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Subject: Polity

  • Issues in Ladakh after abolition of Art. 370

    When Jammu and Kashmir were bifurcated into two UTs, Ladakh was seen welcoming the reorganization. However, different demands are coming from its two districts of Ladakh, Leh and Kargil.

    Leh and Kargil, not alike

    • The leaders from Kargil demanded that the district should remain part of J&K.
    • The Leh-based Ladakh Buddhist Association has put forth its demand for an autonomous hill council under the Sixth Schedule, modelled on the lines of the Bodoland Territorial Council in Assam.
    • But what Leh leaders did not bargain for was the complete loss of legislative powers.
    • Earlier, the two districts each sent four representatives to the J&K legislature. After the changes, they were down to one legislator — their sole MP— with all powers vested in the UT bureaucracy.
    • Unlike the UT of J&K, Ladakh was a UT without an assembly.

    What are their concerns?

    • What both Ladakh districts fear is the alienation of land, loss of identity, culture, language, and change in demography.
    • They fear that it will follow their political disempowerment.

    Hill Development Councils

    • Leh and Kargil have separate Autonomous Hill Development Councils, set up under the Ladakh Autonomous Hill Development Councils Act, 1997.
    • However, the AHDCs have no legislative powers.
    • The councils are elected and have executive powers over the allotment, use and occupation of land vested in them by the Centre, and the powers to collect some local taxes, such as parking fees, taxes on shops etc.
    • But the real powers are now wielded by the UT administration, which is seen as even more remote than the erstwhile state government of J&K.

    What is the sixth schedule?

    • The Sixth Schedule is a provision of Article 244(A) of the Constitution, originally meant for the creation of autonomous tribal regions in Assam, Meghalaya, Mizoram and Tripura.
    • Hill councils under this provision have legislative powers.

    Evolving demands

    • But with no progress on Leh’s demand for Sixth Schedule protections, the Leh leadership has now upped its demands.
    • Other issues under discussion are protections for language, culture, land and jobs, plus a long-standing demand for a route between Kargil and Skardu in territory under Pakistan in Gilgit- Baltistan.

  • How the GNCTD (Amendment) Act affects functioning of Delhi Assembly

    The article highlights the implications of the Government of National Capital Territory of Delhi (GNCTD)(Amendment) Act, 2021 on functioning of Assembly and its committees.

    Context

    The Government of National Capital Territory of Delhi (GNCTD)(Amendment) Act, 2021 has been criticised as a retrograde law. However, what deserves equal attention is the Act’s assault on the functioning of Delhi’s Legislative Assembly.

    Background of GNCTD Act

    • The GNCTD Act was enacted in 1992.
    • Under the Act, Delhi Legislative Assembly was given the power to regulate its own procedure, as well as the conduct of its business.
    • This sought to realise a delicate balance reflecting Delhi’s unique constitutional position: neither full state nor a centrally governed Union Territory.

    How amendment affects functioning of Assembly

    • Its standards of procedure and conduct of business have been firmly tethered to that of the Lok Sabha, depriving Delhi’s elected MLAs of an effective say in how their Assembly should be run.
    • The Amending Act prohibits the Assembly from making any rule enabling either itself or its committees to consider any issue concerned with “the day-to-day administration of the capital” or “conduct inquiries in relation to administrative decisions”.
    • The most significant impact of this shall be on the exercise of free speech in the Assembly and its committees.
    • The amendment impeded the Assembly from performing its most basic legislative function — that of holding the executive to account by restricting its ability to freely discuss matters happening in the capital.

    Impact on committees

    • The deliberations and inputs of committees often pave the way for intelligent legislative action.
    • In a way, they act as the eyes and ears for the whole House, which has neither the time nor the expertise to scrutinise issues in depth.
    • It would be impossible for committees to perform this function without the power to conduct inquiries.
    • Pre-emptively injunct a committee from conducting an inquiry “in relation to the administrative decisions” (an extremely broad exception) completely negates the ability of committees to function effectively as the Assembly’s advisors and agents.
    • The quality of legislative work emanating from the Assembly is thus ultimately bound to suffer.

    Consider the question “What are the reasons for frequent disputes between Delhi government and the Lt. Governor? Would the Government of National Capital Territory of Delhi (GNCTD)(Amendment) Act, 2021 succeed in ending that trend?” 

    Conclusion

    The amendment deprive the Delhi Assmbly of its very basic functions and render it a ‘legislature’ in name only. Surely, Delhi’s voters deserve better than that. The Government need to reconsider the provisions of the amendment act.

  • Rule of Law vs Rule by Law

    What makes the Rule of Law different from the Rule by Law? It is the idea of justice and equity that separates the two. The article explains the principles that emerge as the basis of the Rule of law and the role of the judiciary in ensuring their constitutionality.

    Understanding law

    • Law, in its most general sense, is a tool of social control that is backed by the sovereign.
    • However, such a definition of law can be used not only to render justice, it can also be used to justify oppression.
    • Therefore it is argued that a law cannot really be classified as a “law” unless it imbibes within itself the ideals of justice and equity.
    • So, any law backed by a sovereign must be tempered by certain ideals or tenets of justice.
    • Only a state that is governed by such law, can be said to have the Rule of Law.
    • The British colonial power used the law as a tool of political repression, enforcing it unequally on the parties, with a different set of rules for the British and for the Indians.
    •  It was an enterprise famous for “Rule by Law”, rather than “Rule of Law.

    Four principles of rule of law

    • Clarity and accessibility: Laws must be clear and accessible, the people at least ought to know what the laws are.
    • Another implication of this principle is that they should be worded in simple, unambiguous language.
    • Equality: An important aspect of equality before law is having equal access to justice.
    • This guarantee of equal justice will be rendered meaningless if the vulnerable sections are unable to enjoy their rights because of their poverty or illiteracy or any other kind of weakness.
    • Another aspect is the issue of “gender equality”.
    • Participation of people: The third principle, the “right to participate in the creation and refinement of laws”.
    • The very essence of a democracy is that its citizenry has a role to play, directly or indirectly, in the laws that govern them.
    • In India, it is done through elections.
    • The idea that people are the ultimate sovereign is also to be found in notions of human dignity and autonomy
    • Strong independent judiciary: The fourth principle stemsp from the idea that the judiciary is the “guardian” of the Constitution.
    • The judiciary is the primary organ which is tasked with ensuring that the laws that are enacted are in line with the Constitution.

    Independent judiciary and role of media

    • The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the Rule of Law would become illusory.
    • At the same time, judges should not be swayed by the emotional pitch of public opinion either, which is getting amplified through social media platforms.
    • Judges have to be mindful of the fact that the noise thus amplified is not necessarily reflective of what is right and what the majority believes in.
    • Therefore, media trials cannot be a guiding factor in deciding cases.
    • It is, therefore, extremely vital to function independently and withstand all external aids and pressures.
    • While there is a lot of discussion about the pressure from the executive, it is also imperative to start a discourse as to how social media trends can affect the institutions.

    Conclusion

    The importance of the judiciary shouldn’t blind us to the fact that the responsibility of safeguarding constitutionalism lies not just with the courts. All the three organs of the state, i.e., the executive, legislature and the judiciary, are equal repositories of constitutional trust.

  • Taking note of the Delhi High Court’s judgment on ‘defining terrorism’

    The recent Delhi High Court order granting bail to the student activists charged with the UAPA has brought into focus the issue of misuse of anti-terror laws by the policy. The article deals with this issue.

    Misuse of anti-terror laws

    • In the period 2015-2019, as many as 7,840 persons were arrested under the UAPA (Unlawful Activities (Prevention) Act) 1967 but only 155 were convicted by the trial courts.
    • Under TADA, till 1994, though 67,000 people were detained, just 725 were convicted in spite of confessions made to police officers being made admissible.
    • In Kartar Singh (1994), the Supreme Court of India had observed that in many cases, the prosecution had unjustifiably invoked provisions of TADA.
    • It added that such an invocation of TADA was ‘nothing but the sheer misuse and abuse of the Act by the police’.

     The definition of terrorism

    • There is no universal definition of the term ‘terrorism’ either in India or at the international level.
    •  Accordingly, neither TADA nor UAPA has a definition of the crucial terms ‘terror’ and ‘terrorism’.
    • Section 15 of UAPA merely defines a terrorist act in extremely wide and vague words: ‘as any act with intent to threaten or likely to threaten the unity, integrity, security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people….’.
    • In Yaqoob Abdul Razzak Memon (2013), the Supreme Court said that terrorist acts can range from threats to actual assassinations, kidnappings, airline hijacking, car bombs, explosions, mailing of dangerous materials, use of chemical, biological, nuclear weapons etc.
    • In Hitendra Vishnu Thakur (1994), the Supreme Court had defined terrorism as the ‘use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces … on the society as a whole’.
    • In Kartar Singh (1994), the Supreme Court held that a mere disturbance of public order that disturbs even the tempo of the life of community of any particular locality is not a terrorist act.
    • By this interpretation, the CAA protests in a few localities of Delhi cannot be termed as terrorist activity.
    • In the PUCL judgment (2003), the Supreme Court included within its meaning amongst other things the ‘razing of constitutional principles that we hold dear’, ‘tearing apart of the secular fabric’ and ‘promotion of prejudice and bigotry.
    • Accordingly, in the CAA protest case the Delhi High Court concluded that since the definition of a ‘terrorist act’ in UAPA is wide and somewhat vague, it cannot be casually applied to ordinary conventional crimes.
    • The Delhi High Court said that the act of the accused must reflect the essential character of terrorism.

    Distinction between ‘law and order’, ‘public order’ and ‘security of state’

    • In Ram Manohar Lohia (1966), the Supreme Court explained the distinction between the above three terms.
    • Law and order represents the largest circle within which is the next circle representing ‘public order’, and the smallest circle represents the ‘security of state’.
    • Accordingly, an act may affect ‘law and order’ but not ‘public order’.
    • Similarly, an act may adversely affect ‘public order’ but not the ‘security of state.’
    • In most UAPA cases, the police have failed to understand these distinctions and unnecessarily clamped UAPA charges for simple violations of law and order.

    Conclusion

    Radicalisation generally succeeds only with those who have been subjected to real or perceived injustices. Let us remove injustice to combat terrorism. The creation of a truly just, egalitarian and non-oppressive society would be far more effective in combating terrorism.

  • Issues faced by India’s sexual minorities

    The article highlights the plight of sexual minorities despite the landmark judgments by the Supreme Court.

    Role played by the judiciary

    • The Delhi High Court’s verdict in Naz Foundation vs Government of NCT of Delhi (2009) was a landmark in the law of sexuality and equality jurisprudence in India.
    • The court held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class.
    • In a retrograde step, the Supreme Court, in Suresh Kumar Koushal vs Naz Foundation (2013), reinstated Section 377 to the IPC.
    • However, the Supreme Court in Navtej Singh Johar & Ors. vs Union of India (2018) declared that the application of Section 377 IPC to consensual homosexual behaviour was “unconstitutional”.
    • This Supreme Court judgment has been a great victory to the Indian individual in his quest for identity and dignity.
    • It also underscored the doctrine of progressive realisation of rights.

    No legal sanction to same-sex marriage

    • Despite the judgments of the Supreme Court, there is still a lot of discrimination against sexual minorities in matters of employment, health and personal relationship.
    • The Union of India has recently opposed any move to accord legal sanction to same-sex marriages in India.
    • The Union of India stated that the decriminalisation of Section 377 of the Indian Penal Code does not automatically translate into a fundamental right for same sex couples to marry. 
    • The U.S. Supreme Court, in Obergefell vs Hodges (2015) underscored the emotional and social value of the institution of marriage and asserted that the universal human right of marriage should not be denied to a same-sex couple.
    • Indian society and the state should synchronise themselves with changing trends.

    Need to amend Article 15 to prohibit discrimination based on gender or sexual orientation

    • Article 15 secures the citizens from every sort of discrimination by the state, on the grounds of religion, race, caste, sex or place of birth or any of them.
    • The grounds of non-discrimination should be expanded by including gender and sexual orientation.
    • In May 1996, South Africa became the first country to constitutionally prohibit discrimination based on sexual orientation.
    • The United Kingdom passed the “Alan Turing law” in 2017 which ‘granted amnesty and pardon to the men who were cautioned or convicted under historical legislation that outlawed homosexual acts’.

    Way forward

    • Justice Rohinton F. Nariman had directed in Navtej Singh Johar & Ors., the Government to sensitise the general public and officials, to reduce and finally eliminate the stigma associated with LGBTQ+ community through the mass media and the official channels.
    • School and university students too should be sensitised about the diversity of sexuality to deconstruct the myth of heteronormativity.
    • Heteronormativity is the root cause of hetero-sexism and homophobia.

    Conclusion

    It is time for change, but the burden should not be left to the powers that be. The onus remains with the civil society, the citizenry concerned and the LGBTQ+ community itself.

  • The ‘Union government’ has a unifying effect

    The Tamil Nadu government has decided to shun the usage of the term ‘Central government’ in its official communications and replace it with ‘Union government’. This is a major step towards regaining the consciousness of our Constitution.

    India the union

    • Seventy-one years since we adopted the Constitution, it is time we regained the original intent of our founding fathers beautifully etched in the parchment as Article 1: “India, that is Bharat, shall be a Union of States”.
    • The Constituent Assembly did not use the term ‘Centre’ or ‘Central government’ in all of its 395 Articles in 22 Parts and eight Schedules in the original Constitution.
    • What we have are the ‘Union’ and the ‘States’ with the executive powers of the Union wielded by the President acting on the aid and advice of the Council of Ministers headed by the Prime Minister.

    Where is Central Govt defined?

    • Even though we have no reference to the ‘Central government’ in the Constitution, the General Clauses Act, 1897 gives a definition for it.
    • The ‘Central government’ for all practical purposes is the President after the commencement of the Constitution.
    • Therefore, the real question is whether such definition for ‘Central government’ is constitutional as the Constitution itself does not approve of centralising power.

    Intent of Constituent Assembly

    • On December 13, 1946, Pt Nehru introduced the aims and objects of the Assembly by resolving that India shall be a Union of territories willing to join the “Independent Sovereign Republic”.
    • The emphasis was on the consolidation and confluence of various provinces and territories to form a strong united country.
    • Many members of the Constituent Assembly were of the opinion that the principles of the British Cabinet Mission Plan (1946) be adopted, which contemplated a Central government with very limited powers whereas the provinces had substantial autonomy.
    • The Partition and the violence of 1947 in Kashmir forced the Constituent Assembly to revise its approach and it resolved in favour of a strong Centre.
    • The possibility of the secession of States from the Union weighed on the minds of the drafters of the Constitution and ensured that the Indian Union is “indestructible”.

    Preventing the secession

    • In the Constituent Assembly, B.R Ambedkar, the Chairman of the Drafting Committee, observed that the word ‘Union’ was advisedly used in order to negative the right of secession of States.
    • Ambedkar justified the usage of ‘Union of States’ saying that the Drafting Committee wanted to make it clear that though India was to be a federation, it was not the result of an agreement.
    • Therefore, no State has the right to secede from it. “The federation is a Union because it is indestructible,” Ambedkar said.

    Then criticism of the ‘Union’

    • The usage of ‘Union of States’ by Ambedkar was not approved by all and faced criticisms from Maulana Hasrat Mohani.
    • He argued that Ambedkar was changing the very nature of the Constitution.
    • Mohani made a fiery speech in the Assembly on September 18, 1949 where he contended that the usage of the words ‘Union of States’ would obscure the word ‘Republic’.
    • Mohani went to the extent of saying that Ambedkar wanted the ‘Union’ to be “something like the Union proposed by Prince Bismarck in Germany, and after him adopted by Kaiser William and after him by Adolf Hitler”.

    Dr. Ambedkar’s clarification

    • Ambedkar clarified that the Union is not a league of States, united in a loose relationship; nor are the States the agencies of the Union, deriving powers from it.
    • Both the Union and the States are created by the Constitution, both derive their respective authority from the Constitution.
    • The one is not subordinate to the other in its own field… the authority of one is coordinate with that of the other.

    Features of Indian Union

    • The sharing of powers between the Union and the States is not restricted to the executive organ of the government.
    • The judiciary is designed in the Constitution to ensure that the Supreme Court, the tallest court in the country, has no superintendence over the High Courts.
    • Though the Supreme Court has appellate jurisdiction — not only over High Courts but also over other courts and tribunals — they are not declared to be subordinate to it.
    • In fact, the High Courts have wider powers to issue prerogative writs despite having the power of superintendence over the district and subordinate courts.
    • Parliament and Assemblies identify their boundaries and are circumspect to not cross their boundaries when it comes to the subject matter on which laws are made.
    • However, the Union Parliament will prevail if there is a conflict.

    Answer this PYQ:

    Q.Consider the following statements:

    1. The Executive Power of the Union of India is vested in the Prime Minister.
    2. The Prime Minister is the ex-offi cio Chairman of the Civil Services Board.

    Which of the given statements is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    A wordplay indeed

    • The members of the Constituent Assembly were very cautious of not using the word ‘Centre’ or ‘Central government’ in the Constitution as they intended to keep away the tendency of centralizing of powers in one unit.
    • The ‘Union government’ or the ‘Government of India’ has a unifying effect as the message sought to be given is that the government is of all.
    • Even though the federal nature of the Constitution is its basic feature and cannot be altered, what remains to be seen is whether the actors wielding power intend to protect the federal feature of our Constitution.
    • As Nani Palkhivala famously said, “The only satisfactory and lasting solution of the vexed problem is to be found not in the statute book but in the conscience of men in power”.

  • What is Recusal of Judges?

    In the last week, two Supreme Court judges have recused themselves from hearing cases relating to West Bengal.

    Can you list down some basic principles of judicial conduct?

    Independence, Impartiality, Integrity, Propriety, Competence and diligence and Equality are some of them as listed under the Bangalore Principles of Judicial Conduct.

    What is the Recusal of Judges?

    • Recusal is the removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.
    • Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.
    • For example, if the case pertains to a company in which the judge holds stakes, the apprehension would seem reasonable.
    • Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call for recusal may seem right.
    • A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

    Rules on Recusals

    • There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts. It is left to the discretion of a judge.
    • The reasons for recusal are not disclosed in an order of the court. Some judges orally convey to the lawyers involved in the case their reasons for recusal, many do not. Some explain the reasons in their order.
    • The decision rests on the conscience of the judge. At times, parties involved raise apprehensions about a possible conflict of interest.

    Issues with recusal

    • Recusal is also regarded as the abdication of duty. Maintaining institutional civilities are distinct from the fiercely independent role of the judge as an adjudicator.
    • In his separate opinion in the NJAC judgment in 2015, Justice Kurian Joseph highlighted the need for judges to give reasons for recusal as a measure to build transparency.
    • It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case.

  • Delimitation in Jammu and Kashmir: how, why

    The Union government’s invitation to 14 key political leaders from Jammu and Kashmir for a meeting with the PM has led to speculation about the possible scheduling of the Assembly elections. However, the delimitation of constituencies is crucial for kick-starting any political process in J&K.

    What is Delimitation and why is it needed?

    • Delimitation is the act of redrawing boundaries of an Assembly or Lok Sabha seat to represent changes in population over time.
    • This exercise is carried out by a Delimitation Commission, whose orders have the force of law and cannot be questioned before any court.
    • The objective is to redraw boundaries (based on the data of the last Census) in a way so that the population of all seats, as far as practicable, be the same throughout the State.
    • Aside from changing the limits of a constituency, the process may result in change in the number of seats in a state.

    Do not forget to answer this PYQ in the comment box:

    Q.With reference to the Delimitation Commission, consider the following statements:

    1. The orders of the Delimitation Commission cannot be challenged in a Court of Law.
    2. When the orders of the Delimitation Commission are laid before the Lok Sabha or State Legislative Assembly, they cannot affect any modifications in the orders.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    How often has delimitation been carried out in J&K?

    • Delimitation exercises in J&K in the past have been slightly different from those in the rest of the country because of the region’s special status — which was scrapped by the Centre in August 2019.
    • Until then, the delimitation of Lok Sabha seats in J&K was governed by the Constitution of India, but the delimitation of the state’s Assembly was governed by the J&K Constitution and J&K Representation of the People Act, 1957.
    • Assembly seats in J&K were delimited in 1963, 1973 and 1995.
    • The last exercise was conducted by the Justice (retired) K K Gupta Commission when the state was under President’s Rule and was based on the 1981 census, which formed the basis of the state elections in 1996.
    • There was no census in the state in 1991 and no Delimitation Commission was set up by the state government after the 2001 census as the J&K Assembly passed a law putting a freeze until 2026.

    Why is it in the news again?

    • After the abrogation of J&K’s special status in 2019, the delimitation of Lok Sabha and Assembly seats in the newly-created UT would be as per the provisions of the Indian Constitution.
    • On March 6, 2020, the government set up the Delimitation Commission, headed by retired Supreme Court judge Ranjana Prakash Desai, which was tasked with winding up delimitation in J&K in a year.
    • As per the J&K Reorganization Bill, the number of Assembly seats in J&K would increase from 107 to 114, which is expected to benefit the Jammu region.

    What is the status of this 2020 Delimitation?

    • Although the Commission was tasked to finish delimitation in a year, on March 4 this year, it was granted a year’s extension.
    • This was done at the request of the panel members since it couldn’t make much progress due to the Covid-19-induced shutdown across the country.

  • Significance of recent judgments in UAPA cases

    Recent judgements involving UAPA highlights the issues with certain provisions resulting in long years of undertrial imprisonment.

    Context

    In the past week, three seminal judgments involving the Unlawful Activities (Prevention) Act, 1967 (UAPA) have been delivered. While these judgments are welcome developments, they also remind us that thousands continue to languish under the UAPA regime.

    Issues with the provisions of UAPA

    • Originally enacted in 1967, the UAPA was amended to be modelled as an anti-terror law in 2004 and 2008.
    • The period of detention is increased, enlarging the period of custody prior to which default bail cannot be granted.
    • Regular bail is subject to the satisfaction of the judge that no prima facie case exists.
    • Bail apart, the dilatory trial procedures ensure lengthy periods of pre-trial incarceration for the accused who are presumed guilty of heinous terror crimes.

    NCRB data reveal long years of undertrial imprisonment

    • As per the National Crime Records Bureau (NCRB) data, a total of 4,231 FIRs were filed under various sections of the UAPA between 2016 and 2019.
    •  While the number of acquittals is low,  the real picture emerges in the pendency rates.
    • The pendency rate at the level of police investigation is very high, at an average of 83 per cent.
    • This denotes that chargesheets are filed by the police on an average in about 17 per cent of the total cases taken up for investigation.
    • The rate of pendency at the level of trial is at an average of 95.5 per cent.
    • This indicates that trials are completed every year in less than 5 per cent cases.

    What did the courts say in various judgements?

    • The Supreme Court, in Union of India v K A Najeeb, held that despite restrictions on bail under the UAPA, constitutional courts can still grant bail on the grounds that the fundamental rights of the accused have been violated.
    • In Asif Iqbal Tanha v State of NCT of Delhi, the Delhi High Court took this reasoning a step further, holding that it would not be desirable for courts to wait till the accused’s rights to a speedy trial are entirely vitiated before they are set at liberty.
    • Courts should exercise foresight, and in cases with hundreds of prosecution witnesses where a trial will not see a conclusion for years to come, courts should apply the principles laid down in Najeeb.

    Way forward

    •  Even within the constraints of the UAPA, much can be achieved if a responsive and independent judiciary follows the basic principles of natural justice and due process.
    • But access to the judiciary remains limited for most of the thousands incarcerated under this widely-used law.

    Conclusion

    The governments need to consider the issue of pendency of cases under UAPA and take steps to address the issues by either repealing certain provisions or ensuring speedy trials.

  • Section 27A of the NDPS Act

    Last week, the Tripura High Court, in a significant verdict, discovered an oversight in drafting the 2014 amendments to the Narcotics Drugs and Psychotropic Substances Act, 1985.

    What is Section 27A?

    • The NDPS had unintentionally rendered a key provision of the Act, Section 27A which provides for punishment of those financing illicit trafficking, inoperable.
    • This section has been consistently evoked since a year after the alleged suicide of a notable Bollywood actor after drugs intoxication.

    What is the provision?

    • The NDPS Act, 1985 is the principal legislation through which the state regulates the operations of narcotic drugs and psychotropic substances.
    • It provides a stringent framework for punishing offenses related to illicit traffic in narcotic drugs and psychotropic substances through imprisonments and forfeiture of property.
    • Section 27A of the NDPS Act, 1985, prescribes the punishment for financing illicit traffic and harboring offenders.
    • The court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

    So why is this provision inoperable?

    • The text of the provision says that offences mentioned under Section 2(viiia) sub-clauses i-v are punishable through Section 27A.
    • However, Section 2 (viiia) sub-clauses i-v, which is supposed to be the catalog of offences, does not exist after the 2014 amendment.
    • So, if Section 27A penalises a blank list or a non-existent provision, it can be argued that it is virtually inoperable.

    What was the 2014 amendment?

    • In 2014, a key amendment was made to the NDPS Act to allow for better medical access to narcotic drugs.
    • Since the regulation under NDPS was very stringent, despite being a leading manufacturer of morphine, an opioid analgesic used as a painkiller, it was difficult to access the drug even for hospitals.

    Exceptions for essential drugs

    • The 2014 amendment essentially removed state-barriers in transporting, licensing drugs classified as “essential narcotic drugs”, and made it centralized.
    • This was done by first introducing a provision in Section 2 that defines essential narcotic drugs, and subsequently in Section 9 allowing the manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption and use of essential narcotic drugs.
    • The amendment to add the definition of essential narcotic drugs re-lettered the old Section 2(viii)a that was the catalog of offences as Section 2(viii)b, and under the Section 2(viii)a, defined essential narcotic drugs.
    • However, the drafters missed amending the enabling provision in Section 27A to change Section 2(viii)a to Section 2(viii)b.

    How was this error noticed?

    • In 2016, an accused sought bail before a special judge in West Tripura in Agartala citing this omission in drafting.
    • The accused’s plea was that since Section 27A penalized a blank list, he could not be charged under the offence.
    • The district judge then referred the case to the Tripura High Court.

    What did the HC decide?

    • The Law Ministry had argued that the court must overlook the omission and read the legislation as a whole. It also told the court that the provision would be amended to rectify the dissonance.
    • The Tripura HC agreed with the government’s view, but said that it may not be the best solution.
    • The amendment is yet to take place. However, criminal laws cannot be amended retrospectively.
    • Article 20 of the Constitution guarantees protection against double jeopardy.
    • So even if the amendment is brought in, the result of the drafting error could lead to more constitutional questions being raised.

    Back2Basics: Article 20 of the Indian Constitution

    The Article 20 is one of the pillars of fundamental rights guaranteed by the Constitution of India. It mainly deals with protection of certain rights in case of conviction for offences.

    (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

    (2) No person shall be prosecuted and punished for the same offence more than once.

    (3) No person accused of any offense shall be compelled to be a witness against himself.