Author Archive

• Friday, May 19th, 2017

Praveen Dalal 1Rule of law, human rights, fundamental rights and civil liberties protections are essential attributes of a democratic country. In contrast, a totalitarian state and police state is a sure sign of death of rule of law and human rights. India is presently in a metamorphism stage where it is turning into an Orwellian state from a democratic and rule of law governed country. All this is happening because of forced imposition of Aadhaar upon Indians and a lethargic Supreme Court that is no more interested in protecting fundamental rights and rule of law in India.

The problem with the Supreme Court is that it cannot say that Aadhaar is mandatory and constitutional as Aadhaar is clearly unconstitutional and deserves to be scrapped. Warnings about Aadhaar were given by us as early as 2010 and since 2012 we have been cautioning Supreme Court about unconstitutional biometrics collections of Indians. So neither Indian government nor Supreme Court can now say that they were not forewarned regarding Aadhaar at early stage of this Orwellian project that is the worst digital panopticon of human history.

Meanwhile two more constitutional frauds were committed by Indian government when the Parliament passed the Aadhaar Act and Finance Act as money bills. Clearly, none of them is a money bill and the constitutionality of Aadhaar Act has already been challenged before the Supreme Court.

But this entire scenario of Aadhaar has put a question mark on the credibility and legitimacy of Indian Supreme Court. What type of Supreme Court would prefer to support an oppressive technology like Aadhaar over fundamental rights and constitutional supremacy? Presently Indian Supreme Court is the one that prefers suppression and killing of rule of law and Indian Constitution over Aadhaar. But Aadhaar can never pass the test of constitutionality. This is the reason why Supreme Court issued interim orders making Aadhaar optional for welfare, non welfare, government, private or any other types of services provided to Indian citizens. Supreme Court has also clarified that Aadhaar would remain optional till the matter is decided by the court one way or the other. Clearly, Supreme Court has not decided this issue conclusively and the interim orders are still in force.

Now the government has pleaded before the Supreme Court in Section 139AA and benefits under Aadhaar Act petitions that Finance Act and Aadhaar Act have overruled the interim orders of Supreme Court. The logic given is that the restrictions of Supreme Court were imposed against the Executive and not Parliament. The viability of this legal argument is in serious doubt but we would not touch this issue at this stage. What we would like to say is that neither the Aadhaar Act nor the Finance Act has affected the applicability of interim orders of Supreme Court even with the help of these money bills as they are constitutional frauds. Above all, neither Aadhaar Act nor Finance Act has removed the basis of the interim orders of Supreme Court and as such cannot affect these interim orders.

So the constitutional position as in existence till May 2017 is that Aadhaar is not mandatory for any welfare, non welfare, government, public or any other type of services and this applies to Section 139AA requirements and services mentioned under the Aadhaar Act as well. As petitions against Section 139AA and services under Aadhaar Act are pending before the Supreme Court, it would not be wise to deliberate more upon this aspect as on date. But in all probability, very soon two separate Division Benches of Supreme Court would reiterate that Aadhaar is optional and it cannot be made mandatory for Section 139AA or services under the Aadhaar Act.

However, till such judgments are delivered or interim reliefs are granted, we must use the existing interim orders of the Constitution Bench of Supreme Court that is binding upon both the Division Benches of Supreme Court, Executive, Parliament and agencies/departments of Indian government. While the judgement for Section 139AA petition can be pronounced any time yet petition for services under Aadhaar Act has been posted for further hearing on 27-06-2017.

No matter how much Indian government and Supreme Court drag their feet, Aadhaar would always remain unconstitutional, optional and an e-surveillance tool in the hands of Indian government and its agencies. It is high time for the Supreme Court to regain its lost legitimacy and respect by declaring Aadhaar as unconstitutional and destroying the biometric and other databases collected by Indian government.

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• Saturday, May 31st, 2014

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBI have recently analysed the procedural aspects of the Ordinance issued by the President of India Mr. Pranab Mukherjee regarding appointment of Mr. Nripendra Misra. Prima facie this Ordinance has been promulgated in conformity with the Constitutional requirements and there are little reasons to agitate against the same. However, the allegations of “Political Impropriety” cannot be ignored in these circumstances. The only thing that remains to be seen is what “Potential Benefits’ the appointment of Mr. Misra would bring in these circumstances. Nevertheless, no “Constitutional Infirmity or Illegality” can be attributed to this Ordinance as on date.

Chapter III of the Constitution of India deals with the Legislative Powers of the President. Article 123 (1) of Constitution of India provides that if at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require. Article 123 (2) provides that an Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance-(a) Shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and (b) May be withdrawn at any time by the President. The Explanation to Article 123(2) provides that where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause. Article 123(3) provides that if and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

By virtue of Article 123(1), the promulgation of an Ordinance is not necessarily connected with an “emergency” but issued by the President in case he is convinced that it is not possible to have the Parliament enact on same subject immediately and the circumstance render it necessary for him to take “immediate action”.

The Ordinance regarding Mr. Misra was duly approved by the President of India and the requirements of Article 123 have also been satisfied.  It is very difficult to challenge the “Subjective Satisfaction” of the President of India before the Supreme Court of India that is based upon the “Aid and Advise” of Council of Ministers under Article 74(1) of the Constitution of India. Article 74(1) provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. However, the proviso to the Article 74(1) provides that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. Clearly the President of India did not find anything wrong with the Ordinance in question and did not find it a fit case to be “Reconsidered”.

Further, the Constitution of India provides two “Parliamentary Checks” vis-a-vis the promulgation of Ordinance under Article123 (2) (a). The Parliament can pass resolutions disapproving the provisions of the Ordinance. There is also a provision regarding automatic expiry of the Ordinance within six weeks of the reassembly of the Houses of the Parliament unless passed by the Parliament. This gives a chance for the Parliament to debate on the Ordinance and review it accordingly. Further, an Ordinance made by the President is not an Executive, but a Legislative act. Hence, it is a “Law” within the meaning of Constitution. Clause 3 of the Article 13 mentions that the term “Law” includes Ordinance and it is void to the “Extent of Contravention” of the Rights conferred by Part III of the Constitution. Article 367(2) of the Constitution also provides that any reference in this Constitution to Acts or Laws of, or made by, Parliament, or to Acts or Laws of, or made by, the Legislature of a State, shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a Governor, as the case may be.

On a number of occasions, the Supreme Court of India has made it clear that the Court is competent to enquire whether in exercising his Constitutional Power in promulgating Ordinances; the President has exceeded the limits imposed by the Constitution. For instance, in DC Wadhwa v. State of Bihar (1987) the Supreme Court held that the Legislative Power of the Executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law making power of the Legislature.  Here, the court was examining a case where a State Government (under the authority of the Governor) continued to “Re-Promulgate Ordinances”, that is, it repeatedly issued new Ordinances to replace the old ones, instead of laying them before the State Legislature. A total of 259 Ordinances were re-promulgated, some of them for as long as 14 years.  The Supreme Court argued that if Ordinance making was made a usual practice, creating an “Ordinance Raj” the Courts could strike down re-promulgated Ordinances. As far as Mr. Misra’s Ordinance is concerned this is the first time such an Ordinance has been promulgated and that also to give effect to the “Public Reforms” works to be undertaken by the new Government. Thus, the chances of “Judicial Review” are very negligible in this case.

The Ordinances promulgated by the President are required to be laid before both the Houses of Parliament. Normally, Ordinances are laid on the first sitting of the House held after the promulgation of the Ordinances on which formal business is transacted. The Parliament has framed certain rules to ensure that this power is not abused by the Executive, simply to avoid a vote or debate in Parliament. Rule 66 and Rule 71 of the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha) and the House of the People (Lok Sabha), respectively seek to make the Executive accountable to the Parliament by appending an explanatory Statement along with Ordinance.

If a notice of a statutory resolution given by a private member, seeking disapproval of an Ordinance is admitted by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, time has to be provided by the Government for discussion thereof. The resolution after discussion is put to vote first; because if the resolution is adopted, it would mean disapproval of the Ordinance and the Government Bill seeking to replace that Ordinance would automatically fall through. If the resolution is negatived, the motion for consideration of the Bill is then put to vote and further stages of the Bill are proceeded with.

Although the Parliament is responsible for the law making process yet founding fathers of the Constitution considered Ordinances making power to be a “Necessary Evil”. They believed that the Ordinance making power should be delegated to the Executive to deal with such situations when the existing law is not enough to deal with the present circumstances and the Parliament is not in session.

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• Friday, May 30th, 2014

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBNarendra Modi’s Government is all set to brace the first Lok Sabha session (16th Lok Sabha) on June 4-11 after coming into power. This would enable the Government to spell out crucial Policies and their implementation strategy. This would be more on the side of introductory session where preliminary formalities like swearing the new MPs, appointment of the Speaker, addressing of the Joint Session of the two Houses of Parliament by President Pranab Mukherjee, discussion on the Presidential address, etc would be undertaken. Prime Minister Mr. Narendra Modi will give his reply to the motion of thanks on the Presidential address at the end of the discussion. The Modi Government will have a separate budget session towards the June-end or early-July to present its first full budget.

Everything may go very smooth except the recent Ordinance on Telecom Regulatory Authority of India (TRAI) that cleared the way for appointment of Mr. Nripendra Mishra in the Prime Minister’s Office (PMO) as Modi’s Principal Secretary. The Congress Party contends that the Ordinance for Nripendra Misra’s appointment smacks of “Impropriety”.  It contends that Nripendra Misra, as a former chairman of TRAI was ineligible to join the Government in any position because Section 5(8) of the TRAI Act, 1997, explicitly forbids it.

Some contend that instead of waiting to amend the TRAI Act, 1997 in Parliament, and explaining why it felt the legal bar on post-retirement jobs was too sweeping, the Government issued an Ordinance, so that Misra could report to work. The episode frames a seeming impatience with legal requirements in a case that involves an individual rather than an urgent point of principle. The Modi Government invoked an emergency power given to the Executive to meet an emergent situation, for an individual appointment.

Some also contend that this step of the Government could be the first instance where a Government at the Centre promulgates an ordinance even before proving its majority on the floor of the House, which, incidentally, is a mere formality for the Modi government, with the BJP itself having a simple majority in the Lok Sabha.

Though the BJP, which leads the ruling NDA having 66 members in the Rajya Sabha, has downplayed the controversy raised by the Congress, which leads the UPA having 86 members in the Upper House, experts believe that if the government fails to enlist support of floating parties like the AIADMK (10), BSP (14) and the BJD (5), it will have no option but to convene a Joint Sitting of both the Houses to get the Parliamentary nod on the Ordinance paving way for the appointment of Mr. Misra as principal secretary to the Prime Minister.

The Modi Government is in a minority in Rajya Sabha and if it fails to get the nod of the Upper House on TRAI ordinance, options are still open under Article 108 of the Constitution for a Joint Session of the Parliament to approve it. Article 108(1) of the Constitution provides that if after a Bill has been passed by one House and transmitted to the other House-

(a) The Bill is rejected by the other House; or

(b) The Houses have finally disagreed as to the amendments to be made in the Bill; or

(c) more than six months elapse from the date of the reception of the Bill by the other House without the Bill being passed by it, the President may, unless the Bill has elapsed by reason of a dissolution of the House of the People, notify to the Houses by message if they are sitting or by public notification if they are not sitting, his intention to summon them to meet in a joint sitting for the purpose of deliberating and voting on the Bill:

Provided that nothing in this clause shall apply to a Money Bill.

Article 108(3) provides that where the President has under clause (1) notified his intention of summoning the Houses to meet in a joint sitting, neither House shall proceed further with the Bill, but the President may at any time after the date of his notification summon the Houses to meet in a joint sitting for the purpose specified in the notification and, if he does so, the Houses shall meet accordingly.

Article 108(4) provides that if at the joint sitting of the two Houses the Bill, with such amendments, if any, as are agreed to in joint sitting, is passed by a majority of the total number of members of both Houses present and voting, it shall be deemed for the purposes of this Constitution to have been passed by both Houses: Provided that at a joint sitting-

(a) If the Bill, having been passed by one House, has not been passed by the other House with amendments and returned to the House in which it originated, no amendment shall be proposed to the Bill other than such amendments (if any) as are made necessary by the delay in the passage of the Bill;

(b) If the Bill has been so passed and returned, only such amendments as aforesaid shall be proposed to the Bill and such other amendments as are relevant to the matters with respect to which the Houses have not agreed; and the decision of the person presiding as to the amendments which are admissible under this clause shall be final.

(5) A joint sitting may be held under this article and a Bill passed thereat, notwithstanding that dissolution of the House of the People has intervened since the President notified his intention to summon the Houses to meet therein.

Article 123 of the Indian Constitution empowers the President to promulgate ordinance when Parliament is in recess. As per sources in the Rashtrapati Bhawan the Ordinance regarding Mishra was duly approved by the President Pranab Mukherjee. So there is no “Constitutional Infirmity” with the Ordinance in question. The only question remains about the “Propriety” of Executive action in this regard. That is, at most, a “Moral Issue” and not a Constitutional/Legal one.

There is no doubt that Mr. Mishra is “Qualified and Experience Personnel” and his tremendous expertise would prove handy for not only the PMO but the Country at large. There is also no doubt that “National Interests” should prevail over any “Technical Arguments”. In the ultimate analysis we must analyse what “Potential Benefits” the appointment of Mr. Mishra can bring to our great Nation. I have no doubt whatsoever that the duo of Mr. Nripendra Mishra and Mr. Ajit Kumar Doval can bring “Unforeseen Rewards” for India and they should be allowed to work in a “Free and Non Controversial Manner”. Even those opposing the appointment of Mr. Mishra have no doubt about his caliber and competencies and they are just challenging the way he has been appointed.

If there is any “Constitutional Infirmity” with the Ordinance, then it must be challenged before the Supreme Court of India. If not, then the Ordinance must be challenged before the Parliament of India. However, “Political Impropriety” is hardly a reason and ground to derail the good work and reforms that the duo of Mr. Nripendra Mishra and Mr. Ajit Kumar Doval can bring to India. Of course, this is my “Personal Opinion” and others may disagree with me in this regard.

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• Monday, May 26th, 2014

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBBlack money has become a real nuisance for India as Indian wealth has been accumulating in foreign jurisdictions instead of being used for development of Indian masses. Decades of corruption has resulted in mass misappropriation of Indian wealth and deposit of the same in foreign banks. For reasons unknown, no concrete and effective efforts were undertaken by Indian government to bring back Indian wealth.

Most probably, the black money is owned by our corrupt politicians, greedy businessmen and criminals. In the absence of any cooperation from foreign banks and entities it has become a daunting task to bring back the black money. Nevertheless this is a weak stand and no excuse and a strong and well articulated approach would produce positive results. The only question is how far the new government is willing to take the challenge and show its metal.

Notification Of Creation Of Special Investigation Team (SIT) To Probe Black Money Deposited In Foreign Jurisdictions Expected Soon

These gloriously and golden words of Swami Vivekananda can help us in transforming India into a world power. “What we now want are muscles of iron and nerves of steel, gigantic will which nothing can resist, which can penetrate into the mysteries and the secrets of the universe, and will accomplish their purpose in any fashion, even if it meant going down to the bottom of the ocean and meeting death face to face”.

Now some ray of hope is there as the government is expected to bring out a notification by next week for creation of a Special Investigation Team (SIT). Sources in the Finance Ministry informed that a notification citing the terms of operations and final constitution of the SIT “would be made very soon” and most likely “by next week”. The Supreme Court on May 23 had granted one week’s time to the Centre to set up SIT to monitor all black money cases as per its direction. The Supreme Court of India has already held that Section 6A of DSPE Act requiring prior sanction of Central Government to prosecute corrupt senior bureaucrats is unconstitutional.

“SIT will prepare a comprehensive action plan including the creation of necessary institutional structure that can enable the country to fight a battle against generation of unaccounted money” the terms of reference for the SIT said. The SIT “shall report to the Court and shall inform the Court of all major developments by filing periodic status reports from time to time and for this purpose, the Union of India shall accord all the necessary financial material, legal, diplomatic resources both inside and outside the country to the SIT”.

The proposed SIT will be headed by former Supreme Court judge MB Shah with Justice Arijit Pasayat (retd) being the Vice Chairman. Heads or top officers of ten investigative and enforcement agencies of the country will be the members of the exclusive panel. The departments or officers that would form part of the SIT include Secretary of the Department of Revenue under the Ministry of Finance, a nominated Deputy Governor of RBI, Director of the Intelligence Bureau, Director of Enforcement, Director CBI, CBDT Chairman and Director General Narcotics Control Bureau. Also, DG Directorate of Revenue Intelligence, Director Financial Intelligence Unit and Joint Secretary (Foreign Tax and Tax Research) in the Finance Ministry will be its members.

Fortunately, the terms of reference for the SIT are wide enough to cover a variety of cases and situations. SIT shall have jurisdiction over all the cases, where investigation has already commenced or pending or awaiting to be initiated or have completed with regard to instances of black money and illicit funds generated and sent to overseas destination and tax haven nations.

This is a golden opportunity for BJP government to bring back the Indian wealth and utilise it for public good. Even Income Tax Overseas Units (ITOUs) of India can be established in foreign countries to curb black money. However, India need a techno legal solution to deal with the current problem as neither technological nor legal approach would be sufficient to serve this purpose.

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• Wednesday, March 19th, 2014

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBWhat constitutes National Security? There are no simple and straight forward answers to this complex question. We cannot say that National Security is an “Internal Security” aspect. Further, we also cannot claim that National Security is a protection mechanism against “External Aggressions”. Even “Border and Territorial Protection” by Armed Forces is also not National Security. The reason is because National Security is not an isolated concept but a “Homogeneous Mixture” of various aspects of Security.

In my personal opinion, a simple definition of National Security can be “The Protection of Economical, Political, Social, Territorial, Sovereign and Technological Interests of a Nation from Internal and External Aggression and Threats emanating from State and Non State Actors in both Physical Territories and Cyberspace”. We have already covers territories belonging to Land, Air, Sea and Outer Space in this regard. And to some extent we have also covered Cyberspace as well. However, there is no International Treaty or Convention that Covers the National Security aspects in “Totality and in Comprehensive Manner”.

India has recently decided to formulate a comprehensive National Security Policy. However, by past experience it would not be wrong to presume that such Policy would not be formulated for at least few more years. Further, its “Actual Implementation” may be delayed for even Five years. But the most important aspect of the proposed National Security Policy is that it must be “Comprehensive and Holistic” in nature.

Thus, the National Security Policy of India needs Techno Legal Boost. Any suitable and effective National Security must cover “Technology Issues” as well. For instance, Cyber Security and Telecom Security must be essential part of any National Security Policy. The Cyber Security Trends of India 2013 (PDF) have proved that these aspects have not been taken care of by Indian Government so far. It is only now that the National Security Council (NSC) has proposed some Cyber Security Measures for India. However, these measures are not going to make much difference in the otherwise ailing Cyber Security of India.

The Critical Infrastructure Protection in India (PDF) has to be further strengthened. Recently it was decided that NTRO would protect the Critical ICT Infrastructures of India. The National Infrastructure Protection Plan for Thermal Power Sector of India has already been proposed and this is a good step. A Tri Service Cyber Command for Armed Forces of India is also in pipeline. The Cyber Attacks Crisis Management Plan of India must also be implemented as soon as possible. Further, the National Cyber Coordination Centre (NCCC) of India must be “Made Functional” as soon as possible.

A Techno Legal Cyber Security Law of India must also be formulated as soon as possible. Such Law must ensure Cyber Security Breach Disclosures on the part of various Telecom and other Companies and Individuals. Just like past promises, the commitment to formulate a legislation mandating strict Cyber Security Disclosure Norms in India has been kept in deep freezer. There is an urgent need to ensure Mandatory Cyber Security Breaches Notification in India as non disclosures would result in Serious Cyber Security Issues for India. “Soft Requests” and “Self Regulations” for Cyber Security Breach Disclosures would not be helpful in the long run.

Target Corporation is already Facing Numerous Litigations for failure to take proper Cyber Due Diligence once it was aware of the Data and Cyber Security Breach. There are clear hints that Cyber Litigations against Foreign Websites would Increase in India in the near future and Cyber Due Diligence cannot be ignored by Indian Companies anymore.

Recently the Telecom Department’s Security Chief Ram Narain said that Telecom Companies are mandated by License Conditions (PDF) to share information on “Potential Cyber Threats”. Besides, the National Telecom Security Policy of India may impose more “Stringent Obligations” than the Licence Conditions. As the Foreign Telecom Companies are facing the heat of Cyber Security and Telecom Security in India, this is a good opportunity for Indian Telecom Companies to extend their commercial base in India. India has been planning to undergo Technological Upgrade of Border Broadcast Infrastructure due to Chinese broadcasts. The Telecom Commission Cellular Loop’s Proposal would also strengthen Mobile Based Surveillance on National Security Grounds in India.

It would not be an easy task to formulate Techno Legal National Security Policy of India. Even if the same is formulated, its actual implementation would be a herculean task for Indian Government. Nevertheless, it is a good step on the part of Indian Government to work on such Policy and take adequate and necessary action in this regard.

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• Monday, December 16th, 2013

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBThe Lokpal and Lokayuktas Act, 2011 is a crucial piece of Legislation that has been due for many decades. Finally, some positive hints have been given by Indian Government that the proposed Lokpal and Lokayuktas Act, 2011 would be approved by the Rajya Sabha tomorrow i.e. 17-12-2013.

An ideal Lokpal Law must be Strong, Robust and Effective and it must be Technology Driven. Although we are still far from an Ideal Lokpal Law yet there has to be a start somewhere. The proposed Lokpal and Lokayuktas Act, 2011 seems to be that start. The proposed Lokpal Law must also be supported by a Whistleblowers Protection Law of India.

As I do not possess the copy of the proposed Lokpal Law I cannot comment upon its Effectiveness and Robustness. However, what I can say is that Parliament to retain its Respect and Legitimacy Must Pass Lokpal and Lokayuktas Act, 2011 tomorrow. The Parliament of India must also consider the health conditions of Shri. Anna Hazare and must be “Sensitive” to his “Health and Causes” as well. The copy of the Lokpal and Lokayuktas Act 2011 as Passed by Lok Sabha is available for the readers to review.

The surprising win of Aam Aadmi Party (AAP) in Delhi can only be attributable to the “Apathy” on the part of Ruling and Opposition Political Parties towards the “Problems and Causes” of ordinary people. The “Patience” of people is “Running All Time Low” and both Congress and BJP witnessed consequences of the same.

It is a “Do or Die” situation for both Congress and BJP and they cannot afford to be “Indifferent” any more. Congress and BJP have to show their commitment towards people of India by passing the Lokpal and Lokayuktas Act, 2011 in the Rajya Sabha. Otherwise, the Respect and Legitimacy for Parliament of India and Political Parties like Congress and BJP is in “Real Danger”.

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• Friday, November 15th, 2013

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBGetting a First Information Report (FIR) registered at a Police Station is a tedious task and in many cases FIRs are not registered at all. This is a serious lapse of criminal justice system administration as if the offence is not registered it cannot be investigated and prosecuted at all.

The law of India says that if a cognizable offence has been committed and such fact of commission of the cognizable offence is brought to the notice of a Police Officer, such Police Officer has to register an FIR of the same. However, registering of FIR for even cognizable offences was not easy in the past.

The Central Ministry of Home Affairs reacted to this situation and an Advisory by Central Ministry of Home Affairs of India for Registration of FIR Irrespective of Territorial Jurisdiction and Zero FIR (PDF) was issued. Even the Parliament of India supported this cause of criminal justice and added Section 166A to the Indian Penal Code, 1860 through The Criminal Law (Amendment) Act, 2013 (PDF).

Section 166A(c) of IPC provides that whoever, being a public servant, fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 (Code) and in particular in relation to cognizable offence punishable under section 354, section 354A, section 354B, section 354C, sub-section (2) of section 354D, section  376, section  376A, section 376B, section  376C, section  376D or section  376E, he/she shall be punished  with imprisonment for a term which may extend to one year or with fine or with both.

However, recently a Constitution Bench (PDF) of Supreme Court of India in Lalita Kumari v. Govt Of UP (2013) SC (5J) (PDF) held that police officers are bound to register FIR upon receiving information of commission of a cognizable offence in India. This means that for cognizable offences, as mentioned in the judgment, police officers would be left with no option but to register an FIR unless the case falls in one of the exceptions mentioned by the Supreme Court.

The Bench also held that the insertion of Section 166A in the IPC vide Criminal Law (Amendment)Act 2013, must be read in consonance with the provision and not contrary to it. Thus, an FIR must be registered by a Police Office for all cognizable offences mentioned under the IPC and not just the one mentioned U/S 166A.

The Bench also observed that Section 39 of the Code casts a statutory duty on every person to inform to the nearest Magistrate or Police Officer about commission of, or of the intention of any other person to commit, certain offences which includes offences covered by Sections 121 to 126, 143 to 145, 147, 148, 302, 64-A, 382, 392, 431 to 439, 449, 450, 456 to 460, etc., of the IPC.

The Bench held that for offences under Laws other than IPC, different provisions can be laid down under a Special Act to Regulate the Investigation, Inquiry, Trial etc., of those Offences. Section 4(2) of the Code protects such special provisions.

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• Saturday, November 09th, 2013

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBIn a recent decision (PDF) a Division Bench of Gauhati High Court has held that the Central Bureau of Investigation (CBI) is an Unconstitutional Law Enforcement Agency. Although Legal Opinions in this regard are divided I, in my personal opinion, believe that the Decision of Gauhati High Court Declaring CBI Unconstitutional is Legally Sustainable and must be “Highly Respected” by all, including the Supreme Court of India.

At Perry4Law we have been keeping a track of this Controversial and Crucial Issue since 2009. In fact, we provided a 10 Point Legal Framework for Law Enforcement, CBI and Intelligence Agencies of India (PDF) in the year 2009 itself. However, Indian Government has “Negligently Failed” to take any step in this regard though urgent steps were required to be taken.

Fortunately, the Supreme Court of India has done what it was most required to do at this stage. The Supreme Court of India stayed the decision of Gauhati High Court that declared the CBI to be an Unconstitutional Law Enforcement Agency pending hearing of the arguments from both sides to the litigation.

Now the first step has been taken rightly will the Indian Government take the most appropriate step in this regard? I am not talking about fighting the case at the Supreme Court but to Draft a Legal Framework for CBI as soon as possible and get it passed at the Parliament of India.

From the past experience of Indian Government, I wonder Whether Indian Government is Really Interested in Making CBI Autonomous and Independent. Although a Group of Ministers was Constituted to Draft Law for CBI and to make it Autonomous and Insulate from Executive Interference yet till now no Legal Framework has been provided by the Indian Government to the Supreme Court.

If the Indian Government is considering continuing the way it has been doing so far that would be the biggest mistake on its part. I personally “Believe and Wish” that in such circumstances the Supreme Court of India must “Upheld” the decision of the Gauhati High Court.

I believe that in reality it is not the call for the Supreme Court but for the Indian Government to take. Because Legally Speaking, the Supreme Court of India should not think on “Different Lines” but on the same one as has been adopted by the Gauhati High Court.

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• Wednesday, May 15th, 2013

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW CEO PTLBThere are many “Criminal Activities” undergoing in India pertaining to Organ Transplantation by the Organ Transplantation Mafia. The Transplantation of Human Organs Act, 1994 is the main Law that Prohibits and Punishes “illegal and Commercial” Organ Transplantations in India.

Subsequently the Transplantation of Human Organs (Amendment) Bill, 2009 was introduced by Health Minister Ghulam Nabi Azad and the same was passed by the Lok Sabha. The 2009 Bill intended to prescribe tough punishment for violators of the Act. However, till now it has not become an “Applicable Law”.

Similarly, the Transplantation of Human Organs and Tissues Rules, 2013 has been recently framed by Indian Government and “Public Comments” have been invited for the same.

The 1994 Act provide for the Regulation of Removal, Storage and Transplantation of Human Organs for Therapeutic Purposes and for the Prevention of Commercial Dealings in Human Organs and for matters connected therewith or incidental thereto.

Meanwhile, Deaths due to “Clinical Trials of Experimental Drugs” continued in India. Perturbed by these Deaths, the Supreme Court of India asked Indian Government to Monitor and Regulate all Clinical Trials of Experimental Drugs in India.

On the Commercial front, Online Pharmacies in India are Violating Indian Laws and some talks about bringing these Online Pharmacies of India under Scrutiny are underway. The Bar-Coding of Primary Level Packaging of Export Consignment of Pharmaceuticals and Drugs has also been “Deferred by India”.

A “Positive Development” in this regard also took place where Novartis lost the Patent Claims of Novartis AG’s Cancer Treatment Drug Glivec in Supreme Court of India. The court duly considered the aspects like Doha Declaration, TRIPS Agreement, Public Health and Public Interest, Compulsory License Requirements, etc.

 I really appreciate the “Efforts” of Indian Government and Indian Supreme Court to regulate Illegal and Commercial Medial Practices in India. However, I also have an “Appeal” to make to our “Elected Representatives”. I wish to draw their attention to the news report that Claims that a Birmingham Schoolgirl has been “Murdered” in bid to Harvest her Organs.

The report claims that this “Gruesome Act” was committed by the Health Workers in India in a failed attempt to harvest her organs. The unfortunate Child was being treated for a simple case of Dehydration when staff at a Clinic gave her a “Mystery Injection” which took her life. But her relatives guarded the eight-year-old’s body so that her Organs could not be taken in time to be used in Transplant Operations.

They claimed she was subjected to a “Medieval” Post-Mortem Examination during which all her “Major Organs” were “Removed” in a bid to hide the truth of how she had been killed. The deceased family said that the Indian Police and Medical Authorities made little attempt to “Investigate the Death”. They said they only discovered her organs had been taken when her body was flown home to the UK. Only her eyes remained, they said.

The Child’s mother explained the scene as follows: “Gurkiren was fine, she was chatting to us and planned to buy some gifts for her cousins.  While we were talking an assistant came up carrying a pre-filled syringe and reached for the tube in her hand.  I asked what was the injection for, but he gave me a blank look and injected the liquid into her. Within a split-second Gurkiren’s head flipped back, her eyes rolled in her head, and the colour completely drained from her. I knew they had killed her on the spot. I knew my innocent child had been murdered.”

Her family said she was taken to a clinic in Punjab after being sick, but was placed on a drip after blood tests revealed she was free of infection. Under pressure to help the schoolgirl after the injection was given, medics transferred her to a nearby hospital but she could not be saved. Amrit, who was on the trip with her postal worker husband Santokh Singh Loyal and 17-year-old son Simran, claimed Gurkiren’s medical records were disposed of and the family was not asked to pay for the blood tests, drip or the injection she received.

Police took a “Statement” but the family said they obtained no evidence that Gurkiren’s death was “Investigated”. Worse still, Amrit said she was told a post-mortem examination would be required in India before her daughter’s body could be returned to the UK.

The Mother also informed: “They said they would use a “Hammer and Chisel” to open her. I demanded a more dignified, discreet examination. Eventually, having kept watch over Gurkiren’s body to prevent evidence being destroyed, they were given assurances that a respectful autopsy would be carried out. But, returning to the mortuary, they found her daughter’s bloodstained and ripped clothes by an incinerator and that the post-mortem examination had been carried out by a non-qualified junior. It was medieval”.

After chasing up death certificates, they had  Gurkiren’s body flown home and a UK post-mortem examination was ordered. But the Mother said their hopes of finding out what was given to their Gaughter were shattered in a call from Birmingham coroner Aidan Cotter.

The Mother informed: “He said it was impossible to come to a conclusion for the cause of death. They had nothing to work from; she had no organs in her body for them to take samples.  I was mortified that all the pleading in India had no effect. There was no sensitivity, no humanity”.

Anyone wanting to support the campaign should email narinderkaur.kooner@birmingham.gov.uk. I also request all readers to mail our own Government to Investigate and take “Strict Penal Action” against all “Culprits” after following the Due Procedure. The matter is “Very Sensitive” and it deserves “Urgent Attention” of our Government. After all, it is not the “Political Cause” that should be the “Prerequisite” to help the Parents of the child who have undergone tremendous Trauma and Mental Agony due to this entire episode.

I have mailed a copy of this Article along with the original Media Report to our Government and I hope that our “Elected Representatives” would “Take Immediate Action” in this regard.

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