UNION OF INDIA & ORS. V.  LT. COL. S. S. BEDI

FACTS

1. The current case is an Appeal against the judgement of the Armed Forces Tribunal, Principal Bench, New Delhi under which the judgment of General Court Martial, i.e., conviction of Ex. Lt. Col. S. S. Bedi for misbehaving and inappropriately touching the private parts of two women was upheld. However, the sentence of cashiering from service was converted into a fine of Rs.50,000/- by the Tribunal. Ex Lt Col S S Bedi filed an application seeking permission to file an Appeal which was dismissed by the Tribunal, however the Appellant later filed Criminal Appeal aggrieved by the judgment of the Tribunal upholding the conviction ordered by the General Court Martial and imposition of fine of Rs.50,000/-.
2. The Appellant was a Medical Specialist posted at Base Hospital Lucknow. On the 15^th of May 1986 two women made a complaint against the Appellant that he misbehaved with them during checkup by inappropriately touching their private parts. The GOC-in-C directed recording of summary evidence, on the basis of which, the convening authority directed trial of the Appellant by the General Court Martial, On 29^th of November 1986 a charge sheet was filed against the Appellant for committing a civil offence by using criminal force on two women with intent to outrage their modesty, Appellant was held guilty by the General Court Martial on 09.12.1986 and was sentenced to be cashiered from service on 14.01.1987 after which he appealed in the tribunal and the Tribunal upheld the conviction of the Appellant but converted the punishment of cashiering to a fine of Rs.50,000/-
3. The learned counsel appearing for the Appellant submitted that the conviction of the Appellant is unsustainable as the evidence on record was not properly appreciated by both the General Court Martial and the Tribunal. He also submitted that the evidence of Mrs. Gita Ray & R. Sharma which is in favour of the Appellant has not been taken into account. He argued that the physical examination of both the complainants was necessary for the ailments that were being suffered by them.
4. The Respondent contended that there was ample evidence on record pointing to the guilt of the Appellant which has been properly appreciated by the General Court Martial and the Tribunal and argued that the conversion of cashiering into fine was unnecessary. The Appellant had misbehaved with two patients and the expert evidence also shows that there was no necessity of the Appellant touching the private parts of the complainants. There was no motive for false implication of the Appellant by the complainants.
5. The appellant argued that even if the penalty imposed by the Court Martial of cashiering from service is upheld, forfeiture of all the pensionary benefits of the Appellant is not automatic. He relied upon the judgments of this Court in Union of India v. Brig. P.K. Dutta (Retd.) 1 and Union of India v. P.D. Yadav[1], and Union of India v. P.K. Dutta (Retd.) in which the Delhi High Court held that cashiering does not itself result in forfeiture of retiral benefits, the court also opined that Regulation 16 (a) contemplates a situation where an officer is cashiered on dismissal or removal from service and provides how his pension is to be dealt with, while Section 71 (h) provides for a punishment relating to forfeiture of pension at the conclusion of Court Martial, concluding that the nature and content of both the impositions is different and there is no inconsistency between Section 71 (h) and Regulation 16 (a).

JUDGMENT

The hon’ble court held that the punishments awardable by the Court Martial under Section 71 include cashiering in case of officers and forfeiture of service for the purpose of pension apart from the other penalties. The court observed that the punishment imposed on the Appellant is only cashiering from service and does not include forfeiting of pension, therefore there is merit in the submission of appellant that in the absence of an order passed under Section 71 (h), the pension of the Appellant cannot be forfeited.

The hon’ble court stated that the Respondents are at liberty to commence proceedings under the Pension Regulations for forfeiture of the pension of the Appellant, if they so desire.

It was also observed that the Tribunal converted the sentence of cashiering into a fine of Rs.50,000/- by holding that the Appellant has a blemishless record of service. The Tribunal also highlighted the delay in the complaint made against the Appellant and said that the punishment of cashiering from service shockingly disproportionate. The hon’ble court stated that they were not convinced with the reasons given by the Tribunal for converting the sentence from cashiering to imposition of fine of Rs.50,000/- therefore, the court restored the punishment of penalty of cashiering by taking into account “the reprehensible conduct of the Appellant abusing a position of trust being a Doctor which is not condonable.” However, the court also direct the Respondents to consider the entire record of service of the Appellant and his advanced age while taking a decision to initiate proceedings under the Army Pension Regulations. In the current case as the Respondents did not initiate the proceedings under Army Pension Regulations, therefore the Appellant shall be entitled for all pensionary benefits. The amount of Rs.50,000/- deposited by the Appellant shall be refunded to him with interest accrued therefrom.

[1]1995 Supp. (2) SCC 29

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Beyond Border Standoffs,  Brewing  Indo-China “ Water” Disputes and The New National Security Agenda

India is being triangulated on its borders with unswerving  Pakistan, more aggressive China and now Nepal, who recently in a  unilateral move published its new political map claiming within itself certain   Indian territories. Enshroud therein lies a much greater threat to the regional stability of the Indian subcontinent, that of looming shared water disputes and a  potential water war.

A river which disobeys the diktats of the international border and flows through multiple sovereign states is termed as a “transboundary river” i.e a  shared water resource.  For instance, a  river originating from Tibet( China)  known as  “ Yarlung Taspango”, flows into the Indian  Assam valley to be revered as “ The Brahmaputra”, then it reaches Bangladesh and finally flows through it as river Meghna and drains into the Bay of Bengal.

This river forms part of one of the largest river basin in the Indian subcontinent namely   -the Brahmaputra and Ganges and Meghna ( the GBM ), which is being shared between the three most populous developing nations i.e India, China and  Bangladesh (  making them co-riparian states). Then there is the Indus river basin interlinking  China, India, Pakistan and Afghanistan  (  one largest river basin in the world and comprising Satluj, Beas, Ravi, Chenab and  Jhelum rivers, lastly there is  Kosi, Gandaki, and Mahakali rivers which join Nepal with India. These transboundary rivers and related issues of water rights have been shaping culture, history, economy and regional politics in South Asia interlinking income and livelihood of millions of people who are interdependent on the water that is being shared between them.

However, the Indian subcontinent is volatile given its many border disputes, terrorism and existing water disputes. These challenges are set to be accentuated due to the fact that the region is getting hotter, more crowded, and thirsty. As trends suggest, India is expected to become ‘Water Stressed’ by 2025 and ‘Water Scarce’ by 2050.  By 2030, water demand in India will grow to almost 1.5 trillion m3, against this, there is an approximately  50% gap between water demand and supply. Climate change, melting glaciers, rising energy demand with exploding population, lackadaisical environment norms, water pollution, incessant infrastructure development like hydropower projects,  damns and reservoirs, illegal groundwater abstraction and inefficient water management of the shared water,  will only worsen the present water crisis and fuel more water conflicts in near future.

Moreover, the co-riparian nations are unequal in size and there is asymmetric power parity given their relative position in the river basin. The crucial geopolitical advantage lies with China as it is the uppermost riparian state vis-a-vis other riparian states due to its control over the autonomous Tibetan plateau from which both Indus and Brahmaputra river system originates.   India is the middle riparian state in this context and with respect to Kosi and Gandak rivers, India is lower riparian vis-a-vis Nepal.

HYDROPOLITICS AND NEW NATIONAL SECURITY AGENDA

This relative riparian position and control over shared water are giving a new dimension to the hydro politics in the region. Water is now becoming a means of gaining leverage and putting coercive diplomatic pressure on each other. For example, after 2017 Doklam border standoff between China and India, China stopped sharing crucial hydrological data on the Brahmaputra related to the water level of the river that is used to create flood alerts in Assam. India used its relative riparian status in the Indus river system to build pressure on Pakistan after the terrorist attack in Uri that claimed the lives of at least 20 Indian soldiers. Prime Minister Narendra Modi had declared that “blood and water” couldn’t flow together and suspended India’s participation in the Permanent Indus Commission, where India and Pakistan regularly meet to discuss sharing of waters in the Indus river basin system.

Thus  Indus and GBM river systems are the jugular veins of the subcontinent and now have taken shape of strategic tool forming new national security agenda of the 21st century beyond territorial and military frameworks.

 It is pertinent to note that where does have bilateral water-sharing treaties and agreements with most of its co-riparians such as the Indus water treaty of 1960 between India and Pakistan, Ganges Treaty (1966) between India and Bangladesh for water sharing of the Ganges at Farakka Barrage during the dry season; Mahakali Treaty (1966) between Nepal and India.

However, India doesn’t have any kind of water-sharing agreement with china except a memorandum of understanding regarding the exchange of hydrological information of the river Brahmaputra and Sutlej like its Water Level, Discharge and Rainfall essential to predict floods in the region.  India has been hesitant and has reflected its insecurity to give a formal upper riparian status to china. This is due to the aggressive and predatory nature of china who is projecting a negative hegemonic position in the region. What should worry us is that China is running out of water due to its “grow the first cleanup later” policy of development, the  Chinese pattern of developing dams  ( almost 90000 dams have been built across China), Chinese water struggle- polluted rivers, parched and drought-ridden north china. It’s a thirst for water to cause it to start a massive project of “diverting south water to the north” to Beijing. South-North Water Transfer Project will channel approx. 44.8 billion cubic meters of freshwater annually from the Yangtze River in southern China to the more arid and industrialized north through three canal systems.

A country trying to divert the water supply of one entire sub-continent –  almost amounts to waging defacto water war.  Lower riparian are helpless against the mighty upper riparian and India, in this case, is playing at both the positions.  India is also not far behind in taming the Himalayan waters by building several projects in Arunachal Pradesh creating fear in Bangladesh who solely rely on Brahmaputra River. A water war does not need an army, it is being fought by creating dams. One has not even taken into account the loss to the environment, water migrants or refugee, pollution and waste of water resources and ecological degradation these types of project can cause to the water resource itself.

HYDROCOPERATION THROUGH WATER SHARING AGREEMENTS

The hydrologic reality of the South Asian region strongly dictates that we move towards hydro-cooperation. The best possible means of optimizing trans-boundary river waters and mitigating the threat future water disputes is by adopting The Convention on the Law of the Non-Navigational Uses of International watercourses1977., which has now codified the contemporary principles of allocation of shared water resource between two or more states and calls for peaceful dispute settlement.

The UN Convention on shared waters in spirit speaks for ‘equitable utilization of water resources’ and ‘meeting vital human needs’(Article 10 of the convention). It puts an obligation on the co –riparian states to not to cause significant harm, a duty to cooperate,  exchange information and mutual consultation. Most importantly it calls for establishing joint commissions and institutions for mediation. But none of the South Asian countries are parties to the 1977 UN convention on shared waters.  Interestingly the document also promotes harmonizing and modelling the existing and future water agreement in accordance with its principles, thus reservations with respect to ratifying the document become a non-issue if one simply adopts it as a blueprint.

It is suggested that India should  reconsider its existing water agreements and  reorient its  policy on shared waters according to the convention considering impending water crisis  and climate change. What is even more vital for India’s interest that china effectively participates and cooperate through some form of bilateral and multilateral water-sharing agreement. South Asia as a region needs a change in approach – from “sharing waters” to “sharing benefits” which will serve all co-riparian states.

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“Any sufficiently advanced technology is indistinguishable from magic.”- Arthur C. Clarke, Profiles of the Future: An Inquiry Into the Limits of the Possible

INTRODUCTION

Since ages inventions have been made or attempted at by humans, as being exploratory and curious part of human nature, and with evolution of science and technology, the venturing into innovation, research and development has multifold increased. Many of the development, evolution and improvement in technologies and processes have eased in the functioning the society, at the same time, caution is also necessary, as  automation poses several security threats and framing applicable rules to practically govern them in the light of ever developing coding languages and artificial recognition features and systems is even more difficult.  As such developments have significantly impacted day to day life both positively and negatively and latest of those inventions has been the introduction of the drone system. Drone technology is one such area that has increased the efficiency in our day to day working, in military reconnaissance and navigational activities and e-commerce delivery systems.

Drones can be defined as unmanned aerial vehicles (UAVs) that are remotely controlled or fly autonomously through software-controlled flight plans in their embedded systems, and onboard sensors and GPS.^[1]

They can be categorized as follows:

1. Rotor-single or multi-rotor- For example tricopters, quadcopters, hexacopters, and octocopters.
2. Fixed Wing- this includes hybrid VTOL (vertical takeoff and landing) drones that do not require runways.
3. Personal/Hobbyist- most of them are available for consumer use, offering HD video/ or still camera capabilities, or can be used for simply flying around. It weighs around 500gm to 5Kgs.
4. Commercial/Enterprise- these are much more capable and stronger. In 2018, Boeing prototyped an Unmanned Cargo Air Vehicle. (VTOL) which is capable of transporting up to 250 Kg payload.
5. Tethered Drones- they can provide direct power supply, for instance, the Safe T- tethering stations for drones from Elistair can provide up to 2. 5 kW of power and can fly heights of more than 200ft, with the fast data transfer rate of up to 200 Mb/s.

Drones are primarily used for un-armed purposes like intelligence, renaissance and general surveillance or for armed purposes such as targeted killing, anti-aircraft targets, and as weapons.[2]  A drone system can also be defined as a system including a standing location where drone at least delivers and acquires a parcel, and inclusive of a homing device which interacts with the drone to assist it in identifying the location of delivery point being independent of another source. The homing device enables the drone to smoothly land during a flight plan.[3]Drones are also referred to as Unmanned Aerial Vehicles (UAVs) or Remotely Piloted Aircraft in the common parlance.[4] In recent times, they have also enabled in increasing the efforts in combating the COVID -19 pandemic effectively, for instance, the Chennai police had adopted the usage of drones for carrying out relief works. It enabled in monitoring effectively the activities of the people, spreading awareness announcements amid the recently imposed nationwide lockdown.^[5]

While the conduct of the drones for military purposes have been covered under the ambit of the International Criminal Law, those relating to the non-armed uses have been referred to under International Humanitarian Law.^[6] For instance, they can even aid in locating the victims endangered from natural disasters. In another instance, they can be used for dropping humanitarian pallets in areas which are majorly inaccessible due to poor transport connectivity or due to other natural calamities, conducting search and rescue operations, traffic monitoring, weather monitoring, firefighting etc. 

While to say that specific legislation concerning the activities of the drone is not presently in existence, due to lack of jurisprudential development in this regard. It becomes even more pertinent as to dealing with the regulatory challenges as it affects the public and national security and also to protect the areas of national, historical and natural importance.

Globally, standards to regulate certain operations of the drone are being considered by the International Civil Aviation Organization.^[7] In 2011, ICAO issued a circular titled Unmanned Aircraft Systems (UAS) (CIR328). This circular directs the states to clarify its stances on the usefulness and utility of the drone for the respective countries, through comments. This was an effort to proceed with the development of the fundamental international regulatory framework through Standards and Recommended Practices (SARPs), with supporting Procedures for Air Navigation Services (PANS) and guidance material, to underpin the routine operation of UAS throughout the world in a safe, harmonized and seamless manner comparable to that of manned operations.^[8]

Efforts have been taken to harmonize the rules of regulation of the uses of drones. The peculiar example is that of Europe.

In India, efforts have been advanced through this very purpose and the consequential decision was undertaken by the Directorate General of Civil Aviation in November 2017 by issuing certain guidelines in the relation to the permitted usages and constraints to the uses of drones.  Peculiarly the important step is that of making it mandatory for the UAVS members to have unique identity numbers. It further states that permission must be obtained from local authorities for all flights below 200 feet over the ground level, and from the DGCA for using the drone at or above 200 feet above ground level. Given that the prior approach seemed designed more to suppress than encourage drone use, the issuance of these guidelines is indeed a welcome step from the DGCA. But the issues prevalent even in these guidelines are as follows:

DGCA Guidelines and the ‘multiple’ Challenges ahead

The guidelines conceive an unmanned aircraft as “an aircraft which is intended to operate with no pilot on board”. This requires certain components such as a remotely piloted aircraft (RPA), a command and control unit, and personnel for its operation, all of which form the unmanned aircraft system (UAS). A UAS may function either autonomously or be remotely piloted. However, the DGCA guidelines are focused almost entirely on remotely piloted drones, and hence require that they are operated within the visual line of sight (VLOS). This is a narrowness of focus the DGCA must address, to encourage the autonomy of the drones and bring more clarity into the regulations for autonomous drone-flights.

The privacy paradox

Although autonomous drones promise new possibilities, drones are an intrusive technology with great privacy implications for individuals. However, the DGCA draft-guidelines clearly miss the issue, only stating that ‘privacy must be given due importance’ and do not lay out any procedure for how privacy rights of citizens can be identified and protected.

Solutions to this problem could take the form of amendment to the Information Technology Act, 2000 in case of data threats or the insertion of provisions regarding drone surveillance in the Privacy Bill, 2011 which is still tabled in the Parliament. But both these methods are cumbersome. Hence, the best way is for the DGCA to come up with privacy regulations for drone surveillance while sticking to the basic principle of ‘reasonableness’. i.e., ‘reasonableness’ of drone surveillance must be tested and the expectation of the citizen’s privacy must be reasonable too. The dichotomy between these two aspects requires careful consideration and clear addressing. Also, few judgments that can be taken from the both the US and Indian perspective provide the claim that the ownership of airspace exists over a limited to a limit as necessary for the ordinary use and enjoyment of the land and the structures on it.^[9]

Frequency bandwidths versus satellite linkage

The DGCA also mentions that UAS requires data-link for their proper functioning. This data-link could take the form of radio or satellite communication. As far as radio frequencies are concerned, bandwidth is already a scarce resource and with the potential proliferation of drones, this problem is likely to be exacerbated.

With this advent in the approach towards the use of drones for civil aspects, the need for the development for stringent guidelines and increased deliberation over the issue internationally as well in India would be discussed in this.

SYNOPSIS

Reason for Public Debate And Conversation Over The Issue

The usage of drones has always been an issue of contention for a long time since its inception. Majorly, the reasons being that of security, peace, proprietary, reputational interests of an individual and regional stability.^[10]

However, with the advent of technology and societal awareness and political development, the civil uses have been bought to the domain of public debate and discussion and deliberation of the lawmakers over the regulation of its uses, These UAS have decentralized airspace access, allowing agriculturists, construction workers and others to integrate the aerial monitoring to their daily work.^[11]

The problem over the issue of Civil uses of drones also arises due to the legal lacunae present in the legislations, as the Common law does not provide for clear demarcation for commons from owned airspace which will have an impact over the proprietary rights of the individual. It will too raise concerns over privacy over its potential of being deployed over for unlawful purposes like data capturing and analytics, thereby leading to violation of the right to privacy and confidentiality of information as enshrined under Article 21 of the Indian Constitution and Article 3  of the Universal^[12] Declaration of Human rights and International Covenant on Civil and Political Rights.^[13]

Additionally, major concerns to lie in the area of safety and security of the operations carried out by the drones, as there is the uncertainty of the safety caused due to lack of clear guidelines on mid-air collisions and injury to the property or persons in case of an undesired event or situation or accident. That means lack of indemnity or insurance available in this regard.

Reason for Growth Of Drones

The reasons for the growth and advancement in the use of drones lies in the following  Advancements in fields such as automation, robotics, miniaturization, materials science, spectral and thermal imaging, and light detection and ranging have resulted in drone-enabled solutions in areas as diverse as the agriculture, power, infrastructure, and telecom sectors, as well as crowd and disaster management.

 In India, for instance, there has been a growth in the demand for the drones in the investment and the growth sector and depictive of this fact is that Recently, one of India’s leading power transmission companies sealed a deal with a global player to use large-scale, long-distance drone fights for inspection of utility assets.[14]In a country with a power transmission network of more than a million circuit kilometres witnessing annual double-digit growth, drones can potentially help in avoiding grid blackouts.^[15]

Drones Regulation in Other Countries:

Various countries have different ways of handling or regulating the increasing use of drones. While some like the United States had raised concerns in relation to privacy and security. However, to tackle the sentiment of developing Anti-drone Technology, the US promoted the federalism approach in Drone regulation. As many of those anti-drone technologies would have run afoul of federal and state laws.^[16] In Singapore, the new UAV guidelines, part of the Unmanned Aircraft

(Public Safety and Security) Act, are extremely permit-heavy and have strict restrictions on the movement of drones in mainland Singapore.^[17]

Under the International Law, the concept of rule of law is very much emphasized upon and hence, the regulation of any kind of activity be it economic or social becomes essential, which is based upon common ideas of interpretation, But when those are violated by the very prominent countries like the US  have a deep impact on the framing of strategies of global policies regarding various issues of contention. One such being the US DRONES strike.[18]Majority of the strikes have violated the norms and the most basic of the rights enshrined under the UN Charter, ICCPR, and UDHR. This is not because recent U.S. drone strikes “violate” international law; ironically, they might be less destabilizing, from a rule-of-law perspective, if they could be easily categorized as blatant instances of rule-breaking. Rather, U.S. drone strikes challenge the international rule of law precisely because they defy straightforward legal categorization.

In fact, drone strikes—or, more accurately, the post-9/11legal theories underlying such strikes—constitute a serious, sustained, and visible assault on the generally accepted meaning of certain core legal concepts, including “self-defence,” “armed attack,” “imminence,” “necessity,” proportionality,” “combatant,” “civilian,” “armed conflict,” and “hostilities.”.[19]This happens when the terms to describe a states’ behaviour during a particular manner, loses its fixed meaning and becomes vague then, and which will lead to the superpower nations like the US to challenge the commonly accepted meanings of key concepts.

So it becomes a choice on the other state, if one or more State challenges the terms, in the instant case, the drones regulation, to either accept or reject the meanings of such concepts.

The International Telecommunications Union (ITU) is already considering specific regulatory provisions for drone frequencies. The DGCA must follow this lead and come up with a clear regulation on the mode of data-linking to be adopted because satellite communication lends greater accuracy of signals to the line of sight communication, but radio frequency communication is certainly cheaper. But for the latter, the DGCA must have comprehensive agreements with the Telecom Regulatory Authority of India (TRAI) if radio frequencies are likely to be shared for drones.

DGCA must also harmonise its regulations with the International Civil Aviation Organisation (ICAO). Being an international regulatory authority, the ICAO’s mandatory guidelines on drones would also clarify situations of cross-border usage of drones, and Article 12 of the Chicago convention gives Jurisdiction over the ‘High Seas’ to the ICAO.

Though the DGCA has prohibited the usage of drones across international borders, this is in a context of a lack of binding regulations by the ICAO. But with clarification of the international regulatory space, the effect on international trade could be great, and thus the DGCA must tackle this aspect as well in the coming future.

In Singapore, the new UAV guidelines, part of the Unmanned Aircraft (Public Safety and Security) Act, are extremely permit-heavy and have strict restrictions on the movement of drones in mainland Singapore.^[20]While in Poland Drone laws in Poland dispense with registration for drones lighter than 25 kilos but insist on an operator’s license when the drone is heavier.[21]The  operation of UAVs for commercial purposes requires the pilot to obtain a certificate of competence, which applies to both line-of-sight and beyond-line-of-sight operations.[22] However, the latter is permitted only in segregated airspace.[23] In the UK, a person in charge of an unmanned aircraft with a mass of more than 7 kilos cannot fly the aircraft without specific permission, or at a height of more than 400 feet except in some very limited instances.[24] In addition, the operator must be reasonably satisfied that the fight can be made and cannot drop an article or an animal from the aircraft so as to endanger people or property. While there is no specific rule in Israel as such.

SUGGESTIONS

Keeping into the above-mentioned limitations of the guidelines issued by the Aviation Authority in India, the following suggestions along with the those already given above should be looked into.

• The increasing realist approach being adopted by the legal professionals in understanding for developing those set of laws which would maximize the benefits for the end-user and minimize the cost for the end-user and therefore, being stringently following the Lockers rule of law will not be reliable in the present times.
• Due to the absence of clear common-law rules, Indian States could very well step into the shoes of regulating UAS activities, which would thereby result in Drone federalism as prevalent in the United States.
• To avoid a situation where multiple states regulate the concept of UAVs, India can undertake a review of possible activities of drones that invite inconsistent policymaking and rulemaking and bring them in line with the interests of the innovations consistently.
• Rule, “Airspace in an Age of Drones.” The rule interestingly argues that even a sui generis rule could be crafted for drones, which differentiates them from aircraft and treats them as more akin to projectiles. In the case of the latter, absence of the landowner’s consent results in absolute liability for actionable trespass rather than a conditional liability built on a showing of the dual factors listed in the Second Restatement of Torts should be applied in India or at least an effort should be made to do so.

^[1] CH-06 Information Technology, Drones, Pg No. 325, Manorama Yearbook, 2020, ,

^[2] Gill, T. D., & Fleck, D. (2010). The Handbook of The International Law of Military Operations. Oxford: OUP.

^[3] As defined by the Amazon Technologies in its Patent application numbered and dated ; US20150120094, filed on 30^th September 2014 and Published on  30^th April 2015; Also refer https://www.google.com/patents/US20160033966#backward-citations, Last retrieved on 22^nd December 2017 18:26

^[4] Leander, A. (2013). Technological Agency in the Co-Constitution of Legal Expertise and the US Drone Program. Leiden   Journal of International Law, 26, 811-831. http://dx.doi.org/10.1017/S0922156513000423

^[5] Christian Borbon, Drones help Chennai police to battle COVID-19, GulfNews, Published on 4^th April, 2020; https://gulfnews.com/photos/news/drones-help-chennai-police-to-battle-covid-19-1.1586003095881?slide=1

^[6] Refer Article 8 of the Rome Statute.

^[7] https://www4.icao.int/uastoolkit/Home/BestPractices; Last Retrieved on 22^nd December 2017 19: 31

^[8] ICAO, Unmanned Aircraft Systems (UAS), Circular 328 AN/190 (2011), https://www.trafikstyrelsen.dk/~/media/ Dokumenter/05%20Luftfart/Forum/UAS%20-%20droner/ICAO%20Circular%20328%20Unmanned%20Aircraft %20Systems%20UAS.ashx, archived at https://perma.cc/J5EM-TSAY. 

^[9] Indrachand Jaju v. Te Sub-Divisional Officer, (1988) 1 GLR 1.Also refer the case of    Florida v. Riley, 488 U.S. 445, 450 (1989).       As well  The Fourth Amendment in the U.S. Constitution declares: “Te right of the people  to be secure in their persons, houses, papers, and efects, against unreasonable searches  and seizures, shall not be violated, and no Warrants shall issue, but upon probable  cause, supported by Oath or afrmation, and particularly describing the place to be  searched, and the persons or things to be seized.” See also the decision of the court in Dow Chemical Co. v. United States, 476 U.S. 227 (1986), holding that the use of an aerial mapping camera to photograoh an industrial manufacturing complex from navigable airspace would not  require a warrant under the Fourth Amendment. Here, the court acknowledged that  “surveillance of private property by using highly sophisticated surveillance equipment  not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant.”

^[10] Ananth Padmanabhan, Civilian Drones and India’s Regulatory Response, Carnegie India, Published in March 2017, http://carnegieindia.org/2017/03/10/civilian-drones-and-india-s-regulatory-response-pub-68218; Last Retrieved on 24^th December 2017 at 22:55 PM

^[11] Ibid

^[12] Article 12 of UDHR and Article 17 of ICCPCR

^[13] Ibid

^[14] “Sterlite Power to Use Drones (Unmanned Aerial Vehicles or UAVs) for Power-Line

Monitoring in India,” EnergyInfraPost, August 8, 2016, http://energyinfrapost.com/

sterlite-power-sharper-shape-use-drones-power-line-monitoring-india/.

^[15] IBid

^[16] https://www.lexology.com/library/detail.aspx?g=2ebbeb3c-eb91-465e-ab48-de253fd12179; Also refer to the Drone Slayer Case , the defendant William Meredith used a shotgun to shoot down a UAS which he believed was invading his property. Other types of emerging technology include nets and similar devices to try and ensnare UASs. However, UASs are still considered “aircraft” by the Federal Aviation Administration (“FAA”), and it is a federal offense to damage, destroy, or disable an aircraft operating in U.S. airspace. 18 U.S.C. § 32.

^[18] Ethics & International Affairs,28 , no. 1  (2014), pp. 83 -103.;

^[19] Rosa Brooks, Drones and the International Rule of Law ,Pg no 83 ,Georgetown University Roundtable Conference.;

^[20] “Unmanned Aircraft (Public Safety and Security) Act,” Civil Aviation Authority of

Singapore, 2015, http://www.caas.gov.sg/caasWe

^[21] Government of Poland, “Aviation Law Act, 2002,” http://www.dziennikustaw.gov.pl/

DU/2012/933.

^[22] Ibid

^[23] Ibid

^[24] UK Civil Aviation Authority, “Air Navigation Order 2016 and Regulations,” August

2016, https://www.caa.co.uk/News/Air-Navigation-Order-2016/.

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NEERAJ KUMAR UTTAM Vs UNION OF INDIA & ORS.

FACTS

1. The petition arises out of petitioner’s request to withdraw his resignation from the post of assistant commandant in the Central Reserve Police Force (CRPF)
2. The petitioner had applied for resignation on 27^th November 2017 and the resignation letter was accepted on 12^th of March.
3. The petitioner had applied for withdrawal of resignation on 8^th of May 2018.
4. The petitioner had not received any reply for his communication regarding the withdrawal of resignation that was sent on the 8^th of May 2018 or the reminder that was sent on 28^th of February 2020.  
5. The petitioner contended that under Rule 26(4)(iii) of the CCS (Pension) Rules, 1972, the petitioner having applied for withdrawal of resignation within 90 days from the date on which the resignation became effective, is entitled to consideration of his request for withdrawal.
6. The petitioner also contended that the CRPF has recommended the withdrawal of his resignation as during the time of his employment as Assistant Commandant from 19th December 2011 he has displayed exemplary service.

ISSUES

1. Whether is there a place for fickle minded officers in the paramilitary forces?
2. Whether Rule 26(4)(iii) of the CCS (Pension) Rules, 1972 can be considered?

RULE OF LAW

Rule 26(4) of the CCS (Pension) Rules, 1972

The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely: –

(i)  that the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation ;

(ii) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper.

(iii)            that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days ;

(iv) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.

JUDGMENT

The court inquired if the decision of petitioner was impulsive in nature as the resignation letter was dated on the 27^th of November 2017 and was sought to be relieved before the 1^st of March.

The court also further questioned whether there is a place for fickle-minded officers in the paramilitary forces? The petitioner was also questioned as to how after remaining out of service for more than two years can he be granted the relief of re-joining.

The petitioner was also questioned as to why he waited for two years to send the second communication and why he did not approach the court immediately after 8^th May 2018.

The court also held that “It prima facie appears that the officers of paramilitary forces cannot be permitted a sabbatical in this fashion.”

The court also put forward that the aforesaid Rule to the personnel of the CRPF is under consideration before this Court in W.P.(C) No.3369/2020 listed next on 17th August 2020.

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Federal Republic of Germany / Denmark Clubbed With Federal Republic of Germany / Netherlands

FACTS OF THE CASE

The present case covers claims of three parties with regard to a Continental Shelf in North Sea, wherein both Denmark and Netherlands submitted individual disputes with Germany to the International Court of Justice. This was done via two Special Agreements to decide the applicable principles and rules of international law. The ICJ clubbed both the claims and gave a single judgment.

The problem pertains to the geographical location of these three countries. The boundary of the Federal Republic is concave in nature as opposed to the convex boundaries of Denmark and Netherlands. Denmark and Netherlands contended that the equidistance method should be followed, which is also provided in the Geneva Convention on Continental Shelf. They argued that this equidistance principle was a rule of customary international law, an a priori rule and a general rule of conventional practicality.

The Federal Republic of Germany denied its obligatory character as it was only a signatory to the Geneva Convention and had not ratified it. It claimed that the equidistance method was unfair to it, since it had a concave coastline and this method would lead to it having lesser area in the Continental Shelf. The Federal Republic further argued for apportionment of the shelf in proportion of its coastline or sea-frontage.

The bone of contention in this case was about delimitation of the Shelf in a manner which would give a ‘just and equitable share’ to all three parties. The parties were eventually in consonance that the Court was not to physically apportion the claims, but merely prescribe a suitable method of delimitation which could be followed

ISSUES

1. Whether the Geneva Convention of 1958, on the Continental Shelf and particularly Article 6 is binding for Germany?
2. Whether the equidistance principle had become a rule of Customary International Law since the adoption of the Continental Shelf Convention and is Germany bound by it?

RULE

1. Article 6 (2) of the Geneva Convention on the Continental Shelf, 1958.

Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

ANALYSIS / APPLICATION

The present case deals with significant arguments in the sphere of International Law.

• The Federal republic of Germany had signed the Convention of 1958 but it had not ratified it. The Netherlands and Denmark contended that Germany had unilaterally assumed the obligations arising out of the Convention or had perhaps manifested its acceptance of the provisions of the same, with respect to the shelf delimitation provisions.
• This argument was rejected by the Court. The Court emphasized the existence of situation of estoppel which could preclude Germany from denying the applicability of the conventional regime which caused Denmark or the Netherlands to detrimentally change their position or suffer some prejudice. However, there is no such evidence in this case.
• The Court concluded that Article 6(2) was not a ‘norm-creating’ provision. The possibility of reservations, emphasis on agreement as the primary means of delimitation and the ‘special circumstances’ provision made the Court unable to declare that it was such a rule.[1] The Court held that merely raising no objection to the equidistance principle as under Article 6, is not a sufficient reason to state that the principle is binding on Germany. In a nutshell, the equidistance-special circumstance rule was not binding on Germany by virtue of treaty law.

• The Netherlands and Denmark then argued under Article 6 that Germany was bound by it by way of customary international law since the Article existed independently of the Convention.
• The Court rejected this argument, and clarified that the principle of equidistance under Article 6 did not form a part of existing or emerging customary law when the Convention was drafted. The Article did not attain the status of customary international law even subsequent to the Convention coming into force.
• The Court emphasized upon the aspects of generality and uniform practice in consonance with opinio juris for the emergence of a customary law. Hence, the Federal Republic was not bound by the equidistance principle either by treaty law or by customary law.
• The Court formulated three working rules, wherein it derived the existence of the first rule from the Special Agreements arising out of the Truman Proclamation, 1945. The Court concluded that whatever method of delimitation was applied, the results should be equitable.

CONCLUSION

• Judgment

Bench

President Bustamante Y Rivero; Vice President Koretksy; Judges Sir Geral Fitzmaurice, Tanaka, Jessup, Morelli, Sir Muhammad Zafrulla Khan, Padilla Nervo, Forster, Gros, Ammoun, Bengzon, Petren, Lachs, Onyema; Judges Ad Hoc Mosler, Sorensen; Registrar Aquarone.

Ratio Decedendi

The Court on 20^th February, 1969 by eleven votes to six delivered its judgment.[2] This was the thirtieth judgment of the ICJ since its inception in 1945.

The Court came to the conclusion that, the use of equidistance method of delimitation did not impose an obligatory nature on the parties by way of either treaty law or customary practices. It held that the delimitation has to be effected by agreement in accordance with the equitable principles and after taking into consideration all relevant circumstances. It further laid down the intricacies which had to be followed while formulating the agreement and carrying out the distribution of the Shelf among the three parties.

• Analysis

The case primarily dispelled the myth that the duration of state practice formed an essential factor in forming customary international law.[3] It then went on to explain what constitutes as an essential element in the formation of customary international law.

This case confirmed the essential twin elements of customary international law.

• State Practice
• Opinio juris – derived from the maxim ‘opinion juris sive necessitatis’. 

Through this case, the importance of the subjective element of ‘opinio juris’ can be derived. Even though the Court examined 15 cases where States had delimited their boundaries using the equidistance method (subsequent to the enforcement of the Convention); the Court concluded that in spite of existence of State Practice, the necessary opinio juris could not be deduced. Moreover, among the fifteen cases that have been cited, most of the delimitations concerned were median-line delimitations between geographically opposite States, not lateral delimitations between adjacent States, such as in the present case.

Opinio juris is reflected through two ways:

• Acts                                                     (Explained in: Nicaragua Case)
• Omissions                                            (Explained in: S.S. Lotus Case)

However, these acts/omissions should provide evidence of the belief that there is a legal obligation on the State to do so. In customary international law, opinio juris forms an essential element which is required to establish a legally binding custom. It constitutes more of a psychological feeling / obligation on the State to follow a certain practice. It is an unsettled and debated notion in international law. It leads to the conclusion that the recognition of custom under traditional international law may be a result of self-interested behaviour of the state and that the changes in CIL are very malleable and fluid in their orientation.

The judgment is of significance to every State which shares a continental shelf with an adjacent State where one or both of the States are not parties to the 1958 Convention.

[1] Geoffrey Marston, North Sea Continental Shelf Cases, Federal Law Review, Vol. 3 at 283, 283-292.

[2] North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3.

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Union of India & Ors. V. Brig. Balbir Singh (Retd.) Civil Appeal No. 337 of 2020

Facts of Case:

The Respondent was commissioned in the Army on 16.12.1978 and he was allotted to the Corps of Engineers in July, 2005. The Respondent was promoted to the rank of Brigadier and was posted as Chief Engineer, Shillong Zone in the Military Engineering Service.

Aggrieved by the disparity with regard to grade pay of Brigadier vis-à-vis civilian Chief Engineer in the MES, the Respondent filed the matter before the Armed Forces Tribunal, Regional Bench, Jaipur and sought a direction to the Appellants that he shall be entitled to the grade pay of Rs.10,000/- at par with his civilian counterparts. The Respondent further sought a direction to the Appellants herein to pay the arrears consequent to re-fixation of grade pay at Rs.10,000/- with all benefits along with interest at 18 % on such arrears. 

The matter was then filed before the Armed Forces Tribunal, Regional Bench, Jaipur was transferred to the Armed Forces Tribunal, Regional Bench, Kolkata. By a judgment dated 13.08.2015, the Tribunal allowed the matter filed by the Respondent and granted the relief sought by the Respondent. The application filed by the Appellants seeking leave to appeal to this Court was dismissed by the Tribunal. 

By placing reliance on several judgments of this Court on the principle of ‘equal pay for equal work’ including in Randhir Singh v. Union of India , Bhagwan Dass and Others v. State of Haryana and Others and Jaspal & Others v. State of Haryana and Others , the Tribunal held that the nature of appointment being tenure or temporary in nature does not make a difference to the claim made by the Respondent. In the opinion of the Tribunal, the payment of lesser salary to an employee or officer holding the same post affects his fundamental rights.

Then the matter went to supreme court court said that the contention of the Appellants is that the MES is governed by the provisions of the Military Engineer Services (Army Personnel) Regulations, 1989, which are framed under Section 192 of the Army Act, 1950. Regulation 3 of the said Regulations provides for a number of posts and proportion or percentage of the Army Officers belonging to the Corps of Engineers in the Military Engineer Services for each post. In so far as the executive appointment of Chief Engineer is concerned, the total number of posts is 37, out of which 50 % of the posts are filled by Army Officers. In addition, 27 civilian and 9 military officers of the rank of the Chief Engineer are on staff appointment.

The IDSE Rules regulate the method of recruitment and conditions of service of persons appointed to the Indian Defence Service of Engineers in the Ministry of Defence, Government of India. And it is categorically laid down in Rule 12 of the IDSE Rules that the Rules shall not apply to Army Officers appointed on a tenure basis as they are governed by the Army Act and the Rules framed thereunder. There is no dispute that the Respondent was appointed on a tenure basis in accordance with the MES Regulations. Therefore, there cannot be any doubt that the IDSE Rules are not applicable to the 7 | P a g e Respondent. As such, we are unable to accept the submission made on behalf of the Respondent that the IDSE Rules are applicable only to the 15 civilian posts and not to the others. 

HELD:

In Confederation of Ex. Servicemen Associations (supra) and Union of India v. Capt. Gurdev Singh this Court has clearly laid down that the classification of military personnel as different class from non-military personnel is permissible and valid. The submissions made on behalf of the Appellant that the Army Officers serving in the MES as Chief Engineers continue to get the same benefits and perks attached to the post of Brigadier has not been controverted by the Respondent.

There is no dispute that the principle of ‘equal pay for equal work’ is applicable even to tenure or temporary appointments, in view of the IDSE Rules which govern the grade pay of the post of the Chief Engineer, Senior Administrative Grade, we are of the opinion that the Respondent is not entitled to claim parity with members of the IDSE. The validity of the IDSE Rules has not been challenged by the Respondent. We do not see any force in the submission of the Respondent that grade pay should be made available to all persons working as Chief Engineers irrespective of the source. We are in agreement with the Appellants that the Respondent continues to be a Brigadier for all practical purposes and is entitled for the benefits attached to the post of Brigadier, irrespective of the place and post in which he works. The judgment of the Armed Forces Tribunal is set aside and the appeal is allowed.

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