Shimla- Justice S Murlidhar of Delhi High Court who was hearing a petition on Delhi Riots, had sharply condemned both the government and police on Wednesday. His scathing remarks questioned the working of the police. Following it, orders for his immediate transfer came late at night the same day to the Punjab and Haryana High Court.
Earlier on 12th of February, a resolution of the collegium was passed deciding on transfer. Widespread protests were made by lawyers against the resolution of the collegium as the decision was unreasoned, unconventional, against past practices and had the potential to significantly affect the functioning of Courts.
Coincidently the judge on the day of the Center’s notification of transfer was hearing a PIL on DELHI Riots and had asked why there shouldn’t be FIRs against those who had indulged in hate speech before the riots occurred. He told the Delhi Police chief to “seriously consider the consequences” of not registering the FIR.
The judge has been regarded by the DELHI Bar as one of the ‘citizen-friendly judges’ who is known for standing up for individual rights and for passing many orders for checking unconstitutional use of state power. The Judge has delivered several landmark judgments and was known to be impervious to pressure.
The Collegium & Sherlock Holmes
Former Supreme Court Judge Justice Madan Lokur had raised questions on the manner of functioning of the collegium. The Judge observed;
“The mystery behind the change in the appointment of the chief justice from one high court to another will need a Sherlock Holmes to unravel”.
As a rule of practice, It is only when a person is being appointed as a high court judge for the first time that he or she is sent out of his practising court. Once a permanent High Court judge is appointed and posted, he is transferred to another high court only upon elevation as Chief Justice. In the present case, there has been a departure from this rule of practice. In such circumstances where the norms are not being followed and an unconventional procedure is followed then it becomes imperative that reasons are recorded in writing stating the cause of such a departure. Not only reasons have to be recorded but even the consent of the judge needs to be taken. These principles flow from the basic structure of the constitution i.e “independence of the judiciary”.
However, the Notification affecting the transfer doesn’t mention the reasons for the decision, nor does the resolution of the Collegium passed on 12th February state any good reason for the transfer.
The Strike of Lawyers
The hurried manner in which the transfer is effected is troubling so much so that the Delhi High Court Bar Association (DHCBA) has condemned the transfer recommendation and also passed a resolution unanimously regarding this. The Bar Association had expressed dismay at the transfer of one of the finest judges by the collegium of the Supreme Court.
Expressing “shock” at the collegium recommending Justice Muralidhar’s transfer, the high court bar association hoped the decision would be recalled, saying such transfers were “detrimental” to the institution.
The resolution stated;
“Unequivocally and in the strongest possible terms, the Delhi high court bar association condemns the said transfers… Such transfers are not only detrimental to our noble institution but also tend to erode and dislodge the faith of the common litigant in the justice dispensation system. Such transfers also impede free and fair delivery of justice by the bench,” a resolution passed by the association said.
The association requested its members to abstain from work on 20 February 2020, “as a token of protest as the said transfer is a rarest of rare case, the majesty of our revered institution is at stake”.
Hon’ble Judge has been a part of important decisions as, disclosure of assets by judges under RTI, Legalization of Homosexuality and 1984 anti-Sikh riots.
Transfer of Judges – A Threat to The Independence of Judiciary
If the judiciary has to be a bulwark for the protection of the “rights of the individual” and mete out even-handed justice without fear and favour” then it should be independent.
Exercise of the judicial function is one which requires more than any other work a proper balance of mind and an undisturbed and peaceful life. Administration of justice cannot properly be done by a disgruntled judge. If transfer hangs over his head like a Damocles’ sword, the balance of justice slips out of his hand. An immediate and unnoticed transfer may cause so great inconveniences that it may compel him to quit rather than comply with the transfer order.
In the judges’ case, the Supreme Court held that the consent of the judge was not necessary for his transfer from one High Court to another. According to the Court, there are three safeguards against arbitrariness in the use of the President’s power to transfer judges under Article 222. They are:
- There must be full and effective consultation with the
Chief Justice of India.
- The power of transfer can be exercised in the public interest only and not by way of punishment.
- Judicial review of the decision of the President to
transfer a judge.
However, do these safeguards suffice to preserve the independence of the judiciary, one of the cardinal faith of the Constitution? Judges, unlike government servants, hold an office under the Constitution and there is no master-servant relationship between the government and the judge. A close study of Sankal Chand’s case and the Judges case would reveal that the Supreme Court has miserably failed to bring out the clear distinction between the transfers by punishment and transfers in the public interest or the present matter, as the order put it, “for better administration of justice“. These expressions are not capable of any precise definition and in a given set of circumstances may be applied differently by different people. In many cases, it would not be possible to rule out some elements of a penal character. The present procedure, as it stands, has instead of limiting the scope of transfers only enhanced its scope by giving a very elastic definition of public interest and ‘better administration of justice”.
Object /Reason and purpose of transfer needs to be spelt out in Orders
The great Mr Palkhiwala, after examining the Judges’ case had rightly pointed out that the dichotomy was not between transfer in the public interest and “for better administration of justice” and transfer by punishment, but the dichotomy was between transfer in’ public interest’ and transfers for ‘extraneous considerations’. According to him, the object of the transfer and not the result, or effect, of the transfer is the decisive factor. The object of the purpose needs to be clearly spelt out in such orders and this cannot be done in a slip-shod manner.
Consent OF the Judge must be sought
Justice Bhagwati in Sankal Chand’s case and reiterated in the Judges case that the “transfer is made consensual” was the only effective safeguard for a judge against arbitrary transfer and only if such an interpretation is accepted, the noble concept of independence of the judiciary can be preserved. This view is shared by many eminent jurists, judges, lawyers etc. The Lord Chief Justice of England, Hon. Lord Lane, speaking on “Standards of Judicial Independence” expressed the view that a judge ought not to be liable to be transferred from one High Court to another without necessarily seeking his consent. Justice H. R. Khanna, a former judge of the Supreme Court, regretted that the Law Commission’s recommendation that no judge should be transferred without his consent unless a panel consisting of the Chief Justice of India and his four seniormost colleagues find cause for such a course has fallen into deaf ears.
The Hon’ble judge not only ‘did not give his consent‘ but had also taken a critical view of the functioning of the police and remarks made by the members of the ruling party. The timing of the transfer during the pendency of such a sensitive matter is highly suspicious and can have a chilling effect upon judges and judicial functioning.
Better administration of justice can be achieved by providing detailed reasons to the Hon’ble judge and the people of India. Transfers without reason can instil fear in the minds of the judges, the first casualty of which would be the justice itself.
The constitutional provision (Article 222) on the transfer of judges has a direct and proximate connection with the independence of the judiciary. This provision, like many other constitutional provisions, can be made use of for achieving many useful purposes as well as evil purposes until a clear and reasonable interpretation is given to the Article keeping in view the principle of “independence of the judiciary” in mind. Its abuse will have many dangerous effects on the judiciary and its independence. If the judiciary loses its independence and becomes subservient, the net result would be that the Constitution will lose its prominence. Justice Khanna has aptly put it like this:
“Once the independence of the judiciary is undermined and the seats of Justice came to be occupied by men with pliable conscience’ and subservient to the political wing of the State, the first casualty would necessarily be the supremacy of the Constitution, for it, would be open to every branch of the State to ride roughshod over the provisions of the Constitution.”
(The post was first published in https://lawumbrella.wordpress.com/ )
With Neighboring States Going to Curfew, Himachal’s Tourism Sector Again Comes to a Halt
Shimla-Himachal Pradesh Government may not have imposed restrictions on tourist movement, but the industry is facing the heat of second wave of coronavirus pandemic, which has now reached an alarming level. Alarmed by massive spike in new cases and fatalities, Delhi yesterday imposed a curfew for six days.
Further, with neighboring states including Panjab and Haryana going into a lockdown-like situation with the imposition of weekend curfews, tourist influx in Himachal Pradesh has dropped drastically, hitting the tourism industry in Himachal Pradesh. Last weekend the hotels claimed the occupancy was almost zero. The hoteliers and other stakeholders said the current situation is similar to what they faced during the lockdowns last year. After lockdowns spoiled the peak tourist season of the last year, the industry is hardly in a position to take another blow, hoteliers said.
Conditions in Himachal are no better. In 19 days of April month alone, the state has recorded over 14,000 cases and the infection has claimed 155 lives, which is a massive surge in a very short duration. The rates of the surge in new cases and fatalities have also been recorded to be much higher as compared to the previous year.
The state government on Monday said that all educational institutions of the State would remain close till May 1 2021, and faculty of schools, colleges and universities wouldn’t have to come to duty.
The State Government also decided to put a complete ban on transfers of field functional staff.
Right after getting a nod from the Centre, the state government had also postponed the board and UG examinations. Further, the HP Board of School Education is reportedly mulling over promoting class 10 students.
Chief Minister on Monday also said that the government could take more decisions to contain the spread in the meeting to be held on April 22. Some media reports said that the state government has hinted at the imposition of a curfew. While interacting to media yesterday, Chief Minister had also said that there are no plans for a complete lockdown, but if the situation continues to worsen, a curfew can be imposed. The Chief Minister had been maintaining that a lockdown would be the last resort as it would hurt the tourist influx, thus, cause economic damages.
However, if the businessmen and hoteliers are to be believed, currently keeping the state open for tourism is hardly providing any relief. Moreover, they are not able to differentiate between a curfew and lockdown. They have begun to seek relief from the state government.
On the other hand, in case the state decides to impose a curfew, the situation would get quite difficult for the poor, especially migrant workers, daily wagers, and small street-side vendors too.
Further, fear of the collapse of health infrastructure haunts the state as the government is still in the phase of passing directions to the officers to enhance the bed capacity in the hospitals. As per the statement given by Chief Minister on Monday, the state is yet to take steps to ensure the proper availability of oxygen and staff.
“Steps would be taken to ensure the proper availability of oxygen and medical staff in the State. Bed capacity would be enhanced in Nerchowk Medical College, IGMC Shimla, Zonal Hospital Dharamshala, Tanda Medical College, Sunder Nagar Hospital and various other hospitals. Health workers would be posted in appropriate number for the care of Covid-19 patients,” Chief Minister said.
Chief Minister is being condemned for not completing make-shifts hospitals during the lockdown period along with strengthening the health services the way the it was required.
With the re-notification of Shimla’s DDU hospital- one of the busiest in the state- as a dedicated COVID care hospital, the OPDs has been closed. With the ongoing surge in new cases, more hospitals are likely to be re-notification as dedicated COVID care hospitals, and regular OPDs would be closed for other daily patients.
Moreover, for setting bad examples for the people, all political parties and their leaders, including Chief Minister Jairam Thakur, had faced severe criticism over blatant violation of COVID-19 protocols during campaign rallies for the elections to the Municipal Corporations. As a result, the public is hardly taking the second wave seriously and lowering their guards against the infections, which is only worsening the situation.
HP Govt’s Guidelines Formed in Defiance of GoI and Court Directions Leave Disabled Students Troubled
Shimla-The rights of the disabled aren’t only a human rights issue, but it is also a developmental issue. Yet, in India, this section of society is struggling to get into the mainstream and compelled to go to courts to fight for their rights, including equal access to education. Himachal Pradesh is no different when it comes to adopting a comprehensive approach and modern technology to level the field for these students. Display of sensitivity is limited to showing sympathy and feeling sad for persons with disabilities that undermines their potentials and individual capacities to excel in life.
Owing to erroneous attitude towards persons with disabilities, children trying to access education often face neglect from governments that makes their already hard lives harder.
Very recently, such gross negligence and defiance of court orders on the part of the Department of Social Justice and Empowerment, HP Government, came to light after an autistic student of the first year at Government Degree College, Kandaghat, couldn’t take his exams because the current guidelines of the state government make it a mandatory condition that the qualification of his scribe should be one step below the qualification of the candidate taking the examination.
Contrary to these “Guidelines for conducting written examinations for the Persons With Benchmark Disabilities” Hon’ble High Court of Delhi in Aditya Narayan Tiwari Vs. Union of India (dated 4.12.18) has clearly directed the Ministry of Social Justice & Empowerment, Government of India, to not fix any qualification and age criteria for scribes until the examining body doesn’t have its own panel of scribes. Following these orders in the said case (a writ petition), and Union Minister of Social Justice and Empowerment and the University Grants Commission had sissued fresh notifications with special clarification on the criteria of qualification and age on January 6, 2019, and February 26, 2019, respectively.
Moreover, the principal of the college was not clear on the guidelines.
The college told the father of the candidate, Mr Vishal Gupta, that it had forwarded the matter to the University for further clarification, which did not come as quickly as it was supposed to. Himachal Watcher also spoke to Mr Gupta.
“My son is suffering autism (60%) and recently got admitted to BA Part-1 course at Government Degree College Kandaghat, Solan. The previous principal was very co-operative and had allowed a scribe after consulting the University. But now, ahead of my son’s house exams, I was asked to visit the college. The college asked me to provide a copy of the guidelines. I told the Principal that the college was supposed to have these guidelines already,” he told Himachal Watcher (HW).
“The Principal told me that the exams of my son will be put on hold and would be considered only after receiving a copy of the guidelines from the University. While all other classmates are taking examinations, my son couldn’t take two exams which begin from March 13, 2021,” he further told HW.
“I don’t blame the college for this. This entire issue and inconvenience stem out of a grieve negligence on the part of the HP University as it did not circulate directions of the UGC in this regard to the colleges,” Mr Gupta said.
However, when HW took up the issue with the University authority, it turned out the varsity was not at fault either. The varsity was yet to adopt the new guidelines issued by the Department of Social Justice and Empowerment in 2020, hence, previous guidelines (2013) were already applicable. Therefore, the varsity wasn’t supposed to issue any new notification.
Mr Gupta contacted Ajai Shrivastava, Chairman of Umang Foundation (NGO) and Expert Member, HP State Advisory Board on Disability, HPU, and brought the matter to his attention.
It’s pertinent to mention that Mr Shrivastava had been fighting vigorously for the rights of the disabled in Himachal Pradesh, especially for their right to equal access to education at all levels for over a decade now. It was on his PIL that the State High Court had given a landmark judgement directing the Himachal Pradesh Government to provide free education to the students with disabilities up to the university level.
The court had also enhanced the amount of their scholarship and awarded Rs. one lac to the Umang Foundation to be spent for the welfare of the disabled children.
Mr Shrivastava, on being contacted by Mr Gupta, immediately wrote to the Chief Minister requesting him to make the Social Justice and Empowerment Department to withdraw its guidelines which are illegal as these did not comply with the court decision and UGC notification. He also held a press conference at the Press Club, Shimla on March 14, 2021.
“Addl. Chief Secretary (SJ&E) to the Govt. of HP has issued and further circulated the “Guidelines for conducting written examinations for persons with benchmark Disabilities 2020” for implementation on 16th December 2020,” he wrote in the letter.
“In fact, the above-mentioned guidelines have been issued by the HP Govt. in violation of the orders of Hon’ble High Court of Delhi in Aditya Narayan Tiwari Vs. Union of India, dated 4.12.18. In this litigation, Ministry of Social Justice and empowerment, GOI; Ministry of Education, GOI, and UGC etc. were respondents,” he further wrote.
Mr Shrivastava clarified that the Ministry of Social Justice and Empowerment on dated 1.1.2019 issued an Office Memorandum for the “Compliance of orders of Hon’ble High Court of Delhi in the matter of Aditya Narayan Tiwari Vs. Union of India.”
He also clarified that the UGC dated 26.2.2019 wrote to all Registrars of Universities across the country for compliance with the order of the Hon’ble High Court for implementation. The Ministry of S.J. & E. and the UGC, both have reproduced the order of Hon’ble High Court of Delhi as under:
“Till the panel of scribes is formed if any examination is conducted by any of the departments wherein the petitioner and similarly situated persons appear in the exam. the guidelines dated 29.8.2018 shall not be applicable, however, the candidate shall appear in terms of guidelines dated 26.2.2013. ”
Mr Shrivastva further went on to say that it very unfortunate that despite the above, the Department of Social Justice and Empowerment, Himachal Pradesh ignored the directions of the Union Ministry of Social Justice and Empowerment and issued its guidelines.
“It’s gross negligence on the part of the state government. And, the Department of Higher Education whose examinations are governed by UGC through Himachal Pradesh University, has already implemented the said illegal guidelines. HP State, he said.
Further, he wrote that the Education Board has also implemented it.
Mr Shrivastva asked the Chief Minister to keep in view the directions of The Ministry of S.J. & E. and the UGC, withdraw these guidelines of the State Government issued on dated 16.12.2020 in the interest of justice to persons with benchmark disabilities.
However, the Chief Minister Office seems to have its priorities.
Currently, one of the topmost priority of the current government led by Chief Minister Jairam Thakur appears to be the preparation for the Swarnim Himachal” celebrations and Swarnim Himachal Rath Yatra. Chief Minister is personally looking into preparations and has even constituted a High Power Committee regarding preparation for the said celebration. As a matter of fact, yesterday, the Chief Minister held a review meeting for the same at Peterhof, Shimla. Another priority, which huge billboards placed across the state indicate, is to advertise the “Swarnim Himachal” celebration.
The state of these students is a spoiler for the “Swarnim Himachal” celebration as it contradicts claims of achieving milestones in developmental works.
It should be kept in mind that fighting their battle in courts for their rights wasn’t enough to make the state government attend to this section of students. Further, the deliberate contemptuous approach of the bureaucracy is also clearly visible.
Before jumping to some references to the government’s grieve world of neglect for the disabled, try to realize the sensitivity of the matter with comments provided by Deven Khanna, a practising advocate at the HP High Court.
“It is necessary that an explicit, unequivocal and comprehensive procedural mechanism are constituted for the benefit and betterment of disability rights. It is pertinent to fathom that human rights of those living with disability cannot be fought for and secured in a vacuum,” Deven says.
It is apparent that the issue of disability is linked with several other social, economic and political aspects including those of chronic poverty, gender inequality, mal-administration and political victimization. This must be eradicated to create the ‘disability right’ an actual reality. As far as planning and policy-making process about lives and complete recognition and implementation of the human rights of the disabled and other associated rights are concerned, there must be active inclusion of the disabled people in the same process, he says.
India, one of the first few signatories to the United Nations Convention on the Rights of Person with Disabilities, has not complied with the provisions of the same, he says.
The Constitution of India, under Article 41, imposes a duty on the State to generate necessary and effective provisions for securing the right to work, right to education, and to public assistance in cases of unemployment, old age, sickness and disablement.
Laws Relating to Disability:
- Constitution of India – Article 19, 21, 41 and 226
- The Rights of Persons with Disabilities Act, 2016.
- UNCRPD Article 9
- Rehabilitation Council of India Act, 1992
- The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities, 1999
- Rights of Persons with Disabilities Act, 2016
- Mental Health Care Act, 2017
“The State must conduct a discussion of human rights for the persons with disabilities in-depth, so that benefit can be availed out of it. As human beings along with access to and realization of all fundamental and elementary rights, persons living with disabilities require a safe, secure, convenient, beneficial and accessible environment which respects their human dignity,” Devens adds.
Now, consider the following references:
In May 2016, Mr Shrivastava had highlighted how the government was violating orders of the High Court by not providing library facility to the blind and deaf students in the special school at Dhalli. Blind students needed digital library apart from Braille books.
There was no science laboratory in the school. The dead line fixed by High Court to appoint new teachers had also expired on 3rd December 2015, he had alleged.
The government had completely failed to implement the High Court orders that had given relief to the disabled children studying in special schools at Sundernagar and Dhalli, Shimla on the PIL filed by Ajai Srivastava.
In September 2016, the Chief Commissioner for Persons with Disabilities (CCPD) from the Centre was visiting Himachal Pradesh to take stock of the status of facilities for disabled persons, Mr Shrivastava had alleged that the state government of portraying a misleading picture of the disability sector. He had submitted to the CCPD alleging the government had not implemented the CCPD’s examination guidelines for the blind persons despite the High Court’s order on his PIL. He had apprised the CCPD that special school for blind and deaf girls at Sundernagar and a special school for boys at Dhalli, Shimla were poorly managed and lack basic amenities.
In a separate case, Indu Kumari, a poverty-stricken girl from the backward region of Chamba district, in her letter on July 21, 2017, told the Chief Justice that she completed her BA from Rajkiya Kanya Manha Vidyalaya College, Shimla.
However, she was denied admission in MA (Political Science) by HP University despite a provision of a five percent quota for disabled candidates under the Rights of Persons with Disabilities Act, 2016.
Not just Indu, but several other students were also told that the provisions of the new Act were not implemented in the university. These students had to return disappointed.
However, the High Court had come to the rescue of these students by considering the letter as a Public Interest Litigation (PIL).
In August 2017, as a tight slap on the face of Himachal Pradesh University and the State Government, the State High Court had asked them to explain reasons for not ensuring a five percent quota in higher education institutes for disabled students.
Earlier, the division bench comprising Justices Rajiv Sharma and Tarlok Singh Chauhan has passed a judgment on 4th June on the PIL filed by Umang Foundation (No. 30 / 2011). The bench had directed the Dr. YS Parmar University of Horticulture and Forestry (UHF) Solan, Himachal Pradesh University, Shimla and CSK Agriculture University, Palampur to provide free education to disabled children within a period of six weeks. But despite court orders, the UHF Nuani had denied doing so and Ajai Shrivastava had to write to the Registrar of Dr YS Parmar University of Horticulture and Forestry, warning that if the university does not provide free education as per the court’s order, a contempt petition will be filed.
In September 2017, the Disabled Student Association had alleged the Department of Social Justice and Empowerment of withholding scholarships of the thousands of disables studying at the government educational institutes.
When these students approached the Directorate of Scheduled Cast, OBC, and Minority Affairs; they were simply told that there was no budget for their scholarship. Pertinent to mention here that the majority of these disables belong to economically weaker sections of the society and come to the varsity from remote regions in hope of higher education.
In October 2017, The Disabled Students Association (DSA) wrote to the Governor of Himachal Pradesh Acharya Devvrat and urged him to immediately demanding the implementation of reservation of seats in MPhil and PhD under the Rights of Persons with Disability Act, 2016.
However, it did not bring any relief to them.
Further, this indifference toward disabled students is apparent from the fact that the accessible library for the disabled students of Himachal Pradesh University was inaugurated by Chief Minister Jairam Thakur on July 22, 2019, didn’t have basic facilities like a washroom and students, especially visually impaired girls faced huge inconvenience. For a toilet, the Disabled Students and Youth Association (DSYA), Himachal Pradesh, had to submit a memorandum to the Governor and Chancellor, Bandaru Dattatreya, on December 13, 2019.
It was not surprising that the Chief Minister inaugurated a library facility without basic facilities because it was merely a formality performed in response to an order of the State High Court passed in a PIL filed by a disabled student, Banita Rana, in 2014.
In March 2020, visually impaired and other disabled candidates, who were qualified for teaching posts, had to approach the Himachal Pradesh High Court complaining that the government is violating the Rights of Persons with Disabilities Act, 2017 by not implementing reservation to visually impaired and other disabled candidates, who are qualified for teaching posts, in schools, polytechnics and colleges.
Considering the way disabled students were made to fight for their right to equal access to education and even the most basic facilities, previous and current governments laid more focus on their political interests than attending to the hardships of these children.
Unfortunately, while the previous Congress Government failed these disabled children, the current BJP Government went one step ahead in making their lives harder by passing new Guidelines of its own in 2020 which contradicts court orders and directions of the Union Ministry of Social Justice and Empowerment.
The topmost priority, not only of the current government but also previous ones, is to ensure retention of power through politics than attending to very sensitive and urgent matters, like making education equally accessible to disabled children of the state.
Regarding Court Orders in Writ Petitions Filed in 2013 and 2018 Over Availing Scribe for Written Examinations
On a Writ Petition filed in the Delhi High Court (Subhash Chandra Vashishth vs Institute of Chartered Accountants of India) in 2012, the Court in its judgement given on 11, 2013 had directed the Government of India “to abolish current restrictions/conditions imposed on scribes in terms of qualifications.”
Later, in Aditya Narayan Tiwari Vs. Union of India case dated 4.12.18, the Delhi high court clarified on revised guidelines and made it clear that “Till the panel of scribes is formed if any examination is conducted by any of the departments wherein the petitioner and similarly situated persons appear in the exam. the guidelines dated 29.8.2018 shall not be applicable, however, the candidate shall appear in terms of guidelines dated 26.2.2013. ”
But no such panel was formed and the responsibility of availing scribe still lies on the candidate.
Based on a notification issued from the Ministry of Social Justice and Welfare in January 2019, in February 2019 UGC issued a notification to all concerned Universities directing them to communicate the same to all colleges/institutes affiliated with it.
Here is What CM Jairam and MLA Dhawala Said While Proposing Legalization of Cannabis (Hemp) Cultivation in Himachal
Shimla-As usual, while the Budget presented by the Himachal Pradesh Government for the 2021-22 financial year is being hailed by legislators and leaders of Bharatiya Janata Party, the oppositions are terming it an eye-wash and a directionless budget. As usual, the budget speech contains a plethora of promises including filling up about 30,000 functional posts and constructing 12,000 news houses for the poor.
However, there is one proposal that deserves appreciation in particular. Not only it would open more doors of employment in rural areas, but could also prove to be a crucial decision in revolutionizing the state economy. A potential source of income that remained untapped.
It’s about permitting commercial hemp cultivation in the state. In his budget speech, Chief Minister Jairam Thakur told the House that the State Government would frame a policy to legalize hemp cultivation.
“Commercial hemp cultivation is permitted & regulated in many countries and in some States in India. This creates investment and employment opportunities. State Government proposes to frame a policy to permit commercial hemp cultivation with the proper regulatory framework,” he said during his budget speech on March 6, 2021.
The State High Court had already given its nod and put the ball in State Government’s court by stating that it has no objection over permitting the cultivation of industrial and medicinal hemp. Himachal Watcher had covered the issue when it was in court.
It’s pertinent to mention here that Hemp is one of the varieties of Cannabis sativa, which cannot be used as a psychoactive substance to get high. In simple words, it would not get you high even if you try to do so by smoking it because it contains a negligible amount (.1%) of the psychoactive substance Tetrahydrocannabinol (THC).
On March 5, 2021, Ramesh Chand Dhawala, MLA of Jawalamukhi constituency, introduced a resolution in the Budget Session proposing the legalization of the cultivation of hemp. He had argued over the benefits of doing so at a length. Chief Minister Jairam Thakur had also agreed that the state should frame a policy and undertake the cultivation of cannabis in a controlled manner. Chief Minister had also said that cannabis is has a strong association with the culture of the state. He admitted that traditionally fibre obtained from cannabis plants, which is known as “Shail” was used to make ropes, shoes and matts. He mentioned how extracting cannabis oil to use it in winters with food or as body lotion was common practice. Further, these seeds were used to be a part of the famous Himachali cuisine “Siddu”, he mentioned.
“American Cancer Research Association has found that cannabis is effective in slowing down the development of brain tumour and lung and breast cancer,” he said in the House.
Further, he mentioned that the Commission on Narcotic Drugs (CND) has remove cannabis from Schedule IV of the 1961 Single Convention on Narcotic Drugs — where it was listed alongside specific deadly, addictive opioids, including heroin, recognized as having little to no therapeutic purposes.
Dhawala, prior to Chief Minister’s reply, told the house that the NDPS Act was introduced to check substance abuse, not to prevent the manufacturing of clothes and medicine. Traditionally, the cannabis plant was used locally to create clothing. Currently, he said, 70-80 percent of prisoners are booked under the NDPS Act. Record cases under NDPS have come to light in Kullu and Chamba for the illegal cultivation of cannabis.
These include poor people who remain behind bars for decades as trials take a huge amount of time. The use of cannabis as a drug is rising among youth who are getting addicted to it. Legalizing hemp cultivation can solve this problem along with opening new doors for employment, he told the House.
In higher hills, the rural people can harness only one crop as the land remains covered in a thick blanket of snow for six months. Which pushes these people to get indulged in illegal cultivation of cannabis and paddling of smokable substances extracted from cannabis plants, like charas and hashish, for livelihood.
While those who are caught with a quantity more than 100 grams and kingpins must be acted upon, there are youngsters who are booked for possessing even small quantities, he said.
Further, emphasizing on commercial use of hemp, he told the house that a large number of goods that can be manufactured from hemp in addition to cannabis oil, which is in huge demand in the international market for its medicinal use, can bring fortunes to the state and the rural population deprived of any other sources of income.
He referred to other states like Bihar, Madhya Pradesh, Uttarakhand etc. where the governments have framed policies to permit the cultivation of commercial hemp. He said industries have been established which uses this cultivated hemp, especially its oil for the manufacture of medicines.
Further, not only goods like cloth, shoes, furniture, ropes etc. but bricks can be manufactured by using waste material. These bricks are highly durable when combined with lime. He said these bricks have more strength, are light-weight and are waterproof. In Island, Mark and Spencer’s company constructed its showroom completely using these bricks and world-renowned car manufactures like Ford are also using hemp for manufacturing of car accessories, he said.
Dhwala also said that legalizing hemp cultivation can also revolutionize the clothing industry. In India, mostly cotton is used in the clothing industry. Cultivation of cotton requires double the land and four times the water required for the cultivation of hemp. Also, hemp can be harnessed within three to four months as compared to cotton which takes about nine months, he said.
He also referred to the mention of cannabis as a medicine in Vedas. All parts of the cannabis plant – root, stem, leaves, fruit, seeds- are usable for various purposes. Ayurveda, in which cannabis is called ‘Vijaya’, also recommend the use of cannabis for cancer, neurological diseases, bacterial infection etc. and modern science also verify it, he said. The United States of America is using cannabis-based medicines for the treatment of diseases like Parkinson’s, Autism, Alzheimerinn ol, and others related to dementia. Other foreign countries are also using it as a medicine to treat heart-blockage, he told the House. Further, it is also used to provide relief to people suffering from disorders like migraine and stress.
Back in old days, cannabis oil was used as a pain reliever to mothers during delivery, he added.
The cannabis plant is the only plant that has up to 80 percent polyunsaturated fatty acids and a high quantity of nutrients Omega-3, Omega- and Omega-9. Other than cannabis, only fish contains these nutrients.
India’s neighbouring country Nepal has realized the potential of this plant and has formed a separate ministry that looks into the cultivation of hemp.
“It’s a matter of surprise that clothing, bags, shoes etc. made of hemp in Nepal are sold at high prices in Dharamshala, McLeodganj, and Manali,” he said.
Instead of wasting time and energy of the police force in uprooting cannabis plants and wasting them, the state government should permit its cultivation for industrial and medicinal use under Section 8, 10 and 14 of the NDPS Act, like it has been permitted in Uttarakhand, M.P, Orissa and some North Eastern States.
Scientists have confirmed that cannabis can be used for the treatment of cancer patients and to stimulate appetite in AIDS patients.
He further argued that currently, the wood used for the manufacture of furniture takes years before it’s ready for use, while a hemp plant takes only four to five months. Comparatively cheaper furniture could be prepared from this plant, which would not only offer an alternate source of income and employment but also prevent deforestation.
Though the United Nations had prohibited cannabis cultivation from 1985 onwards, in 2020, the same organization has lifted the restriction on its cultivation considering its immensely beneficial medicinal use, he told the House.
This plant is in high demand in the international pharmaceutical market and this demand is only growing.
The ban on cultivation relates to using cannabis as a psychoactive drug, which is only one of its 400 characteristics. There are two sub-species of cannabis – one which has a high amount of THC and others which have a negligible amount of THC (.3%), he said. In Uttarakhand, the type of plant which is being cultivated possess a negligible amount of THC and, thus, can’t be used as a psychoactive substance, he said.
Though Himachal Pradesh is known for apple production, the fact is that the cultivation of apple is limited to only Kullu, Shimla, Kinnaur, Bharmaur etc.
He also compared it to alcohol in terms of hazards.
“People die after consuming alcohol, but I never heard that anyone ever died after consuming cannabis, “he argued.
Citing another example to control the use of cannabis as a psychoactive substance, Dhawala said,
“People in a village that doesn’t have a legal liquor vendor start producing and selling home-made liquor. But if a legal liquor shop is allowed, it works as a deterrent for illegal production and sale.”
“Similarly, I believe that cultivation of cannabis should also be legalized so that not only people could get employment but also refrain from indulging in peddling, he said.
He also referred to the dependence of the State on debt taken from the Centre and said legalizing cannabis cultivation can help solve this problem.
“When the laws are more dangerous than the drug itself then a fight for civil liberties becomes necessary. Stopping research and knowledge is not only unconstitutional but a crime against evolution, Deven Khanna, a practising advocate at Himachal Pradesh and the man behind this initiative to transform the state’s economy.
Deven has been working with policymakers and arguing his petition to legalize the cultivation of industrial hemp in the State High Court for the last four years. It was on his petition that the court had given a go-ahead to the government. Not only the court, but Deven had also been collaborating with stakeholders in the hemp industry/villagers and doctors.
“The purpose of my petition was to open the market for non-narcotic/medical and industrial use of Hemp so that the locals have an alternative source of income, patients have access to safer natural medicines and for making available biodegradable /organic alternatives to plastic and construction material in the state,” Deven told Himachal Watcher.
“The foremost objective was empowerment and “creation of choice” for the local inhabitants who presently are being lured into illegal activities due to lack of avenues for making a decent livelihood. The only way to prevent people from doing illegal drug trade is sadly not deterrence which everyone is really fond of, its actually giving them an alternative choice to make a decent life,” he added.
“People are deterred by hunger more than jail. If this plant is used for non-narcotic purpose which generates money for the locals then there is a hope that they will choose the less risky and equally rewarding source of income rather than selling contraband,” Deven said.
“Right now, there is very little choice/opportunity in the villages and the drug mafia is solely controlling this plant. It’s appalling that drugs are easily available in society and medicines are not! What we seek is that the plant is rather put in the hands of our doctors, industrialists, food manufactures and not in the hands of the illegal drug market, he said.
“There are 100s of industries and youth startups who want to open hemp businesses in the State and with a billion-dollar industry the state can prosper a lot, this plant can do more for the people of the state than what apple did many years ago,” Deven said.
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