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Archive for May, 2012

Lapses in the process of drug approval in India

May 29th, 2012 1 comment

The Parliamentary Standing Committee on Health and Family Welfare tabled a Report in Parliament on May 8, 2012, on the functioning of the Central Drugs Standard Control Organization (CDSCO).  CDSCO is the agency mandated with the regulation of drugs and cosmetics in India.  The Report covers various aspects of drug regulation including organizational structure and strength of CDSCO, approval of new drugs, and banning of drugs, among others.

Following the Report, the Minister of Health and Family Welfare has constituted a Committee to look into the procedure for drug regulation.  The Committee is expected to make its submissions within a period of two months.

This post focuses on irregularities in the approval of new drugs by CDSCO.  It discusses the regulations relating to drug approval and the Standing Committee’s observations on the working of CDSCO.

Approval of new drugs

Drugs are regulated by the Drugs and Cosmetics Act, 1940 and Drugs and Cosmetic Rules, 1945 [Rules].  The CDSCO, under the Ministry of Health and Family Welfare, is the authority that approves new drugs for manufacture and import.  State Drug Authorities are the licensing authorities for marketing drugs.

New Drugs are defined as:

  • drugs that have not been used in the country before,
  • drugs that have been approved by a Licensing Authority but are now being marketed for different purposes, and
  • fixed dose combinations of two or more drugs that have been individually approved before but are proposed to be combined in a fixed ratio that has not been approved.

The Rules require an applicant for a new drug to conduct clinical trials in India to determine the drug’s safety and efficacy.  These trials are necessary for both domestically manufactured and imported drugs.  However, the authority can exempt a drug from the requirement of local and clinical trials in the public interest based on data available in other countries.

Observations and recommendations of the Committee

The Committee found that a total of 31 new drugs were approved between January 2008 and October 2010 without conducting clinical trials on Indian patients.  The Report mentioned that drug manufacturers, CDSCO officials and medical experts colluded to approve drugs in violation of laws.  Following are some of the Report’s findings:

  • Under the Rules, the Drugs Controller General (India) (DCGI), the head of CDSCO, can clear sites of clinical trials after ensuring that major ethnic groups are enrolled in these trials to have a truly representative sample.  This rule was violated by the DCGI when sites for clinical trials were approved without ensuring diversity.  The Committee recommended that the DCGI approve sites for trials only if they cover patients from major ethnic backgrounds.
  •  The Report found that certain actions by experts were in violation of the Code of Ethics of the Medical Council of India.  A review of expert opinions revealed that several medical expert recommendations had been given as personal opinions rather than on the basis of scientific data.  Additionally, many expert opinions were written by what the Report calls ‘the invisible hands’ of drug manufacturers.  The Committee recommended that CDSCO formulate a clear set of written guidelines on the selection process of experts with emphasis on expertise in the area of drugs.
  •  The Rules ban the import and marketing of any drug whose use is prohibited in the country of origin.  CDSCO violated this rule by approving certain Fixed Dose Combination drugs for clinical trials without considering the drugs’ regulatory status in their respective country of origin.  Drugs such as Deanxit and Buclizine, which have been prohibited for sale and use in their countries of origin, Denmark and Belgium, respectively, were approved for clinical trials.  The Committee recommended an inquiry into the unlawful approval of these drugs.
  • The Rules require animal studies to be conducted for approval of a drug for use by women of reproductive age.  CDSCO violated this rule in approving Letrozole for treating female infertility.  Globally the drug has only been used as an anti-cancer drug for use among post-menopausal women.  The drug has not been permitted for use among women of reproductive age because of side effects.  The Committee recommended that responsibility be fixed for unlawfully approving Letrozole.
  •  Rules require Post-marketing Safety Update Reports (PSURs) on drugs to be submitted to CDSCO.  PSURs are used to collect information on adverse effects of drugs on Indian patients as a result of ethnic differences.  When asked by the Committee to furnish PSURs on 42 randomly selected new drugs, the Ministry was able to submit PSURs for only 8 drugs.  The Report contended that this action reflected a poor follow-up of side effects on Indian patients.  The Committee recommended that manufacturers of new drugs be warned about suspension of marketing approval unless they comply with mandatory rules on PSURs.

 

Report of the Group of Interlocutors for Jammu and Kashmir

May 25th, 2012 2 comments

The central government appointed the J&K Interlocutors Group on October 13, 2010.  The Group submitted the Report to the Home Ministry earlier this year.  The Report was made public by the Home Ministry on May 24, 2012.

It may be noted that under Article 370 of the Constitution special status has been granted to the State of Jammu and Kashmir.  The power of the Parliament to legislate is restricted to defence, external affairs, communication and central elections.  However, the President may with the concurrence of the state government extend other central laws to the state.  Furthermore, in 1952, an agreement known as the Delhi Agreement was entered into between the state of Jammu and Kashmir and the central government.  The Agreement too provided that the state government shall have sovereignty on all subjects except for matters specified above.  However, since then some central laws relating to other subjects such as environment have been made applicable to the state.

This blog post divides the recommendation into two broad headings: political; and socio-economic.  It also looks at the roadmap proposed by the Group to achieve these recommendations.

Political recommendations:

  • The Group recommended that a Constitutional Committee (CC) should be set up to review all the central Acts that have been extended to the state of Jammu and Kashmir since 1952.  The CC should come out with its findings within six months.  According to the Group, the CC should review whether, and to what extent, the application of central acts to the state has led to an erosion of the state’s special status.
  • The word ‘Temporary’ in Article 370 should be replaced with ‘Special’ which has been used for certain states such as Assam, Nagaland, Andhra Pradesh[1].
  • Central laws shall only be made applicable to the state if they relate to the country’s security or a vital economic interest, especially in the areas of energy and water resources.
  • Currently, the Governor is appointed by the President.  The Group recommended that the state government shall give three names for consideration for the position to the President.  However, the Governor shall finally be appointed by the President.
  • Separate Regional Councils for Jammu, Kashmir and Ladakh should be created and certain legislative, executive and financial powers should be devolved to them.  The subjects that could be transferred to the Regional Council include prison reforms, public health, roads and bridges and fisheries.

Cultural, Economic and Social Recommendations:

  • There are 16 centrally sponsored schemes which are mostly funded by the centre.  However, most of the funds for these schemes have not been utilised properly.  The Group recommended that an effective system to monitor these schemes should be put in place.
  • An expert committee to review the state’s financial needs should be constituted.
  • The central government should tap the hydro-electricity potential of the state.  Till date only 15 per cent of the potential has been harnessed.  Additional hydro-electricity projects should be established for which the central government should meet the entire equity capital.
  • Industrial establishments and other buildings occupied by the security officers should be vacated.
  • Financial package of incentives on the pattern given to the North Eastern States should be given to the state.
  • The hilly, remote areas should be declared as special development zones.
  • The restrictions on the internet and mobile phones should be reviewed.

In order to fulfil these recommendations, the Interlocutor’s Group proposed the following roadmap:

  • The ‘stone pelters’ and political prisoners against whom no serious charges have been framed should be released.
  • There should an amendment and review of the Armed Forces Special Powers Act, 1990 and the Jammu and Kashmir Public Safety Act, 1978.
  • The state policy should provide for the return of Kashmiri Pandits.
  • A judicial commission to supervise the identification of bodies buried in the unmarked graves should be established.

The full report may be accessed here.

Sources:

[1] Article 371 provides certain ‘special provisions’ with respect to states of Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh and Sikkim

Petrol price hiked by over Rs 7 per litre

May 24th, 2012 2 comments

Government owned Oil Marketing Companies (OMCs) raised the price of petrol by Rs 6.28 per litre on May 23, 2012.  After the inclusion of local taxes, this price hike amounts to an increase of Rs 7.54 per litre in Delhi. 

India met 76 per cent of its total petroleum requirement in 2011-12 through imports.  Petrol prices have officially been decontrolled since June 2010.  However, it has been argued by experts that prices of petroleum products have not been increased sufficiently in order to pass on cost increases to consumers.  The inability to pass on international crude prices to consumers has affected OMCs more in recent months due to the depreciating rupee, which has further increased their losses.  The total under recoveries faced by OMCs for diesel, PDS kerosene and domestic LPG for 2011-12 stands at Rs 138,541 crore.  It was recently announced that the OMCs will receive Rs 38,500 crore from the Ministry of Finance to partially compensate for the high under recoveries.

The prices of diesel, LPG and kerosene, which are responsible for the large under recoveries, are unchanged.  Experts suggest that the price hike would have a limited impact on inflation, since petrol has a weightage of around 1 per cent on the Wholesale Price Index, whereas diesel has a weightage of around 4.7 per cent.  The petrol price hike is unlikely to have an impact on the fiscal deficit, since petrol prices are technically deregulated.  Reports suggest that a panel of ministers is due to meet on Friday to discuss diesel, kerosene and LPG prices.

In a 2010 report, the Expert Group on “A Viable and Sustainable System of Pricing of Petroleum Products” (Kelkar Committee) observed that given India’s dependence on imports and rising oil prices, domestic prices of petroleum products must match international prices.  It stated that price controls on diesel and petroleum in particular had resulted in major imbalances in consumption patterns across the country.  This had also led to the exit of private sector oil marketing companies from the market, and affected domestic competition.  Its recommendations included the following:

  • Since petrol and diesel are both items of final consumption, their prices should be market determined at both the refinery gate and the retail level.
  • An additional excise duty should be levied on diesel cars.
  • A transparent and effective distribution system for PDS kerosene and domestic LPG should be ensured through UID.
  • Price of kerosene and domestic LPG should be increased by Rs 6/litre and Rs 100 per cylinder respectively.  The prices should be periodically revised based on growth in per capita agricultural GDP (for kerosene) and rising per capita income (LPG).

Reports suggest that a partial rollback of petrol prices might be considered soon.

 

Power producers refuse to sign supply agreements with Coal India

May 22nd, 2012 No comments

There has been no resolution so far to the issue of assured fuel supply from Coal India Limited (CIL) to power producers.  According to reports, while CIL released a model supply agreement in April 2012, so far only around 13 Fuel Supply Agreements (FSAs) have been signed.  Originally around 50 power units were expected to sign FSAs with CIL.  Power producers have objected to the model FSA released by CIL, particularly its force majeure provisions and the dilution of financial penalties in case of lower than contracted supply.

Background

The adverse power supply situation has attracted greater attention in the past few months.  According to Central Electricity Authority’s data, the gap between peak demand and peak supply of power in March 2012 was 11 per cent.  The decreasing availability of fuel has emerged as a critical component of the worsening power supply situation.  As of March 31, 2012, there were 32 critical thermal power stations that had a coal stock of less than 7 days.  The gap between demand and supply of coal in the past three years is highlighted below:

Table 1: Coal demand/Supply gap (In millions of tonnes)

2009-10

2010-11

2011-12

Demand

604

656

696

Supply

514

523

535

Gap

90

133

161

Source: PIB News Release dated May 7, 2012

Read more…

Changes recommended by the Standing Committee on Land Acquisition and Rehabilitation and Resettlement Bill, 2011

May 18th, 2012 1 comment

(Co-authored by Sana Gangwani and Pallavi Bedi)

The Standing Committee Report on the Land Acquisition and R&R Bill, 2011 was tabled in the Lok Sabha on May 17, 2012.

The major changes to the Bill recommended by the Committee include:

  • Land may not be acquired for use by private companies and PPPs.
  • The role of the local governments should be expanded and made more participatory in the acquisition and R&R process. The role of Gram Sabhas should not be limited to consultation, but their consent should be obtained at different stages.
  • The Clause giving wide discretion to the government in notifying any project as infrastructure project should be deleted.
  • Threshold for R&R provisions should be fixed by the states and not the central government since sale and purchase of land is a state subject in the Constitution (Item 18, State List).
  • There should be a restriction on the acquisition of agricultural land.  The limit on the acquisition of such land should be fixed by the state governments.

For a detailed comparison of the Bill with the recommendations of the Standing Committee see here.

General Anti Avoidance Rule (GAAR)

May 17th, 2012 2 comments

The issue of the General Anti Avoidance Rule (GAAR) has dominated the news recently and there are fears that GAAR will discourage foreign investment in India.  However, tax avoidance can hinder public finance objectives and it is in this context GAAR was introduced in this year’s Budget.  Last week, the Finance Minister pushed back the implementation of GAAR by a year.

What is GAAR?

GAAR was first introduced in the Direct Taxes Code Bill 2010.  The original proposal gave the Commissioner of Income Tax the authority to declare any arrangement or transaction by a taxpayer as ‘impermissible’ if he believed the main purpose of the arrangement was to obtain a tax benefit.  The 2012-13 Finance Bill (Bill), that was passed by Parliament yesterday, defines ‘impermissible avoidance arrangements’ as an arrangement that satisfies one of four tests.  Under these tests, an agreement would be an ‘impermissible avoidance arrangement’ if it  (i) creates rights and obligations not normally created between parties dealing at arm’s length, (ii) results in misuse or abuse of provisions of tax laws, (iii) is carried out in a way not normally employed for bona fide purpose or (iv) lacks commercial substance. Read more…

Cabinet clears four Bills piloted by the Ministry of HRD

May 15th, 2012 No comments

According to news reports (see here and here), the Cabinet approved four Bills for discussion in Parliament.  The Bills cleared for consideration and passing are: the Copyright (Amendment) Bill, 2010; the National Accreditation Regulatory Authority for Higher Educational Institutions Bill, 2010 and the Protection of Women against Sexual Harassment at Work Place Bill, 2010.  It cleared the Universities for Research and Innovation Bill, 2012 for introduction in Parliament.

In this post, we discuss the key provisions of the Bills and the recommendations made by the Standing Committee on Human Resource Development (HRD).

The Copyright (Amendment) Bill, 2010

The Bill was introduced on April 19, 2010 in the Rajya Sabha and referred to the Standing Committee on HRD, which tabled its report on November 23, 2010.  The government had attempted to pass it in the Winter session twice.  However, the Opposition raised the issue of conflict of interest.  The Rules of the Ethics Committee state that a MP has to declare his personal or pecuniary interest in a matter, which is under discussion in the Rajya Sabha.  The MPs contended that the HRD Minister, Kapil Sibal, could not pilot the Bill without declaring his interest.  They argued that his son was the lawyer for a music company which is party to a legal dispute with TV broadcasters to which the amendment would apply (see here for debate on the issue in Parliament).

The Copyright Act, 1957 defines the rights of authors of creative works such as books, plays, music, and films.  Two key amendments proposed in the Bill are:

-          Copyright in a film currently rests with the producer for 60 years.  The Bill vests copyright in a director as well.

-          The Bill makes special provisions for those whose work is used in films or sound recordings (e.g. lyricists or composers).  Rights to royalties from such works, when used in media other than films or sound recordings, shall rest with the creator of the work.

(See here for PRS analysis of the Bill)

Key recommendations of the Standing Committee: (a) Drop the provision that makes the principal director the author of a film along with the producer; and (b) Keep the provisions for compulsory licensing in line with the terms of international agreements.

(See here for PRS Standing Committee Report summary)

The National Accreditation Regulatory Authority for Higher Educational Institutions Bill, 2010

The Bill was introduced on May 3, 2010 in the Lok Sabha and referred to the Standing Committee on HRD, which tabled its report on August 12, 2011.  This Bill is part of the government’s attempt to reform the higher education sector.   The key objective is to provide an effective means of quality assurance in higher education.

Presently, accreditation is voluntary.  Higher educational institutions are accredited by two autonomous bodies set up by the University Grants Commission and the All India Council of Technical Education.  The Bill makes it mandatory for each institution and every programme to get accredited by an accreditation agency.  The agencies have to be registered with the National Accreditation Regulatory Authority.  Only non-profit, government controlled bodies are eligible to register as accreditation agencies.

(See here for PRS analysis of the Bill)

The Standing Committee made some recommendations: (a) assessment for accreditation should start after two batches of students have passed out of the institution; (b) there should be specific provisions for medical education; and (c) registration to accreditation agencies should initially be granted for five years (could be extended to 10 years).  

(See here for PRS Standing Committee Report summary)

The Protection of Women against Sexual Harassment at Work Place Bill, 2010

The Bill was introduced on December 7, 2010 in the Lok Sabha and referred to the Standing Committee on HRD, which tabled its report on December 8, 2011.

The Indian Penal Code covers criminal acts that outrage or insult the ‘modesty’ of women.  It does not cover situations which could create a hostile or difficult environment for women at the work place.  The Supreme Court in 1997 (Vishaka judgment) laid down guidelines to protect women from sexual harassment.  This Bill defines sexual harassment and provides a mechanism for redressing complaints.  The protection against sexual harassment is applicable to all women at the workplace.  However, the Bill does not cover domestic workers working at home.

(See here for PRS analysis of the Bill)

The Standing Committee recommendations addressed issues of gender neutrality, inclusion of domestic workers and the modified definition of sexual harassment.

(See here for PRS Standing Committee Report summary)

The Universities for Research and Innovation Bill, 2012

The Bill was cleared by the Cabinet and is likely to be introduced in Parliament this session.  It seeks to provide for the establishment and incorporation of Universities for Research and Innovation.  These universities shall be hubs of education, research and innovation.

Although an official copy of the Bill is not yet available, newspaper reports suggest that this is an omnibus law under which innovation universities (focused on specific research areas such as environment, astrophysics and urban planning) shall be established.  In India, a university can only be set up through an Act of Parliament or state legislature.  The Planning Commission’s Working Group on Higher Education report stated that these universities could be funded by the private sector as well.  The government aims to create 14 innovation universities, which would be world class.

Rules on blocking of content on the internet to be discussed

May 11th, 2012 No comments

In April last year the government had notified the Information Technology (Intermediary Guidelines) Rules, 2011  (IT Rules) under the Information Technology Act, 2000.  The IT Rules are listed for discussion in Rajya Sabha today in pursuance of a motion moved by Mr.  P. Rajeeve [CPI(M)].  The motion seeks to annul these Rules and recommends that Lok Sabha also concur with the motion.

The IT Rules require intermediaries (internet service providers, blogging sites like Blogger and WordPress, and cyber cafés) to take certain action.  Intermediaries are required to enter into agreements with their users prohibiting publication of certain content.  Content that cannot be published includes anything that is ‘harmful to minors in any way’, ‘blasphemous’, ‘encouraging money laundering’ etc.  This raises three issues.

Some of the categories of content prohibited for publication are ambiguous and undefined.  For instance, ‘grossly harmful’ and ‘blasphemous’ content are not defined.

Publication of certain content prohibited under the IT Rules, is currently not an offences under other laws.  Their publication is in fact allowed in other forms of media, such as newspapers.  Newspapers are bound by Press Council Norms.  These Norms do not prohibit publication of all the content specified under the IT Rules.  For instance, while these Norms require newspapers to show respect to all religions and their gods, they do not prohibit publication of blasphemy.  However, under the IT Rules blasphemy is prohibited.  This might lead to a situation, where articles that may be published in newspapers legally, may not be reproduced on the internet for example in the e-paper or on the newspaper’s website.

Prohibition of publication of certain content under the IT Rules may also violate the right to freedom of speech.  Under Article 19(2) of the Constitution restrictions on the right to freedom of speech may be imposed in the interest of the State’s sovereignty, integrity, security and friendly relations with other States, public order, morality, decency, contempt of court, and for protection against defamation.  The content prohibited under the IT Rules may not meet the requirement of Article 19(2).  This may impinge on the right to freedom of speech and expression.

Further, anyone can complain against such content to the intermediary.  The intermediary is required to remove content if it falls within the description specified in the IT Rules.  In the event the intermediary decides not to remove the content, it may be held liable.   This could lead to a situation where, in order to minimise the risk of liability, the intermediary may block more content than it is required.  This may imply adverse consequences for freedom of expression on the internet.

PRS’s detailed analysis of the IT Rules may be accessed here.

Vacancy in police forces

May 9th, 2012 No comments

Parliament voted on the Demands for Grants for the Ministry of Home Affairs on May 02, 2012. During the debate, MPs expressed concern over the status of police forces in different States of the country.  They emphasised  the need to augment the capability of police forces. Though ‘Police’ and ‘Public Order’ are State subjects, the union government provides assistance to States for strengthening their forces.  For instance, the Ministry of Home Affairs has been implementing a non-plan scheme for ‘Modernization of Police Forces’ since 1969-70.  Under the scheme assistance is provided in the form of grants-in-aid towards construction of secure police stations, outposts, for purchase of vehicles, equipment etc.  (To know more about the scheme, see an earlier blog post on the issue.)

At the all India level, the sanctioned strength of State Police equals 20.6 lakh personnel.  Though there exist wide variations across States, at an average this amounts to 174 police personnel per lakh population.  However, the actual ratio is much lower because of high vacancies in the police forces.  At the aggregate level, 24% positions are vacant.

The table below provides data on the strength of state police forces as in Jan, 2011

State Sanctioned strength Sanctioned policemen/ lakh of population Vacancy
Andhra Pradesh 1,31,099 155 31%
Arunachal Pradesh 11,955 966 42%
Assam 62,149 200 12%
Bihar 85,939 88 27%
Chhattisgarh 50,869 207 18%
Goa 6,108 348 16%
Gujarat 87,877 151 27%
Haryana 61,307 248 28%
Himachal Pradesh 17,187 256 22%
Jammu & Kashmir 77,464 575 6%
Jharkhand 73,005 235 30%
Karnataka 91,256 155 10%
Kerala 49,394 141 7%
Madhya Pradesh 83,524 115 9%
Maharashtra 1,53,148 139 10%
Manipur 31,081 1,147 26%
Meghalaya 12,268 469 17%
Mizoram 11,246 1,112 6%
Nagaland 24,226 1,073 0%
Orissa 53,291 130 18%
Punjab 79,565 291 14%
Rajasthan 79,554 118 11%
Sikkim 5,421 886 27%
Tamil Nadu 1,20,441 178 15%
Tripura 44,310 1,224 17%
Uttar Pradesh 3,68,260 184 59%
Uttarakhand 20,775 211 24%
West Bengal 72,998 81 18%
A&N Islands 4,417 1,018 22%
Chandigarh 7,873 695 22%
D&N Haveli 325 114 13%
Daman & Diu 281 140 6%
Delhi 81,467 441 1%
Lakshadweep 349 478 36%
Puducherry 3,941 352 25%
All India 20,64,370 174 24%

Source: Lok Sabha Unstarred Question No. 90, 13th March, 2012  and Lok Sabha Unstarred Question No. 1042, March 20, 2012

Is prior sanction always required to prosecute army officers under AFSPA?

May 4th, 2012 No comments

The Supreme Court passed its  judgment in General Officer Commanding (Army) vs. CBI on May 01, 2012.  The case addressed the issue of need for sanction to prosecute Army officers under the Armed Forces Special Powers Act (AFSPA).

The case dealt with two instances of alleged fake encounters.  Five people were killed by the Army in Assam in a counter insurgency operation in 1994.  Another five people were killed in Jammu and Kashmir in March, 2000 in an encounter.

In both cases, it was alleged that the Army officers had staged fake encounters.  In both instances, the CBI was directed to investigate the matter.  CBI claimed that the people who were killed were indeed victims of fake encounters.  The CBI moved the court to initiate prosecution against the accused Army officers.

The officers claimed that they could only be prosecuted with the prior sanction (permission) of the central government.  The officers relied on provisions of the AFSPA,1958 and the Armed Forces J & K (Special Powers) Act, 1990 to support their claim.  (See Notes for the relevant clauses)  These provide that legal proceedings cannot be instituted against an officer unless sanction is granted by the central government.

It must be noted that Army officers can be tried either before criminal courts or through court-martial (as prescribed under Sections 125 of the Army Act, 1950).  The Army officers had appealed that both procedures require prior sanction of the government.

The judgment touches upon various issues.  Some of these have been discussed in more detail below:

  • Is prior sanction required to prosecute Army officers for ‘any’ act committed in the line of duty?
  • At what stage is sanction required?
  • Is sanction required for court-martial?

Is prior sanction required to prosecute army officers for ‘any’ act committed in the line of duty?

The judgment reiterated an earlier ruling.  It held that sanction would not be required in ‘all’ cases to prosecute an official.  The officer only enjoys immunity from prosecution in cases when he has ‘acted in exercise of powers conferred under the Act’.  There should be ‘reasonable nexus’ between the action and the duties of the official.

The Court cited the following example to highlight this point:  If in a raid, an officer is attacked and he retaliates, his actions can be linked to a ‘lawful discharge of duty’.  Even if there were some miscalculations in the retaliation, his actions cannot be labeled to have some personal motive.

The Court held that the AFSPA, or the Armed Forces (J&K) Special Powers Act, empowers the central government to ascertain if an action is ‘reasonably connected with the discharge of official duty’ and is not a misuse of authority.  The courts have no jurisdiction in the matter.  In making a decision, the government must make an objective assessment of the exigencies leading to the officer’s actions.

At what stage is sanction required?

The Court ruled that under the AFSPA, or the Armed Forces (J&K) Special Powers Act, sanction is mandatory.  But, the need to seek sanction would only arise at the time of cognizance of the offence.  Cognizance is the stage when the prosecution begins.  Sanction is therefore not required during investigation.

Is sanction required for court-martial?

The Court ruled that there is no requirement of sanction under the Army Act, 1950.  Hence, if the Army chooses, it can prosecute the accused through court-martial instead of going through the criminal court.

The Court noted that the case had been delayed for over a decade and prescribed a time bound course of action.  It asked the Army to decide on either of the two options – court martial or criminal court – within the next eight weeks.  If the Army decides on proceedings before the criminal court, the government will have three months to determine to grant or withhold sanction.

Notes

Section 6 of the AFSPA, 1958:

6. Protection to persons acting under Act – No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”

Section 7 of the Armed Forces (J&K) Special Powers Act, 1990:

7. Protection of persons acting in good faith under this Act. No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”

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