Interviews

Ms Rakshita Agarwal is currently pursuing Master of Laws (LLM) degree from the University of Cambridge. She graduated from National Law University Odisha (NLUO) in 2020 at the top of her class. She has been awarded seven university gold medals by NLUO in recognition of her academic performance. In the wake of COVID-19, she initiated the M.P. Migrant Workers Project focusing on the livelihood of returned migrant workers in COVID context.

She has been interviewed by Toshika Soni, EBC/SCC Online Student Ambassador who is currently pursuing law from NLUO.

1. How did you get interested in the field of international law?

I have always been interested in international relations and followed world politics closely even before entering law school. My first formal encounter with public international law as an academic discipline was when I participated in the 18th DM Harish Memorial GLC International Moot Court Competition. I still remember looking at Malcolm Shaw’s International Law textbook for the first time and being intimidated. But as I read along, I fell in love with the subject.

 

I then read public international law as a mandatory course in college which piqued my interest further. During my undergraduate studies, I tried to get a glimpse of as many branches of international law as possible – human rights law, trade law, investment law, refugee law, environmental law. This really helped me narrow down my interests while applying for my masters.

 

2. What do you think is the scope of an Indian student looking to pursue international law in their education and further, as a profession?

In my opinion, international law offers ample career choices provided you have some idea as to what you want to do and are interested in the type of work it entails. It is important to understand that public international law is a broad field in itself which primarily only gives an overview of the international legal system. At the postgraduate level, you are required to identify and specialise in specific branches of this broad field. You get to choose from a number of options, such as international environmental law, international humanitarian law, international criminal law, international trade and development, international human rights law, amongst others. Each of these fields offer career opportunities of their own. Depending on your chosen fields, you can go on to work with inter-governmental organisations, NGOs, State Governments, consultancies, and even MNCs.

 

3. Can you please talk about your formative years at National Law University Odisha and more recently, about your time at the University of Cambridge?

The time I spent at NLUO is irreplaceable. The friendships, classroom discussions, juggling between committees’ works, and evening walks around campus have been the defining moments for me. NLUO gave me a lot more than just academics – I remember participating in the most random competitions in our fests and having the most fun. I was surrounded by brilliant people across batches achieving great things, and yet nobody seemed to be in a rush. The place definitely taught me the importance of taking things easy and striving for a balanced life.

 

So far as my time at the University of Cambridge is concerned, I am about to complete 3 months here and it has already been quite a journey. Classes are definitely demanding and there is a lot to do academically, but each moment spent here is so enriching. People may be doing similar courses, but their end goals are varied – this tells you so much about individual thought processes and outlook towards life, and of course the unending possibilities. Cambridge has a lot to offer – both inside and out of classrooms, and I just hope I am able to make the most of my time here.

 

4. How did you understand the nuances of the process of LLM applications? What advice would you like to impart with our readers about the same?

In my opinion, LLM applications are not very complex but they do require sincere thinking and patience. At the beginning of my LLM applications, I reached out to people (seniors and sometimes people I found through LinkedIn) who attended one of my target universities or pursued similar courses. This helped me gain clarity with respect to the basics – the colleges and courses I wanted to apply for. Once the universities are shortlisted, the next step is to go through their websites properly as each university’s application process and document requirement vary slightly. For instance, applicants are generally required to take language tests (TOEFL/IELTS) and even the number of letter of recommendations required vary from university to university. Once all the basics are figured out, the last step is to just get started with the form. During my application process, I reached out to people whenever I faced any difficulties and everyone was always very willing to help.

 

For prospective applicants, it is always advisable to start early so that they have sufficient time to plan their activities in alignment with the application requirement. Starting early also gives you the much needed time to really research and think whether you want to go for an LLM (which I think is the most important as your level of conviction is reflected in your application).

 

5. What was the vision behind the M.P. Migrant Workers’ Project and what role did you play?

The Madhya Pradesh Migrant Workers’ Project is extremely close to my heart. The sudden nationwide lockdown announced in India (in March 2020) and consequent disruption of transport facilities meant that a large number of migrant workers were stuck in different States, far away from their families. An overwhelming majority of these workers depend on daily wages earned and sudden shut down of industries also meant that they lost their means of income and livelihood. As you may remember, images of migrant workers walking miles in desperate attempts to reach their hometowns started surfacing the internet, and many of them even lost their lives on their way back. The worst part was denial of basic rights to these migrant workers by the Government, and that was the time I conceived the idea of this project.

 

I initiated the Madhya Pradesh Migrant Workers’ Project in August 2020. We were closely following the turn of events, and realised that failure to maintain proper records capturing movements within informal sectors was the primary reason behind this crisis. The aim of this project was to record the fact of Indian migrant crisis in concrete numbers, to ascertain the extent of State aid made available for the employment of returned workers and to demand adequate action at places where negligible action was taken. We also saw this report as a means of filling data gaps in relation to the conditions of migrant workers and assessing the viability and successful implementation of various government schemes launched. We released an executive summary of our findings in November 2020, which was covered by prominent platforms like The Hindu. Finally, in August 2021, we released the final version of our report highlighting the need for pressing reforms in labour law framework vis-à-vis migrant workers.

Leading this project gave me some hope and made me realise that people are really willing to help. I attribute this success to our excellent volunteer base – close to 70 people, of different age groups and from different parts of India, who worked pro bono for the cause.

 

6. What do you think is the importance of legal research and using the right tools? How can law students equip themselves to become good researchers?

I think good research skills are quintessential for every profession, and more so for lawyers. The legal field is unique as legal provisions are often open to multiple interpretations. Hence to be persuasive, law students must ensure that their arguments are well researched and backed by credible sources. To sieve out most relevant excerpts from an ocean of information is an art and we definitely need the right tools for it. Every law student must be comfortable using most basic tools like SCC Online, HeinOnline and JSTOR  as these narrow down the research scope to a great extent. But as they say, there are no shortcuts to success. Quality research requires inquisitiveness, patience, and commitment.

 

7. What do you think admissions’ officers look for in an ideal applicant? How can one streamline their journey at law school to fit the box?

Having gone through the process myself, I can safely say that there is no such concept as an “ideal application” or an “ideal applicant”. Every applicant and their journey is unique, and that is what matters. However, the admissions office does look for coherence and purpose in the applications – where the applicant is coming from, what the applicant intends to achieve, what has the applicant already done and how this degree will help them in realising their goals. The important part is to be convincing and candid in your statement of purpose.

 

So far as streamlining one’s journey is considered, it is always a good idea to broadly identify subjects of interest and try engaging in relevant activities. This is a strong way of showcasing your genuine interest for a particular subject.

 

8. Being a Rank 1 holder from your batch, what advice do you have for law students struggling with ascertaining relative importance to academics, internships, co-curriculars, etc.?

I strongly believe that academics are extremely important and play a huge role, especially if you want to go for higher education. For starters, most of the top-ranked universities require their applicants to meet certain academic threshold to have their applications considered. Furthermore, for fresh graduates, academic performance continues to be the most widely followed criteria by recruiters (law firms and offices, research centres) while sifting through applications. Having a decent academic record is thus like a qualifier and definitely makes things easier in all respects.

 

Having said that, the importance of internships and co-curriculars cannot be undermined. While academics do take precedence, having a “well-rounded CV” is also a requirement. More than a requirement, I view internships, co-curriculars and extra-curriculars as important experiences that shape you as a person and help in demystifying goals. These experiences can be extremely fun and unwinding, provided they are chosen wisely.

 

9. What is your take on “exhaustion of research”? How can one deal with it?

I believe that there is no end to research – thanks to the extensive and easily accessible resources at our disposal. You can keep going on and on, and still not “exhaust” all resources. For practical purposes, considering most of the legal work is time sensitive, lawyers should focus on finding conclusive, well-grounded support for their arguments rather than deep diving in all related search results. Standard procedure is to read the bare text of legislation, state the proposed interpretation and supplement the argument with latest case law positions. Despite there always being an option, going overboard with legal research is not the best approach. Identification of relevant provisions and application of latest findings to the factual matrix often does the work.

 

10. Where do you see yourself in 10 years? What are your professional goals after graduating from the University of Cambridge – LLM programme?

I have always wanted a career in academia and see that as the last stop of my professional journey. However, I want to do quite a few things before treading that path. On completion of my LLM programme, I intend to gain some additional fieldwork experience by working with international organisations, preferably active in the areas of international humanitarian law and international environmental law.

Experts CornerKhaitan & Co

As global discussions on climate change and the pressing need to reduce dependency on fossil fuels take centre stage, India too is taking steps to embrace and promote green energy. The Indian Government recently announced plans to formulate a “green tariff policy” with a view to incentivise consumption of renewable energy over non-renewable energy. Under this policy, power distribution companies (DISCOMS) will supply power generated from renewable sources to consumers at a tariff that is lower than that of conventional energy.

 

The principal idea behind the proposal of green tariff policy is that this will encourage more consumers to opt for cleaner green energy, thereby pushing DISCOMS to contract more renewable power, even beyond their renewable purchase obligations (RPOs), as there will be sufficient demand in the market for clean energy.

 

This is a welcome move. However, while it is agreed that Governments across the globe should take steps to incentivise consumers opting for clean energy, the announcement of India’s green tariff policy has raised some concern regarding certain gaps that will need to be addressed.

 

Let us discuss some of these gaps that will require urgent attention as we move towards implementing this new policy.


Rising construction costs for solar projects


This proposal of introducing a green tariff policy floated because around that time, the tariffs, which were being determined through competitive bidding processes, had gone down as low as INR 1.99 per unit and INR 2.43 per unit for solar and wind projects respectively. However, recently Ministry of Finance through its Notification dated 30-9-2021 [Ref. No. 8/2021 – Central Tax (Rate)] has revised the Central Goods and Services Tax (CGST) rates on “solar power-based devices” from 2.5% to 6% thereby revising the GST rates on “solar power-based devices” from 5% to 12% [CGST plus State Goods and Services Tax (SGST)]. With this revision in the GST rates, the cost of construction for the solar projects will substantially increase which will be reflected accordingly in the determined tariff rates. Thus, the tariff rates for solar projects will not remain this low for upcoming projects.

 


Deviation in renewable power generation


The biggest obstacle for the proper implementation of green tariff policy would be that renewable power is infirm in nature i.e. it is dependent upon variable natural factors, such as wind speed and solar irradiation, thereby causing the actual generation to vary from the scheduled generation which eventually create grid insecurity issues. So, if the DISCOMS start increasing their contracted renewable capacities in light of its growing demand among the consumers, then they would also be needing sufficient conventional power to absorb the deviations happening in green energy generation in order to maintain grid stability. The same can further be corroborated by Central Electricity Authority’s (CEA) Report on Optimal Generation Capacity Mix for 2029-2030 which states that India’s projected peak demand value in October 2029 will be approximately 340 GW, and a thermal installed capacity of approximately 267 GW will be required to meet such demand.

 


Issues pertaining to “banking” of power


One way to tackle the issue of deviation of actual renewable power generation from the scheduled generation by the renewable power developers is through banking the surplus power with the DISCOM concerned. However, the banking regime/regulations are not consistent across the States in India. All the State Electricity Regulatory Commissions have formulated their respective banking regulations for renewable power generators on the basis of numerous factors including load requirement in the State concerned, commercial status of the consumers and the respective State targets for green power integration to the grid. There are some States which do not encourage the provision of facility of banking to renewable power developers citing commercial reasons (adverse impact on the viability of the State DISCOMS, etc.) and impose restrictions on the facility of banking including imposing time of day (TOD) restriction for withdrawal of banked power, levy of heavy banking charges and allowing facility of banking only on seasonal basis.

 


On-site battery storage – A solution?


Considering the issues pertaining to the facility of banking, one of the prospective ways of implementing the green tariff policy would be to align this with the requirement of on-site battery storage facility for renewable power plants. Government has been planning to create a robust regulatory framework for developing energy storage systems in India. Ministry of New and Renewable Energy (MNRE) had also constituted an expert committee to draft policy to establish a National Energy Storage Mission. Also, a policy framework is being prepared to introduce on-site battery storage systems for wind and solar projects. Recently, in December 2020, Solar Energy Corporation of India (SECI) had issued a tender for a 20 MW solar project along with an on-site 50 MWh battery energy storage system to be set up at Phyang, Leh, Union Territory of Ladakh. In past two years, SECI had issued other tenders as well for setting up of solar projects along with on-site battery storage systems. Apart from this, SECI has also issued a tender for 2000 MWh of standalone energy storage systems.

 

A robust battery storage mechanism can play a pivotal role in ensuring grid security vis-à-vis increasing green power integration to the grid. However, battery storage facilities/systems have not been introduced in India yet on a commercial level and are still at a very nascent stage. Therefore, the associated costs for creating such an infrastructure would be much higher which will eventually be reflected in the corresponding tariff rates as well. So, even if the green tariff policy is introduced after ensuring that there is on-site storage facility for renewable power projects, the tariff determined/adopted will still be significantly high and cannot be less than that of thermal power tariff rates.


Green tariff policy: The road ahead


One may say that this is the classic case of “putting the cart before the horse”. If incentivising the consumers would create an unwarranted demand to shift to green energy, then there is a clear challenge with respect to the grid coming under extreme pressure. The Government must be mindful of this, as they cannot introduce the policy without taking into consideration the aforementioned issues. Incentivising and boosting demand disproportionately, without creating the necessary infrastructure to support the increased demand could lead to a major challenge. One could say that going forward with the green tariff policy without addressing the above issues will be somewhat of a hasty move.

 

In order for it to be efficacious, it is imperative that sufficient cost-effective infrastructure for on-site battery storage is created first at the national and State level. Only a robust battery storage infrastructure could minimise the deviation related risks in renewable power generation, which will thereby propel green energy’s market share.

 

For now, all eyes are on the Government as they deliberate on what would be the best possible way to take into account all stakeholders’ interests, including the pressures that could adversely impact DISCOMS in the future.

 


† Shivanshu Thaplyal, Partner in the Energy, Infrastructure & Resources team at Khaitan & Co. Shivanshu regularly advises on corporate/commercial matters and policy and regulatory issues.

†† Rishabh Sharma, Associate in the Energy, Infrastructure & Resources team at Khaitan & Co.

Experts CornerShantanu Mukherjee


Introduction


Telemedicine usage spiked early in the COVID-19 Pandemic as consumers and providers sought safe ways to access and deliver healthcare. The healthcare profession had to react swiftly to deal with the social distancing measures put in place to assist flatten the curve of COVID-19 infections. At the peak of the epidemic, hospitals, clinics, and physicians looked to telemedicine for a method to deliver the same level of care while limiting the spread of the coronavirus. Key trends in the utilisation of technology have evolved, which will continue to impact the future of telemedicine services.

 

This necessary step change was made possible by the following factors: (1) increased consumer desire to utilise telemedicine; (2) increased provider willingness to use telemedicine; and (3) regulatory improvements that allow for more access and payment. During the pandemic’s tragedy, telemedicine provided a bridge to care, and it now provides an opportunity to rethink virtual and hybrid virtual/in-person care models, with the objective of improving healthcare access, results, and cost.

 

By bringing AI to the edge, telemedicine has evolved patient care and experience through accessibility, which was invaluable for treating COVID-19 as well as curbing its spread.  In FY 2021, the Indian Telemedicine Market was valued at USD 1314.83 million and is predicted to develop at a healthy Compound Annual Growth Rate (CAGR) of roughly 22.31 per cent.

 

This is attributed to the country’s strengthening healthcare IT infrastructure, as well as India’s expanding digitalisation. Furthermore, the rising incidence of chronic and infectious illnesses in the nation, along with a dearth of healthcare workers and doctors, is predicted to drive market expansion through FY 2027.

 

Through remote patient monitoring, for example, physicians were able to use internet connected, at home devices to track the health of high-risk individuals, like the elderly and post-op patients, while minimising their exposure.

 

Telemedicine connects healthcare professionals with patients using new technology such as kiosks, online monitoring programmes, mobile phone applications, wearable devices, and videoconferencing. This article will investigate different telemedicine rules in several worldwide jurisdictions, as well as offer a more in-depth look at the Indian situation.

 


What is Telemedicine?


Telemedicine/telehealth can be understood as the delivery of healthcare services by healthcare professionals using information and communication technologies for the exchange of valid information for the diagnosis, treatment, and prevention of disease and injuries, as well as continuing education of healthcare providers and research and evaluation, all in the interests of advancing health.

 

According to the Centers for Disease Control and Prevention (CDC), telemedicine use increased by more than 154% in late March 2020 when compared to the same time in 2019. Furthermore, according to current Fortune Business Insights forecasts, the industry will be worth more than $397 billion USD by 2027. To demonstrate the effect of the epidemic, the market was only worth $42 billion USD in 2019. While utilisation has declined since the pandemic’s height, it is obvious that telemedicine is now an important component of the future of healthcare delivery.

 

Telemedicine use has stabilised at 38 times pre-pandemic levels as of July 2021. Even before to the epidemic, research suggested increasing usage of telemedicine. In a McKinsey poll, 76 per cent of patients stated they would be interested in adopting telemedicine in the future. Furthermore, in research published in the Journal of Telemedicine and Telecare, more than half of respondents stated they would use telemedicine to refill prescriptions, prepare for an impending visit, check test findings, or obtain instruction.

 

A number of nations have established telemedicine practice guidelines. Telemedicine practice standards, not to be confused with the standard of care or scope of practice, are regulations and restrictions that clinicians must follow while practising medicine through telemedicine and often do not apply to in-person treatment. Patient informed consent to telemedicine services, specific disclosures on the provider’s website, mandatory forwarding of the patient’s medical records to the patient’s other caregivers, restrictions on the type of telemedicine technology/modality that can be used, and requirements for in-person examinations are examples of practice standards. Thus, providers must comprehend and follow nation-specific practice requirements, or risk being sanctioned by the Board of Medicine.

 

Many nations passed new telemedicine laws and guidelines in 2020, altering previous practice standards, permitted modalities, and prescription criteria. Changes included removing face-to-face assessments, practising primarily over the phone, and lifting telemedicine mode prescription limits. Some of these modifications were implemented by legislation, while others were made through executive order or regulation. During the pandemic, many of the alterations were just transient (with expiration dates that, confoundingly, often did not match the federally declared public health emergency date).

 

These exemptions produced a telemedicine regulatory environment that was more concerned with achieving the standard of medical care for a specific patient than of the technological modalities of care delivery (e.g., audio-video versus asynchronous). The American Telemedicine Association (ATA) aided in this endeavour by publishing sample policy wording for State telemedicine laws to serve as a reference source for best practices. This trend toward technology neutral telemedicine legislation is expected to continue in 2022, with stakeholders stressing the relevance of medical standard of care and clinical quality of services above proscriptive modality restrictions.

 


Leveraging AI and Telemedicine


According to MIT research, 75% of healthcare facilities that used AI recognised an enhanced capacity to manage ailments, and 4/5 claimed it proactively helped reduce worker fatigue. With COVID-19 placing a burden on both sectors (amount of clinical information and related patients, as well as increased clinician workload), AI in telemedicine is a strong strategy for the future of medical delivery. Years ago, advances in computers and artificial intelligence made cutting-edge telemedicine applications viable. Policy has been a major impediment to complete implementation until recently. Telemedicine has enhanced patient care and experience via accessibility by bringing AI to the edge, which has been helpful for treating COVID-19 as well as controlling its spread.

 

Physicians, for example, were able to employ internet connected, at home equipment to follow the health of high-risk populations, such as the elderly and post-op patients, while reducing their exposure via remote patient monitoring. This is a game changer, not just because it provides doctors with unprecedented levels of insight into their patients, but also because the more these technologies are employed, the more innovation they enable. For example, Intel is collaborating with Medical Informatics Corporation (MIC) to assist hospitals in centralising and analysing data from devices that monitor patients’ vital signs, reducing the frequency with which care teams must round on patients and reducing “alarm fatigue” by triaging the patients to whom they must respond.

 

AI and edge powered telemedicine has also enabled physicians and hospitals to interact in novel ways, pooling resources during crucial periods. Telemedicine, will have an influence on every aspect of healthcare. In the not too distant future, for example, psychiatric care teams may utilise AI enhanced, high definition videoconferencing to evaluate patients’ facial clues to get a deeper grasp of their emotional states in the present.

 

The most common AI applications in telemedicine include data analysis and cooperation, remote patient monitoring, and intelligent diagnosis and help. The potential of AI may be used to complement doctors’ skills to diagnose and treat patients, reduce physician burnout, and improve the overall patient experience. Due to the continuing public health issue, the emphasis on AI and telemedicine remains a significant push for healthcare executives looking to stay competitive by improving clinician processes and uncovering predictive potential via patient data analysis.

 


Global perspectives on Telemedicine


The constraints on travel imposed by COVID-19 in many areas of the globe have prompted Governments to see the promise of telemedicine and, overnight, alter laws and regulations to allow healthcare practitioners to install telemedicine systems. Many Governments have implemented telemedicine measures in a matter of weeks that would have normally taken years to evaluate and implement. There are several possibilities in the telemedicine arena for existing organisations, firms contemplating expanding into telemedicine, and startups.

 

Healthcare providers are increasingly reaching across borders to give medical services directly to overseas patients and doctors via the use of technology. While hospitals, colleges, research institutes, and healthcare firms have always been involved in global health activities, current communications technology has permanently transformed the delivery paradigm. Today, offering services to patients and doctors situated halfway across the world requires synchronous and asynchronous communication technologies such as e-mail, interactive video, and smartphone applications that aid in diagnosis, consultation, treatment, monitoring, and even medical research. Remote second opinions, in which a healthcare practitioner is requested to confirm a diagnosis or treatment from a distance by either a physician or a patient, have also increased in the worldwide medical industry.

 

International telemedicine is rapidly expanding. Even with a basic internet connection, telemedicine services offer convenience, increased access to experts, cost savings, and collaborations among healthcare providers from other nations. All of this has the potential to improve health outcomes. And, as the globe prepares for public health events like the COVID-19 Epidemic, harnessing telemedicine to battle illness is critical.

 

Although the practice of medicine is regulated globally, telemedicine does not necessarily fall under the conventional realms of legislation and regulation relevant to the medical profession and thus it requires more stringent regulations and monitoring.

 


                Regulations for Telemedicine in the United States of America


While telemedicine is typically permitted in the United States, it is exceedingly complicated and heavily regulated, both in terms of general practice and coverage. There is no federal legislation that controls telemedicine practice. Telemedicine is governed at the State level, and the definition of acceptable telemedicine activities varies widely. States often define telemedicine differently, with some allowing asynchronous connections and others requiring only real-time interactive voice and video chats. In addition to the rules governing telemedicine practice, there are significant differences in telemedicine coverage and payment at both the State and Federal levels.

 

The Medicare Program insures US seniors aged 65 and over, as well as some persons with qualifying impairments. Despite exceptions to Medicare’s Telemedicine Payment Policy, present laws discourage broad adoption and usage of e-health and create a precedent for other big commercial insurers. The Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act was proposed in the United States Senate in 2017, however it has yet to move. This legislation proposes removing Medicaid’s geographical constraints and, if approved, would increase coverage of telemedicine services. As a consequence, telemedicine services would be afforded the same Medicaid validity as in-person appointments, perhaps inspiring other insurers to adjust their private policies.

 

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a piece of US law that establishes data privacy and security safeguards for medical information. Its goal is to eliminate healthcare fraud and abuse by establishing industry-wide standards for healthcare data on electronic billing and other operations. It also necessitates the safeguarding and secure processing of sensitive patient health information. This is addressed by the privacy rule and the security rule, and it is very important in telemedicine.

 

Several commercial insurers have followed suit and are either paying healthcare providers for telemedicine services or directly offering telemedicine access to their members as part of their benefits. Previous rules are also being relaxed, including the expansion of covered telemedicine services and the ability for new patients to be treated through telemedicine rather than just those with a prior connection. Penalties for HIPAA breaches in telemedicine are now waived when Healthcare Personnel (HCP) behave in good faith in the face of the COVID-19 Pandemic.

 

Furthermore, in order to assist telemedicine, practitioners who are licensed out of State and in good standing are permitted to practice beyond State boundaries. The Federal Communications Commission has just established a $200 million coronavirus telemedicine initiative. Variations in acceptance and disparities in legislative frameworks among States have been one of the barriers to telemedicine adoption. These differences call for a government telemedicine policy push to standardise and expedite an overall framework that might increase telemedicine’s penetration throughout the United States.

 

Virtual visits increased dramatically as a result of these legislative changes. Now that virtual care has gained broad acceptance and adoption, regulators, politicians, and industry executives are advocating for permanent reforms that will allow for the ongoing widespread use of telemedicine post-pandemic. We are witnessing new legislation initiatives at both the Federal and State levels, and we anticipate substantial changes in the coming years. While most of this reform will take time, there is a strong desire and motivation at both the Federal and State levels to advance rules that would allow for sustained telemedicine access.


Telemedicine Regulations in the United Kingdom


There are no explicit laws that govern telemedicine in general. Instead, healthcare practitioners will be subject to the same regulations, licensing and registration requirements, and professional standards of conduct that apply to their specific area as they would if the service was performed in-person. At the moment, no legislation or regulations in the United Kingdom directly cover telemedicine.

 

The Care Quality Commission (CQC) is England’s healthcare provider regulator (with Northern Ireland, Scotland, and Wales each having its own regulator). To offer remote medical advice, the CQC requires all service providers to register. Providers must demonstrate to the CQC that the care and treatment they provide will fulfil the criteria of the Health and Social Care Act, 2008 and its accompanying regulations. This implies that digital suppliers of medical advice are subject to the same regulatory framework as non-digital providers.

 

Telecommunications corporations such as BT, Virgin Media, and Sky in the United Kingdom (UK) have committed to help the National Health Service (NHS) carry out telemedicine for healthcare practitioners. Primary care, clinical trials, counselling, and chronic illness evaluations are all being delivered through telemedicine. The Government had previously declared a centrally sponsored “long term plan” to minimise the number of outpatient presentations prior to COVID-19. This has to be implemented considerably quicker than planned due to the rising demand for telemedicine to replace outpatient appointments. Regulators have recognised that providing healthcare through telemedicine may provide an extra degree of risk to patients, which must be addressed by the healthcare practitioner. As a result, a number of UK authorities and trade organisations have attempted to provide guidelines to the professions they supervise.

 

As an example, in April 2019, the General Pharmaceutical Council provided guidelines on delivering online pharmacy services, outlining the actions pharmacists may take to ensure they continue to satisfy the standards required of them.

 

In response to the COVID-19 Pandemic, the General Medical Council released recommendations to help physicians in giving remote consultations and actions they may take to maintain patient safety.

 

The British Medical Association, a trade union and professional association for physicians in the United Kingdom, has recently produced guidelines on how to conduct patient consultations via videoconference. Any healthcare practitioner interested in using telemedicine in the UK should verify that they have the proper licensing and registration for the healthcare services they offer, as well as evaluate any accessible and relevant guidelines published on best practice for remote service provision.

 

Given the recent surge in telemedicine usage, it is expected that regulators will continue to react with any applicable recommendations or rules of behaviour, unique to the healthcare service that they supervise. This is likely to be the case if any regulatory loopholes are discovered, as indicated by the CQC on its website. Legislation may often fall behind technology changes, and as a result, it is probable that this sector will be subject to more examination and legal modifications in the future.


Telemedicine Regulations in China


China has a significant urban-rural health disparity, which large telemedicine networks such as the International MedioNet of China Network, Golden Health Network, and People’s Liberation Army Telemedicine Network have been unable to bridge. The National Health Commission and the National Administration of Traditional Chinese Medicine issued new e-healthcare rules in September 2018 in order to expand telemedicine capabilities and develop the telemedicine industry. This includes advice on commercial company hospital cooperation, telemedicine diagnostics, patient permission, and third-party collaborations. This expanded telemedicine definitions beyond physician-to-physician consultations to include physician to patient contacts, although implementation and regulation remain unclear.

 

In China, remote medical care delivery utilises both proprietary systems and the use of generic remote messaging applications such as WeChat. According to the good administrative practice for remote medical services (for trial implementation), the inviter institute for remote medical services may directly invite the invitee institute to provide technical support for the inviter institute’s medical treatment activities via telecommunications, computer and network technology, and so on. On the other hand, the inviter institution or a third-party organisation may also build a proprietary platform for remote medical care supply.

 

Online healthcare platforms, like those in other Asian countries, are expected to see significant increases in market share in the coming years, particularly following COVID-19, with companies offering direct-to-patient telemedicine subscriptions such as Good Doctor, Alibaba, and Tencent experiencing growth. China is also pioneering contactless technologies, such as a Smart Field Hospital experiment in Wuhan at COVID-19, in which patient care is given by robots and digital gadgets.


Telemedicine Regulations in Australia


In Australia, there are presently no rules or regulations governing telemedicine. Existing rules and regulations governing healthcare delivery apply to telemedicine. Various regulatory and industry organisations in the healthcare profession, however, have issued guidance notes on the delivery of services through telemedicine. For example, the Australian Health Practitioner Regulation Agency (AHPRA), the federal organisation in charge of regulating healthcare professionals in Australia, has released telemedicine information for practitioners on its website (AHPRA guidance). According to the AHPRA guidance, all registered health practitioners may utilise telemedicine as long as it is safe, clinically acceptable for the healthcare being delivered, and appropriate for the patient. The AHPRA guidance further points out that no special equipment is necessary to offer telemedicine services, and that services may be delivered using phone and publicly accessible video chatting applications and software.

 

However, the AHPRA guidance notes that free versions of applications (i.e. non-commercial versions) may not comply with applicable security and privacy laws, and practitioners must ensure that their chosen telecommunications solution meets their clinical requirements, their patient’s or client’s needs, and satisfies privacy laws. In addition to the current “Good Medical Practice: A Code of Conduct for Doctors in Australia,” the Medical Board of Australia has issued online “guidelines for technology-based patient consultations”. The Royal Australian College of General Practitioners (RACGP) has also issued a “guide to conducting telephone and video consultations in general practise”.


Telemedicine Regulations in Europe


The danger of COVID-19 in Europe has required the necessity for patient-accessible telemedicine services. Telemedicine firms such as France’s Doctolib and Qare, Sweden’s LIVI, the United Kingdom’s Push Doctor, and Germany’s CompuGroup Medical SE have all witnessed significant gains in European acceptance. Telemedicine is regarded as both a health service (Directive 2011/24/EU) and an information service (Directives 95/46/EU, 2000/31/EC, and 2002/58/EC) in Europe. A Europe-wide framework is far from being implemented due to the absence of Pan-European common medical responsibility and medical legal rules.

 

Throughout the epidemic, Germany has persistently stayed at the forefront of the digital health change by constantly developing and adjusting laws. DiGA Fast Track was established in 2019 as a result of the Digital Healthcare Act (DVG) and other legal reforms, which meant that applications could be prescribed by physicians and expenses could be paid via German health insurance. Two health applications were legally accessible for prescription on October 5, eleven months after the German Federal Government enacted the DVG.

 

France passed a new healthcare legislation in 2019, based on the Government’s “My Health 2022” strategy, which aims to broaden the country’s e-health emphasis. France intends to improve interoperability; roll out nationwide electronic health records (EHR) to become the cornerstone of e-health platforms; leverage the use of AI in health; establish a data hub for healthcare data sets; and invest further in the public health system’s recent introduction of telemedicine.

 

Telemedicine use has been smashing records in the nation, leading Health Minister Olivier Véran to issue a directive to make it easier to practise telemedicine. Furthermore, the nation has just begun trials for a digital vaccine passport and is making good progress in using health technology to return the country to normalcy. Now, the International Chamber of Commerce (ICC) AOKpass app will be trialled for travellers travelling to the French Caribbean Territory of Martinique and Guadeloupe.


Telemedicine Regulations in India


The Board of Governors (BoG) of the Medical Council of India (MCI), the erstwhile medical education regulator in India that prepared the guidelines in consultation with the premier planning body, the NITI Aayog (National Institution for Transforming India), has attempted to fill an important gap: a lack of legislation and a framework for ethical telemedicine practise. The recommendations identify video, audio, and texting as three means of communication and specify the conditions for practitioners to utilise them, including constraints.

 

As stated in the background of the aforementioned guidelines, the purpose of these guidelines is to provide practical advice to doctors in order for them to begin using telemedicine as part of their normal practice, as well as to provide them with a sound course of action to provide effective and safe medical care based on current information, available resources, and patient needs to ensure patient and provider safety, to be used in conjunction with national clinical standards.

 

The guidelines comprehensively set out the standards, norms, and procedures to be followed by any person who has enrolled in the State Medical Register or the Indian Medical Register under the Indian Medical Council Act (Registered Medical Practitioner/RMP) while practising telemedicine in India through any mode of communication viz. video, audio, or text-based communication, either for exchange of information in real time or in synchronous modes for first consults or follow up patients. The guidelines require RMPs to complete an online training session offered by BoG within three years of the guidelines’ announcement.


Individuals That Are Certified To Provide Telemedicine


Under the guidelines, any individual who is registered in the State Medical Register or the Indian Medical Register (RMP) under the Medical Council Act, 1956 is competent to perform telemedicine.

 

RMPs who intend to practise telemedicine must finish an obligatory online course made accessible by the BoG within three years after notification. Until then, the principles outlined in the guidelines must be observed. The same ethical principles and standards that apply to in-person medical consultations apply to telemedicine.


Telemedicine Consultation Procedure


The guidelines recommend the following procedure, which must be followed by RMP providers.

Consultation using telemedicine

Commencement of consultation and consent – The patient initiates the telemedicine consultation by phone call, video, or text. Following that, the RMP may agree to conduct the consultation. The permission is inferred when the patient initiates the telemedicine session.

Identification – RMP should authenticate the patient’s identity to his satisfaction by asking for the patient’s name, age, address, e-mail ID, phone number, or any other suitable identification.

Brief evaluation – Before providing the telemedicine consultation, a quick examination of the patient should be performed to identify the state of the patient’s health. If the patient’s condition necessitates emergency treatment, the RMP should advise on first aid or other urgent relief, as well as provide assistance.

Information exchange – The RMP must exercise his professional judgment and ask the patient to supply the necessary information (complaints, other consults, medication details, documentation, etc.). The RMP may continue with the consultation after he is satisfied with the information. If the RMP considers that the information supplied is insufficient, he should terminate future telemedicine consultation and recommend in-person consultation. The RMP should keep an accurate record of the whole information exchange with the patient.

Patient management – If the RMP is satisfied with the foregoing information, the RMP may elect to give the patient with particular medications, counselling, or advice/information. The RMP must also keep a complete record of the patient.


Important Telemedicine Consultation Rules and Principles


  1. Initial consultation

The necessity for patient identification is not required for follow-up appointments (those consultations which are given within six months of in-person consultation). If a new symptom appears, it should be treated as the initial consultation.

The RMP must determine whether to employ text, audio, or video communication.

When offering telemedicine consultation, the RMP should exercise professional judgment and should recommend in-person consultation if it seems essential. Emergency treatment or consultation should normally be done in person, however the RMP may continue with telemedicine consultation if it is urgent and suitable in his professional opinion.

RMP has the option to cancel the consultation at any moment and refer the patient for an in-person appointment, and the patient has the same option.

  1. Medications

(a) From time to time, the Central Government may announce drugs (other than those previously specified in Annexure 1 to the guidelines) that may be prescribed through teleconsultation, as well as any limits that may apply, in the following categories:

(i) List O: Medicines that are safe to prescribe through any means of teleconsultation, such as those used for common diseases (paracetamol, ORS solutions, and so on) or those judged required during public health crises.

(ii) List A: Medicines that may be given during the initial video consult and are re-prescribed for refill in the event of a follow-up. This would be a list of medications that are reasonably safe and have a low risk for misuse.

(iii) List B: Medicines that may be provided to a patient receiving a follow-up consultation in addition to those recommended during the in-person consultation for the same medical condition.

(iv) Prohibited list: Prescription only medications.

(b) RMP must provide the patient a picture, scan, or digital copy of the signed prescription by e-mail or any messaging platform.

(c) The prescription should be in accordance with the code of conduct and should not violate the Drugs and Cosmetics Act, 1940 or the regulations enacted under them.

(d) When a prescription is sent directly to a pharmacy, the patient’s express agreement is required. Such a prescription should only be issued to the patient’s preferred pharmacy.

  1. Maintaining Confidentiality

The code of conduct, as well as the IT Act and other data protection requirements, will apply to RMPs who provide teleconsultation.

All information supplied by the patient must be kept secret, and the RMP must take appropriate precautions while using platforms to ensure such confidentiality.

RMP is expected to capture all facts and keep a complete record of the patient, including any documents or information utilised for the consultation and prescriptions.

  1. Cost

RMP may charge a reasonable fee, and telemedicine consultations are to be regarded in the same manner as in-person consultations.

RMP is required to provide a receipt/invoice for the price charged for telemedicine consultation.


Impact of the Guidelines


Telemedicine practice in India has now been given legal standing, thanks to the processes and norms outlined in the guidelines and the code of conduct. These guidelines are extensive and cover every element and the Board of Governors has been assigned the task to:

  • Amend the guidelines if necessary.
  • Issue the medications list under the guidelines.
  • As needed, provide instructions, recommendations, or explanations about these guidelines.

 

Any infraction committed while using telemedicine would be deemed misconduct at the hands of the responsible RMP under the code of conduct. As a result, if the misbehaviour is proven, the RMP may be punished, or their registration may be suspended or terminated.

 

These guidelines herald the beginning of a new era for India’s pharmaceutical business. Patients no longer have to drive to hospitals and wait in large lines to see a doctor for minor issues. The guidelines have cleared the path for consultations to be conducted through any kind of communication medium while still preserving the patient’s interests. This is particularly important given the situation in India as a result of COVID-19, which has made many people unable to obtain healthcare adequately.


Future Modifications and Reforms


The advancement of information technology has had a profound effect on society. Telemedicine refers to the transmission of medical information and knowledge through telecommunications and computer technologies in order to enhance patient diagnosis, treatment, and management. Telemedicine includes distant learning, medical peer review, patient education efforts, and other related activities.

 

The internet, mobile phones, and e-mail are all new areas for healthcare practitioners to explore, and they should proceed with caution. Telemedicine has medicolegal consequences for registration, licensure, insurance, quality, privacy, and secrecy, as well as other dangers involved with electronic healthcare communication. Another critical factor is the physician-patient connection, as well as the quality of care and informed consent. These complex concerns are further compounded by the lack of any legislation or laws, particularly concerning matters such as professional negligence, obligations, liabilities, and fines in such instances. Additional concerns in telemedicine, telemedicine, teleconsultation, telemonitoring, tele-treatment, and patient information records must be addressed.

 

Telemedicine’s reach is expanding, as is the quality assurance of its services. Telemedicine, like the standardisation of information technology, is a growing sector for effective care delivery with standardised information exchange.

 

Despite differences in telemedicine adoption throughout the globe, it is understood by various jurisdictions that telemedicine helps improve health system performance and needs further regulation. Telemedicine has taken a springboard trajectory in the COVID-19 era, as governments and partnerships formed have forged a way to support and accelerate its rollout, particularly in developed countries. During COVID-19, telemedicine proved companies’ capacity to provide excellent care remotely (at home) while simultaneously lowering expenses. This is expected to continue beyond the COVID-19 time-frame, as telemedicine services are strengthened and expanded. Moving on, one area that deserves special emphasis is increasing the use of telemedicine among sub-specialties to supplement primary care. Building relationships among many stakeholders and encouraging open innovations are developing roles that will enable the advantages of telemedicine to reach disadvantaged geographies.

 

Once the COVID-19 phase is finished, regional efforts such as Pan-European initiatives may be considered in terms of acceptable regulatory and governance structures. International initiatives to build a public health preparation framework with telemedicine at the centre of public health response during epidemics like COVID-19 are necessary and countries such as India have taken calls to action in this regard which has spearheaded a new wave of e-health regulations.


† Shantanu Mukherjee, Founder, Ronin Legal.
†† Vatsala Sood, Intern, Symbiosis Law School, Pune.
Legal RoundUpWeekly Rewind

SCC Online Weekly Rewind | Episode 40 with Devika Sharma


SCC Online Weekly Rewind ft. Episode 40 Devika Sharma, Senior Editorial Assistant is out now. The written episode along with the video episode can be watched and read below.


Supreme Court Updates


‘Motor Vehicle Appellate Tribunals’ may soon be a reality!   

With an aim to curtail the pendency before the High Courts and for speedy disposal of the appeals concerning payment of compensation to the victims of road accident, the Supreme Court has asked the Ministry of Law and Justice to consider constituting ‘Motor Vehicle Appellate Tribunals’ by amending Section 173 of the Motor Vehicles Act so that the appeals challenging the award of a Tribunal could be filed before the Appellate Tribunal so constituted. 

The Supreme Court has suggested that there is no need for further appeal against the order of the Appellate Tribunal as the party always has the option of invoking the writ jurisdiction of the High Court for appropriate reliefs.  

https://www.scconline.com/blog/post/2021/12/09/motor-vehicle-appellate-tribunals/  

SC frowns on rising trend to invalidate sexual misconduct proceedings on hyper-technical points 

In a case where there was a minor discrepancy regarding the date of occurrence of the act of sexual harassment of a constable at the hands of his superior i.e. the head constable, the Supreme Court has held that deeming such a trivial aspect to be of monumental relevance, while invalidating the entirety of the disciplinary proceedings against the superior and reinstating him to his position renders the complainant‘s remedy at nought. 

The Court took the opportunity to highlight the rising trend of invalidation of proceedings inquiring into sexual misconduct, on hyper-technical interpretations of the applicable service rules. It hence urged the Courts to be mindful of the fact that there are several considerations and deterrents that a subordinate aggrieved of sexual harassment has to face when they consider reporting sexual misconduct of their superior. 

https://www.scconline.com/blog/post/2021/12/06/sc-frowns-on-rising-trend-to-invalidate-sexual-misconduct-proceedings-on-hyper-technical-points-after-calcutta-hc-reinstates-bsf-head-constable-based-on-minor-discrepancy/  

Consumer Protection| Open to NCDRC to direct deposit of entire or more than 50 % of the amount ordered by SCDRC while staying SCDRC ‘s order 

Explaining the scope of Section 51 of the Consumer Protection Act, 2019, the Supreme Court has held that NCDRC can pass an order to deposit the entire amount and/or any amount higher than 50 per cent of the amount in terms of the order of the State Commission while staying its order. 

However, while doing so the NCDRC has to assign some reasons and pass a speaking order as such an order on the stay application is not to be passed mechanically. 

https://www.scconline.com/blog/post/2021/12/08/consumer-protection-open-to-ncdrc-to-direct-deposit-of-entire-or-more-than-50-of-the-amount-ordered-by-scdrc-while-staying-scdrc-s-order-sc/ 


High Court Updates


Bombay High Court

Rape by person claiming to have supernatural powers

You must have heard about the unfortunate events happening due to blind faith of people and one such incident was addressed by the Bombay HC recently wherein a person was accused of asking a couple who were issueless to perform sexual acts in his presence and on one such occasion he raped the woman. Court noted that the woman had deep faith in the said man and only on account of such faith the husband and wife indulged in sex in his presence which otherwise could have been quite embarrassing.

Bombay High Court while addressing the matter with regard to rape committed by a person claiming to have supernatural powers expressed that,

“It is significant to note that the blind faith of the parties/victim on the accused is the real driver in such cases.”

High Court upheld the conviction of the accused under Section 376 IPC.

https://www.scconline.com/blog/post/2021/12/10/rape-by-person-claiming-to-have-supernatural-powers/

Does S. 327(2) CrPC providing for “in camera” proceedings apply to appeals? Bom HC decides while rejecting Tarun Tejpal’s application

The Bombay High Court at Goa rejected Tarun Tejpal’s plea to conduct “in camera” proceedings in connection with the appeal filed against his acquittal in a rape case. The High Court held that:

“Section 327(2) CrPC would only be applicable to ‘inquiry’ or ‘trial’ and that the same will not apply to appeals, either appeal against conviction or an application seeking leave to file appeal against acquittal.” 

The Court observed:

“In proceedings such as these, i.e. rape cases in general, it is expected that all parties conduct themselves with dignity, sobriety and some sensitivity that is required, particularly, whilst reading evidence pertaining to intimate details. This, we think is not too much to expect from the Advocates appearing for the respective parties. Maintaining decorum in the courtroom is not merely a superficial means of protecting the image of lawyers and judges – but it is absolutely essential to the administration of justice.”

https://www.scconline.com/blog/post/2021/12/07/does-s-3272-crpc-providing-for-in-camera-proceedings-apply-to-appeals/

Rape, Murder of Ragpicker: Merely because crime is heinous and brutal, it won’t be just to get carried away sans any legal proof to substantiate charges

Bombay High Court while addressing a sordid story of two poor, helpless and hapless victims who had not only been raped but one of them had been brutally murdered, held that,

“…prosecution has utterly failed in connecting the dots and bringing home the guilt of the accused.”

To read the detailed brief, please check out the SCC Online Blog.

https://www.scconline.com/blog/post/2021/12/02/rape-and-murder-of-ragpickers/

Jammu and Kashmir and Ladakh High Court

 Mandatory Vehicle Location Tracker and insertion of Panic button

Jammu and Kashmir and Ladakh High Court directed the Union government to implement mandatory Vehicle Location Tracking Devices and Panic Button for all public service vehicles in the tune of Rule 125-H of Motor Vehicles Rules. The Bench remarked,

“It goes without saying that the provisions of Section 136A of the Motor Vehicles Act, 1988 and the Rule 125-H have to be complied with in their letter and spirit. The exemption granted by the Government was limited in a period of time and has since expired.”

https://www.scconline.com/blog/post/2021/12/10/mandatory-vehicle-location-tracker-and-insertion-of-panic-button/

Calcutta High Court

Can mere failure to keep a promise without anything more lead to irresistible conclusion that promise had been dishonestly made from inception?

While addressing a matter under Section 376 of Penal Code, 1860 Calcutta High Court, observed that, it cannot be said that appellant had no intention to marry from the inception of the relationship, infact the relationship did not fructify due to obstruction from the elders of the family.

High Court observed that

Mere failure to keep a promise without anything more cannot lead to the irresistible conclusion that the promise had been dishonestly made from the inception.

https://www.scconline.com/blog/post/2021/12/09/false-promise-of-marriage-2/


Foreign Court

United Kingdom Supreme Court

 

Man with autistic disorder expresses desire to engage in sexual relations: Does he understand requirement of ‘consent’ from another sexual partner? UK SC explains

The Supreme Court of the United Kingdom dealt with a very interesting matter and laid a detailed decisiom regarding ‘consent’ with respect to sexual relations. The matter before the Court raised issues of profound significance under the Mental Capacity Act 2005 for persons with a disturbance in the functioning of mind or brain which potentially renders them unable to make a decision for themselves in relation to having sexual relations. The UK Supreme Court expressed that, the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity applies to everyone in society.

Read here


Legislation Updates 


Tripura Value Added Tax (Eighth Amendment) Rules, 2021 

On December 07, 2021, the Government of Tripura has issued the Tripura Value Added Tax (Eighth Amendment) Rules, 2021 in order to amend Tripura Value Added Tax Act, 2004. 

A new Rule 45A has been inserted which provides “Every registered dealer whose gross turnover in a year exceeds Rs. 40 lakh shall get his accounts, in respect of that year audited by an accountant within 6 months from the end of that year and obtain a report of such audit in Form-XLIV.” 

https://www.scconline.com/blog/post/2021/12/10/tripura-value-added-tax-eighth-amendment-rules-2021/  

Ministry issues clarification on passing general and special resolutions through VC or OAVM 

The Ministry of Corporate Affairs has issued a clarification on passing general and special resolutions through Video Conference (VC) or Other Audio-Visual Means (OAVM) or to transact items through postal ballet vide circular dated December 8, 2021. The companies are allowed to conduct their EGMs through Video Conference (VC) or Other Audio-Visual Means (OAVM) or transact items through postal ballot till 30th June, 2022. 

https://www.scconline.com/blog/post/2021/12/09/ministry-issues-clarification-on-passing-general-and-special-resolutions-through-vc-or-oavm/  

 UAE | Government adopts 4.5 days working week 

The UAE Government has adopted a four and half day working week with Saturday Sundays as off days on December 7, 2021. The law will come into effect from January 1, 2022. 

Public sector workers at the ministerial level will adopt a four and a half day working week, with employees working Monday to Thursday. There will be a half day on Fridays. Saturday and Sunday will be the new weekend for government workers. 

https://www.scconline.com/blog/post/2021/12/08/uae-government-adopts-4-5-day-working-week-shortest-in-the-world/  

SEBI (Substantial Acquisition of Shares and Takeovers) (Third Amendment) Regulations, 2021 

Delisting provisions introduced vide SEBI (Substantial Acquisition of Shares and Takeovers) (Third Amendment) Regulations, 2021 which amends the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011. 

https://www.scconline.com/blog/post/2021/12/07/delisting-provisions-introduced-vide-sebi-substantial-acquisition-of-shares-and-takeovers-third-amendment-regulations-2021/  

COVID 19

The Ministry of Finance has exempted the covid vaccines, when imported into India, from the whole of the duty of customs leviable vide notification dated the September 29th, 2021.

This notification shall come into force on October 1st, 2021 and remain in force up to and inclusive of the 31st December, 2021.

 


*Tanvi Singh, Editorial Assistant has reported this brief.

Experts CornerTarun Jain (Tax Practitioner)


Introduction


It was under the shadow of a war that India introduced two major fiscal legislations; the Income Tax Act, 1961 and the Customs Act, 1962, paving way for tax policy of independent India. Both legislations have witnessed umpteen amendments to accommodate the shifting priorities of the incumbent Governments and are now well past their sell-by date. In respect of customs, no fundamental alteration is required as the law is mostly aligned to the international framework[1] which ensures that it stays abreast with the changing times. However, the framework of the income tax law – notwithstanding the tide of significant policy changes and amendments to reverse the judicial pronouncements – continues to wheel the Indian economy like a patchy retreated tyre.

 

Earnest attempts to bring about holistic changes have not yielded fruit despite the Direct Taxes Code of 2009,[2] the Direct Taxes Code Bill, 2010,[3] followed with a 2013 Bill,[4] all of which lapsed. Thereafter, another fresh attempt in recent past by an Expert Committee in 2019[5] seems to have met the same fate. This is so despite the fact that substantial changes have been made in the income tax policy and law. To enumerate certain landmark changes, the 2016 black money legislation[6]; 15% corporate tax rate for new manufacturing entities announced in 2019;[7] India’s digital services tax i.e. the 2020 Equalisation Levy;[8] Taxpayers’ Charter;[9] scheme for faceless assessments, appeals, penalties;[10] the new scheme for reopening of assessments unveiled in 2021;[11] etc. are some of the path-defining measures. However, their fullest potential cannot be realised given the limitations inherited under the old framework. It is not a surprise, therefore, that the Supreme Court recently implored the Parliament, particularly the draftsmen, to frame simpler tax laws which do not scuttle the taxpayers’ ability to carry out their affairs.

 


Recent decision of Supreme Court


September 9 decision of the Supreme Court in South Indian Bank[12] is a quintessential illustration on why the founding premise of the tax law needs to be revisited. The decision has been rendered in the context of Section 14-A of the Income Tax Act which disallows claim for expenses which are incurred for earning tax free income.[13] This single provision, which was inserted in 2001, has seen more than its fair share of litigation. Notwithstanding the correctness of the underlying premise,[14] stretched interpretation of the law and an indiscriminate and patchy implementation has resulted into multiple and tiresome controversies. In its two decades of existence, it has engaged the Supreme Court more than 25 times and cluttered the dockets of the tax tribunals and High Courts.

 

This part of law illustrates that an over-empowered tax administration results into ad hoc stances. It is routinely invoked by tax officers who insist that a proportional disallowance to the ratio of average investments to average assets is mandatory.[15] The application of this provision and the accompanying subordinate legislation[16] warrants a closer look at the minutest of facts of a business enterprise during the assessment stage, which have to be subsequently revaluated at multiple appellate levels in the tax litigation system. In most cases, the disallowance is pressed upon to require businesses to justify whether the expenditure is not just directly related to exempt income but also to rule out its indirect linkage.[17]

The practice of ad hoc disallowance may appear to be trivial but it indicates a discomforting scenario. It not only obliges business to incur more compliance costs, but also disproportionately influences business choices, making them perennially sceptical of Tax Department’s outlook, and perpetuates a penny wise pound foolish quandary.

 

The Supreme Court decision, echoing Adam Smith’s canon of certainty in tax law, seeks to impress upon the Government that “it is the responsibility of the regime to design a tax system for which a subject can budget and plan”. The Supreme Court has unhesitatingly implored upon the Government to ensure a fair balance of taxpayers’ entitlements such that “unnecessary litigation can be avoided without compromising on generation of revenue”. The observations of the Court, therefore, could not have come at a more appropriate instance. The Government must, however, go beyond. It must reinstitute the tax system such that it scuttles the tax officials’ urge to assume the role of the corporate managers and review their decisions from a tax expediency perspective. In other words, the Department should not be permitted to put itself in the shoes of the taxpayer to assess how a prudent businessman should operate.[18]

 


Aspirational cravings


The ambitious outlines of the Government, to make India a 5 trillion dollar economy[19] and an economic powerhouse, cannot be achieved with an outdated tax system. The recent withdrawal of 2012 retrospective amendment[20] reveals that the Government is not shy of undertaking bold course correction measures. Having undone all legacy issues, it is time for reforming the administration and functioning of officials. All bets now rest on the faceless assessment scheme, which has had a rough start, given the clutch of writs issued by some High Courts on denial of natural justice and quashing of notices for fallacious reopening of past cases by application of old archaic provisions despite simplification brought into the statute.[21] One cannot over-emphasise the urgency for a new tax system which synergises (and not digests) the aspirations and energies of this reinventing nation, a tax system which facilitates business activity and does not scare away business or drive out investments with humongous compliances and energy sapping inspector-like approach of tax officers.

 

The Government of India must attempt a GST-like[22] rewriting of entire direct tax landscape which should be based on deep stakeholder consultations such that the progressive advancement of tax system is not replete with thorny issues. The basis premise of the law must be simple; business should focus on doing business without managing tax consequences and Tax Department should collect tax without sitting in judgment over how business should do business. The correct tax lawmaking process, which is usually centred around budget day, is too secretive and gives overwhelming powers to the tax bureaucracy and requires businesses to immediate react to the changes because, many of which are overnight. India can do well to take inspiration from advanced countries wherein lawmaking is a continuous process of stakeholder discussion and duly factors economic metrices and impact analysis before deploying the tax measure. Such system avoids a trial and error approach and obviates the need for frequent course correction measures which become inevitable when the measure has not been thought through. In short, the tax law must reduce avenues for friction.


† Tarun Jain, Advocate, Supreme Court of India; LLM (Taxation), London School of Economics.

[1]The Indian Customs policy and law is aligned to India’s participation and multilateral agreements inter alia under the aegis of (a) World Trade Organisation; (b) World Customs Organisation; and (c) Harmonised Commodity Description and Coding System (or Harmonised System).

[2] This was draft for public consultation. Available  HERE.

[3] Introduced in the Lok Sabha on 28-8-2010. Available HERE.

[4] Available at HERE.

[5] The Task Force on Direct Tax Code submitted its Report to FM Nirmala Sitharaman on 19-8-2019. For details, see HERE.

[6]The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015.

[7] For details, see, corporate tax rates slashed to 22% for domestic companies and 15% for new domestic manufacturing companies and other fiscal reliefs, (PIB 20-9-2019), available  HERE.

[8]Vide Chapter VI (Part VI) of the Finance Act, 2020 (amending provisions of Finance Act, 2016).

[9]Unveiled in year 2020. For details, see HERE.

[10]For details, see <HERE>.

[11]In terms of Ss. 40-45 of Finance Act, 2021 (amending Ss. 147-151 of Income Tax Act, 1961).

[12]South Indian Bank Ltd. v. CIT, 2021 SCC OnLine SC 692.

[13]“14-A. Expenditure incurred in relation to income not includible in total income.— (1) For the purposes of computing the total income under this Chapter, no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under this Act.”

[14]In a detailed decision in Maxopp Investment Ltd. v. CIT, (2018) 15 SCC 523, the Supreme Court upheld the underlying premise of S. 14-A.

[15]For illustration, see CIT v. Jagson International Ltd., 2018 SCC OnLine Del 12874 opining that the mandatory conditionalities under the Income Tax Rules need to be satisfied before S. 14-A disallowance can be triggered and rejecting the stand of the tax authorities of automatically applying the provision.

[16]I.e. R. 8-D, Income Tax Rules, 1962.

[17]For illustration, see CIT v. Sociedade De Fomento Industrial (P) Ltd., 2020 SCC OnLine Bom 1896 : (2020) 429 ITR 207.

[18]For illustration, see recent decision of the Supreme Court in Shiv Raj Gupta v. CIT, 2020 SCC OnLine SC 589 where the “doctrine of commercial expediency” has been affirmed. In this case the Supreme Court inter alia observed that “a catena of judgments has held that commercial expediency has to be adjudged from the point of view of the assessee and that the Income Tax Department cannot enter into the thicket of reasonableness of amounts paid by the assessee”.

[19] For details, see Vision of a USD 5 Trillion Indian Economy, (PIB 11-10-2018), available HERE.

[20]Vide Taxation Laws (Amendment) Act, 2021 (Act 34 of 2021), assented by the President on 13-8-2021.

[21]For illustration, see Pooja Singla Builders and Engineers (P) Ltd. v. National Faceless Assessment Centre, 2021 SCC OnLine Del 4294, holding that even if principles of natural justice have been complied with, still the proceedings cannot be sustained if an order was passed without issuing a show-cause notice which is a mandatory statutory condition.

[22]See generally, Tarun Jain, One Year of “Goods and Services Tax” in India, available at HERE.

Legislation UpdatesRules & Regulations

The Insolvency and Bankruptcy Board of India made Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons)(Third Amendment) Regulations, 2021 to amend the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

Key Amendments:

In the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016

  • In regulation 17, the following subregulation shall be inserted:

“(1A) The committee and members of the committee shall discharge functions and exercise powers under the Code and these regulations in respect of corporate insolvency resolution process in compliance with the guidelines as may be issued by the Board.”.

  • In regulation 36A, the following subregulation shall be inserted:
    “(4A) Any modification in the invitation for expression of interest may be made in the manner as the initial invitation for expression of interest was made:

    Provided that such modification shall not be made more than once.”.


  • In regulation 39, for subregulation (1A), the following subregulations shall be substituted:
    “(1A) The resolution professional may, if envisaged in the request for resolution plan
    (a) allow modification of the resolution plan received under subregulation (1), but not more than once; or (b) use a challenge mechanism to enable resolution applicants to improve their plans. (1B) The committee shall not consider any resolution plan (a) received after the time as specified by the committee under regulation 36B; or (b) received from a person who does not appear in the final list of prospective resolution applicants; or (c) does not comply with the provisions of subsection (2) of section 30 and subregulation (1).”.
Legislation UpdatesNotifications

The Securities & Exchange Board of India has revised the Risk Management Framework (RMF) for Mutual Funds vide circular dated September 27, 2021. The Circular provides a set of standards comprising the policies, procedures, risk management functions and roles and responsibilities of the management, the Board of Asset Management Companies (AMC) and the Board of Trustees. Key points of the Framework are:

  • The AMCs shall perform a self-assessment of their RMF and practices and submit a report to their Board along with the roadmap for implementation of the framework.
  • The elements of RMF have been segregated into ‘mandatory elements’ which should be implemented by the AMCs and ‘recommendatory elements’ which address other leading industry practices that can be considered for implementation by the AMCs.
  • The self-assessment must be completed and the necessary systems must be in place at the AMCs to enable compliance with the provisions of this circular with effect from 1st January, 2022. However, AMCs may choose to adopt the provisions of this circular before the effective date.
  • Compliance with the RMF should be reviewed annually by the AMC.
  • Reports of such reviews shall be placed before the Board of AMC and Trustees for their consideration and appropriate directions. Trustees may forward the findings and steps taken to mitigate the risk along with their comments to SEBI in the half-yearly trustee reports.
  • There shall be at least one CXO level officer identified to be responsible for the risk management of specific functions of the AMC/Mutual Fund.

The framework will be effective from January 01, 2022.

For details, refer to Risk Management Framework (RMF) for Mutual Funds.

 


*Tanvi Singh, Editorial Assistant has reported this brief.

Foreign LegislationLegislation Updates

On September 24, 2021, the National Centre for Documents and Archives Royal Court published the new Personal Data Protection Law (‘PDPL’), implemented by Royal Decree M/19 of 17 September 2021 in the Official Gazette.

Applicability:

It is applicable to the processing of personal data by companies or public entities, by any means, that takes place in the Kingdom of Saudi Arabia, including the processing of personal data relating to residents of the Kingdom by companies located outside the Kingdom.

 

Data Protection Authority:

The Saudi Data & Artificial Intelligence Authority (‘SDAIA’) will be in charge of supervising and enforcing the implementation of the PDPL for the first two years, after which it may consider transferring the supervisory role to the National Data Management Office, the regulatory arm of SDAIA.

Effective date:

Article 43 of the PDPL provides that the law shall take effect 180 days after the date of its publication in the Official Gazette i.e. it will come into effect  from 23 March 2022.

Note: The effective date shall be delayed for a period of up to five years, and as determined by SDAIA, for companies located outside the Kingdom that process personal data of Saudi Arabian residents.

Duties of Data Controller:

Controller is required to do the following:

  • implement a privacy policy,
  • ensure impact assessments,
  • breach notification to authority and data subject,
  • maintenance of data processing records;

Rights of Data subject:

  • right to be informed,
  • update, correct, or request destruction of their personal data,
  • withdraw consent at any time;

Penalties:

Penalties for breach of the law, including imprisonment for up to two years and/or fines of up to SAR 5 million (approx. €1.1 million).

 

Law is available in Arabic HERE

Hot Off The PressNews

On September 24, 2021, People’s Bank of China announces ban on all crypto currency transactions in order to stop illegal crypto mining.

It has been stated that virtual currencies that are issued by non-monetary authorities, using encryption technology, distributed accounts or similar technologies, and exist in digital form, such as Bitcoin, Ethereum, etc., including so-called stable currencies such as TEDA, does not have the same legal status as legal tender and cannot be circulated in the market as currency.

Read the Press Release HERE
Legislation UpdatesNotifications

The Karnataka Legislative Assembly has passed the Karnataka Police (Amendment) Bill, 2021 to amend Karnataka Police Act, 1963, banning all forms of gambling in the state, including online gambling.

 

Key features of the Bill are:

  • The bill seeks to make gambling a cognisable and non-bailable offence and “include the use of cyberspace including computer resources or any communication device as defined in the Information Technology Act, 2000 in the process of gaming to curb the menace of gaming through the internet, mobile apps”.
  • The bill stipulates that “games mean and includes online games, involving all forms of wagering or betting, including in the form of tokens valued in terms of the money paid before or after the issue of it, or electronic means and virtual currency, electronic transfer of funds in connection with any game of chance.”
  • The bill provides for a fine of Rs 10,000 and imprisonment of six months for first time offenders. For a second offence, violators would receive a jail term of one year and a fine of Rs 15,000.

 


*Tanvi Singh, Editorial Assistant has reported this brief.

Legislation UpdatesNotifications

The Government of Goa has extended the last date for clearing the dues on water charges for all Domestic & non-domestic water consumers under the Dues Recovery and Settlement Scheme 2020-21 till October 31, 2021, vide notification dated September 16, 2021.

The scheme applies to the following:

  • To those water consumers who have defaulted on dues up to 31st October 2020,
  • The defaulting water consumers whose cases are referred to Revenue Recovery Court as on October 31, 2020
  • Those water Consumers whose installations are either temporarily or permanently disconnected as on October 31, 2020.

*Tanvi Singh, Editorial Assistant has reported this brief.

Law School NewsMoot Court Announcements

Government Law College, Mumbai, in association with the Wildlife Conservation Trust and the Initiative for Climate Action, presents the 3rd Wildlife Protection Government Law College National Online Moot Court Competition, 2021.

The Wildlife Protection Government Law College National Online Moot Court Competition is India’s first wildlife conservation-focused Moot Court Competition. This years’ event marks its third edition, with the view of creating awareness on the challenges faced by wildlife among law students. The Competition is scheduled to be held online from 26th to 28th November, 2021.

Government Law College, Mumbai, is pleased to invite a team from your esteemed institution to participate in the enriching experience of this Moot Court Competition. The theme for this year’s Moot Proposition is Compensation as a tool to mitigate human- wildlife conflict.

Organisers:

Government Law College, Mumbai, established in 1855 is the oldest law college in Asia, a pioneer in legal education – an institution par excellence. The generations of legal luminaries who have been nurtured by this unique institution have made a seminal contribution to the evolution of the Indian Legal System.

Wildlife Conservation Trust (WCT) was envisioned to preserve and protect India’s rich natural heritage. Currently, WCT works in and around 160 Protected Areas across 23 states in the country covering 82% of India’s 50 tiger reserves. WCT aims to reduce anthropogenic pressure on forests and river systems with the involvement of the forest department, local communities, corporates and other NGOs, with a firm belief in landscape-level conservation, factoring in the needs of people dependent on these forests.

Government Law College, Mumbai and Wildlife Conservation Trust are pleased to announce Initiative for Climate Action (ICA) as our Knowledge Partner and DSP Investment Managers as our Supporting Partners for the 3rd Wildlife Protection Government Law College National Online Moot Court Competition, 2021.  

The ICA is a Bangalore-based transformative climate action non- profit with a vision that imagines, enables and accelerates low- carbon and zero- carbon futures of justice and sustainability. The ICA is currently focusing on developing and disseminating contextual and actionable climate knowledge and building collaborative frameworks that enable people to work together to solve complex climate problems.

DSP Investment Managers (DSPIM) is an Indian asset management company (AMC), with a wide range of offerings across the risk-reward spectrum. DSPIM is backed by the 150+ year old DSP Group which has been very influential in the growth and professionalization of capital markets and the money management business in India. DSPIM has been an avid supporter of  WCT’s initiatives & projects since several years. DSPIM is enthusiastic of its support to ‘Combating Wildlife Crime’ Project and looks forward to battling this grave issue and making a difference together. Visit us on www.dspim.com for more.

 

Competition Details:

The Moot Proposition of the competition primarily deals with issues relating to Wildlife and Forest Law, highlighting the emerging legal landscape, and has been drafted by experts in the field. The participants will be made to go through extensive Mooting Rounds, to ensure that only the two best teams reach the Final Round of Arguments. All participants must present their Written Submissions prior to the Competition.

The Moot Court Competition will be conducted over three days where the participating teams will go through two Preliminary Rounds of Argument, Quarter-Final Rounds of Argument, the Semi-Final Rounds of Argument and ultimately, the Final Round of Arguments. Eminent lawyers and Judges of the highest standing in India, academicians and experts in the field of wildlife and forest law shall converge to adjudicate the various rounds of the Competition.

A unique feature of our Competition is a Panel Discussion which witnesses the representation of eminent personalities from the field of environmental law, wildlife conservation, media, etc. The panel discussion will provide teams the opportunity to learn from and interact with these diverse professionals.

Registrations: 

Registrations for the competition are now open. Your esteemed university can provisionally register for the competition by sending an email to wpm.glc@gmail.com stating your interest to register. Please note that registration is on a first-come first-serve basis. Participation is limited to 18 teams.

 

Only after the provisional registration has been confirmed will a link to a Google Form and details for the payment of registration fees be provided. The payment of registration fees will be through NEFT in the amount of Rs. 1,800/- (Rupees one thousand eight hundred only) the details of which will be provided once the provisional registration has been confirmed.

Please note that the teams must fill in the registration form and make the payment via NEFT before 26th September, 2021, latest. The teams will be required to upload the screenshot/proof of the same while filling the google form for registration.

For more details refer

WPM Proposition

WPM Rules 2021

Registration Schedule WPM

 

If you require any further information or assistance with respect to this competition, you may email us at wpm.glc@gmail.com or mcaglc@gmail.com

Eligibility:
Participants must be current students of any recognised law college in the country. Each team shall comprise three students- two speakers and one researcher.

Moot Schedule: 

Last date for registration for the competition: 26th September, 2021

Last date to seek clarifications: 30th September, 2021

Last date of submission of soft copies of Memorials: 27th October, 2021

Oral Rounds: 26th to 28th November, 2021.

Contact details: 

Registrations:-

Ms. Shreya Bohra :- 8652110006

Memorials :-

Ms. Lubaina Sutarwala :-  9619812699

Experts CornerKapil Madan


Introduction


 

India has been a signatory to the UN Single Convention on Narcotics Drugs 1961, the Convention on Psychotropic Substances, 1971 and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 which prescribe various forms of control aimed to achieve the dual objective of limiting the use of narcotics drugs and psychotropic substances for medical and scientific purposes as well as preventing the abuse of the same.

The administrative and legislative set-up in the field of narcotics has been put in place in India in accordance with the aforesaid spirit of the UN Conventions. The basic legislative instrument of the Government of India in this regard is the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

The scheme of the Narcotic Drugs and Psychotropic Substances Act, 1985 trifurcates the substances into three kinds which are as follows:

(i) narcotic drugs;

(ii) psychotropic substances; and

(iii) controlled substances.

The Supreme Court and various High Courts in plethora of judgments have observed that such offences are of extremely heinous nature, as such substances can affect an entire generation of youth.[1] Thus, the Act is framed and interpreted as one of the strictest legislations in the sphere of criminal law as far as grant of bail to the accused is concerned.


Importance of recovery in investigation of offences under NDPS Act


 

It is submitted that “recovery” and “possession” is a vital aspect of investigation under the NDPS Act. This is because the accused is “found” to be in possession of the prohibited substance, Section 54 of the Act gives rise to a presumption of commission of offence and Section 35 of the Act  gives rise to a presumption of culpable mental state.

Therefore, the officer or the raiding party which effects recovery are witnesses to the said fact which would constitute an offence and therefore investigation of the said aspect has to be carried out by an independent agency. Investigation being a systemic process and not a forgone conclusion making the FIR itself lodged by the informant who himself affects recoveries to be treated as a gospel truth.[2]

Such presumptions against the accused may be necessary however, they also cause grave prejudice to the accused. Moreover, firm belief on the FIR and the information provided by the informant does not rule out the possibility of a person being falsely implicated for commission of offence under the Act.

For instance, in a hypothetical situation, if an accused was never in possession of the alleged contraband, and the same has been planted upon him by the investigation agency, the accused would never be able to prove his innocence at the time when such search, seizure and arrest is being conducted; owing to above-stated presumption which the act itself draws against the accused.


Stringent conditions on bail under the NDPS Act


 

The conditions for bail also differ from the general rule of bail in criminal jurisprudence. Section 37 of the Act (in commercial quantity), two additional preconditions are imposed upon the accused in addition to the ones  prescribed under Code of Criminal Procedure, which are to be satisfied before an accused can be enlarged on bail. Section 37 is reproduced hereinbelow for ease of reference:

 

  1. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

* * *

(b) no person accused of an offence punishable for 3 offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

It is submitted that such a provision has been inculcated in the Act as there is compelling State interest which is involved in the implementation of the aforementioned Act owing to the very serious  nature of the offences.[3]

 


Safeguards available to the accused under the NDPS Act


It is a settled position in law, that no matter how strict a legislation is intended to be, it is necessary that it envisages some protections, compliances and procedures to be conducted during the implementation of the provisions of the Act, in order to prevent the misuse/abuse  of the penal provisions of any legislation.

The NDPS Act, 1985 being no different, vide Chapter V prescribes certain mandatory procedural compliances which are to be conducted while conducting a search, seizure or arrest of an accused person.

Such provisions which deal with procedural compliances shall be discussed and deliberated upon in detail hereinbelow:

  1. Section 41 of the NDPS Act, 1985

 

Section 41 of the Act deals in detail with the power to issue a warrant for a search and seizure. Section 41 is reproduced hereinbelow for ready reference:

  1. Power to issue warrant and authorisation.— (1) A Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed.

(2) Any such officer of gazetted rank of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces to be empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.

(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42.

A bare perusal of the abovementioned provision shall make it clear that:

(a) Section 41(1) deals with the power of the Magistrate to issue the warrant, to conduct a search.

(b) Section 41(2) enshrines similar power to a gazetted officer of the departments mentioned therein or any other officer with the authorisation of such gazetted officer to conduct a search.

(c) The Magistrate or the gazetted officer as the case may be  prior to taking any action under the captioned provision of the Act must ensure that they have a reason to believe that an offence under this Act has been committed.

Further with regard to the authorisation of the gazetted officer which finds mention in Section 41(2), the Supreme Court in T. Thomson v. State of Kerala[4] has held that such  authorisation under Section 41(2) is not required when the gazetted officer is himself conducting the search and is only required in case where the search is to be conducted by a subordinate  to conduct the search on his behalf.

 

2. Section 42 of the NDPS Act, 1985

 

Section 42 of the Act empowers a gazetted officer or his subordinate mentioned under Section 41(2) to conduct search, seizure and arrest without warrant or authorisation. The captioned section is reproduced hereinbelow for ready reference:

 

  1. Power of entry, search, seizure and arrest without warrant or authorisation.— (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of Sub-Inspector:

Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

The provision reproduced above may be understood in following manner:

(a) The above provision pertains only to the search of buildings conveyances and enclosed places.[5]

(b) Officer empowered under Section 41(2)  having reasonable belief owing  receipt of an information or from his personal knowledge regarding commission of an offence under the Act has a right to conduct search in the manner prescribed in the provision after recording the information received in writing and obtaining  authorisation in the manner prescribed under the Act.

(c) If the officer has reason to believe that an authorisation cannot be obtained as same would lead to affording of an opportunity to accused to conceal material evidences, the officer may conduct search without authorisation after duly recording such reasons to believe.

(d) Information received or reasons to believe for not obtaining an authorisation must be sent to a designated senior officer within 72 hours of recording the same.

The Supreme Court at numerous occasions has held the following with regard to Section 42 of the Act:

(a) Compliances under Section 42 of the Act  are mandatory in nature.[6]

(b) Non-compliance with the conditions contained therein can lead to serious repercussions such as vitiation of the search conducted and the trial held. [7]

(c) The purpose of this provision is to provide due protection to a suspect against false implication.[8]

 

3. Section 43 of the NDPS Act, 1985

 

Section 43 of the Act prescribes the procedure which shall be followed while conducting a search in a public place. The provision is reproduced hereinbelow for ready reference:

 

  1. Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in Section 42 may

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation.— For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

With regards to the provision reproduced above it is pertinent to note the following:

(a)  The above provision pertains only to the search of “public place” which are defined under the provision.[9]

(b) Unlike Section 42, under the captioned provision does not make it mandatory for the officer conducting the search in “public place”  to record the satisfaction or reasons to believe prior to conduct of search of a public place.[10]

 

4. Section 50 of the NDPS Act

 

Section 50 of the Act specifies the conditions under which the search of a person may be conducted. The provision is reproduced hereinbelow for ease of reference:

  1. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1).

 

(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

 

(4) No female shall be searched by anyone excepting a female.

 

(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973.

 

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.

 

 

It is submitted that scope of the provision reproduced above is limited  and it is only applicable in the instances wherein recovery of contraband has been effected as a consequence of body search and thus such a provision shall not be applicable if the recovery has been affected from a bag or any other belonging which the person was separately carrying.[11]


Non-compliance and its impact on bail


All the statutory compliances which have been discussed above are mandatory in nature. Purpose of these compliances is to ensure that a person is not falsely implicated and he has a fair opportunity in order to defend himself. Further recently Kerala High Court in Sarath v. State of Kerala[12] have held that non-compliance with the mandatory procedure for search, seizure and arrest in the manner as  envisaged in the Act results in  vitiation of such search and such factor can be considered at the stage of investigation in order to grant bail. So, if an accused can prove that the search and seizure conducted upon him was not in consonance or compliance with the procedure prescribed under the Act, the accused shall be eligible for grant of bail.

Thus, if a search, seizure or arrest of a person is conducted in neglect of the compliances as prescribed under the Act, and a person can show sufficient proof of the same, then such non-compliance can act as a mitigating factor against the stringent conditions of bail as imposed under the Act.

However, the onus to prove that there was grave negligence on the part of authorities in observing the compliances under the Act also lies on the accused and the court shall always presume that the authorities have complied.  It is also pertinent to note that till date the courts have failed to define the extent or manner in which the non-compliance on the part of authorities need to be proven in order to make a case for grant of bail and this is an issue on which further clarity is warranted.


Conclusion


In the view above, it is safe to say that under NDPS Act, 1985, the State has compelling interest to safeguard the society from the drug menace and as such the Act provides for stringent bail conditions and reverse presumption against the accused. At the same time, the Act also provides for procedural safeguards qua the search, seizure and arrest non-compliance of which seriously impinges the case of the prosecution and vitiates the prosecution initiated under the NDPS Act.


† Partner, KMA Attorneys.The author can be contacted at kmadan@kmalawoffice.com or +91-9971305252.

††  Senior Associate, KMA Attorneys.

†††  Senior Associate, KMA Attorneys.

[1] Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409.

[2] Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120.

[3] Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, 40.

[4] (2002) 9 SCC 618.

[5] Krishna Kanwar v. State of Rajasthan, (2004) 2 SCC 608.

[6] M. Prabhulal v. Directorate of Revenue Intelligence, (2003) 8 SCC 449.

[7] Chhunna v. State of M.P., (2002) 9 SCC 363.

[8] Kishan Chand v. State of Haryana, (2013) 2 SCC 502.

[9] M. Prabhulal case, (2003) 8 SCC 449.

[10] State of Haryana v. Jarnail Singh, (2004) 5 SCC 188.

[11] Jarnail Singh v. State of Punjab, (2011) 3 SCC 521.

[12] 2021 SCC OnLine Ker 2840.

Appointments & TransfersNews

Appointment of Judges

President appoints Justice Abhijit Gangopadhyay, Additional Judge of the Calcutta High Court, to be a Judge of the Calcutta High Court and Justice Jyotsna Rewal Dua, Additional Judge of the Himachal Pradesh High Court, to be a Judge of the Himachal Pradesh High Court.

 


[Notification dt. 27-07-2020]

Ministry of Law and Justice

Case BriefsHigh Courts

Orissa High Court: S.K. Panigrahi, J., while addressing a matter with regard to money laundering by way of ponzi schemes, stated that,

“Act of money laundering is done in an exotic fashion encompassing a series of actions by the proverbial renting of credibility from the innocent investors.”

Petitioner has sought bail in a complaint case pending before Sessions Judge, Special Court under PMLA.

Cheating

Case under Sections 406, 420, 468, 471 and 34 of Penal Code and Sections 4, 5 and 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 was registered on the basis of a complaint alleging that the complainant had been cheated and defrauded by alluring to invest Rs 10,000 in the attractive investment scheme of Fine Indiasales (P) Ltd.

Complainant further submitted that he had introduced 20 more people to invest in the said scheme.

Complainant neither received the financial product nor the product voucher as per the agreement with FIPL.

FIPL collected huge amounts of money from the public and ultimately duped huge amount from innocent public by giving false assurance of high return for their deposit of money.

In view of the above, complainant requested for an investigation.

FIPL floated a fraudulent scheme

According to the investigation it was found that, FIPL had floated a fraudulent scheme with a terminal ulterior motive to siphon off the funds collected from public.

Ponzi Scheme

The advertised scheme of FIPL, ex-facie appeared to be a bodacious Ponzi scheme, inducing the susceptible depositors by way of misrepresentation, promising immediate refund in case of any default and timely payment of return on the part of FIPL.

Investigation prima facie established that the accused persons connected with  FIPL not only criminally conspired and cheated the depositors but also lured them into the scheme with a rogue mindset.

Machiavellian Layering | Shell Companies

Investigation revealed that the said money, stained with the sweat, tears and blood of multitudes of innocent people has since been moved around and subjected to Machiavellian layering through a myriad of shell companies and bogus transactions.

The collected amount was immediately transferred to different bank accounts of individuals as well as firms under the management and control of the Promotors/Directors/Shareholders of the said FIPL which is nothing but an act of sheltering.

Money Laundering

Modus Operandi adopted while transferring the prodigious sum of ill-gotten wealth with the singular intention of concealing the original source of funds and to project the tainted money as untainted ex facie constitute the offence of money laundering.

Court’s Observation

On the cursory look, Court prima facie observed that dishonesty, untruth and greed eroded the faith of common investors.

One of the significant stages of money laundering is “layering”, and in the present case, multiple use of corporate vehicles was done and the amount was layered further.

The act money laundering involves the process of placement, layering and integration of “proceeds of crime” as envisaged under Section 2 (u) of the Act, derived from criminal activity into mainstream fiscal markets and transmuted into legitimate assets.

“…laundering of tainted money having its origins in large scale economic crimes pose a solemn threat not only to the economic stability of nations but also to their integrity and sovereignty.”

Proceeds of Crime

Petitioner along with others attempted to project the “proceeds of crime” as untainted money by transferring the same to different bank accounts in a bid to camouflage it and project it to be genuine transactions.

Financial Terrorism

Bench added to its analysis that, offence of money laundering is nothing but an act of “financial terrorism” that poses a serious threat not only to the financial system of the country but also to the integrity and sovereignty of a nation.

Supreme Court’s opinion

Supreme Court of India has consistently held that economic offences are sui generis in nature as they stifle the delicate economic fabric of a society.

Faustain bargain

Perpetrators of such deviant “schemes,” including the petitioner in the present case, who promise utopia to their unsuspecting investors seem to have entered in a proverbial “Faustian bargain” and are grossly unmindful of untold miseries of the faceless multitudes who are left high and dry and consigned to the flames of suffering.

Reputational Damage of the Country

Abuse of financial system in the manner that occurred in the present case can inflict the reputation of the country in the world of business and commerce.

Alleged offence of money laundering committed by the petitioner is serious in nature and the petitioner’s role is not unblemished.

Hence, Court refused bail to the accused/petitioner. [Mohammad Arif v. Directorate of Enforcement, Govt. of India, 2020 SCC OnLine Ori 544 , decided on 13-07-2020]


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Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., while addressing a bail application made the following observation:

There cannot be a straight jacket formula as to how a woman will react to an act of outrage by a male, since all women are borne into different circumstances in life, go through different things and faces, experience and react differently and necessarily each woman would turn out to be different from the other.

Applicant sought release on bail for being charged with offences under Sections 376, 354-A and 354-B of Penal Code, 1860.

Advocates who appeared in the present matter:

Dr Abhinav Chandrachud with Ms Khushboo Pathak and Mr Wasi Sayyed i/b Mr Prem Pandey for the Applicant.

Mr Ajay Patil, A.P.P. for the State.

Mr Satyam Nimbalkar for the intervener.

Forceful Sexual Intercourse

Complainant was acquainted with the present applicant aged 24 years since past 8 years. Complainant along with her friends went for an overnight Diwali party and somewhere past midnight she went to a bedroom to take rest and went off to sleep. Around 4,30 she was awakened with a feeling and found that someone was forcing himself upon her.

Complainant found that it Applicant who was forcing himself upon her and trying to have sexual intercourse with her by penetrating his penis into her vagina. At this juncture, the Complainant used all possible force to push him away and she was successful in thwarting the sexual overtures by the applicant.

Later, complainant went to find her friends which she couldn’t hence she returned back to the same room where, on not finding the applicant she went off to sleep, but yet again the applicant tried to repeat the same act to which complainant scolded him and left the room.

Distressed Mental Condition

Due to above stated incident, complainant went through mental trauma and was frightened. She narrated the whole episode to her mother and went to a psychiatrist, further she discussed the whole matter with her family and approached the Kondwa Police Station.

Offences were registered under Sections 376, 354 and 354-A of the Penal code, 1860.

Decision

In complainant’s statement, she stated that on applicant trying to establish physical contact with her she raised an alarm to which none of her friends responded, Court was astonished to the said statement.

Another point which seemed incomprehensible was the fact that she did not report the incident to anyone on the same day though she was amidst of the friends and went for an outing. The photographs placed on record would lead to an impression of her being cheerful in the company of the accused and one other friend.

Considering the material placed on record, Court was of the prima facie view that it does not constitute a reasonable ground for believing that the applicant is guilty of the offence charged.

The statements of two witnesses to the effect that the Applicant and the victim were found sleeping in the same room on the same bed will have to be put to test in a trial and this evidence will have to be appreciated cumulatively.

Further the Bench added that,

“…concept of consent of the victim or as to at what stage the consent was revoked and the act of physical indulgence was attempted to be restrained is a matter of trial.”

Court also quoted Warren Buffet,

“If a lady says No, she means may be” or in the expression of Rich Santos for Marie Claire – “Most of us guys have been there; the night ends, we invite the girls come home with us. When a girl says no, we launch into our second and third attempts. Sadly, these attempts are filled with incentives such as promise of guitar playing, of ‘fabulas chicken tenders at the dinner by my place’ or even promises: ‘I will definitely call on the next day’ etc; I have taken girls home after long discussions, changing Nos to Yeses”

above are the old hat tricks and the issue as to whether the girl really consented freely for a physical indulgence with her is to be searched by applying the new standards of modern life and the present social scenario.

On granting bail to the applicant, Court stated that,

Balancing deprivation of his liberty against the possibility of the trial being commencing and concluding in the immediate times is far beyond reality, particularly in the light of the huge galloping pendency which the judicial system would be staring at, at the end of the Covid pandemic. Incarceration of a young boy for an indefinite period would be antithesis to the concept of liberty.

Hence, applicant was granted bail with stringent conditions. [Jitin Mothukiri v. State of Maharashtra, 2020 SCC OnLine Bom 821 , decided on 21-07-2020]