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Policy&Politics

Bail: Procedural fight for restoration of liberty

Sections 440-448 state the conditions of bail bonds. Section 440(1) of the Code of Criminal Procedure states that the amount of the bail bond shall be fixed with due regard to the circumstances of the case and shall not be unreasonable. However, if the amount so levied is heavy, then an application under Section 440(2) has to be filed before the High Court or the Sessions Court for reduction of the levied amount. Now, even after the proper legal representation, the application process may take two to three days without the guarantee of an affirmative order.

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When a person is arrested, his liberty is curtailed by the State as a form of punishment in accordance with law; for restoration of liberty, the said person has to apply for bail in the court of law. Pendency of bail applications has been a major issue from a long time. The issue of pendency of bail applications before various High Courts for example – the cognizance of the pendency of bail applications before the Allahabad High Court was raised in many cases by the Supreme Court. Supreme Court in the judgment of Saudan Singh vs. State of UP has directed to release the persons under prison for 10 or more than 10 years to be enlarged on bail. Therefore, now various High Courts in the light of Saudan Singh v. State of UP are releasing the prisoners who undergone the imprisonment for 10 years.

However, even when the person is released there are many procedural delays which he becomes victim of and hence, there is rampant increase in the number of cases where even after the person is released on bail, he has to wait owing to the procedural delays. In this article the authors will elaborate on the several factors that lead to the delay in release of the person enlarged on the bail by the court.

CAUSES OF DELAY

There is no data on record to show the number of prisoners whose release from jail, after the acceptance of bail application, is delayed. However, there are many noteworthy instances which made it evident that in India it’s the procedure which makes a person suffer the most. Last year, Aryan Khan, son of actor Shahrukh Khan was arrested and got bail however, he could not be released on bail owing to certain regulations in the Mumbai Central Prison at Arthur Road, therefore, he spent one more night in prison. Now, this issue was highlighted the most at that time since, the victim of this delayed process was celebrity’s son. Although there is absence of data on how many people face the same problem yet the authors being the practicing advocates encounter these issues on a regular basis. The other day we had to file the bail bonds of a person who got bail in criminal appeal pending before the Allahabad High Court, Lucknow Bench now the person was convicted by the sessions court in 2009 and the particular division which convicted the appellant was demolished due to some structural changes in 2017 now in the absence of notice that where the matters of that particular court were transferred we were unable to find the in charge court before which the bail bonds were to be filed this whole procedure took one day. This incident is a clear example that there is a dire need to bring reforms in criminal justice system. This incident might happen once in hundred cases.

Sections 440-448 state about the conditions of bail bonds. Section 440(1) of the Code of Criminal Procedure states that the amount of the bail bond shall be fixed with due regard to the circumstances of the case and shall not be unreasonable. However, if the amount so levied is heavy then an application under section 440(2) has to be filed before the High Court or the Sessions Court for reduction of the levied amount. Now even after the proper legal representation the application process may take two to three days without the guarantee of the affirmative order.

However, there are other causes as well, when a bail order is passed the counsel of the bail applicant has to first apply for the certified copy of the bail order passed by the court of law. Sometimes, it also happens that the bail order does not get uploaded on time which also causes the unnecessary delay in the release of the person. Then the person has to apply for the certified copy of the bail order, now this may take one day. After this the bail order is verified and if no amount is fixed for filing the bail bonds, then the counsel has to draft application for amount fixing before the court concerned along with a short-affidavit then the concerned Judge fixes the amount and then the particulars of the sureties are sent for verification by the court.

The court concerned before which the bail bonds are filed sometimes fixes the hefty amount upon the person enlarged on bail because of which it sometimes becomes difficult for the person so released to arrange the sureties. The problem does not end only here, the courts while granting bail, impose a condition of furnishing a bail bond. The prisoner through a local surety, relative or a friend, has to arrange the amount either in the form of property documents, RC of vehicle or through a fixed deposit receipt. This is a challenging process for prisoners who belong to indigent backgrounds or are migrants from different states, having no local contact or money in the state where they are lodged, not only this but the other challenge arises when the bail bonds are sent for verification to the tehsil or police station where the sureties reside this process sometimes takes one month depending on the locality of the residence of the sureties arranged by the person released on bail.

CONCLUDING REMARKS

Last year the issue of delayed communication of the bail orders to the jail authorities was addressed by Supreme Court bench comprising of L. Nageswara Rao, J.; B.R. Gavai, J.; S. Ravindra Bhat, J. “In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials” Mr. Sidharth Luthra who was Amicus Curiae in the matter told the bench that “When bail orders are passed, it becomes a peculiar situation because the orders don’t reach the jail, the jail authorities don’t know if the person is granted bail or not. The intimation only goes when the bail order goes to the court and then the court looks at the personal bond and based on that the person is released…The man is in custody when the lawyer is arguing in court. Also, it may be an amicus or the legal aid lawyer arguing. Families often do not reach the court. This frustrates the rights of a lot of people. I understand the problem in incorporating it as a rule but it may also come as a direction in the final order. It may come as a part of your lordships’ order because once the order is passed, it only needs a communication from the court concerned to the jail authorities”

In the light of the facts stated above the authors are of the view that a strict timeline should be set by courts for the address verification, because in this whole process sometimes we witness that the court officials or the police officers get the opportunity to get the unjust enrichment from the prisoners’ family for expeditiously releasing the person from jail. Although the bail bonds are the written promises between a criminal defendant to appear for trial or pay a sum of money set by the court, but when a person is arrested, he/she loses the liberty and for restoration of that liberty the person gets enlarged on bail by the court of law. Therefore, it is of utmost importance that the liberty gets restored expeditiously by releasing the person as soon as possible by curtailing the unnecessary procedural formalities or setting a strict timeline for the whole procedure.

There is no data on record to show the number of prisoners whose release from jail, after the acceptance of bail application, is delayed. However, there are many noteworthy instances which made it evident that in India, it’s the procedure which makes a person suffer the most. Last year, Aryan Khan, son of actor Shahrukh Khan, was arrested and got bail; however, he could not be released on bail owing to certain regulations in the Mumbai Central Prison at Arthur Road. Therefore, he spent one more night in prison. Now, this issue was highlighted the most at that time since the victim of this delayed process was a celebrity’s son. Although there is absence of data on how many people face the same problem, the authors being practicing advocates, encounter these issues on a regular basis. The other day, we had to file the bail bonds of a person who got bail in criminal appeal pending before the Allahabad High Court, Lucknow Bench. The person was convicted by the sessions court in 2009 and the particular division which convicted the appellant was demolished due to some structural changes in 2017. Now in the absence of notice that where the matters of that particular court were transferred, we were unable to find the in-charge court before which the bail bonds were to be filed; this whole procedure took one day. This incident is a clear example that there is a dire need to bring reforms in the criminal justice system. This incident might happen once in hundred cases.

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Policy&Politics

Govt extends date for submission of R&D proposals

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The Government has extended the deadline for submission of proposals related to R&D scheme under the National Green Hydrogen Mission. The R&D scheme seeks to make the production, storage, transportation and utilisation of green hydrogen more affordable. It also aims to improve the efficiency, safety and reliability of the relevant processes and technologies involved in the green hydrogen value chain. Subsequent to the issue of the guidelines, the Ministry of New & Renewable Energy issued a call for proposals on 16 March, 2024.

While the Call for Proposals is receiving encouraging response, some stakeholders have requested more time for submission of R&D proposals. In view of such requests and to allow sufficient time to the institutions for submitting good-quality proposals, the Ministry has extended the deadline for submission of proposals to 27th April, 2024.

The scheme also aims to foster partnerships among industry, academia and government in order to establish an innovation ecosystem for green hydrogen technologies. The scheme will also help the scaling up and commercialisation of green hydrogen technologies by providing the necessary policy and regulatory support.

The R&D scheme will be implemented with a total budgetary outlay of Rs 400 crore till the financial year 2025-26. The support under the R&D programme includes all components of the green hydrogen value chain, namely, production, storage, compression, transportation, and utilisation.

The R&D projects supported under the mission will be goal-oriented, time bound, and suitable to be scaled up. In addition to industrial and institutional research, innovative MSMEs and start-ups working on indigenous technology development will also be encouraged under the Scheme.

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Policy&Politics

India, Brazil, South Africa to press for labour & social issues, sustainability

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The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment.

India, on Thursday, joined the G20’s two-day 2nd Employment Working Group (EWG) meeting under the Brazilian Presidency which is all set to address labour, employment and social issues for strong, sustainable, balanced and job-rich growth for all. India is co-chairing the 2nd EWG meeting, along with Brazil and South Africa, and is represented by Sumita Dawra, Secretary, Labour & Employment.

The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment. India has pointed out that the priority areas of the 2nd EWG at Brasilia align with the priority areas and outcomes of previous G20 presidencies including Indian presidency, and commended the continuity in the multi-year agenda to create lasting positive change in the world of work. This not only sustains but also elevates the work initiated by the EWG during the Indian Presidency.

The focus areas for the 2nd EWG meeting are — creating quality employment and promoting decent labour, addressing a just transition amidst digital and energy transformations, leveraging technologies to enhance the quality of life for al and the emphasis on gender equity and promoting diversity in the world of employment for inclusivity, driving innovation and growth. On the first day of the meeting, deliberations were held on the over-arching theme of promotion of gender equality and promoting diversity in the workplace.

The Indian delegation emphasized the need for creating inclusive environments by ensuring equal representation and empowerment for all, irrespective of race, gender, ethnicity, or socio-economic background. To increase female labour force participation, India has enacted occupational safety health and working conditions code, 2020 which entitles women to be employed in all establishments for all types of work with their consent at night time. This provision has already been implemented in underground mines.

In 2017, the Government amended the Maternity Benefit Act of 1961, which increased the ‘maternity leave with pay protection’ from 12 weeks to 26 weeks for all women working in establishments employing 10 or more workers. This is expected to reduce the motherhood pay gap among the working mothers. To aid migrant workers, India’s innovative policy ‘One Nation, One Ration Card’ allows migrants to access their entitled food grains from anywhere in the Public Distribution System network in the country.

A landmark step in fostering inclusion in the workforce is the e-Shram portal, launched to create a national database of unorganized workers, especially migrant and construction workers. This initiative, providing the e-Shram card, enables access to benefits under various social security schemes.

The portal allows an unorganized worker to register himself or herself on the portal on self-declaration basis, under 400 occupations in 30 broad occupation sectors. More than 290 million unorganized workers have been registered on this portal so far.

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Policy&Politics

India to spend USD 3.7 billion to fence Myanmar border

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India plans to spend nearly $3.7 billion to fence its 1,610-km (1,000-mile) porous border with Myanmar within about a decade, said a source with direct knowledge of the matter, to prevent smuggling and other illegal activities. New Delhi said earlier this year it would fence the border and end a decades-old visa-free movement policy with coup-hit Myanmar for border citizens for reasons of national security and to maintain the demographic structure of its northeastern region.

A government committee earlier this month approved the cost for the fencing, which needs to be approved by Prime Minister Narendra Modi’s cabinet, said the source who declined to be named as they were not authorised to talk to the media. The prime minister’s office and the ministries of home, finance, foreign affairs and information and broadcasting did not immediately respond to an email seeking comment.

Myanmar has so far not commented on India’s fencing plans. Since a military coup in Myanmar in 2021, thousands of civilians and hundreds of troops have fled from there to Indian states where people on both sides share ethnic and familial ties. This has worried New Delhi because of risk of communal tensions spreading to India. Some members of the Indian government have also blamed the porous border for abetting the tense situation in the restive north-eastern Indian state of Manipur, abutting Myanmar.

For nearly a year, Manipur has been engulfed by a civil war-like situation between two ethnic groups, one of which shares lineage with Myanmar’s Chin tribe. The committee of senior Indian officials also agreed to build parallel roads along the fence and 1,700 km (1,050 miles) of feeder roads connecting military bases to the border, the source said.

The fence and the adjoining road will cost nearly 125 million rupees per km, more than double that of the 55 million per km cost for the border fence with Bangladesh built in 2020, the source said, because of the difficult hilly terrain and the use of technology to prevent intrusion and corrosion.

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Policy&Politics

ONLY 2-3% RECOVERED FROM $2-3 TN ANNUAL ILLEGAL TRADE THROUGH BANKING: INTERPOL

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However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity.

In a press briefing held on Wednesday, Interpol Secretary General Jurgen Stock unveiled alarming statistics regarding the extent of undetected money laundering and illegal trade transactions plaguing the global banking network. Stock revealed that over 96% of the money transacted through this network remains undetected, with only 2-3% of the estimated USD 2-3 trillion from illegal trade being tracked and returned to victims.

Interpol, working in conjunction with law enforcement agencies and private financial sectors across its 196 member countries, is committed to combating the rising tide of fraud perpetrated by illicit traders. These criminal activities encompass a wide spectrum, including drug trafficking, human trafficking, arms dealing, and the illicit movement of financial assets.

Stock emphasized the urgent need to establish mechanisms for monitoring transactions within the global banking network. Currently, efforts are underway to engage banking associations worldwide in setting up such a framework. However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity. The lack of real-time information sharing poses a significant obstacle to law enforcement agencies in their efforts to combat money laundering and illegal trade.

Stock underscored the role of Artificial Intelligence (AI) in exacerbating this problem, citing its use in voice cloning and other fraudulent activities. Criminal organizations are leveraging AI technologies to expand their operations and evade detection on a global scale. Stock emphasized the importance of enhanced cooperation between law enforcement agencies and private sector banking groups. Realtime information sharing is crucial in the fight against illegal wealth accumulation.

Drawing inspiration from initiatives such as the “Singapore Anti-Scam Centre,” Stock called for the adoption of similar models in other countries to strengthen the collective response to financial crimes. In conclusion, Stock’s revelations underscore the pressing need for concerted action to combat global financial crimes. Enhanced cooperation between public and private sectors, coupled with innovative strategies for monitoring and combating illicit transactions, is essential to safeguarding the integrity of the global financial system.

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Policy&Politics

FM defends Atal Pension Scheme, highlights guaranteed returns

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Finance Minister Nirmala Sitharaman defended the Atal Pension Yojana (APY) against Congress criticism, asserting its design based on choice architecture and a guaranteed minimum 8% return. She emphasized the scheme’s opt-out feature, facilitating automatic premium continuation unless subscribers choose otherwise, promoting retirement savings. Sitharaman countered Congress allegations of coercion, stating the APY’s guaranteed returns irrespective of market conditions, supplemented by government subsidies.

Responding to Congress’s claim of scheme misuse, Sitharaman highlighted its intended beneficiaries – the lower-income groups. She criticized Congress for its alleged elitist mindset and emphasized the scheme’s success in targeting the needy. Sitharaman accused Congress of exploiting vote bank politics and coercive tactics, contrasting it with the APY’s transparent framework. The exchange underscores the political debate surrounding social welfare schemes, with the government defending its approach while opposition parties raise concerns about implementation and efficacy.

Finance Minister Nirmala Sitharaman’s robust defense of the Atal Pension Yojana (APY) against Congress criticism highlights the ongoing debate over social welfare schemes in India. Sitharaman’s assertion of the APY’s design principles, including its opt-out feature and guaranteed minimum return, underscores the government’s commitment to promoting retirement savings among lower-income groups. The Atal Pension Yojana, named after former Prime Minister Atal Bihari Vajpayee, was launched in 2015 to provide pension benefits to workers in the unorganized sector. It aims to address the significant gap in pension coverage among India’s workforce, particularly those employed in informal and low-income sectors. The scheme offers subscribers fixed pension amounts ranging from Rs. 1,000 to Rs. 5,000 per month, depending on their contribution and age at entry, after attaining the age of 60. Sitharaman’s response comes after Congress criticism alleging the APY’s inefficacy and coercive tactics in enrolment.

Congress General Secretary Jairam Ramesh described the scheme as poorly designed, citing instances of subscribers dropping out due to unauthorized account openings. However, Sitharaman refuted these claims, emphasizing the APY’s transparent and beneficiary-oriented approach. The finance minister’s defense focuses on three key aspects of the APY: Choice Architecture: Sitharaman highlights the opt-out feature of the APY, which automatically continues premium payments unless subscribers choose to discontinue.

This design element aims to encourage long-term participation and ensure consistent retirement savings among subscribers. By simplifying the decision-making process, the scheme seeks to overcome inertia and promote financial discipline among participants. Guaranteed Minimum Return: Sitharaman underscores the APY’s guarantee of a minimum 8% return, irrespective of prevailing interest rates. This assurance provides subscribers with confidence in the scheme’s financial viability and incentivizes long-term savings.

The government’s commitment to subsidizing any shortfall in actual returns further strengthens the attractiveness of the APY as a retirement planning tool. Targeting the Needy: Sitharaman defends the predominance of pension accounts in lower income slabs, arguing that it reflects the scheme’s successful targeting of its intended beneficiaries – the poor and lower-middle class. She criticizes Congress for its alleged elitist mindset and suggests that the party’s opposition to welfare schemes like the APY stems from a disconnect with the needs of marginalized communities. Sitharaman’s rebuttal also addresses broader political narratives surrounding social welfare policies in India.

She accuses Congress of exploiting vote bank politics and coercive tactics, contrasting it with the transparent and inclusive framework of the APY. The exchange underscores the ideological differences between the ruling Bharatiya Janata Party (BJP) and the opposition Congress, with each side advocating for their vision of social welfare and economic development. In addition to defending the APY, Sitharaman’s remarks shed light on the broader challenges and opportunities facing India’s pension sector.

Despite significant progress in expanding pension coverage through schemes like the APY, the country still grapples with issues such as financial literacy, informal employment, and pension portability. Addressing these challenges requires a multifaceted approach involving government intervention, private sector participation, and civil society engagement.

As India strives to achieve its vision of inclusive and sustainable development, initiatives like the APY play a crucial role in promoting economic security and social equity. Sitharaman’s defense of the scheme underscores the government’s commitment to addressing the needs of vulnerable populations and ensuring their financial well-being in the long run.

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Economic

Regulatory steps will make financial sector strong, but raise cost of capital

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India’s financial system regulator, the Reserve Bank of India (RBI), is demonstrating a serious commitment to improving governance and transparency at finance companies and banks, with the RBI’s recent measures aimed at curtailing lenders’ overexuberance, enhancing compliance culture and safeguarding customers.

While the global ratings firm has appreciated the RBI’s “diminishing tolerance for non-compliance, customer complaints, data privacy, governance, know-your-customer (KYC), and anti-money laundering issues”, it has cautioned that increased regulatory risk could impede growth and raise the cost of capital for financial institutions. “Governance and transparency are key weaknesses for the Indian financial sector and weigh on our analysis. The RBI’s new measures are creating a more robust and transparent financial system,” says S&P Global Credit Analyst, Geeta Chugh. “India’s regulator has underscored its commitment to strengthening the financial sector. The drawback will be higher capital costs for institutions,” Chugh cautions.

The RBI measures include restraining IIFL Finance and JM Financial Products from disbursing gold loan and loans against shares respectively and asking Paytm Payments Bank (PPBL) to stop onboarding of new customers. Earlier in December 2020, the RBI suspended HDFC Bank from sourcing new credit card customers after repeated technological outages. These actions are a departure from the historically nominal financial penalties imposed for breaches, S&P Global notes.

Besides, as the global agency points out, the RBI has decided to publicly disclose the key issues that lead to suspensions or other strict actions against concerned entities and become more vocal in calling out conduct that it deems detrimental to the interests of customers and investors. “We believe that increased transparency will create additional pressure on the entire financial sector to enhance compliance and governance practices,” adds Chugh. The global agency has also lauded the RBI’s recent actions demonstrating scant tolerance for any potential window-dressing of accounts.

These actions include the provisioning requirement on alternative investment funds that lend to the same borrower as the bank finance company. Amidst the possibility of some retail loans, such as personal loans, loans against property, and gold loans getting diverted to invest in stock markets and difficulty of ascertaining the end-use of money in these products, S&P Global underlines the faith of market participants that the RBI and market regulator, the Securities and Exchange Board of India, want to protect small investors by scrutinizing these activities more cautiously.

On the flip side, at a time of tight liquidity, the RBI’s new measures are likely to limit credit growth in fiscal 2025 (year ending March 2025). “We expect loan growth to decline to 14 per cent in fiscal 2025 from 16 per cent in fiscal 2024, reflecting the cumulative impact of all these actions,” says Chugh. The other side of the story is that stricter rules may disrupt affected entities and increase caution among fintechs and other regulated entities and the RBI’s decision to raise risk weights on unsecured personal loans and credit cards may constrain growth. Household debt to GDP in India (excluding agriculture and small and midsize enterprises) increased to an estimated 24 per cent in March 2024 from 19 per cent in March 2019. Growth in unsecured loans has also been excessive and now forms close to 10 per cent of total banking sector loans.

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