Madras HS Goes Suo-Motu Against Tamil Nadu Drug Menace: What is the outcome?

Reading Time: Less than 4 minutes.

Drugs are an evil which not only corrupt the bodily functions of the individual consuming them, but also the functioning of the society as a whole. They have spread their claws deep into various societies across the world, with nearly thirty-five million people suffering from drug abuse disorders and many more indulging in its consumption.

Drug peddling has become a menace in India affecting people of all ages, but specifically children and youngsters, ruining the life of the drug addict as well as the society subsisting around them. Young people can be seen to be indulging in this self-destructive habit due to peer pressure or due to the misconception of it being fashionable and trendy.

Also read: Anti-drug law in India

In light of this, the Madras High Court empowered by Article 226 took suo motu cognizance of drug peddling and abuse in the State of Tamil Nadu, in a case dealing with a drug peddler’s detention under the Tamil Nadu Goondas Act, 1982.

What are the facts of the issue?

The matter of the increase in drug peddling in India and particularly in the State of Tamil Nadu, came in front of the Madras High Court, as an indirect consequence of a plea of habeas corpus made by the spouse of a drug peddler, against his detention under the Goondas Act.

Also read: Concept of writ petition

The Court concluded that on account of the delay in considering the representation filed by the detainee, being violative of fundamental rights, the detention stood vitiated. The Court also reprimanded the authorities to be cautious in dealing with drug peddlers due to the seriousness of the situation.

Also read: Rights of prisoners: Development in India

The High Court noted that the issue is entrenched in the society, and active measures have to be taken to demolish it from its roots. Concern was shown towards the youth falling into the trap of drugs because of the ready availability of the same in areas accessible to them.

The probability of the country being used by the drug mafia to smuggle drugs from one country to another was also brought to light. In furtherance of the same, the High Court ordered the Central as well as State Government to furnish information regarding the factual scenario of drug peddling in the country and the steps that have been taken to deal with the related issues.

What are the legal provisions involved?

The Constitution, by virtue of Article 47 creates a duty upon the Government to take steps to curb the usage of drugs which are not used for medicinal purposes, and are injurious to health.

Obligations under the Convention on Narcotic Drugs, 1961, the Convention on Psychotropic Substances, 1971 and the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 have also been undertaken by the State, making it internationally liable to take action against the problem.

The fulfilment of this obligation led to the enactment of the Narcotics Drugs and Psychotropic Substances Act, 1985 by the Central Government, in order to make the existing regime stringent.

The Act, deals with offences and penalties in Chapter IV, and lays down punishments for the preparation, manufacturing, import, export as well as consumption of several drugs and substances like cocaine, opium, cannabis, heroin.

Section 4 of the Act provides for setting up of the Narcotics Control Bureau, which has been tasked with the coordination of the various agencies and State Governments; rehabilitation and care of drug addicts; and overall responsibility of ensuring that drug abuse and trafficking is dealt with as per the Act.

Also read: Anti-drug law in India

Apart from the NDPS Act, various other measures, such as the implementation of the Scheme for Prohibition and Drug Abuse Prevention, Drug Demand Reduction activities, have been taken by the Central as well State Governments, in order to ensure that the health and life of the citizens do not get engulfed by drugs.  

Critical analysis

The youth being easily influenced, become susceptible to the usage of drugs and get addicted to the dopamine high that drugs make them experience. They fail to understand that the high so achieved is temporary.

They start craving that feeling and without realising, the truth of the fact become heavily addicted to the same. These addicts start by committing petty crimes to gain money to procure the drug, but due to their addiction, end up resorting to committing graver and more heinous crimes. They also become easy targets of terrorist groups, which take undue advantage of their pitiful state to further their evil motives.

Also read: Analysis: The Juvenile Justice (Care and Protection of Children) Act, 2015

This problem gains significant important especially in these trying times, with the Covid-19 pandemic having taken a physical, mental and economic toll on the lives of numerous people, drug peddling and consumption might be considered a viable option to relieve a person of the stress and burdens. This calls for strict action on part of the authorities and a need for educating the youth about the harmful and long-lasting effects of these drugs.

The war against drugs is something that has to be fought by all stakeholders and the responsibility of ensuring that it is won has to be shouldered by the authorities. Though laws dealing with drugs exist, their strict compliance on part of the authorities has to be ensured.

The administration has a crucial role in ensuring that people involved in this racket do not escape the legal system due to a small technical issue that could have been avoided easily. At present, the number of rehabilitation centres in the country are quite low, making the system incapable of catering to the actual needs of the persons affected by this problem.

There is a need to change the manner in which the situation is being dealt with, and it is pertinent to shift the current focus to one which emphasizes the understanding of the cause of the problem.

In conclusion…

Drug abuse is a vicious circle, which has a spiralling impact on the addiction of the individual. The youth who are the future of the country have been most gravely impacted and influenced by the same, with a significant portion undertaking its consumption.

This calls for the Centre and the various States to work in compliance with each other, in order to curb the mushrooming of the same across the country. The provisions of the NDPS Act have to be complied with to ensure that the duty cast on the Government, by the Constitution as well as the International Conventions is duly fulfilled.

The suo motu cognizance taken by the Madras High Court is a positive step towards ensuring that the battle against drugs is won by the individual and the society and not the powdery demon of corruption; but there is still a long way to go before we are completely free from its deep-rooted claws.

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Author: Rashmi John from National Law University, Jodhpur, India.

Editor: Astha Garg, Junior Editor, LexLife India.

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Explained: Insolvency and Bankruptcy Code (Second Amendment) Bill, 2019

Reading time: 6-8 minutes.

The Union Cabinet recently approved various amendments to the Insolvency and Bankruptcy Code (IBC) during its recent meeting on 11^th December, 2019; these have been brought about through the Insolvency and Bankruptcy Code (Second Amendment) Bill, 2019.

The main aim of the amendments is to remove hiccups arising during the insolvency resolution process and make it all the more smoother in order to achieve the objective of the Code.

The amendments also seek to make it convenient to do business; the changes have been brought about to help with investment, especially in those sectors which are currently facing trouble, as well as to protect all the corporate debtors while additionally also preventing bankruptcy proceedings filed out of malice or incomplete information.

The amendments approved by the cabinet mainly seek to reconstitute sections 5(12), 5(15), 7, 11, 14, 16(1), 21(2), 23(1), 29A, 227, 239, 240, and insert new section 32A in the Insolvency and Bankruptcy Code, 2016.

These amendments will basically seek to redress bottlenecks, align the Corporate Insolvency Resolution Process (CIRP) while also providing security to last mile funding to inject and promote investments in financially insecure sectors.

Background in brief: Why is the change being made?

The Insolvency and Bankruptcy Code, 2016 (Code) is one of the most essential steps taken by the Government in order to deal with the manifold increase in the level of distressed debts occurring in India.

This Code provides for a time-bound insolvency resolution process for delinquent corporate debtors and at the same time replaces it with a creditor-in-possession model in which a committee of creditors (CoC) is set up to take decisions regarding the operations of the corporate debtor, which also includes evaluating prospective resolution plans for resolving the corporate debtor’s account.

This Code was an exceptional step towards resolution of stressed assets. However, particular exigent inconsistencies and gaps became glaringly evident when several legal proceedings were initiated with corporate insolvency resolution processes (CIRP), making it all the more necessary to furnish amendments to bridge these gaps.

The amendment was also urgent and the need of the hour in light of the fact that there have been various judicial decisions as well as cases, pending and ongoing, which are being viewed as antithetical to the Code’s enshrined objective of protecting the creditors and debtors.

To mainly address some of these issues, the cabinet passed the Insolvency and Bankruptcy Code (Second Amendment) Bill, 2019 which, when approved by the President, will become effective from such date that the Central Government may notify and will hopefully bridge the gap between the discrepancies.

Salient features

• This amendment is broadly being brought about to the Insolvency and Bankruptcy Code (IBC) to secure resolution applicants from criminal proceedings against offences that may have been committees by previous managements or promoters by insertion of the new Section 32A, which is one of its major features. It will “ring-fence” victorious bidders from any offences committed by the management prior to them while providing speedy and assured resolution mechanism to reassure buyers of any stressed assets which are involved.
• It will also put in place additional thresholds for financial creditors being represented by authorized representatives to tackle frivolous initiation of the resolution process, thereby putting in place a secure mechanism.
• It also takes care that the base of a corporate debtor’s business will not be threatened by frivolous issues and can continue to be hassle free by keeping licenses, permits, concessions, clearances, etc. updated and ensuring that these can neither be terminated or suspended, nor their renewal denied during the moratorium period.
• This amendment will also prevent government agencies from attaching the assets of an insolvent debtor who is engaged in the bankruptcy resolution process for any prior offences, which in turn, will make the stressed asset more favorable for potential buyers. These features have been included to help companies such as Bhushan Power, REI Agro and Rotomac Global and their like which are undergoing the process of insolvency resolution.
• This amendment also provide that a financial entity, which is under the regulation of a financial sector, will no longer be considered a related party to the corporate debtor just because it had acquired shareholding through a conversion of debt into equity or instruments convertible into equity shares. This change would ensure that they are not barred from resolution process because of such a relation.
• The Bill also aims to amend the Code to provide some minimum thresholds for particular strata of financial creditors to set off the insolvency resolution process.  With regard to real estate projects, if an allottee (person to whom a plot, apartment, or building has been allotted to or sold) wants to initiate a resolution proceeding, the application should be filed jointly by at least 100 allottees of the same real estate project or 10% of the total allottees under that project, whichever is less.

Critical analysis

• Under the original Code, if the insolvency resolution process (IRP) is not appointed in the order admitting application under section 7, 9 or 10, the insolvency commencement date shall be the date on which such IRP is appointed.

The  second amendment removes this clause and goes back to the start, to ensure that CIRP shall be taken to begin from the date of admission and not from date of appointment of IRP, in case the two differ.

• While Section 11 of the Code does not categorically stop a corporate debtor from initiating insolvency against another, there were some discrepancies wherein this right of the corporate debtor tended to be denied by the Adjudicating Authority/ Appellate Authority. In order to establish the particular objective and to remove the anomaly arising regarding the validity of an application of a corporate debtor against another corporate debtor, this Amendment Bill provides the said intent
• In order to provide ease of doing business and make sure that a corporate debtor is able to hold his status even after commencement of CIRP, the Amendment Bill provides for protection of the corporate debtor from suspension and/ or termination of its licenses/ permits/ concession, in cases where such suspension or termination takes place just because of initiation of insolvency proceedings. This comes with a condition that the corporate debtor should have made no defaults in payment for such benefits during the moratorium period
• This amendment completely removes the liability of a corporate debtor with respect to any offences committed prior to the commencement of CIRP, subject to certain conditions.
• Under the said amendment, the Central Government is empowered to make certain rules with regard to the changes occurring in the Bill; the Central Government will, by way of rules, prescribe the transactions, on completion of which the financial creditor will not be treated as related party of corporate debtor.

Conclusion

The Insolvency and Bankruptcy Code (Second Amendment) Bill, 2019 continues to make great strides in the legislative arena to deal with issues that keep cropping up in relation to stressed companies or those undergoing resolution proceedings.

By providing means to identify last mile funding cases as interim finance, the Amendment helps to rehabilitate stressed entities in a regulated manner while safeguarding interests of both the sides. Further, by increasing the scope of moratorium, the Amendment protects the sanctity of the rescue operations as envisaged by the IBC.

Separately, the immunity granted in terms of various provisions enshrined shall act as a facilitator for cleaner acquisitions, thereby incentivizing higher bids and promoting an investor-friendly regime.

Author: Akanksha Batra from Symbiosis Law School, Pune

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

The Unnao Story: A Legal Viewpoint

Reading time: 7-8 minutes.

Strongly criticizing the handling of the Unnao rape case and expressing displeasure on the road accident which took place last Sunday (28/07/2019) that left the 19-year old victim and her lawyer critically injured and her two aunts dead, the Supreme Court on Thursday (01/08/2019) transferred the cases related to the matter from Uttar Pradesh to Delhi. The order also provided for a compensation of Rs. 25 lakhs from the Uttar Pradesh Government and CRPF security cover for her, her family and her lawyer.

The Supreme Court via its order appointed Dharmesh Sharma, District Judge, Tiz Hazari Courts, Delhi to conduct the trial in the four cases related to Unnao rape. The bench led by the Chief Justice of India, Ranjan Gogoi transferred the cases from the CBI Court, Lucknow to Delhi by initiating suo moto proceedings based on the letter sent by the family of the victim seeking protection from intimation by accused. The mother of the victim had also approached the Apex Court last April seeking transfer of trial outside Uttar Pradesh giving the same reason, i.e., intimation by accused.

First case was for the rape allegedly committed by BJP MLA Kuldeep Singh Sengar. Second case was for the offence of gang rape allegedly committed by the legislator’s supporters and friends a week after the crime committed by him. Third case has been registered against the father of the victim under the Arms Act. Her father died while in the custody and the fourth case has been registered with respect to this by her mother. All of these cases have to be dealt within 45 days, the Supreme Court directed.

Keeping in mind that the recent road accident occurred in Uttar Pradesh and that it would be difficult to prepare a report if the case is transferred to Delhi, the Supreme Court has allowed CBI to conduct investigation with respect to the truck collision and submit the report of the same within 14 days.

What is the background of this case?

The Unnao rape case involves the gangrape of a 17-year-old girl allegedly by the BJP MLA Kuldeep Singh Sengar, his brother Atul Singh and their accomplices on 4 June 2017. A case was registered under Section 363 (punishment for kidnapping) and Section 366 (kidnapping, abducting or inducing woman to compel her marriage, etc) of the Indian Penal Code, 1860. However, the victim was allegedly not allowed to name the BJP MLA as the police refused to mention him by name.

Two chargesheets have been filed in the case so far. First one names the BJP MLA, Kuldeep Singh Sengar as the accused in the allege rape case of the 17 year old. The second one names him, his brother, three policemen and five other people for allegedly framing the Unnao survivor’s father.

The trial in the Unnao rape case did not move an inch even when there was invocation of POCSO and the main accused in the case was a legislator. The Protection of Children from Sexual Offences Act states that all the cases should ideally be dealt with within a year from the date of taking the cognizance. Also, the Supreme Court in an order in December 2017 said that all cases against MPs and MLAs must be decided within one year and it also laid down the establishment of special courts for the said purpose.

What exactly is POCSO?

POCSO or The Protection of Children from Sexual Offences Act (POCSO Act) 2012 was established to protect the children against offences like sexual abuse, sexual harassment and pornography. It was formed to provide a child-friendly system for trial underneath which the perpetrators could be punished.

The Act defines a child as any person below eighteen years of age. It also makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system. Protection of Children from Sexual Offences Act, 2012 received the President’s assent on June 19, 2012. It was notified in the Gazette of India on June 20, in the same year.

The Act defines different forms of sexual abuse which includes penetrative and non-penetrative assault. It also involves sexual harassment, pornography, etc. Under certain specific circumstances POCSO states a sexual assault is to be considered “aggravated if the abused child is mentally ill or when the abuse is committed by a member of the armed forces or security forces or a public servant or a person in a position of trust or authority of the child, like a family member, police officer, teacher, or doctor or a person-management or staff of a hospital — whether Government or private.”

How is POCSO different from Section 375 and 376 (provisions related to rape) of the Indian Penal Code, 1860:

1. Burden of Proof on the Accused: Section 29 of the Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, unless the contrary is proved.

2. POCSO Act is gender-neutral law, wherein the law takes cognizance of sexual crimes committed against both girls and boys under the age of 18 years. IPC presumed that only females are the victim of sexual crimes.

3. POCSO Act ensures punishment for all perpetrators irrespective of age and gender. Unlike IPC which only punishes a male for an offence of rape, POCSO Act is gender neutral in nature.

4. Calibration of Offences: POCSO Act addresses a wide range of sexual offences which include anything from complete and partial penetration; non-penetrative sexual assault; stalking of a child; showing children pornography; using the child for pornography; exhibitionism etc. The law protects children from both physical and or non-physical contact forms of abuse unlike the Indian Penal Code.

5. Severer Punishment when Protectors are Perpetrators: POCSO Act provides for more severe punishment, when the sexual offence is committed by a person in a position of trust or authority such as police officer or a member of security forces or public servant, etc. (Sections 5 and 9).

What is the role of Supreme Court in this case?

A suo motu cognizance is a Latin term which means an action taken by a government agency, court or other central authority on their own apprehension. A court takes a suo motu cognizance of a legal matter when it receives information about violation of rights or breach of duty through media or through a third party’s notification by letter, telegram, or other means of communication.

It is seen that the Supreme Court sou moto initiated proceeding based on the letter written by the survivor’s family. Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the petition of any public-spirited individual.

The Supreme Court also took suo motu cognizance and asked the Central Government to work with companies like Google, Yahoo, Facebook and WhatsApp to suggest list of keywords to block explicit videos that depict rape, gang rape and child pornography. An NGO named Prajwala wrote a letter to the Chief Justice of India in 2015 and sent a pen drive containing two videos. The letter asked the court to take appropriate measures against the culprits who were committing gang rape in a video. The Supreme Court converted the letter into a PIL.

The Indian courts have taken suo motu cognizance in the following instances:

1. Contempt of court:  Contempt of court means disobedience towards the court and ignorance to rules and regulations, code of conduct and ethics followed in a court. The court generally initiates a case for suo motu contempt against an officer who prevents delivery of justice or challenges the dignity of court.

2. Reopen old cases:  If some new and substantial evidence is discovered after a case is closed, the courts have the power to take suo motu action and reopen the case to try it again.

3. Order probe for a new case:  If any court is of the opinion that some injustice is being done to an aggrieved person or a section of people, the court can order probe at any level by any government authority, police department, the CBI, etc. The court may also take such action after receiving a letter from the affected section of people or on the basis of any news, documentary or media source.

Though the rights conferred by the constitution other than fundamental rights are also valid rights protected by the judiciary, in case of fundamental rights violations, the Supreme Court of India can be approached directly for ultimate justice per Article 32 of the Indian Constitution.

All people, irrespective of race, religion, caste or sex, have been given the right to petition directly the Supreme Court or the High Courts for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so.

Poverty-stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as “public interest litigation”. In some cases, The Supreme Court has acted suo moto on their own on the basis of newspaper reports.

In conclusion…

It is evident from the recent events that the BJP MLA Kuldeep Singh Sengar (now expelled from the party) is one influential person, specially in his home town and the Supreme Court is well aware of this fact. After the transfer of the cases from Uttar Pradesh to Delhi, the SC also ordered the transfer of Mahesh Singh, the uncle of the rape victim and a key witness of the case to Tihar Jail from Raebareli Jail.

The crime, the audacity of the crime and the plight of the victim’s family has inspired people to explore the issue in question and the media channels, after the recent road accident have become hyperactive in portraying the BJP MLA as a criminal.

Now that the Supreme Court headed by the Chief Justice of India himself has interfered in the matter, it is expected that in the end justice will prevail and all the offenders related to this heinous act will be punished. The Supreme Court is also expected to lay down stricter and stringent laws on protectors becoming perpetrators.

-This article is brought to you in collaboration with Shivaang Maheshwari from Gujarat National Law University, Gandhinagar.

Analysis: Delhi HC Judgement on Termination of Pregnancy

Reading time: 2-3 minutes.

The High Court of Delhi established precedence by permitting termination of 25-week foetus diagnosed with congenital anomaly. The Hon’ble court enunciated that “rigours of section 3(2) can be relaxed where the conditions of foetus is incompatible with life”.

MTP (Medical Termination of Pregnancy) Act, 1971 is the statutory law that governs the termination of pregnancy. With another court granting permission to terminate post 20-week foetus, the long-drawn debate over the much-needed amendment in the MTP Act has once again become the bone of contention.

In the light of the precedence established by Delhi Court, this post will attempt to briefly explain the MTP act and enunciate the loopholes of this 48 old law on termination of pregnancy.

What exactly does the MTP Act say?

Medical Termination of Pregnancy Act was passed in the year 1971 in the light of rising frequency and maternal deaths due to lack of proper amenities. MTP regulates the abortion provisions. Some of the hallmarks of MTP act are:

• A doctor can perform abortion if the pregnancy is harmful to pregnant woman’s life or mental health. Or if there is good chance that delivery of the child would seriously affect her mental and physical being.
• Pregnancy can be terminated by medical practitioner: (a) where the length of the pregnancy does not exceed 12-weeks (b) where the length of the pregnancy exceeds 12-weeks but does not exceed 20-weeks, only in special circumstances.
• Pregnancy may be terminated in a hospital established or maintained by government, or a place approved by the government.

What are the problems with this law?

To begin with, this Act puts a bar on termination of pregnancy transcending 20 weeks. The reason behind this was that it was medically dangerous at that time (in 1971) to terminate pregnancy beyond that maturity period. However, medical facilities have advanced significantly since then and now it is possible to have safe termination of pregnancy beyond 20 weeks.

Also, this act offends the feminist perspective by allowing healthcare providers to have the final say on abortion instead of the concerned woman herself. It creates an environment where women feel like being at the mercy of their healthcare providers.

What is the current status of this law?

In 2014, the Ministry of Health and Family Welfare released a draft of the MTP (Amendment) Bill, 2014. It proposes changes that could initiate a shift in the focus of the Indian abortion discourse from healthcare providers to women. The Bill also expands the base of healthcare providers by including mid-level and non-allopathic healthcare providers.

Additionally, the clause extending the gestational limit could trigger ethical debates on eugenic abortions and sex-selective abortions. Stated simply, it means that this bill seeks to address the shortcomings of the previous law by empowering women to take decision about the termination of her pregnancy even beyond 20 weeks. This bill must be enacted soon.

In conclusion…

The High Court of Delhi has given a progressive judgement and reiterated the need for amendment in the MTP Act. The said law is outdated as explained above. The government has taken a positive step by proposing an amendment in the law. We hope to see the realization of this amendment soon.