Explained: Disaster Management Act (DM Act)

Reading time: 8-10 minutes.

Life on Earth is at the ever-increasing risk of being wiped out by a disaster, such as sudden global nuclear war, a genetically engineered virus or other dangers we have not yet thought of.

                                                                                                                     ~ Stephen Hawking

The people of India are going through a complete lockdown for 21 days started on 24th March 2020, in bid to stop the spread of coronavirus, that has claimed over 11,00,000 lives across the world so far and has been declared a global pandemic in nature by the World Health Organization (WHO). This lockdown has brought everything to halt in India except the essential services.

The coronavirus disease (COVID-19) is an infectious disease caused primarily through droplets of saliva or discharge from the nose and no vaccination has been invented yet and thus, the most effective solution to control the spread is social distancing, as it is communicable and the symptoms may take around two weeks before they are clearly visible. Given the large demography of India, it was only wise to put a lockdown in the early stage of the pandemic.

The Union Home Ministry said that in an order under the Disaster Management Act, 2005 to declare 21 days countrywide lockdown to prevent the transmission of COVID-19 pandemic. Directions are issued that district and state orders should be effectively sealed. The states are directed to ensure there is no movement of people across cities or on highways. Only the movement of goods should be allowed and that, district magistrates and police superintendents would be personally responsible for the implementation of these directions.

Also, all offices of the Government of India and State Governments, and their autonomous bodies and corporations shall remain closed, except those dealing in defense, treasury, public utilities (including petroleum, CNG, LPG), disaster management, power generation, post office, national informatics center, water, sanitation, police, home guards, prisons, etc. Hospitals, medical establishments, clinics, dispensaries, laborites, and allied services will also remain functional.

There is no country that is totally impervious from any catastrophe. However, the magnitude of such catastrophes may vary. Therefore, various nations take measures to prevent a disaster and also to recuperate if such a disaster occurs. Disaster management can be referred to as the planning, organizing, and management of the resources in order to curb the calamity and lessen the impact of the disaster by responsibly acting on it.

Therefore, the need for management of disaster was realized by the State and The Disaster Management Act was enacted by the Parliament in the Fifty-sixth Year of the Republic of India on 26th December 2005. It was enacted as the central Act to deal with disaster management. Principally it provides for the effective management of disasters and for matters connected therewith or incidents thereto. This act foresees three categories of Disaster Management structure in India at National, States and District levels.

Significance of this development

As this disease is a contagious disease the major steps to be taken to curb the effect of it is to stop the infection and for that, it is advised by the WHO that ‘social distancing’ shall be maintained which will, in turn, lead to decrease the spread through sneezing or coughing. Social distancing here means that two persons must maintain a distance of at least 3 meters between them so that the infection does not spread.

In lieu of the guidelines of the World Health Organisation, the Government of India has imposed a nationwide lockdown and it also passed an order to seal the state and district borders to stop the exodus of migrant workers. This was an important step as the coronavirus has been deemed to be a pandemic and the cases in the country crossed the 5000 mark.

These steps were taken by the Central Government in conformation to the provisions of the Disaster Management Act, 2005. Section 35 of the Act states that the Central Government shall take all such measures as it deems necessary for the purpose of disaster management. It also states that the Centre must ensure that the state governments are also working towards the same goal.

Salient features of the DM Act

The Disaster Management Act was enacted in India on 26th December 2005 by an act of Parliament. The Act was enacted to provide for the potent management of disasters or matters connected therewith or incidental thereto.

The following are the features of the Disaster Management Act, 2005:-

  • Disaster Management Act, 2005 comprises 79 sections and 11 chapters.
  • The Act covers all aspects of disaster management i.e., planning, avoidance, mitigation, response, and resurgence.
  • This Act was the first statute that defined the term ‘disaster’ and ‘disaster management’ in its whole sense under Section 2(d) and Section 2(e) respectively.
  • It provides an institutional structure for monitoring and implementation of policy for which the National Disaster Management Authority (NDMA) and the State Disaster Management Authority (SDMA) was established.
  • All the roles and responsibilities at all levels of government, starting from the Central Government right up to Panchayat and Urban Local body level is the matrix format.
  • The Act follows the regional approach; therefore, it will be beneficial not only for disaster management but also for developmental planning.
  • NDMA and SDMA perform their function to prepare for the disaster and lessen the menace at their respective levels.
  • District Disaster Management Authority is also established under this Act to work effectively at the district level.
  • As per the provisions of this Act, financial mechanisms like Disaster Response Fund and Disaster Mitigation Fund shall be created at the national, state and district level to reduce the severity of the loss incurred due to the catastrophe.
  • The developer of this Act also emphasized preparing communities to cope with disasters, so it also stresses on a greater need for information, education and communication activities.
  • It also focuses on vital affairs such as early warning, information dissemination, medical care, fuel, transportation, research and rescue, evacuation, etc. to examine, whether the agencies are active.
  • The provisions of this Act also prescribe the penalties to be imposed on any person in case of an offense (as provided in the statute) being committed by him.

The abovementioned features of the Act make it an exemplary statute that helps in the prevention of the disaster by readily preparing for it beforehand and also in successfully recovering from a disaster. The Act ensures that necessary steps are taken by various factions of the government for the prevention and reduction of disasters.

Its relevance W.R.T. COVID-19

On 24th March 2020, The Ministry of Home Affairs invoked Section 6(2)(i) of the Disaster Management Act and directed the ministries or departments of the Government of India, state and union territory governments and authorities to implement the measures laid down in the central order. Section 10 of NDMA authorizes the central authority to issue guidelines and directions to several state government with respect to addressing disasters.

Section 10(2)(1) of the Act allows the National Executive Committee to give directions to governments regarding measures to be taken by them. The Union home secretary, who is the chairman of the National Executive Committee, delegated power to the Union health secretary in this regard.

The offenses and penalties are provided in Section 51 to Section 60 of the Act.

Under the provisions of this Act, any person who refuses to comply with the directions of the Central Government shall be liable to imprisonment for a term which may extend to one year or with fine, or with both, according to Section 51 of the Act.

According to Section 53 of the Act, whoever misappropriates or appropriates for his own use the money or materials provided for disaster relief, shall be punishable with imprisonment which may extend to a term of two years or with fine, or with both.

According to Section 54 of the Act, any person who makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to a panic shall be punishable with imprisonment for a term which may extend to one year or fine, or with both.

Earlier in March, the ‘misgiving’ of information on ‘chicken as a carrier of Coronavirus’ on social media, cost the poultry industry an estimated loss of Rs 1.6 billion per day, according to the reports of the All India Poultry Breeders’ Association. Despite the clarification by the Indian Council of Medical Research (ICMR), not only did the culling of chicken continue but also played havoc in the lives of chicken breeders, traders and allied sectors.

Recently a PIL was been filed by Home Secretary Ajay Bhalla IAS in a similar regard that deliberate fake news can cause panic in the society. Therefore, the Centre said that the creation of panic is an offense under the Act and an ‘appropriate direction from the top court would “protect the country from any potential and inevitable consequence resulting from a false alarm having the potential of creating panic in a section of the society’.

The central government has sought a direction from the Supreme Court that no media outlet should print, publish or telecast anything on COVID -19 without first ascertaining facts from the mechanism provided by the government. But if a person or channel does so then they’ll be charged under Section 67 of the Disaster Management Act, 2005 which states the direction to media for communication of warnings, etc.

These are the major provisions of the Act which came into effect after the lockdown was imposed in the country. Many other provisions were also in effect which were deemed to be necessary for the containment of the corona virus disease.

Conclusion

The Disaster Management Act, 2005 has thus played an important role in a fight with the highly contagious novel COVID-19 or commonly known as coronavirus. It was passed to enable the central government to provide a legal framework for setting up a National Disaster Management Authority under the chairmanship of the Prime Minister of India.

While the tactic of the Act does not specifically allocate the control of a pandemic like COVID-19, the powers of the NDMA under Section 6 of the Act can broadly be expounded to give a unified command to the central government to effectively manage a disaster throughout India by making it mandatory for the government to take all such necessary measures which will help curb the disease.

Under the DMA, 2005, the COVID-19 outbreak is needed to be listed as a disaster, allowing broad powers of the central government to deal with the pandemic by setting policies, strategies and guidelines for disaster management to ensure timely and efficient response. Section 38 of the DMA imposes on the states the obligation to obey NDMA’s directions.

To conclude, whenever there is a catastrophe, mishap, calamity or grave occurrence in any area, an emergent measure such as Disaster Management Act in the current situation, needs to be taken for the interest of a larger public even at the cost of some inconvenience.

Authors: Dhanesh Desai from Amity Law School, Noida and Pragya Narang from The Northcap University,Gurugram.

Editor: Arya Mittal from Hidayatullah National Law University, Raipur.

Analysis: Public safety act

Reading time: 6-8 minutes.

The 14th of August, 2019 has discernibly validated the allusion ‘May we never confuse honest dissent with disloyal subversion’ as was elucidated by the former US President Dwight D. Eisenhower. It is because the draconian Public Safety Act, 1978 (PSA) was again invoked to detain the 2010 J&K IAS topper Shah Faesal at the Delhi Airport. The detention was done by way of a circular issued by Intelligence Bureau on 12th of August, 2019 precluding Mr. Shah to leave the country.

The former IAS officer is one of the lead critiques against the government’s scrapping down of Article 370 which delved special status to the state of J&K and thus the grounds of his detention can be traced back to February 12, 2019 when the detainee was served a 27 pages PSA dossier containing social media posts of Mr. Shah alleged to be critical of the government and also the grounds averred Mr. Shah’s alliance with Seikh Abdul Rashid, an arrestee in a terror funding case.

The detention was challenged in the Delhi HC on the ground that Mr. Shah was flying abroad to pursue higher studies in Harvard University, however the detention authority defended the contention by resorting to the fact that the detenue was flying on a tourist visa and not on a student visa.

Significance of this development

This instance of detention ignited netizens and citizens around the sub-continent demanding justice for all the persons who are detained post abrogation of Article 370. Further, it also led many scholars and intellectuals in the legal milieu to review the ‘extraordinary’ laws such as the PSA, National Security Act and Unlawful Activities (Prevention) Act.Alongside, it also brought into limelight many similar acts of detaining authorities which were in a state of stalemate.

As editorialized below, the detention of conspicuous persons such as Mr. Faesal also led the judiciary, in other cases such as Mian Abdul Qayoom v. State of J&K and Ors., to hold that the ‘subjective satisfaction’ of the detaining authority whether to detain a person cannot be subjected to the objective assessment of judicial review.

Salient features of the Act (PSA)

The PSA is filled with plethora of intricacies and salient features, one of which is the period of detention that can be imposed on the detenue. At inception, when a person is detained vide order made under Section 8 of the Act, the case is to be referred within four weeks from the passage of the detention order to an advisory board constituted by the government, where the latter, within 8 weeks, prescribes as to the validity of the detention order, and if held to be valid, the person can be detained for 24 months.

The detenue is delved with limited rights alien to criminal jurisprudence as there are no provisions for producing the arrestee within 24 hours before magistrate. Moreover, under Section 13, the detenue need not be conveyed the grounds on which the detention was made. Further, the right to get represented by a legal practitioner is curbed under Section 16(1) r/w 16(5) of the Act which provides for hearing in person before the advisory board. Additionally, the PSA sets no territorial limits of the detaining authority and hence, an order can be executed throughout the nation.

Why was the Act introduced?

The invocation of the Act, post abrogation of Article 370, ironically makes it antithesis for the purpose for which it was originally introduced by the former CM of J&K Sheikh Abdullahin 1978. It was introduced for tackling rampant timber smuggling in the state of J&K and thus provided for a stringent procedure with a bona fide aim of precluding the accused from exploiting legal loopholes. However, over time the same Act is being used for detaining several political and separatist leaders ranging from Omar Abdullah, Mehbooba Mufti to Yasin Malik. Hence, an Act which was enacted for the purpose of curving economic offences, finally vested limitless power on the government with meagre scope of judicial scrutiny.

Critical analysis of the Act (pros and cons)

While penning down the pros of the PSA, the discussion shall start from the fact that ‘each of the detention law are to prevent crime and not punish offenders’ as held in Mariappan v. The District Collector and Ors. It is conceded that Acts such the PSA and NSA may provide for some stringent procedures not conforming with the ordinary laws, however, considering the situation in the state of J&K, such laws recurrently act as a bulwark saving the state from terrorism and separatism. This is because to curb separatism and terrorism in the valley, there is a need for a legislation which provides for rapid action without restoring to procedural intricacies.

Moreover, provisions such as non-production of accused before magistrate within 24 hours and no legal counsel can be instrumental while delivering the power mandated under Entry 3 of List III Schedule 7 for the maintenance of public order as a result of which, it is taken into consideration that in quest of inhibiting rampant terror activities and separatist movement, the detaining authority may not be well equipped to gather strict evidences if judged according to the ordinary laws which could lead the accused to move at large.

Additionally, the long period of detention provides for exigencies, as it is difficult to catch hold of a dreaded terrorist or separatist leader and thus provisions such as bail and parole could militate against the security and integrity of the state. At the same time, it is also to be kept in mind that the legislation provides for judicial review vide Section 6(1) whereby any person aggrieved by an order passed under the Act can challenged the same in the High Court. Thus, considering the situation of the state and limited safeguards and scope judicial review, the legislation can be termed as a necessary evil.

On the other hand, it is universally accepted that, preventive detention laws are congenitally rigorous and are in violation of basic principles of human rights and criminal jurisprudence. However, with regard to the PSA, the case of Mian Abdul Qayoom v. State of J&K and Ors holding ‘subjective satisfaction’ of the detaining authority out of the purview of judiciary must be reconsidered. It is because such leverage leaves the State with unbridled power to invoke the Act and whimsically detain persons, and sometimes even disregarding the Proximate Linkage Test, as upheld in Shreya Singhal v. U.O.I as sine qua non to justify any restriction as a reasonable one under Article 19(2). Ironically, the PSA derives its power from Article 19(2) as averring the restrictions to be a reasonable one.

The line of reasoning in Mian Abdul Qayoom is tantamount to the act of unearthing the infamous ADM Jabalpur case which too delved into executive supremacy. Further, the limited scope of judicial scrutiny in the Act violates the detainee’s right of a fair and impartial trial contravening Article 10 of UDHR and Article 14(1) of ICCPR.

Additionally, it is imperative that, a layman detained under the Act, cannot be held to be well-versed with it, and hence the Act should provide at least for legal consultation, if not legal representation, though it is conceded that A. K. Roy v. Union of India held that no such rights can be accrued to the detenues. The Act, vide Section 13(2) mandates that ground of arrest prejudicing public interest may not be revealed to the detenue and also vide Section 16(2) vests the duty on the advisory board to determine whether such uncloaking of such grounds could jeopardize public interest.

However, it is to be noted that, the board can be constituted solely by 3 members and each of them can be retired persons from the judiciary and hence the government can exercise direct control over them, thus totally shredding off the veil of impartiality and fair trial from the advisory board.   

Scope of improvement

As regards the scope of improvement, the propositions can be extended to all preventive detention laws. Following the recommendations of South Asian Human Rights Documentation, the subjective satisfaction of the detaining authority cannot be considered outside the purview of judicial review and thus the decision of Mian Abdul Qayoom with respect to PSA shall be reconsidered.

Moreover, for delivering a fair and just trial, it must be made compulsory under the Act, that an advisory board constituted must have majority of its members from the judiciary provided they are non-retired. It is conspicuous that the review by the advisory board can only be done once, and then the government can extend the period as it deems fit. However, it is proposed that there should periodical review as to assure that the detenues are not subjected to any custodial torture or other coercive methods.

Additionally, for the prevention of whimsical detention, it must be mandated that though authorities are protected under section 22 for bona fide acts, however, the 173rd Law Commission Report, following Article 9(5) of the International Covenant on Civil and Political Rights, mandated compensation for illegal detention. As a penultimate step, it is also suggested that rampant use of PSA and other similar legislation demands reconsideration of decisions such as A. K. Roy v. Union of India and detenues must be given some discernable rights in the quest for justice and free speech.

Conclusion

Legislations such as the PSA, though called a necessary evil, can led to sheer violation of fundamental rights due to the unrestricted powers they provide to the government. Hence, preventive detention law can prove to be a necessary element; however there must be a proper balance between rights of the people detained and national security. It is for the judiciary to define and delineate the contours of the detaining authority and pinpoint the loopholes in the legislation.

Moreover, for rapid response, the legislation may be allowed to contain less intricate procedures. However, once the person is detained, core-constitutional rights must be granted. Thus, assessing the present scenario, it can be concluded that, draconian laws such as PSA needs reconsideration more than ever. 

Author: Ishan Mazumder from West Bengal National University of Juridical Sciences (NUJS), Kolkata.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

Shooting incidents in JMI: Legal angle

Reading time: 6-8 minutes.

“As Right to Life & Personal Liberty, does not include Right to Die, similarly Right to form Association and Criticise the Govt, doesn’t specifically outright the use of arms and ammunition to force the Government to undo anything, which is the will of the people.”

Recent happenings in the heart of the capital of the Republic of India is something which may or may not be termed as stupefying the working of the Indian Constitution, but surely have shocked the conscience of every prudent citizen of this beautiful country.

Our Constitution gives fair privilege to protest against any decision of the Government which they have chosen by exercising their Right to Vote and under a Social Contract have conferred handful of rights with duties to serve the people, and on other hand people also reserve the Right to support any action of Government, on the basic premise that they are no different from ‘WE THE PEOPLE’ who are real sovereign of this Nation who have all right to take necessary action for undoing the wrongs committed by the Govt., stressing on the popular referendum.

But this also comes with certain restriction and duty and a peaceful procedure is what everyone preaches to be adhered by bringing fruitful changes in the policy which is to be enforced for the welfare of the entire country.   

The need to highlight the Right to Protest with the underlying limitations to it arose when the nation was struck with the feeling of terror during the Anti-CAA protests at Jamia Milia Islamia, followed by the police’s strike in the campus which hurled the atmosphere of violent protest thereby noting the gun shooting instances near and in the campus by the Indian Youth, This has categorically raised serious issues as to the Govt’s approach coupled with the ineffective handling of Law & Order Situation by the Police Authorities and reason behind such shooting incidents in one of the Premier Academic Institute of India.

Brief about Citizenship Amendment Act and the contentions to oppose it

After getting the Presidential Assent on December 12, 2019, the CAB (Citizenship Amendment Bill) was enacted into the CAA (Citizenship Amendment Act) which provided for the fast track process of giving citizenship rights to the religious minorities of Pakistan, Bangladesh and Afghanistan who were living in India without valid documents who were ‘forced or compelled to seek shelter in India due to religious persecution’ in their native state before the cut off date of 31, December 2014.

The contentions and opposition which traced the path of the 2-month long protest against CAA, which in no case is showing signs to resolve are as follows:

“The critics of the Act quote that it is fundamentally discriminatory in the nature of rejecting one religion and preferring others, which is stated to dissolve & harm the secular nature of the Indian Constitution and specifically violates Article 14 of the same.”

This has caused grave concerns so as to protect the rights of our Muslims brothers and sisters of our Country, for which nationwide protest is going on. However, a major point of concern which has raised under the garb of these protests is the way people are getting around in the protests while damaging the Public & Private Property, protesting with arms & ammunition and even going to the limit of active use of guns and deadly weapon, thereby not only creating an atmosphere of fear or threat, but categorically threatening to wither away the unity & integrity of our homeland.

Brief of continuous incidents of gun shooting in and around Jamia Milia Islamia

Incident No. 1: January 30, 2020- “when a man – who claims to be minor – took out his gun at a student march from Jamia Milia University to Rajghat against CAA on the death anniversary of Mahatma Gandhi and started shouting threats. Despite a heavy police presence, the visuals from the incident showed him walking alone on an empty road barricaded by police and finally taking a shot at the protesters.

After shooting, he turned around and shouting at the protesters in Hindi, quoted “Jai Shri Ram, Yeh Lo Azaadi”. His bullet injured a first-year student of Jamia’s mass communication department. Moreover, his social media accounts show that he went live before firing on the crowd, so as to take revenge for the Chandan’s Death in a communal clash in Uttar Pradesh, clearly showing that the protest might have taken a shape to counter personal anguish, which is not yet proved.

Incident 2– February 1, 2020- Where a man resorted to aerial firing while shouting “Hindu Rashtra Zindabad” and “Iss desh mein kisi ki nahin chalegi, sirf Hinduon ki chalegi” near the Jasola Red Light at around 04:53 PM whereby no one was injured, has caused serious question as to effectiveness of Police Authorities who were in large number present near Shaheen Bagh where anti-CAA protests were being held.

Incident 3– February 2, 2020- Where unidentified gunmen riding a scooter opened fire outside Gate number 5 of Jamia Millia University where students and members of the civil society have been holding protests against the Citizenship Act (CAA) for several weeks. The Delhi Police after the incident was reported doesn’t found any bullet shell nor any evidence as to the happening of firing, thereby registering the complaint at the premise of the eye-witnesses of the Incident.

Legal consequences and laws violated by the attackers

The ruthless efforts of the attackers to stir the conscience of the protesters as well as to shake the integrity of our Nation, the incident of firing on the crowd have violated and invoked the following laws against the attacker:

  1. Indian Penal Code, 1860
    1. Section 307- Attempt to Murder
    1. Section 153A- Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony
    1. Section-153AA- Punishment for knowingly carrying arms in any procession or organising, or holding or taking part in any mass drill or mass training with arms
    1. Section-153B- Imputations, assertions prejudicial to national-integration.
  2. Arms Act, 1959
    1. Section 25- Punishment for certain offences.
    1. Section 27- Punishment for possessing arms, etc, with intent to use them for an unlawful purpose
    1. Section 29- Punishment for knowingly purchasing arms, etc., from unlicensed person or for delivering arms, etc., to person not entitled to possess the same.
  3. Invocation of the Provisions of National Security Act, 1980.

Thus, the attackers shall be liable for the commission of the offences committed under the offences hereinabove mentioned.

Impact of the firing incidents: Making law & order situation vulnerable to repeated wrongdoings

Such incidents will surely have an impact not only on the minds of the protesters who are being directly inflicted to threat, fear and injuries, but also to every citizen of India who has trusted the Administration & Policing System, now being questioning the ineffective resolution of such incidents. 3 consecutive incidents have raised serious contentions in the mind of people, that is this the only way to get justice and causation of such firings have also boosted the morale of the deviants to adopt the same, as a legitimate way to bring their choices and needs to be fulfilled.

Some state that such incidents are because of political aggravation, whereas some others denote it as a means to realise the personal enmity. But surely such incidents have a great impact on the mental well-being of the Country, where there is sense of insecurity developed in the minds of people, and thus affecting the overall development and image, as well as repute of the country at the Global Stage.

Conclusion

Theway forward is to take harsh and immediate actions against the perpetrators, because the path they have chosen is surely not acceptable, though their motive is in line with the welfare of the society or the Country as a whole. In this respect, a specialised force should be deployed in the area of protests, who would keep a keen eye on such incidents and an order of immediate action taken thereby to restrict such firing be given to such force, so that Law & Order Situation is maintained and citizen in its entirety feels safe & secure, for which the Govt. as well as the people should join hands.  

Author: Harshit Sharma from Amity Law School, Amity University Madhya Pradesh (AUMP), Gwalior, Madhya Pradesh.

Editor: Anna Jose Kallivayalil from NLU, Delhi.

The debate around the NIA Act, 2008

Reading time: 6-8 minutes.

Recently on 15th Jan 2020, the State of Chhattisgarh moved to Supreme Court by filing a plaint against Union of India under Article 131 of Indian Constitution, related to Centre and State relations, challenging constitutionality of National Investigation Agency (NIA) Act, 2008.

NIA Act was drafted in 2008 and was enforced in December 2008. Mr. P. Chidambaram who was then the Home Minister was the draughtsman of the Act.  The present petition has arisen from two petitions already pending before High Court of Chhattisgarh which also dealt with the NIA, its existence and its constitutionality.

Last year in June 2019, the Parliament had passed an NIA Bill which has amended the Act with respect to its jurisdiction and offences. The Bill has widened the scope of applicability.

Salient features of the Act

The NIA Act is an Act to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign states and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations and for other connected matters.

Thus, it has brought under the agency’s ambit offences under the Atomic Energy Act, Unlawful Activities Prevention Act, Anti-Hijacking Act, Suppression of Unlawful Acts against Safety of Civil Aviation Act, SAARC Convention (Suppression of Terrorism) Act, Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, Weapons of Mass Destruction and their delivery systems and several sections of the Indian Penal Code related to cyber terrorism, offences related to counterfeit currency or manufacturing or selling of prohibited arms and human trafficking.

The Amendment Act allows the empowered agency to investigate offences committed outside the territory of India, subject to international treaties and domestic laws of other countries. Also, the amended act has allowed the Central government to designate Sessions Courts as Special Courts for the trial of scheduled offences under this Act. However, the Central government is required to consult the Chief Justice of the High Court under which the Sessions Court is functioning.

Controversy around it

The controversies against the NIA Act had begun back in 2008. The Centre, with the aid of NIA Act, had expanded the horizons to investigate and policing the crimes. Common criticism amongst many were that the Act is in sheer violation of sovereignty of State Governments, as police is a subject which falls under jurisdiction of State Government but through NIA, the Centre has an edge over and above the State Government.

NIA has caused interference in the investigation procedure in many cases. In 2014, in the Jeeram case, NIA had completed investigation but had declined to share the details of the same with State Police. Therefore, a PIL was filed seeking NIA as an ultra vires Act. Then, in 2019, in murder case of BJP MLA Bhima Mandavi, the NIA has declined to acknowledge and consider the investigation by the state police.

The affected party had challenged the interference of NIA in the matter at hand. Under both the circumstances, the NIA Act has been upheld has constitutionally valid. The Chhattisgarh HC Division Bench provided that the provisions are present in the Act to protect the opaqueness of investigatation and it is mandatory to obey those legal obligations.

Even after passing of Amendment Bill in 2019, controversies with regard to possible misuse have stirred up. The NIA Act has expanded the jurisdiction of the Centre to investigating crimes Act and included that all the powers, duties, privileges and liabilities that state police officers have in connection with investigating the offences listed under the Act would become available to the NIA as well.

For instance, through NIA Amendment Act, the officers have power to seize the property in the terror cases with approval of the Director General of NIA, if the case is being investigated by the NIA. Earlier, for such a step, prior approval of Director General of Police (DGP) was required. The opposition has raised concerns with regard to the violation of the principle of federalism.

Arguments made by Chhattisgarh government in its plaint

The State of Chhattisgarh has argued in the plaint that the Act is beyond the “legislative competence of the Parliament” and is against the “federal spirit” of the constitution.

As per the plaint, “ A holistic appreciation of the fact that “Police” was placed under List-II as the subject matter of State, with power to investigate, and equally significant fact that no such entry of “Police” or even any incidental or ancillary entry was provided in List-I i.e., Centre List suggests that the framing of a legislation such as NIA Act by the Parliament, which creates an “investigation” agency having overriding powers over the “Police” of a State, was never the intention of the makers of the Constitution.” Hence the plaint clearly argues that giving police powers to the Centre is against the Constitution.

The plaint further argued that the NIA Act disrupts the relations between the Centre and the State as the power of the State to investigate the offences which have been categorised in the Scheduled Offences under the Act and which have been committed within the State’s jurisdiction has been taken away.

The Chhattisgarh government has contended that the Act in effect has created a “National Police” affecting the State’s rights. Thus, the State seeks a declaration of the NIA Act as unconstitutional. An alternative remedy sought by the State is to declare the Sections 6,7,8 and 10 of the Act as ultra vires. Another alternative prayer has been sought for framing appropriate guidelines for the exercise of powers under section 25(1) of the Act.

Conclusion

The NIA Act, is considered to be a special legislation which intends to curb serious threats of terrorism; it is believed that to deal with a harsh issue, there is a dire need of special legislation. With the amendments being made in UAPA and NIA, the present government is moving towards strengthening the present law in order to prevent terrorism, which has come to be questioned as a step against the spirit of federalism.

An important point here is that this Act, when originally passed in 2008 by the UPA led government itself, was widely criticised for being unconstitutional. Now the Chattisgarh government of Congress has challenged not only the BJP Amendment Act but also the original act as being ultra vires the Constitution of India.

As per the statement of the AICC General Secretary in-charge of Chhattisgarh, P L Punia, the Act after the Amendment has undergone a “drastic change” and is no more the same Act.

As a result, The Supreme Court has also filed a notice to the Central Government regarding the constitutional validity of the Act.

Authors: Garima Sharma from University of Petroleum and Energy Studies, Dehradun and Prachi Gupta from University Institute of Legal Studies, Panjab University, Chandigarh.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

Analysis: Does the IPC need overhauling?

Reading time: 6-8 minutes.

Revamping of the Indian Penal Code by the current government has been in the headlines for a while. Recently, the Home Minister in a statement enunciated that the Indian Penal Code, 1860, that has been followed since the British era, has many loopholes and it needs to be amended and represented in order to increase the efficacy of the act.

Further, it was contended by the Ministry that rebooting the code introduced by the British in 1860 was necessary as it is primarily based on the spirit of “master and servant”.  Many grievous offences mentioned in IPC do not provide with the appropriate punishments which leads to unevenness. Secondly, IPC has not been amended wholly ever since it was enacted.

Hence, it becomes important to discuss the effectiveness and the capability of the Indian Penal Code in today’s scenario in which, various new forms of crime have originated, and where the antiquated law s seems obsolete.

Background of drafting of IPC:

Thomas Babington Macaulay, who was the chairman of the First Law Commission, prepared the draft of the Indian Penal code in 1837. The idea of the same was based upon the English Laws along with Napoleonic Code and Edward Livingston’s Louisiana Civil Code of 1825.

The draft then underwent a very careful revision at the hands of Barnes Peacock, who later became the first Chief Justice of the Calcutta High Court, and the future puisne judges of the Calcutta High Court, who were members of the Legislative Council, and was passed into law on 6 October, 1860.

The Law Commission in its 42nd Report in 1971, revised the IPC. Suggestions were welcomed even by the general public and accordingly, several changes were made in it. A questionnaire was prepared and sent to various High Courts and Bar Associations and other legal bodies along with the state governments. Each and every legal section was scrutinized in order to remove discrepancies if any.

Does an old law be construed as ineffective?

A law that has been enacted centuries ago definitely needs some changes as the time goes by. The Act may not have become ineffective with the time but yet, its value may have deteriorated. Hence, in order to regain the actual essence of the existing law, it is important to amend those laws, rules, regulations or procedures.

There are many reasons as to why the value of the law may have deteriorated with time:

  • Change in the perspective of the people as to how they perceive those laws.
  • Change in other laws/introduction of other laws that overshadows the existing laws.
  • Change in nature of the state leading to non-acceptance of those laws.
  • Laws existing for those issues which have been abolished for a very long period of time and have been eradicated from the society.

Ineffectiveness of the law cannot be made out from its age as even a new law being introduced may remain ineffective, until and unless the people of the state are aware, and morally accept that law.

Is IPC incapable of serving the needs of modern times?

It is rightly said that modern times have modern problems and requires contemporary solutions. The Indian Penal Code, on one hand, stands trustworthy on the ground of providing ethical punishments and stands strong in its framework, however, on the other hand, there are many pros and cons of this act which are discussed in detail as follows.

  • Section – 309: Committing suicide in India is a criminal offence which means that if one tries to end his life and if survives, he/she will be sent to jail. The provision is absurd as it serves no purpose and contradicts Article-21 of the Constitution of India which ensures right to life and right to die.

However, this section is no more effective after the passing of Mental health Care Bill.

  • Section-294: It states that whoever to the annoyance of others does any obscene act in the public places shall be punished with imprisonment which may extend to 3 months or fine.

This section provides extensive powers to the police to harass the couples sitting in a park or spending time together at a public place. The term ‘Obscene’ has not been defined in the Act and hence, it is misused.

Section- 294 must be attracted only when annoyance is caused to others.

  • Section-57: Life Imprisonment as a punishment is at the discretion of the court as to the number of years. It depends more upon the nature of crime that has been committed. But, when it comes to the calculation of fractions of punishment, it is fixed for 20 years. This takes away the discretionary power of a judge and differences arose as to the approach of giving punishments.
  • Earlier, deterrent theory was prevalent and it can be said that the provisions that were enacted in 1860 were in accordance with the need and requirements of that time. With the change in time, our society has also shifted from deterrent to reformative theory of punishments.

These are some examples which establishes the need of amendment in the current Code.

The fact cannot be denied that the code has been beautifully drafted and credit should be given to the makers of the act. It is divided into various chapters and bifurcated by the offences affecting Human body and offences affecting the property.

It also includes provisions relating to marriage which makes it a complete act in itself in terms of Public Health, Safety, Convenience, decency and moral.

Flaws were not present in the act but have arisen with the change in era which now demands more specific and to the point provisions.

Conclusion: Probable future

The Indian penal Code is a comprehensive code and covers almost all the substantive aspects of criminal law. It is an act which stand holds the criminal justice system in India. Hence, it is important that the act is free from any discrepancies.

The Malimath Committee in 2003 in its report suggested many penal reforms that needs to be ratified in order to fulfil the aspirations of the citizens and accommodate it with the changing nature of the crime.

Coming back to the main issue, whether or not, there is a need to amend the Indian Penal Code, it definitely needs to be studied by the legal experts in order to form an opinion and act accordingly so that the Justice is not back-pedalled.

–This article is brought to you in collaboration with Aniket Vashisth Maharaja Agarsen Institute of Management Studies, New Delhi.

Analysis: Article 371

Reading time: 5-6 minutes.         

With the abrogation of Article 370 (i.e. the temporary provision with respect to the State of Jammu and Kashmir) of the Indian Constitution, there were various concerns being raised on the possible annulment of Article 371, which includes ‘special provisions’ for 11 states. The people of North-Eastern states were misinformed and misguided regarding the possibility of dilution of Article 371. But, while addressing the 68th plenary session of the North East Council as well as the Lok Sabha, the Union Home Minister allayed the fear and assured that the Centre will not  abrogate Article 371 of the Indian Constitution. He assured that the present government does not have any intention to remove the provision.

What is Article 371 of the Indian Constitution?

Article 371 is covered under part XXI (Temporary, Transitional and Special Provision) of the Indian constitution. Part XXI has Articles 369-392. Articles 370, 379-391 have already been repealed. Article 371 specifically deals with special provisions for the states of Maharashtra and Gujarat which further accommodated 371A to 371J (mostly for North-Eastern states). Article 371A to Article 371J gives special provisions for the states of Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, Goa and Karnataka. The brief description of the various provisions is:

Article-371 – With the special status to the state of Maharashtra and Gujarat, the provision mandates creation of separate development boards for areas like Vidarbha, Marathwada, Sourashtra, Kutch and the rest of the Gujarat with allocation of funds and equitable arrangement and adequate facilities under the control of the State Government.

Article 371A: This Article provides special provision with respect to state of Nagaland. Parlaiament is prohibited to enact any law on religious and social practices and customary law and procedure of Nagas. The Governor of Nagaland is given special responsibility with respect to law and order in the state of Nagaland. The Parliament can’t legislate on administration of civil and criminal justice involving decisions on Naga customary law. Also, no Indian laws of punishment would be applicable there, all the administration would be done according to their laws and practices and so would be the land transfer laws. Moreover, the Governor of that state would be having responsibility to look into any conflict that would be arising between the laws and practices of the local tribal people of that area.

Article 371B: This Article deals with special provision to state of Assam which mandates dealing with tribal rights as it empowers the President to include a committee of the elected tribal representatives of the Assam Legislative Assembly for the constitution.

Article 371C: This Article deals with special provisions to state of Manipur covering the special rights to people of Hilly areas.

Article 371D: This Article deals with the state of Andhra Pradesh with respect to equitable opportunities and facilities for the people belonging to the state and other employment related issues to particular part or tribe of the state.

Article 371E: This article again provides special provision to Andhra Pradesh for establishment of central University in the state.

Article 371F: This Article deals with the special provision to the state of Sikkim. It outlines  various measures to obtain economical and social advancement of different sections of people of the state along with their identity.

Article 371G: This Article deals with special provision with respect to the state of Mizoram. It states that Parliament cannot decide in respect of religious and social practices of Mizos, Mizo customary law and procedure, administration of civil and criminal justice involving decisions according to Mizo customary laws and ownership and transfer of land.

Article 371H: This Article deals with special provision with respect to the state of Arunachal Pradesh particularly focuses on the functions of the Governor and special law and order arrangement.

Article 371I: This Article deals with special provision with respect to the state of Goa citing minimum strength of Goa assembly which should not be less than 30 members.

Article 371J: This Article deals with special provision with respect to the state of Hyderabad -Karnataka region. This provision focuses on establishment of separate development boards, equitable allocation of funds and equitable opportunities and facilities for the people belonging to Hyderabad-Karnataka region.

What are the reasons for incorporation of Article 371?

The intention of granting special status under Article 371 is to preserve the religious and social practices of these states, to protect the cultural and economic interests of these regions and safeguard the region’s culture, language, and ethnic diversity. Article 371 is incorporated mainly to meet the unique needs of the backward regions of these states, to combat the local challenges and protect the customary laws and procedure in these regions and to deal with the disturbed law and order in some parts. Also one of the reasons of incorporation was to provide equal opportunities and facilities in the educational and employment field to the people belonging to the state.

Differences between 370 and 371 

Article 370 and 371 were part of the Indian constitution at the time of its commencement on January 26, 1950 and subsequently Article 371A to 371J were incorporated. Article 370 dealt with ‘Temporary provisions with respect to the State of Jammu and Kashmir’. On the other hand, Article 371 grants ‘Special provisions with respect to some states of the Indian Union’. Article 370 was clearly temporary in nature. Article 371 is about special provisions in the various states of India. Although both the provisions were state specific, but Article 370 covered only one state i.e. Jammu and Kashmir whereas Article 371 covers 11 states of India. Articles 371, 371A, 371B, 371C, 371D, 371E, 371F, 371G, 371H, 371I and 371J define special provisions with regard to another state (or states).

With the rising apprehensions on abrogation of Article 371, the assurance given by the Union Home Minister on the non-revocation of Article 371 can be considered as a positive step in safeguarding the rights of the people of backward areas in North-Eastern states. The special provisions under Article 371 and Article 371A-371J of the Indian Constitution are specifically in view of progress and for the upliftment of the minority groups in various states. Since many of the provisions of Article 371 were introduced to prevent exploitation of local people on recommendation of bureaucrats and local politicians, the abrogation of these special provisions would be considered as undemocratic and violative of fundamental rights. The annulment of Article 371 will lead to a major downfall in the progress of the state with the escalation of poverty, illiteracy, unemployment and crime rate.

In conclusion

It can be concluded that these provisions are inalienable as these provisions individually take into account a wide range of specific safeguards and preserve the tribal culture. These provisions are essential in order to provide the constitutional remedies for various socio-economic challenges. Therefore, protection of the privileges under these provisions becomes very important for the states. All these provisions cater the needs of special circumstances that exist in those areas and help in promoting peace and harmony.

-This article is brought to you in collaboration with Ayushi Negi from Symbiosis Law School, Noida.

Resolving the Kashmir conundrum: Final nail in the coffin?

Reading time: 7-8 minutes.

Origin of Kashmir conflict

After Indian independence in 1947 J&K like other princely states was given an option to join either of the countries of India or Pakistan. J&K signed a standstill agreement with Pakistan. There was already an internal dispute in the state arising out of Hindu ruler ruling over Muslim majority. However, circumstances further deteriorated when Pathan tribesman from Pakistan attacked Kashmir, compelling Maharaja Hari Singh to sign the Instrument of Accession (IOA), acceding the 75% majority Muslim region to the Indian Union.

The first war over Kashmir broke out in 1947 when both India and Pak refused to withdraw their armies in the state thus, rendering a plebiscite impossible. Later in 1949, with the UNSC intervention, Indian and Pakistani forces agreed to ceasefire. India left in control of 75% of the valley, as well as Jammu and Ladakh; while Pakistan was given control of what Pakistan calls “Azad” Kashmir and India calls as Pakistan occupied Kashmir or “Ghulam” Kashmir.

An intriguing question that triggers our mental faculty is that at the time when Sardar Patel successfully integrated the 565 princely states of India, why wasn’t the same done in case of J&K? Sheikh Abdullah and other Muslims in J&K were against the rule of Maharaja in J&K since the implementation of the Treaty of Amritsar in 1847.

Baba sahib Ambedkar, who was initially approached by Sheikh Abdullah in 1949 for drafting article 370, he refused the offer with outmost disdain and said “You wish India should protect your borders, she should build roads in your area, she should supply your food grains, and Kashmir should get equal status as India. But the Government of India should have only limited powers, and Indian people should have no rights in Kashmir.

To give consent to this proposal, would be a treacherous thing against the interests of India and me, as the Law Minister of India, will never do it.” It was Pt. Nehru who appointed N. Gopalaswamy Ayyangar to draft Article 370 and to get it passed by the constituent assembly. Later when this draft of Article 370 was presented before the constituent assembly it was straightaway rejected.

When Nehru realised that it wouldn’t be possible to get this draft approved he again resorted to Patel who finally acceded to Nehru’s request and took the responsibility to get the draft approved despite having contrary views on the issue. Patel did succeed in convincing the assembly and so in 1950 the Constitution of India came into force the with article 370 enshrined in its fabric.

In 1951, first elections were held across states of independent India including J&K. Sheikh Abdullah got elected as the PM of J&K. 1953 saw major shift in power in J&K as Sheikh was arrested for anti-national activities and Bakshi Ghulam was appointed as the new prime minister of Kashmir. He signed a new Instrument of Accession (IOA) treaty formally with India.

In 1954 presidential orders extended several provisions of the Indian constitution to J&K’s constitution including 35-A inserted using the Constitution (Application to Jammu and Kashmir) Order, 1954, that would come in ambit of Article 370. Later in 1956 the State Constituent Assembly adopted a constitution for itself declaring J&K as integral part of the Indian Union. Following the elections in 1957 the constituent assembly was dissolved forming a new legislative assembly. But it was not the end of the problem instead a ground was set for the continuous contentions and conflicts in the coming years.

Current developments in Kashmir: Art 370

Since the state of J&K became an integral part of sovereign India (as stated in Article 1 of Constitution of India), there have been numerous modifications in the article 370 and 35-A. From 1956 to 2019 many provision of the Indian constitution has been extended to the state legislature of J&K.

Art 370 of Indian constitution grants certain special privileges to the state of Jammu and Kashmir: –

  • duration of the state’s Assembly is six years, not five like the rest of India;
  • it has a separate flag; Indian citizens cannot buy property there;
  • the Indian Parliament has only limited reach in J&K and only Defence, External affairs, Communication and the currency;
  • the state of J&K follows Ranbir Penal Code in place of IPC, no provision of RTI, RTE or CAG and other provisions incorporated in 35-A.”

 The seemingly sudden move by Union government to scrap off Art 370 was meticulously planned and researched. The legalities that were required to remove an article could not have been done overnight. Proper and planned homework was done beforehand by legal experts/officers of the government.

Union government was ready and waiting for the right opportunity to proceed with their plan; prepared with measures to mitigate any possible unrest arising thereafter. All the odds turned out to be in favour of ruling party as

  • There was no legislative assembly present in the state owing to the Presidents rule continuing from June 2018.
  • The ruling party had significant number of seats in both the houses and underpinning of other parties, who supported this resolution, led to uninhibited passing of this bill. (THE JAMMU AND KASHMIR REORGANISATION BILL, 2019)
  • Approval of the Bill from both the houses reinforced its legality.

Analysing the procedure for removal of Art 370

Removal of article 370 was executed through the Presidential Order (C.O. 272), 2019. The article used to dilute or scrap 370 was article 370(3) which states that, president has the power to declare this article (Art 370) ineffective or that the article may operate with specified modifications and exceptions, through public notification. This article empowers president to remove or modify any provision of the art 370 but with the recommendation of the constituent assembly.

 Article 370(1)(d), moots an imperative point, “Notwithstanding anything contained in this Constitution, such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.”

Although it seems powers rest in hands of president but the holistic approach tells us that real powers is vested with the constituent assembly. So for the abrogation of 370 the first and foremost requirement was the presence Constituent assembly which ceased to exist in 1957. So the question that arose was if 370 has thus become permanent to which an answer is the opening heading of 370 i.e.-Temporary provisions with respect to the State of Jammu and Kashmir.

The expression ‘temporary’ indicates the intent of the framers of our constitution, that is article 370 was never meant to exist for so long in the first place.  Although recently in 2018 the Indian Supreme Court further stated that ‘Article 370 had acquired permanent status, making its abolition almost impossible.’ And now comes in picture an entirely new article i.e. Article 367. Article 367 had 3 clauses that talks about the interpretation of constitution.

The C.O. 272 added an additional 4th clause with 4 sub clauses that included article 367(4)(c) stating that the references to the Government of Jammu and Kashmir shall be read and understood as references to the Governor of Jammu and Kashmir. Additionally, Article 367(4)(d) stipulates that in proviso to clause (3) of Article 370, the expression ‘Constituent Assembly of the State’ referred to in clause (2) shall inferred as ‘legislative Assembly of the State’.

One important fact to be kept in mind is that the state of J&K has been under President’s rule for around a year. There is no state government or legislative assembly in J&K. So very cleverly the powers that vested in hand of state government were put in hands of the governor using 367(4)(c) and (d). After this amendment the road ahead was free of predicaments (as far as the constitutionality is considered).

In other words, the Presidential powers in article 370(1)(d) were used, unhampered by the need of either concurrence of state government or the recommendation of the constituent assembly, to abrogate article 370 using the clause (3) of 370. In next step Statutory regulation was moved by Home Minister Amit Shah in Rajya Sabha that recommended the President to abrogate Article 370 and also included the reorganisation bill 2019 which aimed at bifurcating the state into two union territories of Ladakh (without legislature) and Jammu and Kashmir (with legislature).

So with the abrogation of Article 370 Article 35-A too ceased to exist as it was made through (presidential order) drawing its authority from 370. Referring to a J&K High Court judgement of 2002 which ruled that ‘Jammu and Kashmir women who marry non-permanent residents will not lose their rights in their ancestral properties, be devoid of their right to work, education, inheritance or even adoption.’ This decision was taken repealing a part of 35-A referred to as Permanent Residents Law which barred a woman (belonging to the state) from any property rights if she marries a person from outside the state.

The provision also extends to the children of such women as they do not have any succession rights over the property. Given the ‘special status’ of J&K it ought to have brought prosperity in the state as compared to rest of the country in terms of development, employment, low poverty etc. Unfortunately, the rhetoric seems to have failed to ensue changes. Unemployment is pushing the youth towards unlawful activities, stone pelting on army; had they been not poor, employed, educated, situation would have been at least some good.

Now when all this is done, we need to wait to see how this issue turns out. People have already challenged the scraping of Article 370 in Supreme Court of India and court proceedings concerning this issue will further enhance our wisdom about the constitution opening new doors of legal possibilities. This is the beauty of democracy and in the country like India where one gets ample opportunity to question the laws and their legalities with the presence of an independent supreme law institution.

-This article is brought to you in collaboration with Namrata Pal from Dr. Ram Manohar Lohiya National Law University, Lucknow.