency. lic opinion) is not only likely to subvert the lita moved the Delhi High Court against
him to the Cordelia
Justice Rekha Palli gave this order In his petition, Jain sought directions fairness of the investigation but would a Delhi Police press note which publi-
cruiseliner’s while hearing a petition by Arjun Jain, an for rules to be set up regarding an emer- also have the propensity to destroy or cised information on allegations and evi-
Empress ship ex-director in M/s Namascray Experience gency efficacious grievance redressal sys- dence allegedly collected against her. A
(above), which is at Pvt. Ltd, which had entered into an On- tem for reportage in criminal investiga- weaken the presumption of innocence...” single-judge bench of Justice Vibhu
the centre of a drug
bust involving high- board Entertainment Services Agreement tions and trials and direction to India —Justice Vibhu Bakhru of Delhi HC in the Bakhru held: “The same (using media to
profile celebrities with the operator, Waterways Leisure Today News Network to remove all links Devangana Kalita case influence public opinion) is not only

20 October 25, 2021 | INDIA LEGAL | October 25, 2021 21

Courts/ Strictures to the Media
After Sushant
Singh Rajput’s
death, a Bombay
HC bench of Chief
Justice Dipankar
Datta (right) and
Justice GS Kulkarni
said that the con-
duct of Times Now
and Republic TV in
covering the case
amounted to crimi-
nal contempt.
likely to subvert the fairness of the inves-
tigation but would also have the propen-
sity to destroy or weaken the presump-
tion of innocence, which must be main-
tained in favour of the accused till he/she
is found guilty after a fair trial.”
The Court said that though there
could not be a blanket ban on the Delhi
Police which prevented them from dis-
closing any information regarding a
pending case, it had to be seen from the
facts of each case whether the informa-
tion disclosed by the police had the
“propensity to prejudicially affect fair
trial”. The Court further stated: “This is
not only because such actions may preju-
dicially affect a fair trial but also because
it may, in some cases, have the effect of
stripping the person involved of his/her
dignity or subjecting him/or her to avoid-
able ignominy.” It directed the Delhi
Police to “not issue any further communi-
cation naming any accused or any wit-
ness till the charges, if any, are framed
and the trial is commenced”.
C
oming to Disha A Ravi, a 22-year-
old climate activist, she was arr-
ested in connection with a toolkit
on the farmers’ protest that was tweeted
by Swedish activist Greta Thunberg. She
approached the Delhi High Court seeking
directions to restrain the Delhi Police
from leaking any investigation material
relating to the case filed against her by
22 October 25, 2021
the special cell. The plea sought action
against three news channels for violating
Ravi’s right to fair trial and privacy and
sought take-down and restraining orders
against them. The channels were Times
Now, India Today and News18.
The High Court in an order on Feb-
ruary 19 directed the Delhi Police to not
violate the guidelines issued by home
ministry and to refrain from “rushing to
the press with half-baked, speculative or
unconfirmed information about ongoing
investigations”. It furthermore directed
“media houses to ensure that the tele-
cast/broadcast by them is from verified/
authenticated sources” and all content
“shall be in strict adherence to the ‘Prog-
ramme Code’ as contained in the Cable
Television Networks Rules 1994 as also
the Code of Ethics & Broadcasting Stan-
dards prescribed by the News Broad-
casters Association”.
The Court directed the Delhi Police:
“If the charge-sheet is filed in the mean-
time and the same is made public, once
the investigation reaches some conclu-
sion, dissemination of the contents of the
charge-sheet would not be interdicted in
any manner.” Justice Prathiba M Singh
stated: “While a journalist cannot be
asked to reveal the source, it would have
to be ensured that the source ought to be
a verified and authentic source and the
content ought not to be merely specula-
tive or conjectural.” And in view of the
recent coverage, the Court said that it
was “sensationalism” and “prejudicial
journalism”.
In the aftermath of actor Sushant
Singh Rajput’s death in June 2020, the
Bombay High Court in batch of PILs
filed by former police officers, activists,
lawyers and NGOs from Maharashtra
said that “media trials” obstruct investi-
gation and administration of justice. The
pleas had sought to restrain the media
from reporting on the actor’s death. A
division bench of Chief Justice Dipankar
Datta and Justice Girish S Kulkarni had
stated that the conduct of channels such
as Times Now and Republic TV in cover-
ing this case prima facie amounted to
criminal contempt, but refrained from
taking action against them.
The Court also said: “While covering
a suicide case, media houses should
avoid reconstruction of crime scenes,
interviews with potential witness, leak-
ing sensitive and confidential informa-
tion or to suggest that the person was of
weak character.” It directed the media
to not “print photographs of an accused
and thereby facilitating his identifica-
tion; Criticize the investigative agency
based on half-baked information without
proper research; Pronounce on the
merits of the case, including pre-judging
the guilt or innocence qua an accused
or an individual not yet wanted in a case,
as the case may be, Recreate/reconstruct
a crime scene and depicting how the
accused committed the crime; Predict
the proposed/further course of action
including steps that ought to be taken
in a particular direction to complete
the investigation; and Leaking sensitive
and confidential information from
materials collected by the investigating
agency”.
The Court further directed that the
guidelines issued for print and electronic
media by the Press Council of India for
reporting cases of death and suicide
would be applicable to the electronic
media as well.
—By Shashank Rai and India Legal
News Service
Opinion/ Right To Protest Lokendra Malik

Farmers and
the Courts
The observations made by the Supreme Court have ignited a debate
about the citizen’s constitutional right to protest against the
policies, laws and programmes of the government that violate
people’s rights in a democratic system

“
Y
OU have strangulated
the entire city, now
you want to come
inside the city! The
residents around, are
they happy with the
protest? This business should stop. You
are obstructing security and defence
personnel. This was in the media. All
this should stop. There is no point in
protest once you come to the court chal-
lenging the laws,” observed a two-judge
bench of the Supreme Court led by
Justice AM Khanwilkar while hearing a
case relating to farmers’ protest at Delhi
borders against three farm laws passed
by Parliament last year. The Court went
onto state that the petitioners who have
challenged the constitutional validity of
the farm laws in the apex court should
have trust in the Court and there was no
point in doing satyagraha. The Court
also came down heavily on farmers who
are alleged to have blocked the public
that farmers have a constitutional
right to protest against the government
and the Court can’t stop them from
exercising their right. “We clarify that
this court will not interfere with the
protest in question. Indeed, the right to
protest is part of a fundamental right
and can, as a matter of fact, be exercised
subject to public order. There can cer-
tainly be no impediment in the exercise
of such rights as long as it is non-violent
and does not result in damage to the
life and properties of other citizens and
is in accordance with law,” observed
the Court.
After a few days of making these
remarks, the apex court stayed the oper-
ation of three-farm laws, Farmers’ Pro-
duce Trade and Commerce (Promotion However, the farm unions rejected Farmers are sitting on dharna at Delhi’s borders for the last ten months. The SC must take a balanced view on the whole issue given
and Facilitation) Act, 2020; Essential the idea of the committee which contin-
Commodities (Amendment) Act, 2020; ued its work and submitted its recom-
its role and responsibility to protect the people’s fundamental rights, rule of law and constitutionalism in the country.
and Farmers (Empowerment and Pro- mendations to the Court within the pre- able restrictions on the exercise of such start an agitation against the farm laws but no solution has yet been achieved.
tection) Agreement on Price Assurance scribed time. Surprisingly, the Court has rights to protect the collective interests that affect their interests adversely. The Modi government has made it a
and Farm Services Act, 2020 in January not yet made the recommendations of of society. In several cases, including the prestige issue and seems to be reluctant

roads at Delhi-NCR borders.
The observations made by the apex
court have ignited a debate about the
citizen’s constitutional right to protest
against the policies, laws, and prog-
rammes of the government that violate
people’s rights in a democratic system.
The different benches of the Court have
spoken differently on the issue.
Last year, a bench of the Supreme
Court led by then Chief Justice of India
SA Bobde had categorically observed
this year. Also, the Court constituted a
committee, comprising four agriculture
experts, to examine the farmers’ griev-
ances and submit the recommendations
to the Court.
Last year, a bench of the SC led by then
CJI SA Bobde had said that farmers have a
constitutional right to protest against the
government and the Court can’t stop
them from exercising their right.
the committee public and the matter is
still pending for final hearing. The Court
may decide the constitutionality of the
farm laws on a priority basis.
It is nobody’s case that the farmers
have an absolute constitutional right to
protest in the country. The Constitution
does not give any such right to the peo-
ple, including the farmers and nobody is
claiming such kind of liberty. Under
Article 19(2) of the Constitution, the
State has the power to impose reason-
famous Ramlila Maidan case, the
Supreme Court has reiterated this view.
Farmers are doing their protests as
per the constitutional scheme peaceful-
ly. The central government is responsi-
ble for creating this situation. The Uni-
on government passed the three-farm
laws at rocket speed without having any
meaningful consultation with the farm
associations and state governments that
deal with the agriculture issues. It is the
centre that compelled the farmers to
H
undreds of thousands of farm-
ers are sitting on dharna at
Delhi’s borders for the last ten
months. Sadly, more than 600 farmers
have lost their lives in these
protests. But the government seems
least bothered about their problems.
The Court has also not said anything
about those who lost their lives during
this agitation. There have been several
rounds of discussions between the cen-
tral government and the farm unions
to repeal the farm laws. On the other
hand, the farm associations have also
decided to continue with the agitation
until the three farm laws are repealed by
the centre and their demand for a legal
guarantee for the Minimum Support
Price for farm produce is not met. As of
now, there is
a severe deadlock and there does not
seem any possibility of an early solution
through the dialogue between the gov-
ernment and the farm associations.

24 October 25, 2021 | INDIA LEGAL | October 25, 2021 25

Opinion/ Right To Protest/ Lokendra Malik
Now, the ball is in the Supreme
Court. The petition relating to the con-
stitutionality of the three-farm laws is
pending in the Court for more than ten
months. The expert committee consti-
tuted by the Court has also submitted its
report, but the Court could not get time
to hear the matter. The Court is also
hearing the petitions of some citizens
who have valid objections against the
blockade of public roads by the protest-
ing farmers.
I
n this kind of scenario, the Court
needs to take a balanced view
about the whole issue given its con-
stitutional role, reputation and responsi-
bility to protect the people’s fundamen-
tal rights, rule of law and constitutional-
ism in the country. The Court is the last
hope for the millions of farmers. People
knock on the doors of the Court when
they do not get any relief from other
branches of the state. In a democracy,
the people have all the rights to build
pressure on the government to persuade
it to withdraw its laws and policies
that violate people’s interests. The
“You have strangulated the entire city,
now you want to come inside the city!
The residents around, are they happy
with the protest? This business should
stop...no point in protest once you come
to the court challenging the laws.”
—The SC bench led by Justice AM
Khanwilkar on protest by farmers
26 October 25, 2020
Court cannot pass a gag order against
people’s protest.
India is the land of civil protests.
We got freedom through the protests
launched by our great founding fathers,
such as Mahatma Gandhi, Pandit Jawa-
harlal Nehru and Dr BR Ambedkar.
Then how can the farmers be wrong?
The right to protest available to the peo-
ple under the Constitution is not just
necessary in and of itself—it is also
inalienable from the articulation and
assertion of other constitutional rights
and freedoms. Admittedly, all funda-
mental rights are subject to reasonable
restrictions.
The farmers are not above the law
but the Court should have been more
sensitive about their problems, struggle
and the government’s attitude. The
farmers need dignified treatment given
their constitutional rights, duties and
contribution to the national economy
and development. Protesting peacefully
against the government is not a crime in
this land of Bapu, who was the prophet
of civil protests.
The Supreme Court of India has a
glorious record of fundamental rights’
protection through the instrument of
Public Interest Litigation. Barring a few
instances, the Court has always stood
with the people when their rights are
THE ONLY RESORT
In a democracy, the people have the right to
build pressure on the government to
withdraw laws and policies affecting them
violated by the State. Being a guardian
of the fundamental rights of the people,
the Court has a constitutional duty to
heal the farmers’ wounds and save them
from State-sponsored persecution and
harassment.
Millions of farmers are looking
towards the Court for getting justice. I
think the Court will not disappoint
them. The farmers deserve empathy, not
rebuke. The Court should not allow the
government to escape its responsibility.
A timely adjudication of the farm laws is
the need of the hour.
Let me conclude this note with these
thought-provoking words of the eminent
legal philosopher Professor Ronald
Dworkin: “Free speech is a condition of
legitimate government. Laws and poli-
cies are not legitimate unless they have
been adopted through a democratic pro-
cess, and a process is not democratic if
the government has prevented anyone
from expressing his convictions about
what those laws and policies should be.”
—The writer is Advocate, Supreme
Court of India
My Space/ Pandora Papers Leak
Opening a Pandora’s Box
The investigation discloses the internal mechanisms of a shadow financial world and offers a
unique insight into the secret functions of a worldwide offshore economy that allows some of
the world’s wealthy people to conceal their treasure, and in some cases, pay little or no tax
A
LARMING disclosures
made by an association of
journalists began vibrat-
ing beyond the under-
ground world of the rich
and influential almost
instantly after the Pandora Papers were
released worldwide on October 3, 2021.
The Papers have come at a time when
the rich-poor chasm across the globe
has expanded with the Covid-19 pan-
demic acting as a promoter. The expose
carries political weight even in nations
where leaders are not habitually held
answerable.
The venture was executed by the In-
ternational Consortium of Investigative
Journalists (ICIJ), the Organized Crime
and Corruption Reporting Project, and
media outlets. This comprises more than
600 journalists from 117 countries who
conjointly investigated around 12 million
documents from financial services estab-
lishments across the world to disclose a
secret world of protected wealth. They
have examined the documents leaked
from 14 corporate service providers based
in jurisdictions with high levels of finan-
cial secrecy.
To accelerate a global inquiry, the
ICIJ gave distant access to the docu-
ments and papers to journalists in 117
countries, including reporters at The
Washington Post, Le Monde, El País,
Süddeutsche Zeitung, PBS Frontline,
and the Australian Broadcasting
Corporation. In the UK, the inquiry has
been controlled by The Guardian and
BBC Panorama.
The investigation unearthed the top-
secret offshore dealings of 35 world
leaders, containing present and past
28 October 25, 2021
Shivanand Pandit
presidents, prime ministers and heads
of state. The probe threw light on the
secret finances of over 330 other public
officers, such as government ministers,
judges, mayors and military generals in
more than 90 countries. Over 100 bil-
lionaires feature in the uncovered data,
as well as superstars, rock stars and
business leaders. That makes it bigger in
capacity than both the Panama Papers
(2016) and Paradise Papers (2017), two
preceding offshore revelations.
Many utilise shell companies to pos-
sess lavish items, such as property and
yachts, as well as secret bank accounts.
There is even art, ranging from burgled
Cambodian ancient items to paintings by
Picasso and murals by Banksy. The
Pandora Papers disclose the internal
mechanisms of what is a shadow finan-
cial world, offering a unique insight
The Pandora Papers underline that strict
regulations and disciplinary actions alone
do not discourage repeat crooks from
indulging in fiscal jugglery. Novel ideas
are needed to stop the capital flight.
into the secret functions of worldwide
offshore economy that allows some of
the world’s wealthy people to conceal
their treasure, and in some cases, pay lit-
tle or no tax.
After the similar Panama Papers came
out, many nations launched fiscal re-
structurings targeted at unlawful wealth
and introduced stringent punishments
and fines for the lawbreakers. Paradoxi-
cally, like terrorism, “offshore financial
centres” (shell companies) and “tax
havens” do not have a universally recog-
nised definition. They are labelled as a
system or location where non-residents
are permitted to park money without
having to show their complete individual-
ity or the source of the funds.
The money or capital shifted to such
tax havens is the outcome of some trans-
actions that may or may not be lawful.
Many of those whose names are visible in
these lists have claimed that they have
not committed any unlawful action and
aren’t culpable of any offence. There are
genuine business agreements where
funds are created via customary business
transactions and are acknowledged. Such
funds do not become illegitimate in the
hands of the receiver. However, the
moment it leaves the nation of origin, it
amounts to an evasion of tax. Invariably,
laws permit avoidance of tax, but an eva-
sion of tax becomes a crime. Another
basis of wealth is earnings that are in-
comes of crime, drug money, terror fund-
ing, prohibited transactions, or income
originated out of activities clearly stated
as illegal. Such wealth should not have
been there in the first place.
Furthermore, illegal funds, the off-
shore deposits, also
embrace profit The Pandora Papers also show that many US states have developed as the most preferred
transferring by
multinational com-
terminuses for hoarding illegal assets. Besides tempting new customers, these have gained
panies from higher from the money transferred out of tax havens like the Bahamas and the Cayman Islands.
tax jurisdictions to
lower tax destinations. Such funds also
are said to contain bribe money and
amounts collected through tax misuse
projects. While such earnings deprive a
nation of tax revenue, they generally
discover their path back into the
economies through stock trading, FDI
and investments in high, interest-bearing
instruments. The complex web of off-
shore trusts, banks and financial institu-
tions are employed by super-rich busi-
ness tycoons, transcontinental establish-
ments and dishonest politicians to
park their fraudulent assets. Because
of their political influence and power
equations with the ruling leaders, it
becomes very difficult to probe these peo-
ple and punish them.
Remarkably, the Pandora Papers have
uncovered that many states in the US
have developed as the most preferred ter-
minuses for hoarding illegal assets. Be-
sides tempting new customers, these
states are said to have gained from the
amounts transferred out of present tax
havens like the Bahamas and the Cayman
Islands. It should be a subject of distinct
interest for President Joe Biden who had
assured to bring transparency to the
international financial structure. The
G20, EU and the OECD discussed the
concerns raised by the Panama Papers
and even planned to blacklist defaulting
nations. However, the question which is
yet to be answered is—“will the new
blacklist include these US states?”
Typically, there will be severe alerts
and pious resolutions to attack defaulters.
This has happened in previous exposes
too. There will be appeals for better
international teamwork and information
sharing and communicating. Banking
and financial regulations will also be
made stricter.
E
arlier after the Panama Papers
fiasco, the government of India
took numerous remedial steps to
set things right. The Black Money (Un-
disclosed Foreign Income and Assets)
and Imposition of Tax Act, 2015, offered
the government adequate support to
trace and punish tax criminals who had
hidden their wealth outside India. This
regulation empowered the government to
discover unrevealed income of about
Rs 11,000 crore disclosed by the ICIJ and
undisclosed assets of about Rs 20,000
crore as informed by the Panama Papers
and about Rs 246 crore mentioned in the
Paradise Papers leaks.
The black money rule also modified
the Prevention of Money Laundering Act,
2002, and made it a Scheduled Offence
to hide overseas assets and earnings
and evade tax. Additionally, the govern-
ment as per the Double Taxation
Avoidance Agreements, Tax Information
Exchange Agreements, and other joint
agreements, enhanced its involvement
with other nations to collect and exam-
ine information collected. The Benami
Transactions (Prohibition) Act, 1988,
was amended in 2011 and 2016 with
more rigorous provisions.
Regardless of such vigorous efforts,
many loopholes are present in the legis-
lation or statutes. For instance, a trans-
fer of property to a family member of
the transferor has not been considered
a benami trans-
fer as per the
Benami
Transactions
(Prohibition)
Act. This could
be the cause for some of the names visi-
ble in the Panama Papers as well as the
Pandora Papers.
Continuous leaks like Pandora
Papers underline the point that strict
regulations and disciplinary actions
alone do not discourage repeat crooks
from indulging in fiscal jugglery. The
government will have to introduce
novel or out-of-the-box ideas, such as
radical reduction in income tax slabs
and corporate taxation and enable easy
and trouble-free reinvestment of profit
in business. Such schemes may inspire
capital formation and stop capital
flight.
The Pandora Papers have raised
various questions, such as even if the
wealth has been salted away lawfully,
does it signal a flight of capital? Are
our high net worth individuals trans-
ferring substantial assets abroad?
What is their apprehension? Do they
feel their wealth is not safe in India? If
India opened up its capital account
fully, will we witness an enormous
flight of capital? These questions need
serious introspection. The government
of India needs to handle such ques-
tions prudently.
—The writer is a financial and tax
specialist, author and public speaker
based in Margao, Goa
| INDIA LEGAL | October 25, 2021 29
Column/ Post of Deputy Speaker, Lok Sabha
Delaying Tactics
The post has been vacant for over 28 months despite the Constitution
making it mandatory to have it filled without any delay. The State must
be an exemplar in discharging its constitutional obligation
A
PETITION has been
filed in the Delhi High
Court alleging inaction in
filling the constitutional
post of the Deputy
Speaker of the Lok Sabha.
Obviously, the petitioner is concerned as
there has been an unconscionable delay
of over 28 months in the election of the
Deputy Speaker.
Article 93 of the Constitution casts
an obligation that “the House of the
People shall, as soon as may be, choose
two members of the House to be respec-
tively Speaker and Deputy Speaker
thereof, and so often as the office of
Speaker and Deputy Speaker becomes
vacant, the House shall choose another
When some mem-
bers raised the issue
about the delay in
the election of the
Deputy Speaker
during the last
Lok Sabha session,
the Speaker deftly
observed that it was
not in his power.
30 October 25, 2021
Devender Singh Aswal
member” to fill the vacancy. The expres-
sion used is “shall” and not “may” which,
as per the cardinal principle of statutory
interpretation, leaves no shred of discre-
tion left with the House.
The posts are considered so impor-
tant that the makers of the Constitution
provided not only for choosing the
Speaker and the Deputy Speaker as
early as possible but made it mandatory
for the House to choose another Speaker
or Deputy Speaker, as the case may, if
any of the post becomes vacant.
The expression, “as soon as may be”
cannot be construed that these constitu-
tional posts remain vacant for years
indefinitely. The House consists of
members and it is for the government,
commanding majority in the House,
to hold election to these constitutional
posts so as to avoid any constitutional
void.
The post of Deputy Speaker, as per
well-established parliamentary conven-
tion, goes to the Opposition. The foun-
dation of this laudable convention start-
ed way back in 1956. The Lok Sabha
had Deputy Speakers like Sardar Huk-
um Singh, GG Swell, Shivraj Patil, S
Malikarjunaiah, Suraj Bhan, PM Sa-
yeed, Charanjit Singh Atwal, Kariya
Munda and Dr M Thambi Durai who
did not belong to the ruling party.
During the last session when some
members raised the issue about the pro-
longed delay in the election of the Depu-
ty Speaker, the Speaker deftly observed
that it was not in his power. Under Rule
8 of the Rules of Procedure and Conduct
of Business in the Lok Sabha, “the elec-
tion of the Deputy Speaker shall be held
on such date as the Speaker may fix”.
However, the fact of the matter is the
date for holding election to the post of
Deputy Speaker is fixed at the initiative
of the government. The government
plays a decisive role as it commands
majority in the House. It may have
behind-the-curtain consultation and
help in the election of a candidate
who may be, though from the Opposi-
tion, but not from the principal Oppo-
sition party. So, the government has the
leeway by virtue of its numerical major-
ity to contrive a situation in which
the post may go to a mellowed-in-
tuned-Opposition rather than the dom-
inant Opposition.
The Deputy Speaker discharges the
functions of the Speaker in his absence.
He is not subordinate to the Speaker.
He holds an independent constitutional
post and is answerable to the House
and can be removed by the House only.
He has the same powers as of the
Speaker when presiding over the sitting
of the House and no appeal lies against
his rulings given in the House and can-
not be reopened by anyone. In the ab-
sence of the Speaker or due to vacancy
in the office of the Speaker, the
Deputy Speaker performs the duties of
his office.
In 1956, when Speaker GV Mavalan-
kar died, Deputy Speaker, M Anantha-
sayanam Ayyangar filled the void, and
later, he was elected as Speaker. In
The Deputy Spea-
ker’s post, as per
parliamentary con-
vention, goes to the
Opposition. The Lok
Sabha had Deputy
Speakers like (clock-
wise from left) Sar-
dar Hukum Singh,
Shivraj Patil, PM Sa-
yeed and Suraj Bhan,
among others, who
did not belong to the
ruling party.
2002 due the demise of GMC Balayogi,
PM Syed, the Deputy Speaker dischar-
ged the functions of the Speaker. It was
Syed, who belonged to the Congress
party, who presided over the joint sitting
of Parliament convened to pass The
Prevention of Terrorism Bill, 2002 by
the Vajpayee government. When GS
Dhillon resigned from the post of
Speaker in December, 1975, on being
sworn in as minister, the Deputy
Speaker discharged the functions of the
office of the Speaker. Similarly, when
Neelam Sanjeeva Reddy contested in
two different terms for the election of
the president, he resigned from the post
of Speaker and the Deputy Speaker dis-
charged the functions of the Speaker.
T
he moot question is whether the
High Court can direct the Lok
Sabha to elect the Deputy
Speaker. The High Court is empowered
to issue appropriate direction to do
complete justice in a matter before it. In
any case, the Speaker of the Lok Sabha
is on record that it is not his job to app-
oint the Deputy Speaker, despite the
well-established parliamentary conven-
tion being that a motion is moved by the
parliamentary affairs minister and the
motion is duly seconded by the treasury
benches which is carried by the House.
However, with the unanimous elec-
tion of Sardar Hukum Singh of the
Akali Dal as Deputy Speaker in 1956, it
has become a sound convention that the
ruling party, despite its majority, offers
the post to the Opposition. When the
Deputy Speaker is elected, he is duly
conducted to his seat by the parliamen-
tary affairs minister and the leader of
the Opposition. There are instances
when prime ministers, namely, Deve
Gowda, Atal Bihari Vajpayee and Dr
Manmohan Singh personally conducted
the newly elected Deputy Speaker to his
seat. Vajpayee conducted the Deputy
Speakers to their seats during the 12th
and the 13th Lok Sabha.
Another fascinating aspect is that
the post of Deputy Speaker has never
remained vacant. Even the Britishers,
when the central bicameral was set up
in 1921 under the GoI Act,1919, the post
of Vice President was held by Sachi-
danand Sinha with Sir Frederick Whyte
as the President of the Central Legis-
lative Assembly. The Constituent
Assembly tasked with the responsibility
of framing the Constitution had two
Vice Presidents—HC Mookherjee and
TT Krishnamachari.
The Provisional Parliament too had a
Deputy Speaker—Ananthasayanam
Ayangar. The Constitution-makers,
therefore, rightly made a provision mak-
ing it mandatory to have the posts of
Speakers and Deputy Speakers filled
without any delay when the new House
is constituted and as and when any one
of these posts fall vacant.
The Constitution, more than the
citizens, binds the State and the State
must be an exemplar in discharging its
constitutional obligation. Minimum
government and maximum governance
cannot obliterate in its sweep a constitu-
tional provision.
—The author is ex Addl Secretary,
Lok Sabha and member Delhi
Bar Council
| INDIA LEGAL | October 25, 2021 31
 Column/ Parliamentary Panels
Gargantuan
Calisthenics
The delay in the reconstitution of the Panels has riled the
Opposition, but reconstituting them is a huge task. It is time to
rethink the tenure and procedure of appointment of the members
A
DELAY of about one
month in the reconstitu-
tion of the Department-
related Parliamentary
Standing Committees
(DPSC), whose term ex-
pired on September 12, 2021, again
raised the hackles of the Opposition.
They alleged that it results in unneces-
sary pause in the functioning of the pan-
els and amounts to subverting an impor-
tant parliamentary institution.
These Committees are reconstituted
annually, often with a lag of a month or
more. The delay is understandably pro-
nounced in the year of the general elec-
tions, and sometimes goes up to three
months or more. The ministry of parlia-
mentary affairs has clarified that the
PIB
32 October 25, 2021
Vivek K Agnihotri
delay was due to discussions about the
nomination of MPs who did not attend
even a single meeting of the Committee
to which they were allotted during
the previous term. Consequently, during
the present reconstitution exercise,
about 50 MPs were re-assigned to differ-
ent Committees.
According to sub-rule (4) of rule 331D
of the Rules of Procedure and Conduct
of Business in Lok Sabha (Lok Sabha
Rules) and sub-rule (3) of rule 269 of the
Rules of Procedure and Conduct of
Business in the Council of States (Rajya
Sabha Rules), the term of office of “mem-
bers” of the DPSC shall not exceed one
year. Thus, it is the term of office of the
members and not that of the Committees
per se that is one year.
This tenurial issue has also to be
looked at against the backdrop of the fact
that the Rajya Sabha itself undergoes
partial biennial renewal since one-third
of its members retire every two years by
virtue of clause (1) of Article 83 of the
Constitution. As far as the Lok Sabha is
concerned, it has a fixed tenure of five
years, unless dissolved sooner.
As per the current practice, in the
Rajya Sabha, the annual renewal is only
notional; major changes are brought
about only after each biennial election.
As far as the Lok Sabha is concerned, the
major reconstitution takes place when a
new House is elected, that is normally
after five years. As there is a mismatch
between the election schedule of the
Rajya Sabha (every two years) and the
Lok Sabha (every five years), it is only
once in ten years that the requirement
of a major reshuffle of the Standing
Committees in both takes place, that is
after the second round for the Lok
Sabha and the fifth biennial round of the
Rajya Sabha.
Also, the Rajya Sabha Rules prescribe
no fixed tenure for the other standing
committees (excluding DPSC). The stan-
dard prescription relating to the constitu-
tion of those Committees states that the
members shall hold office until a new
committee is nominated and that the
casual vacancies shall be filled in by the
Chairman of the Rajya Sabha.
As far as the Lok Sabha is concerned,
the picture is somewhat different. Most
of its committees have a tenure of one
year, except the Business Advisory Com-
mittee, Committee on Petitions, Com-
mittee of Privileges, Committee on Sub-
ordinate Legislation and Rules Com-
mittee, for which no tenure has been
prescribed. It would appear that Com-
mittees concerned with deliberations of
a serious nature were given a term coter-
minous with that of the House, while
others were prescribed annual renewal.
Somehow, the DPSCs, which were con-
stituted much later in 1993, came to be
clubbed with the latter category by
the Lok Sabha. The Rajya Sabha only
followed suit.
Another fact to be borne in mind is
that there are 24 DPSCs in all, each with
a membership of 31 (10 of the Rajya
Sabha and 21 of the Lok Sabha). They
can accommodate 240 member of the
Rajya Sabha and 504 members of the
Lok Sabha. Ministers cannot be mem-
bers of these Committees and some sen-
ior members opt out. Thus, no eligible
and available member of Parliament is
left out of the membership of these
Committees. As a matter of fact, mem-
bers of some of the political parties, par-
ticularly the ruling coalition, have to per-
force do double duty.
It, therefore, stands to reason, that
once a member is nominated to a
Committee, based on his expertise and/
or preference, he should be allowed to
continue till he retires or otherwise dis-
continues the membership. This way
the committee is able to benefit from
his experience and expertise on a contin-
uous basis.
The whole exercise is time-consuming
as it involves cyclical and iterative deci-
sion-making by the presiding officers and
political parties concerned as well as the
secretariats of the Lok Sabha and the
Rajya Sabha, which have to rigorously
work out the quota for the members of
innumerable political parties, proportion-
ately, on different committees.
A
nother complicating factor is
that out of 24 committees, 18 are
serviced by the Lok Sabha and
eight by the Rajya Sabha. And again, it is
not just about allotting berths to MPs
but also the chairmanship of the Commi-
ttees to various political parties on differ-
ent Committees. It thus requires close
As there is a mismatch between the poll
schedule of the Rajya Sabha and the Lok
Sabha, it is only once in ten years that the
need for a major reshuffle of the Standing
Committees (below) in both arises.
coordination between the presiding
officers as well as the secretariats of
the two Houses such that the final com-
position of these joint Committees is
simultaneously published in their respec-
tive bulletins.
To undertake this gargantuan calis-
thenics annually is indeed a nightmare
for all concerned and results inevitably
in delays. There is thus definitely a
case for rethinking the tenure as well as
the procedure relating to the appoint-
ment of members and chairpersons
of DPSCs.
Moreover, irrespective of the tenure of
the members, there is the larger issue of
institutional discontinuity due to failure
to reconstitute Committees or fill up the
vacancies therein in time. Recently, the
Supreme Court has sharply questioned
the unusual delay in filling up vacancies
among judicial and administrative mem-
bers of various tribunals.
In the British parliament, under
Standing Order No 64, certain Commi-
ttees are appointed on a “sessional” basis:
that is, their orders of appointment re-
main in force from one session to the
next throughout a Parliament until the
House orders otherwise. Sessional com-
mittees are for most practical purposes in
permanent existence.
Coming to DPSCs, they are perma-
nent and have a continued existence in so
far as they form part of the Rules. Hence,
there should be no difficulty if the term of
the members of the two Houses on these
Committees is different, in consonance
with the tenure of the Houses themselves.
For the Rajya Sabha, it may be two years
and for the Lok Sabha, it may be cotermi-
nous with its life. The Rules could also
provide that casual vacancies, as and
when they arise, may be filled in by the
Presiding Officers, who may also be em-
powered to reconstitute the membership
of their respective Houses on the commi-
ttees in toto, as and when they so desire.
—The writer was Secretary,
Parliamentary Affairs from 2003-2005
and Secretary General of Rajya Sabha
from 2007-2012
| INDIA LEGAL | October 25, 2021 33
Environment/ Anti-dust Campaign
Heat and
In order to reduce dust and pollution, the Delhi government will use Home
Guards as green marshals to launch an anti-dust campaign and has made
it mandatory for construction contractors to comply with norms
I
N an attempt to control dust emis-
sions from construction sites and
thereby combat pollution, Delhi
environment minister Gopal Rai
held a joint meeting with the Delhi
Pollution Control Committee
(DPCC) and green marshals on October
6. Together, they decided to launch an
anti-dust campaign from October 7-29.
“A total of 31 teams have been formed
for this purpose. Of these, 17 teams of
DPCC engineers will work across vari-
ous districts and 14 teams of green mar-
shals will work with mobile vans,” the
minister reportedly said.
The state government issued a public
34 October 25, 2021
Dust
notice making it mandatory from Octo-
ber 7 for private and government con-
tractors to comply with the 14 norms
laid out for construction sites to control
dust emissions. The norms include cov-
ering construction materials, installing
anti-smog guns and dust/wind breaking
walls to appropriate height around the
boundary walls of the site. Most of these
rules are part of existing guidelines by
the Central Pollution Control Board,
which are to be followed by all construc-
tion sites round the year. The Delhi gov-
ernment also launched a “dust pollution
control self-assessment portal’ to further
support the anti-dust campaign.
According to the environment dep-
artment officials, agencies, including the
Public Works Department, Delhi Jal
Board, Delhi Metro Rail Corporation
and the three municipal corporations,
are already being trained to register and
use the website.
Earlier on October 5, Rai launched
the “Advanced Green War Room” and
“Green Delhi App” for people to send in
their complaints regarding problems
pertaining to 10 kinds of pollution
throughout the winter season. Rai also
conducted a surprise inspection on
October 8 at the construction site at
Pragati Maidan and levied a fine of Rs 5
lakh on the contractor for not adhering
to dust control guidelines while con-
structing an underpass. As per the NGT
guidelines, a fine between Rs 10,000
and Rs 5 lakh could be imposed for vio-
lation of rules depending on the size of
the construction sites.
G
reen marshals, who are usually
Home Guards, are tasked with
stopping people from burning
garbage, dry leaves, plastic and other
waste materials, leading to dust pollu-
tion. Before deployment, the marshals
are given training to effectively go about
their jobs.
Twitter
MONITORING POLLUTION
(Left) Delhi’s environment minister Gopal
Rai has launched the Green Delhi App for
receiving complaints; (above left and above)
construction sites will have to control dust
emissions by installing anti-smog guns
Other countries too have taken simi-
lar measures. In January 2017, officials
in Beijing announced a new environ-
mental police squad to root out illegal
burning. The government has faced
widespread public anger over China’s
persistent problems with smog. Beijing
and dozens of cities in China spend
many winter days under a thick, gray
haze, with air pollution levels that rou-
tinely exceed WHO guidelines. Smog is
an acutely felt issue in China’s cities,
where a “red alert” can lead to the clo-
sure of schools and businesses, flight
cancellations and shutdowns of high-
ways to keep cars off the roads.
In the US, there are environmental
police officers. After the 2001 Septem-
ber 11 attacks, the environmental police
department’s role changed to include
homeland security.
In Australia, the Australian Federal
Police (AFP), which is the primary law
enforcement agency there, will take a
lead role in the investigation of the envi-
ronmental crime. They will have to deal
with the complexity and degree of harm
caused to the environment.
In Russia, the Environmental Watch
on North Caucasus, a non-profit organi-
sation, works to protect the environ-
ment of the Caucasus region since 1997.
It campaigns to preserve wildlife and
has conducted investigations into hu-
man rights violations that have occurred
as a result of illegal land grabbing by
local officials.
Coming to India, a study by IIT-Kan-
pur in 2016 found that road dust con-
tributes 56% of the overall pollution in
the national capital, which increases
during winter, mainly due to stubble
burning by neighbouring states and cli-
matic conditions.
Private firms too have pitched in to
clean the air. In 2015, the Clean Air
India Movement was started by Blueair.
The campaign aimed at engaging,
encouraging and educating citizens to
adopt air friendly measures in the inter-
est of the country and its children. The
campaign was launched on World
Asthma Day and apparently, reached
over 500 million people across the
nation through a mix of online and
offline activities. The endeavour behind
the campaign was to facilitate using air
friendly measures by cultivating use of
public transport, wise use of energy,
recycling and reusing, planting trees,
proper maintenance of vehicles, use of
alternate energy, being environment
friendly, using proper technology, rep-
lacing standard light bulbs with CFLs,
etc. Also, the initiative encouraged oth-
ers to take up community initiatives for
a better environment.
Even small efforts help. There was
also Car Free Day on November 22,
2015 in Dwarka, Delhi, to help reduce
pollution. Moreover in 2016, the See
Your Lung campaign stressed that cycles
should be used. Regular plantation
drives on World Environment Day—
June 5—have increased awareness, lead-
ing to a greener world.
—By Shivam Sharma and India
Legal News Service
| INDIA LEGAL | October 25, 2021 35
International Briefs
Boris Faces Flak
T
here must be lots of red faces at
Number 10 Downing Street after
the country’s first comprehensive
report on the pandemic highlighted the
Boris Johnson-led government’s failure
to impose a lockdown in the early days of
the Covid-19 outbreak. The report says it
ranks among England’s worst public
health blunders. “Decisions on lock-
downs and social distancing during the
early weeks of the pandemic—and the
advice that led to them—rank as one of
the most important public health failures
the United Kingdom has ever experi-
enced,” states the joint report from the
House of Commons’ science and health
committees. “Painful though it is, the UK
must learn what lessons it can of why
this happened if we are to ensure it is not
repeated,” the report says.
The delay, says the report, led to
thousands of unnecessary deaths and
derived from the failure of government
ministers to question the recommenda-
tions of scientific advisers, resulting in a
dangerous level of “groupthink” that
caused them to dismiss the more aggres-
sive strategies adopted by other coun-
tries. It was only when Britain’s National
Health Service risked being over-
whelmed by rapidly rising infections that
Prime Minister Boris Johnson’s
Conservative government finally ordered
36 October 25, 2021
ALREADY EXPOSED TO COVID
British PM Boris Johnson being
treated at St Thomas Hospital,
London, in April 2020
a lockdown in late March 2020.
The lawmakers said their inquiry was
designed to uncover why the UK per-
formed “significantly worse” than many
other countries during the initial period
of the pandemic. The UK has recorded
more than 1,37,000 coronavirus deaths,
the highest toll in Europe after Russia.
Lawmakers released their findings amid
frustration with the timetable for a for-
mal public inquiry into the government’s
response to Covid-19. Johnson says the
inquiry will start next spring.
The report was based on testimony
from 50 witnesses, including former
Health Secretary Matt Hancock and
former government insider Dominic
Cummings. It was unanimously
approved by 22 lawmakers from the
three largest parties in Parliament—the
governing Conservatives and the opposi-
tion Labour Party and the Scottish
National Party.
The committees did praise the gov-
ernment’s early focus on vaccines as the
ultimate way out of the pandemic and its
decision to invest in vaccine develop-
ment. These decisions led to Britain’s
successful inoculation programme, which
has seen almost 80 percent of people 12
and over now fully vaccinated. That,
however, does not let the prime minister
off the hook for his initial blunders.
Rich and Richest
T hey have been swapping places as
the world’s richest individual, but
now the gap is widening. The latest
Bloomberg's Billionaires Index shows
that Elon Musk’s (below left) personal
wealth jumped an extra $10.6 billion
last week after his company SpaceX
was valued at over $100 billion.
Musk’s personal wealth ballooned to
$222 billion, building his lead as the
richest person in the world comfort-
ably ahead of Amazon founder Jeff
Bezos ($191.6 billion), according to
the index.
Between his Tesla shares and his
majority stake in privately-held
SpaceX, Musk has been having a boom
time. Musk even tweeted a second
place medal at his constant competitor
Bezos. Tesla shares have been climb-
ing, now up 13%. Musk got zero in pay
in 2020, according to a company fil-
ing, but he did receive stock options
during the year that are now worth
$22 billion.
The spike in shares of Space X
came after SpaceX’s Inspiration4 spent
three days in space hovering above
Earth. The all-civilian crew made his-
tory with the first Black woman to
serve as a spacecraft pilot, the young-
est American to become an astronaut,
and the first person to fly in space with
prosthesis.
Bezos (below right), who also has
space ambitions having founded Blue
Origin in 2000, has publicly called
NASA’s decision to award Musk’s
SpaceX a $2.9 billion lunar lander
contract “unfair”, even taking the issue
to federal court. For now, however, it
looks like Musk is having the last
laugh.
Art Imitating Life
S quid Game, a fictional drama from
South Korea, has become Netflix’s
“biggest-ever series at launch”, the stream-
ing company stated. The series, in which
contestants who are desperately in need
of money play deadly children’s games to
win cash prizes, has been viewed by 111
million accounts since debuting on
September 17. Since its release, the show
has so captured the global imagination that
it is likely to become the most watched
original production in the history of the
streaming platform.
Squid Game’s dramatic premise may be
one reason for its success: A mysterious
Bhutan’s Celebrity Tourist
W
hen Fran Bak’s (below) husband
died in 2018, she decided to under-
take a spiritual journey through Bali and
India, much like the pro-
tagonist in Eat, Pray,
Love. Her journey ended
with her being the only
tourist given permission
to enter the kingdom of
Bhutan since the start of
the coronavirus pandem-
ic. Bak was the first visa
granted since March
2020—and, so far, the
only application. There are three depart-
ments that now grant approval for tourist
visas, the tourism council, the department
of immigration, and the Covid-19 task
force. Bak is the only one who applied
and got it.
organisation recruits Seong Gi-hun, a for-
mer automobile factory worker with a gam- Digital Duty Free
bling addiction and crippling debt, along
with 455 other similarly troubled souls to
play children’s games on a remote island. G eneva airport has created histo-
ry by launching the world’s
Lose at any point and you forfeit your life. first digital duty free vending
machine (below). The new, auto-
Winners take home enough cash to fix their
mated retail outlet offers a fully
problems and then some. The ensuing may-
digital duty free shopping experi-
hem is gruesome and brutal. It’s riveting ence for arriving passengers. It
stuff but in South Korea, the view is that art means that passengers flying into
is imitating life with the theme—the explo- Geneva airport can order, pay and
sive growth of debt and economic inequali- collect duty free items in under 60
ty in contemporary Korea, being a reflec- seconds and also get a contactless
tion of reality. purchase experience.
Domestic viewers are finding Squid The automated retail solution
allows travellers to buy directly
Game’s theme more than familiar. South
from an interactive touch-screen
Korea’s biggest daily newspaper Chosun
menu of the bestselling duty free
Ilbo reported that 4.24 million Koreans—
products. Travel and age verification
about 8% of the population—have bor-
rowed money from three or more financial
checks are made using an integrated
scanner for boarding passes and
institutions at the same time. As Korean identity cards. Once payment is
culture makes waves among international made, the relevant compartment
audiences for its undiluted portrayal of the doors automatically open and the
weaker sections of society, as was the case customer can retrieve their items,
in the Oscar-winning Parasite, Koreans along with customs documentation
and receipts.
are finding that the huge global success of
The vending unit has been posi-
Squid Game has caused much reflection on
tioned in the arrivals lounge in
the reality of a country the world sees as an
Geneva airport. In addition to the
economic powerhouse. large touchscreen on the front of
the automated retail unit, there are
two large side screens showcasing
best-selling products.
Right now, Bhutan’s policy is that
visas for tourists can be granted on a
case-by-case basis. So far, Bak is the only
visitor, and because of that,
a celebrity. She lives in a
rented apartment in Thim-
pu and says that Bhutan is a
gift of perfect offerings.
“It wasn’t until I got here
that I realised I was making
history,” she says. “I was not
expecting to get messages
from people welcoming me
and thanking me for coming
to the country. It brings me to my knees,”
she added. The local media featured Bak’s
arrival in Bhutan the way they might have
covered a visiting VIP in pre-Covid-19
times. She has now become a beacon of
hope for the tourism industry.
Twitter
| INDIA LEGAL | October 25, 2021 37
Focus/ Organ Donation
No Child’s Play
Recently, a 17-year-old approached the Delhi High Court in order to donate part of his liver to his ailing
father. However, rules prevent this. Should humanitarian reasons precede procedural norms?
R
ECENTLY, the Delhi
High Court was app-
roached by Saurav Suman,
a 17 year- and-nine mon-
th-old Class XII student.
He was aggrieved by an
order passed by the appropriate authori-
ty of the Institute of Liver and Biliary
Sciences (ILBS), whereby they refused
to grant him permission to donate a
part of his liver to his ailing father.
Legislation with regard to organ do-
nation and transplantation is the Trans-
plantation of Human Organs and Tiss-
ues Act, 1994, along with the Trans-
plantation of Human Organs and Tiss-
ues Rules, 2014. According to Section
2(f ) of the Act, a donor is “any person,
not less than eighteen years of age, who
voluntarily authorizes the removal of
any of his human organs for therapeutic
purposes under subsection (1) or sub-
38 October 25, 2021
section (2) of Section 3”. But according
to Rule 5 (3) (g) of these rules, there is
no statutory bar on donation of organs
by a minor. It says: “Living organ or tis-
sue donation by minors shall not be per-
mitted except on exceptional medical
grounds to be recorded in detail with
full justification and with prior approval
of the Appropriate Authority and the
State Government concerned.”
There have been other similar cases.
In 2019, the Delhi High Court was app-
roached by a Bangladeshi man in urgent
need of a liver transplant. He sought
permission for his 17 year-and-six-
Organ donation is unlike any other medical
procedure as the potential donor voluntar-
ily consents for a procedure that carries
risks, but has no physical benefit apart
from the emotional satisfaction.
UNI
LEGAL AND ETHICAL ASPECTS
(L-R) Suman’s counsel argued that ILBS had
failed to apply its mind in the liver donation
matter; doctors operating a donor in Kolkata
month-old son to donate a part of his
liver. A single-judge bench of Justice
Vibhu Bakhru held that “a minor can
donate organs in exceptional medical
circumstances. The only question that
requires to be addressed is with regard
to the risk to the minor and whether the
circumstances are sufficient to make an
exception within the provisions of Rule
5(3) (g) of the Rules”. The Court direct-
ed the director of the All India Institute
of Medical Sciences to form a medical
board to evaluate the risks associated
with such a donation. The findings of
the board suggested a long-term adverse
effect on the minor donor and hence the
petition was withdrawn.
In 2020, the Delhi High Court
entertained a plea of a 17-year-and-10-
month-old girl seeking to donate a part
of her liver to her father who was suf-
fering from liver failure. A single-judge
bench of Justice Sanjeev Sachdeva di-
rected the director of Max Super Spe-
ciality Hospital, Saket, to constitute a
committee to evaluate the risk associat-
ed with the said donation. The commit-
tee was of the view that there could be a
potential negative impact on the physi-
cal and psychological health of the mi-
nor in the short term as well as the long
term in donating part of the liver to her
father. The petitioner did not press the
petition further and hence it was dis-
posed of after putting the petitioner’s
father on the “Super Urgent Case” list.
Before Suman, his mother and bro-
ther had applied for donation, but it
could not come to fruition due to med-
ical incompatibilities. Other members
In Saurav Suman’s case, Justice Rekha Palli of the Delhi HC set aside the order of ILBS, which had refused to grant him
permission to donate a part of his liver. The Court asked health secretary to consider his application within two days.
of his extended family were unwilling to
donate a part of their liver. As a last
resort, Suman applied for the donation
and was certified as compatible. Subse-
quently, he made an application to the
appropriate authority of ILBS seeking
permission to donate a part of his
liver to his father, but it was denied as
he was a minor, even though he was
just three months away from the age
of majority.
As of September 8, 2021, the Model
for End-Stage Liver Disease Score was
28 for his father, which is the last stage
of liver disease and without an urgent
transplant, there was no hope for him.
Advocate Prasoon Kumar, appearing
on behalf of Suman, submitted that
Transplantation of Human Organs and
Tissues Rules, 2014, does not put a
complete embargo on donation of or-
gans by a minor and the appropriate
authority of ILBS had failed to apply its
mind as Suman was due to attain majo-
rity within three months.
On September 27, 2021, a single-
judge bench of Justice Rekha Palli set
aside the order of August 28, 2021, pa-
ssed by the appropriate authority, ILBS.
The Court further directed the Sec-
retary, Health & Family Welfare, to con-
sider the application within two days,
keeping in view the grave medical emer-
gency faced by the petitioner’s father
and the fact that the petitioner was ab-
out to be 18 years within three months.
D
r Sonal Asthana, Clinical Lead,
Hepato-Pancreatico-Biliary and
Multiorgan transplant Surgery
at Aster CMI Hospital, told India Legal:
“In this case, the potential donor is a
minor. Donors undergo extensive physi-
cal and mental evaluation. Liver dona-
tion surgery is largely safe, but carries
the possibility of a small but significant
operative risk, including the risk to life,
which is estimated at 0.3%.”
Liver transplantation, by itself, if per-
formed in a timely and appropriate
manner, has a success rate of over 90%,
he said. After donation, the remnant
liver usually regenerates within 5-6
weeks. Risks related to surgery may
include bleeding, infection, rejection,
blockages of the vessels and/or bile
ducts, he added. These may result in
longer ICU stay. However, liver trans-
plant patients generally enjoy good
long-term outcomes, with 10-15 year
survival periods.
Coming to donation by a minor, there
are fixed guidelines outlining the exact
age of consent for medical or surgical
treatment. “In India, ‘majority’ is ach-
ieved at 18 years and considered the legal
age for giving consent for treatment, as
per the Indian Majority Act, Guardian
and Wards Act, and Indian Contract Act.
A child below 12 years cannot give con-
sent, and parents/guardians can consent
for their medical/surgical procedures. A
child between 12-18 years can give con-
sent only for medical examination, but
not for any procedure. A legal age of 18
years has been set to consent for termi-
nation of pregnancy, donation of blood
and donation of organs.”
However, organ donation is unlike
any other medical procedure as the
potential donor voluntarily consents for
a procedure that carries risks, but has
no physical benefit apart from the emo-
tional satisfaction of saving a loved one’s
life. This decision effectively lowers the
age for informed consent for procedures.
So, is the court right when it pulls up
the doctors for not allowing a minor to
donate in order to save his father’s life?
Asthana said: “A decision on accepting a
donor is eventually made by the compe-
tent authority or authorisation commit-
tee, not the transplant team. Such deci-
sions are made following existing
norms. The age of consent for any surgi-
cal procedure is fixed at 18 years.
Reduction in this age will have implica-
tions not related to transplant alone.”
—By Shashank Rai and India Legal
News Service
| INDIA LEGAL | October 25, 2021 39
Focus/ Delay in Releasing Prisoners

Faster Bail
Ramana and Justices L Nageswara Rao
and AS Bopanna had taken suo motu
cognisance after a newspaper reported
the failure of the jail system as well as
the authorities and departments con-
cerned. The bench observed that the jail
authorities in Agra waited till the bail
Prisoners granted bail will no longer have to wait for a physical copy of the order to reach jails for their order arrived by post to release the con-
release. Various courts have slammed the earlier system whereby a prisoner had to wait for the bail victs. The bench took upon itself the
task to ensure that such a situation does
order sent by post to reach prison authorities not arise in future. It announced the
FASTER system.
On September 23 when the bench
led by the CJI took up this matter again,
it said: “We are concerned about the
plight of the jail-inmates who are not
released despite the bail orders passed
by this Court due to delay in communi-
cation of such orders. It is high time to
utilise the Information and Communi-
cation Technology tools for efficient
transmission of Court’s orders.”
also intimated that till the time the
FASTER system is being established at
jail premises, all communication shall
be made through the nodal officers of
state governments under the FASTER
system.
The bench also asked the Director-
General, National Informatics Centre,
Secretary (Home) of all states/UTs, and
the Director-General/Inspector General
of prisons of all states/UTs to ensure

T
Amitava Sen rolling out of a new scheme called “Fast The proposal sent by the secretary- smooth and successful implementation
HE story of 13 convicted and Secured Transmission of Electronic general of the Supreme Court contained of the FASTER system in coordination
prisoners, who were lan- Records” (FASTER) while stating that pre-requisites and the timeline to work with the registry of the Supreme Court.
guishing in Agra Central “we are in a time when we use informa- out those pre-requisites for the imple- The Prison Act, 1894, is one of the
Jail for 14-22 years, final- tion technology oldest legislations in
ly led to a major jail tools, and we are The SC has initiated a system that will offer relief to prisoners deprived of justice. India enacted for the
reform. They had moved still looking at the FASTER will be used for transmission of e-authenticated copies of judgments/final smooth functioning of
the Supreme Court on the grounds that skies for pigeons to prisons which later
they were declared juveniles by the communicate
orders/interim orders to courts/tribunals and other duty holders for execution. became a forgotten law
Juvenile Justice Board (JJB) at the orders” while criticising jail authorities mentation of the FASTER system. It losing its existence, and till date, there
time of committing the offense. The for insisting that bail orders be sent was observed that 19 states had submit- are no new reforms to make the legisla-
two-judge bench of Justice Indira through post and delaying the release of ted compliance reports with regard to tion relevant to present times. The
Banerjee and Justice V Ramasubrama- prisoners. The bench further stated: “It the availability of internet facilities in issues that remain a concern are—insuf-
nian granted interim bail to the prison- is too much that prisoners have to wait prisons. Arunachal Pradesh, Nagaland, ficient provision of medical aid to pris-
ers while voicing its exasperation over even after the Supreme Court has Assam and Mizoram had indicated non- oners, the incautious attitude of jail
the sorry state of affairs in Uttar granted bail as jails are insisting on the availability/partial availability of inter- authorities, high amount of surety
Pradesh despite clear ruling by JJB. It bail order to come by post.” net connectivity. However, other states ordered by courts which indigent pris-
was mentioned that though the maxi- The bench further directed all state were silent on this aspect. oners can’t pay and rejection of surety
mum period of imprisonment under the governments and union territories to bonds due to lack of money or verifica-

T
Juvenile Justice Act is three years in enlarge upon any suggestions or alter- he bench then directed the chief tion of home address, and most notably,
juvenile homes, these prisoners being native to the aforesaid directive. It secretaries of all states/UTs to even though the bail is granted, prison-
underage at the time of the incident sought details from states on whether ensure availability of internet ers are not released. One very famous
had spent their period in jail with hard- efficient internet facilities were avail- facilities with adequate speed in each case was that of Rudul Sah who was
core criminals and one could call it ille- able in prisons or not. The bench also and every jail in their respective released 14 years later after his order of
gal detention. directed the secretary-general of the states/UTs and take necessary steps to acquittal due to lapse of jail authorities.
On July 16, a Supreme Court bench apex court to submit a proposal sug- arrange for internet facility expeditious- The Universal Declaration of Human
led by Chief Justice of India (CJI) NV gesting the modalities to implement the ly wherever the same is not available. It Rights, a movement started in 1948

RELEASE
ORDER
(Right) The
Supreme Court
granted interim
bail to 13 DETAINED ILLEGALLY
prisoners lodged (From far left) Asif Iqbal
at the Agra Tanha, Natasha Narwal
Central Jail. They and Devangana Kalita
were in jail for were released two days
periods after being granted bail;
ranging from Dr Kafeel Khan was not
around 14 to 22 released promptly by
years in a Mathura jail authorities
murder case despite getting bail

40 October 25, 2021 | INDIA LEGAL | October 25, 2021 41

Focus/ Delay in Releasing Prisoners
and adopted by the General Assembly of
the United Nations, provides for basic
principles of administration of justice
which clearly state that everyone has the
right to life, liberty, and security. There-
after, several other covenants were in-
troduced that are relevant to the current
situation in India, including the Inter-
national Covenant on Civil and Political
Rights, 1966; Declaration on Protection
from Torture, 1975; The European Con-
vention on Human Rights (1953-69);
Standard Minimum Rules for the Treat-
ment of Prisoners formulated by Am-
nesty International in 1955; Convention
against Torture and other Cruel, Inhu-
man or Degrading Treatment or
Punishment.
All these conventions make it clear
that though incarcerated, a prisoner still
has some fundamental rights, if not all,
and the common aspect in each of them
is that anyone who is deprived of liberty
by arrest or detention shall be entitled
to take proceedings by which the lawful-
ness of their detention shall be decided
speedily by a court and release be or-
dered if the detention is not lawful. Fur-
ther, everyone who has been the victim
of arrest or detention in contravention
of the law shall have an enforceable
In India, sufficient importance has not been given to prisons and prisoners. The
jail administration in India, despite being an important part of the criminal justice
system, has suffered neglect and lack of recognition.
42 October 25, 2021
right to compensation.
Clearly, this is not the case in India
where sufficient importance has not
been given to prisons and prisoners. The
jail administration in India, despite
being an important part of the criminal
justice system, has suffered neglect and
lack of recognition which is obvious
from the recommendations given in the
report of the All India Committee on
Jail Reforms (1980-1983) headed by
Justice AN Mulla which have not been
implemented till today on the grounds
that prisons are a state subject and not a
central one.
T
he Delhi Prison rules, 2018,
states that “the Superintendent
shall ensure that no prisoner is
detained in the prison for any duration
more than authorised custody ordered
by the court.” It further states that
“release orders and bail bonds will be
sent through post or through the peon
of the court. If any private person brings
such documents, the same should not be
accepted at the prison office. On receipt
of a bail bond or release order, prompt
action should be taken. An undertrial
prisoner should be released on the same
day of the receipt of the bail bond or
UNI
release order.” It is also stated that
“every prisoner, whose release has been
ordered by a competent court, on any
day, shall be released on the same day”
which is clearly not followed. Thus, one
could also make that the post system is
outdated when it comes to delivering
court orders.
A similar situation was seen in vari-
ous cases like the release of Pinjra Tod
activists Asif Iqbal, Devangana Kalita
and Natasha Narwal two days after
granting of bail. Comedian Munawar
Faruqui, who was arrested allegedly for
hurting religious sentiments during a
show, was granted interim bail. Though
the court stayed a production warrant
against him by the Uttar Pradesh gov-
ernment, the jail authorities did not
release him and stated that he had been
granted bail in the Madhya Pradesh
case and not the Prayagraj one.
Another instance is when the apex
court granted interim bail to 97 con-
victs of Agra and Varanasi central jails
who were incarcerated for more than
20 years. It was noted that prisoners
were not released despite being entitled
to premature release under a policy
framed by the Uttar Pradesh govern-
ment in 2018.
Dr Kafeel Khan spent more than
seven months in jail for his public
address against the CAA and the NRC.
Though Khan was granted bail, he was
never released by Mathura jail authori-
ties as the district magistrate had added
charges under the NSA.
The Supreme Court, though late, has
initiated a dedicated system that will
certainly offer some relief to those dep-
rived of justice even after justice has
been served. FASTER is going to be
used for transmission of e-authenticat-
ed copies of judgments/final orders/in-
terim orders to the concerned courts/
tribunals and other duty holders for
execution. The postal system is clearly
outdated when it comes to delivering
court orders.
—By Akarsh Sharma and India
Legal News Service
 Postal Regd. No. UP/GBD-197/2017-19
RNI No. UPENG/2007/25763