DISCLAIMER

Dear reader(s)

All the stories posted here are author's personal view and does not reflect anybody's or represent any institutions or organization to which the author is associated unless otherwise mentioned or referred or sources cited after the article. Therefore, any errors are also of the author. Any post which may be directly or indirectly related to any institutions where blogger may be affiliated does not in anyway represent these institutions. Readers may use the information for any educational or research purpose at their own risks on accuracy and authenticity of the information provided herein. The photo(s) from the author's private collection may not be reproduced in any form, electronic or otherwise without prior permission.

The information given here are updated and authenticated to the extent possible and to the best of the knowledge of the blogger and not otherwise.

Anyone wishing to use all or part of the posts published on this blog may kindly obtain permission from the author by emailing at sonamphuentsho111@gmail.com.

NOTE: The blogger is not responsible for any damages caused for whatever reason by using the information posted on this blog unless provided to the user with written permission from the Author.


Wednesday 27 April 2016

Shall we force to stop the change or evolve with change- The Ada Rachu

My Post on Facebook

Colour and pattern are always associated with elegance and beauty of the women in any society and Bhutan is no exception.  And I have always appreciated our Bhutanese women the way they dress with the passage of time and evolution. They all look much more elegant with the numerous designs and patterns in the Bhutanese textile in recent years. On formal occasions with
more elegant dresses with equally patterned Rachu would adorn the Bhutanese attires for women even better. In fact one of the biggest fashions in Bhutan today is the variety and celebration of our women’s dress.

The news of prohibition on use of Rachu except Ada Rachu seems  to be  sign of suppression on the general population of women in the country.  Have we consulted our women on their own issue in this regard? Are their sentiments respected and their views protected adequately when decisions are taken probably  by the male dominated profession-the Cultural Officers.  Do we really have  convincing research results show that why Ada rachu was worn by common people during those times and does it worth the hurting the sentiment of our women merely because one single reason? The reasons cited the Kuensel are not convincing, atleast for me. If we have to adhere to only old cultures, I must confess that we shouldn’t be wearing anything, because that was the real culture when we actually began our civilization. Going  by the culture from what I have heard from my old parents and elderly people in the village, neither men nor women wore shoes,  they all could only wear Khasha Gho and Kira because people could not afford and options were too minimal during those times. Shall we start wearing those in the name of preserving our culture and stop wearing shoes because that is not our culture for common people. Today, we  have the option and everyone can afford to buy in all sorts of variety. Does it really help us to preserve our culture? What about our culture of weaving Rachu in varieties of patterns for decades and what about their  right to creativity?  We also know  the way Rachu is worn by certain level people and common people are entirely different and that itself shows we have great respect  and our culture of hierarchy is maintained.

Bhutan as a Buddhist nation, we believe in impermanence and equality for all human beings. So where does the permanence on culture come from. Culture must evolve with time and passage and  society must accept the change in culture. Our parents and our elders have graciously accepted the change over time in all aspects and that is why, Bhutan is one of the most liberal nations. With democracy, we should be progressing not regressing.

Shall we force to stop the change or evolve with change- The Ada Rachu

My Post on Facebook

Colour and pattern are always associated with elegance and beauty of the women in any society and Bhutan is no exception.  And I have always appreciated our Bhutanese women the way they dress with the passage of time and evolution. They all look much more elegant with the numerous designs and patterns in the Bhutanese textile in recent years. On formal occasions with

Sunday 24 April 2016

My thoughts on recent rules on book sellers

Me
Decades ago, I would not mind not buying anything but books. I bought books and books taught me what I am today. Today, when I see this news, I am confused what the state is actually doing. Declaring a year as National Reading Year on one hand and increasing tax on books, now requiring every book to be registered with BICMA. Is is some kind of joke. What about the books bought by us, as individual? Can BICMA review contents of the books I buy? Even if they can, do they have the right to determine what I read?
Do they really know what kind of content is good for a reader? Right to information and right to education are fundamental right of every citizen and state has no power to deprive of such right in any manner or form. And above, what about those contents available online? Can BICMA regulate those considering almost all educated Bhutanese lot, from school kids to politicians to u name it...particularly the youth? What measures does BICMA have to address those unverified and unknown sources with millions of links?
Wabgyel Dorji
As a legal official and legal student, I would not jump into conclusion before analysing the facts .
Me
Sorry m not jumping to any conclusions but going by facts that r available indicate enough that the loss is finally going to be the readers not the sellers. How many book stores do we hv in the entire country? We keep on making rules that would cause inconvenience to those handful of stores, then the question of new stores is very much unlikely to emerge. While we appreciate that there should be adequate regulatory measures to ensure that books sold are within the parameters of Bhutanese norms, socially and culturally acceptable, Regulations should not be such that it would ultimately reduce accessibility and affordability to the common people whether through tax or other measures because books are source of education and must be encouraged and regulated to the minimum  possible. It's like telecom services taxes, who actually pays, not tcell or bmobile but the users. I personally fee l that anything that helps the larger people specially in areas of education should be least regulated and instead facilitate and encourage more not necessarily through free taxes or financially but the simple regulatory measures and reduction of taxes if possible and atleast not to increase. With the present taxes, if I buy a Black's law dictionary, it would not cost less than over Nu.8000 to 20000 compared to Rs.5000 to 12000 across the border.

My thoughts on recent rules on book sellers

Me
Decades ago, I would not mind not buying anything but books. I bought books and books taught me what I am today. Today, when I see this news, I am confused what the state is actually doing. Declaring a year as National Reading Year on one hand and increasing tax on books, now requiring every book to be registered with BICMA. Is is some kind of joke. What about the books bought by us, as individual? Can BICMA review contents of the books I buy? Even if they can, do they have the right to determine what I read?

Saturday 23 April 2016

My Reply to one of the facebook users on drug laws in Bhutan

This was written by Mr. Tshering Dorji, Principal of Rinchen HSS, Thimphu on his facebook on 23 April 2016 and I wrote a reply to his concerns 
Drugs
Relevant agencies grabbing public smokers and imposing fines would have collected good amount. But I wouldn’t feel proud. To me, their way is “merry-go-round”, whirling hundred times and getting nowhere. These are all incidental occupations allowing essentials to skip away. We must know that there are bigger issues at hand than just smoking, even though this cannot be ignored. Can we effort to get ourselves occupied with such petty issues of nabbing the smokers?
Such “penny wise, pound foolish” strategies must be avoided. We have larger issues getting fermented and seasoned underneath.
We have seen the team go all the way to Phuntsholing, Gelephu and Samdrup Jongkhar…..the so called bordering towns or the gateways. But what they do is nab some about hundred smokers! I would convey such sermons through a nursery rhyme:
Pussy cat, pussy cat, where have you been?
I have been to London to see the queen,
Pussy cat, pussy cat, what did you do?
I frightened a little mouse under a chair.
A gang of Bhutanese involved in drugs scuffle in Bangkok recently. Numerous young people getting behind the bars for drug abuse. Schools fighting against all odds to control drug problem. I confess that I would land up surrendering at least about 5 students in a day under the influence of drugs. Must I surrender them to police?Hundreds of people, young and old, walking in the streets like zombies knowing not much about their own purpose of walk. Even few teachers pretending to be 'Rams' in the classrooms. Good civil servants hiding behind their porch desks under the influence of drugs. Policemen, monks, sportsmen, chefs, you name it, we have it!

My reply on the above 
It is highly appreciated for Sir's thoughtful suggestions and opinions on the issue la. From my personal perspective as a lawyer and also a person who have been involved in this area since decades ago in my personal capacity and as well as now in official capacity, I don't see any reason not to agree with u Sir on the issues u raised. Myself involved in drafting of the amended law, if I may point few important issues regarding the provisions of the law with reference to drug abuser or often referred the drug dependents.
The current law provides number of mechanisms to address the drug menace in the society.
1. In the areas of drug trafficking, the law has been now more clearly defined and also punishments are now provided according to severity, negative impacts of that drug and quantity of the drugs seized from the traffickers. The punishment now stands from 3 years to life imprisonment. 
2. Second, unlike the old law, now the law defines mere possession of controlled substances and punishments are much lighter compared to drug trafficking. Traffickers are generally those making money out of selling these controlled substances for their own benefit either by importing, exporting, manufacture, transporting, storing etc while mere possession are those caught with drugs but with a higher quantity in their possession. 
3. Third is the most important for person like Sir yourself to understand. This category is specifically for those found under the influence of drug use or drug dependents. In this areas, first the law gives every individual the right to seek medical help or counselling voluntarily. This means, if any drug abuser or dependent themselves declare as drug dependent and seeks help, not only they would be completely protected from prosecution but also ensures that those treating them shall maintain the confidentiality of their information being known to public. Therefore, any person whether student or civil servant or any body has a right to seek medical or otherwise other help from relevant agencies to come out of their problem before they are arrested by police or law enforcers. This completely prohibits the law enforcers from arresting them if they themselves voluntarily seeks help from the state or non-state actors like NGOS .
4. In case of their arrest only for drug abuse, the law no more penalizes them to be imprisoned in jail instead prescribe them with compulsory treatment or rehabilitation or mere counselling in certain case. For eg. Children below 18 years (Minors) who are caught for the First time is given an opportunity to institutional based counselling in case of schools or colleges within their own campus and those who are out of out of school or non-school going minor given opportunity to undergo a counselling in an approved treatment centre for minor or drop-in centre for a period of not less than two weeks. This provision completely protects the minors from detention but also decriminalizes completely to them to get corrected of their mistakes and seek help for their problem. Considering all schools have school counsellors, it gives the schools to help their own kids within the school and not hand over to police for detention. 
5. Further, even if they are caught for second time, third time or even fourth time for mere substance abuse or drug dependent, the law gives them the opportunity to reform themselves by rehabilitation and treatment as compulsory and never direct imprisonment. However, one must remember that once they are caught by law enforcers except minors for the first time, other will have to go through the due process of law. This means, if parents or guardians do no take initiatives to bail them out during the pendency of their trial, they will be in detention which might take few weeks to few months. Being in detention is never called imprisonment because until the judgment is pronounced, any person accused of any crime is presumed innocent until proven guilty. 
This is just to provide some information if anyone is unaware of the existence of the law. The above points raised are all in my personal capacity and does not represent any views of any organization in which I may be affiliated.



My Reply to one of the facebook users on drug laws in Bhutan

This was written by Mr. Tshering Dorji, Principal of Rinchen HSS, Thimphu on his facebook on 23 April 2016 and I wrote a reply to his concerns 
Drugs
Relevant agencies grabbing public smokers and imposing fines would have collected good amount. But I wouldn’t feel proud. To me, their way is “merry-go-round”, whirling hundred times and getting nowhere. These are all incidental occupations allowing essentials to skip away. We must know that there are bigger issues at hand than just smoking, even though this cannot be ignored. Can we effort to get ourselves occupied with such petty issues of nabbing the smokers?

Sunday 10 April 2016

Bangkok Seven by Dichen Di Dicden vs my comments

An article was written on Bhutan Street Fashion page on the Bangkok seven involving five Bhutanese in Illicit Drug Trafficking by Dichen 'Di' Dicden . And I wrote the following the comments

Me:
It is right that such one isolated incident does not and should not define the image and generalise all Bhutanese like them. But we should also accept the fact that this is the second incident in Thailand. One already serving sentence now a big group. When such continues, it can have lots of impact on any Bhutanese traveling outside no matter how innocent we may be. All Muslims are not terrorists, in fact there are millions of Muslims who are real followers of Islam yet any
Muslim particularly travelling from middle East always seen with suspicions and often subjected to lots of inconvenience and harassment including strip search and hours of detention and isolation at airports across the world not because all Muslims are bad but because some are not. With a population of ours, it's definitely going to have negative impacts and fell into more scaners and profiling the moment we put our foot on foreign soil. 

 Dichen 'Di' Dicden :
Hi Sonam Tshering, I agree with you; too many of these incidents might set off a trend of profiling of Bhutanese. However, we can not compare this incident to terrorism because this is drug trafficking. It is not apple to apple comparison and it is not fair. Maybe we can still compare Bangkok Seven to Bali Nine (drug trafficking = drug trafficking). Working in the field, maybe both you and I can cite many examples where citizens of certain nations are involved in drug trade, but not all the citizens of those nations are profiled. Australians are not profiled around the world for what the Bali Nine did. More Filipino drug mules are on the death row in China. Yet my Filipino friends travel without being profiled. But, this is a different topic.

Beyond your point, is the way we are reacting to this incident and condemning the offenders (fair) and their families (unfair). Some of us are reacting to this situation as if no Bhutanese has done any wrong or we are inherently incapable of wrong doing (very wrong). As a society and individuals, we should accept that there is something going terribly wrong and what are we doing wrong and what can we do to fix this (next step forward).

We can put forward thousands of argument on this. However, we also need to see if this is what we need to do now or look more closely at what had transpired and learn from it and take action to remedy any problem that might set off such incidents in the future.


Me:  
While appreciating your points, I may differ to state that drug trafficking may not be equated to terrorism as u said it is not apple to apple but drug trafficking in general specially like the present modus oprandi involving people from different countries travelling through different countries which is often termed as Organized Drug Trafficking. This type of transnational drug trafficking is equally considered very severe across the world. With my little knowledge such crimes are often serve as of the major sources human trafficking and financing terrorism. It is the reason why we now not only have International Conventions on Narco-terrorism and transnational crimes but also Regional Convention on Narco-Terrorism as eg. SAARC also has convention on terrorism and drug trafficking in one single instrument because their nature of crime. Therefore, these kinds of crimes are definitely considered a serious offence at the global level. The population of Australia and Philippines are not comparable to our population which means more Bhutanese are likely to face more negative impacts due to such crimes. And may be your filipino friend has not faced any problem at airports but that does not mean they are not profiled. Globally, any person even non-filipinos coming from Philippines, Columbia, Mexico, Peru or South Asian Nations or Arab Countries where drug trafficking is common are always profiled by law enforcement agencies. But it does not mean that every citizen of those countries will be subjected to special security checks but definitely they are profiled across the globe. You could possibly see these evidence from the thousands of law enforcement documentaries broadcast by Australian, US, Canada, UK and many more countries, you will realize how serious and severe drug trafficking is viewed across the world by any nation as yourself as law enforcer. It is because drug trafficking is the one of the major source of generating billions of dollars across the world which finance many terrorist as well as other illegal activities including illegal sale of weapons. As you said, you may be knowing more than what little information I have. Regarding Australia, first they are already known across the world as reputed nation with so much population compared to us and yes, these people are also profiled particularly if they coming from or going to the above nations including South Asia for very short trips as Nepal, Myanmar, India, Pakistan, Bangladesh and Afghanistan are already listed as one of the most vulnerable countries where drug trafficking as well as human trafficking are involved but Bhutan has always listed as least in these areas. But if such incidents continue, definitely Bhutan will also be listed in these categories.
You are right that from one perspective, we should not either condemn those suspects as they are not yet even arrested so they are still completely innocent until proven guilty. And definitely very unfortunate that their families bear the brunt of supposedly involvement of one or some of their family members in this case. And as nation with principles of innocent until proven guilty, we should not jump to the conclusion of condemning them or their families.
However, with the social media, small nation like ours, we can’t run away from such criticisms as a small society and i hope that their families stay strong at this moment.
Having said that, after seeing such reaction and impacts on their families, this incident whether true or not would definitely serve even more deterrence than the laws we have as the whole society has reacted grossly in negative manner in preventing involvement of any Bhutanese in future. Everyone would think twice before they do this..
As you said, we should now put in better mechanisms if such thing originates from our country or discourage any of our citizens from getting into such traps of professional criminals from outside in recruiting our innocent people with a false promise of huge sums of money not revealing the actual risk involved in such illegal activities.
To my knowledge, if convicted, as per the Amended Thai Narcotic laws, it can attract a sentence of life imprisonment to death if the quantity is above 20grams. In addition to that, there is a mandatory fine ranging from 1 million Baht to 5 million baht. And I hope that our people do not get convicted even if the events are true atleast not under this scheme of provision.
And finally, I would appreciate if you could also high light some of the things you feel that Bhutan should do either as state or non-state actors in preventing our own people from landing into prey to such transnational narco-trafficking gangs.


 Dichen 'Di' Dicden :
thank you for your elaborate explanation. As I said before, I agree with your point. I am not discounting the severity of the act of the Bangkok Seven, neither am I trying to say that drug trafficking is not a concern (covering that in my next post, hence leaving this out). Organised crime and drug syndicate generate revenue that is beyond what we can comprehend, but only estimate. I hope we are all aware of the implications of this global concern. Yes, my concern has been the backlash of our people on social media and this is going to impact us in a big way.

I agree with you about the population of the countries I mentioned against us. Ours will be magnified. At the same time, these issues are not ancient in our country. Maybe we still have time to do something about it. That's where we can accept that we are capable of wrong doing, so are our fellow Bhutanese. Let us try not to cover each other by saying we are innocent people and we are easily duped. While I feel bad for late Ugyen Tshering, was he not aware of what was going inside inside his body? (Just for argument's sake throwing in an assumption) Did the condom break or did someone want it to break?

As for what we can do, I think we should come together as a society, accept we have problems, try to identify the problems and come up with possible fixes/solutions. This may take time, sure, but we need to start somewhere. Maybe while our efforts in drug demand reduction is getting somewhere, we should also do more on the supply reduction front. As you asked me, my personal opinion: I am an educator, so I would suggest we educate ourselves. Of our own drug laws and those of neighbouring countries, highlight the severity and why it is wrong to be involved in such undertaking (hence the severity of the laws and the effects of drugs). We can also educate ourselves to identify prospective drug mule recruiters. Identify signs of falling prey to the drug syndicate. Learn to be cautious. Learn (again) to reach out to our families and neighbours who might be going through something. Teach our children coping skills. And yes, how to communicate.


Bangkok Seven by Dichen Di Dicden vs my comments

An article was written on Bhutan Street Fashion page on the Bangkok seven involving five Bhutanese in Illicit Drug Trafficking by Dichen 'Di' Dicden . And I wrote the following the comments

Me:
It is right that such one isolated incident does not and should not define the image and generalise all Bhutanese like them. But we should also accept the fact that this is the second incident in Thailand. One already serving sentence now a big group. When such continues, it can have lots of impact on any Bhutanese traveling outside no matter how innocent we may be. All Muslims are not terrorists, in fact there are millions of Muslims who are real followers of Islam yet any

Is it worth to get into drug trafficking because one is unable to find a job

My debate on jobless as a cause of getting into drug trafficking on facebook posted on Bhutan Street Fashion  with one of the commentators on the issue called Mr. Kexang Norbu.

 Kexang Norbu:
 well may be we should realize the fact that our country is poor and so are the citizens...people opt for jobs like this bacause there arent many job or business opportunities in Bhutan .... My point of view though 😶

My Comments
First I don't think that any unemployment should justify such crimes n will never be tolerated in any country. Japan is developed nation where the government is one of the richest in the world. But thousands of youth commit suicide every hear not because government failed to give them job but because they feel ashamed that they failed to get a job themselves.
Similarly, our youth in Bhutan fancy about South Korea but how many actually understand the hard work they put in to enjoy their life. Students study more than on an average of minimum of 10 hours every day in addition to regular school classes to get the best skills n education. So is true for any developed country. But how much really our youth work hard to study and get their skills? Our youth only want white colour job without working hard and without difficult which is never going to happen. The role of government should not be an employer but a platform to acquire required skills n qualifications and provide conducive environment for the job seekers. Thereafter it should be left to the job seeker themselves to chose their own profession based on their competency and capability. 
And lastly, if my knowledge is correct, one of the alleged suspects was caught in Bhutan in past for drug related cases on number of occasions which means government has given enough opportunity for him or her to reform and not to indulge in the crime again.


 Kexang Norbu's reply:
unployment is the justification of crime not entirely though....i personally know about a dozens of graduates who are dealing drugs rite now...perhaps you can ask them yourself i can give you their address ...and also ask 16,800 unemployed graduates as of now...not to mention about 25k unemployed high school graduates la

My Reply to his comments
 If what u said is true, definitely please send me the address in my inbox and I will assure u that each of them would be taken care not necessarily by giving them jobs but to find out the real reason for such activities including meeting themselves, their parents and determine whether that is the only way for them to led a life. I will assure u that i will with the help of other concerned agencies and people will at least persuade them not to do that because that is the worst option and we will guide them to take a better options in life. You could also inform Dorji Tshering as he will help them to get rid of such habits without being prosecuted. Honestly, we must thank our government for free education through out our life as long as we work hard. This is the biggest gift already given by our government to every family and we must thank them. By this only, we owe a lot of serve the nation and pay back. Have you heard of any country where government though heavily dependent on foreign aids and assistance yet they give free education even in tertiary level. Nowhere, even richest countries like US, UK, Australia or Russia or Japan gives free education and even if given only maximum up to basic schooling which is class 8th or tenth standard. Today there are thousands of Bhutanese like me coming from very rural areas with meager earnings of parents to participate in policy making process which would not have been possible without government free education. As I said earlier, people must not be too choosy when the world is competitive unless one believes that he or she has extra ordinary skills compared to rest. Finding the job does not solely depends on mere possession of degree certificate as even academic qualifications can be bought with money just across the border which is no more any secret.Adequate knowledge, Right attitude, less choosy, more hardworking and being able to identify one's own skills and applying for the best job is the only way out. Everything is open n selected through certain criteria and if one wants a job, must show of their worthy and then job would come and not demand jobs just because one is graduate or possess certain qualifications.

Is it worth to get into drug trafficking because one is unable to find a job

My debate on jobless as a cause of getting into drug trafficking on facebook posted on Bhutan Street Fashion  with one of the commentators on the issue called Mr. Kexang Norbu.

 Kexang Norbu:
 well may be we should realize the fact that our country is poor and so are the citizens...people opt for jobs like this bacause there arent many job or business opportunities in Bhutan .... My point of view though 😶

My Comments
First I don't think that any unemployment should justify such crimes n will never be tolerated in any country. Japan is developed nation where the government is one of the richest in the world. But thousands of youth commit suicide every hear not because government failed to give them job but because they feel ashamed that they failed to get a job themselves.

Friday 1 April 2016

The needs

--> Today, with increase in more unemployment and escalating rate of unemployment rate every year, employment is everything for them. It has been to me for long time. Since my education started, I dreamt of becoming someone in life. In simple sense, I wanted to get
employment. Thanks to everyone who helped me to get my education till this stage. Today, I proudly completed my post graduate diploma after overcoming numerous obstacles.
I know that job is everything for me too. However, that is not the end for me to enjoy. There are still many things undone. In fact I am now going to encounter more challenges ahead as I open my new chapter and write about it. These challenges range from hunting for houses to procuring household items to paying rents to bills to other necessities. It also includes looking after my own family and relatives to marriage to forming my own new family. These are all needs and obligations and duties beside my daily office work. When these arise, now I wish that I am still a student and not in a job so that I don’t have to face these new  challenges
I am now just waiting to write down these ups and downs.



The needs

--> Today, with increase in more unemployment and escalating rate of unemployment rate every year, employment is everything for them. It has been to me for long time. Since my education started, I dreamt of becoming someone in life. In simple sense, I wanted to get

The Act

It has been just a month ago that Tobacco Control Act of Bhutan was into force and already two poor chaps were caught and detained. The first one not only created news in the country, it has caught the attention of the the international media and affected the sentiments of even
the Hon'ble Opposition Leader who is also the law maker. Recently, BHUTAN TODAY's reporter Chencho Dema was so much engrossed by what the OL has posted on his blog where he has called the Citizen's movement of amend the law. Many applauded the OL and many also questioned and criticized the OL.

Now, as a law enforcement person, I am equally worried and concerned about the situation. Though I am neither for nor against the Act, as one of the key implementers of the Act is made to think. I realized that as the implementer I have done nothing wrong and would not feel that regret for enforcing the Act as mandated.

The question now is for the legislators and as far as I know about the Act, it is more stringent  pertaining to the smuggling. I have assumed the following reasons for why it has become stringent.
1. The past rules and regulations failed to curb the smuggling of tobacco and tobacco related products.

The Act

It has been just a month ago that Tobacco Control Act of Bhutan was into force and already two poor chaps were caught and detained. The first one not only created news in the country, it has caught the attention of the the international media and affected the sentiments of even

Sovereignty

Bhutan is India's closest friend and neighbour and so is India to Bhutan. Bhutan has remained independent from the time immemorial, has never been colonized any other nation though we lost a part of our territory to British-India which today remains the parts of Indian Territory.
British-India and Bhutan also enjoyed good friendship where our First King, Gongsar Ugyen Wanchuck even helped British India a mediator between British India  and Tibet. As a recognition and honour, our first king was given the Knight Commander of the Indian Empire (K.I.C.E).

Since the independence of India in 1947, Bhutan remained India's closet friend. With the Independence of India, Indo-Bhutan Friendship Treay 1947 was signed. One of the major clause in this treaty was that, India would not interfer in internal matters of Bhutan while India would continue to guide Bhutan on foreign and defence. Thus, India being a very large nation, Bhutan became kind of protectorate nation.

In 1958, Jewaral Nehru, the first Prime Minister of India, visited Bhutan. Addressing the thousands of Bhutan in Ugyen Pelri Palace, he assured that India recognizes Bhutan as an independent nation and closest ally.


Under the dynamic and faresighted leadership of our monarchs, Bhutan though ended her self isolation  in late 1960s and became UN member in 1972, Bhutan became one of the fastest developing nation in the South Asia. Today, Bhutan is considered to be one of the most peaceful country on the earth with GDP of  . 

In 2007, the Indo-Bhutan Friendship Treay 1949 was revised where India recognized Bhutan's complete independence including 


Sovereignty

Bhutan is India's closest friend and neighbour and so is India to Bhutan. Bhutan has remained independent from the time immemorial, has never been colonized any other nation though we lost a part of our territory to British-India which today remains the parts of Indian Territory.

WRITS


Introduction
The most significant and fascinating but complex segment of administrative law is that pertaining to judicial control of administrative action. It has been suggested that two important aspects of administrative law, among others, are the control mechanisms over the administration and the remedies and relief which a person can secure against it when his legal right is infringed by any of its actions.
It is an accepted axiom  that the real kernel of democracy lies in courts enjoying the ultimate authority to restrain the exercise of absolute and arbitrary power. Without some kind of judicial power to control administrative  authorities, there is a danger that they commit excess and degenerate into arbitrary bodies. Courts must install the administrative bodies and officials to function within the limits of the ambits of the country’s legal system as they tend to ignore such limits.

Definition of Writs
An order issued by a 
court requiring that something be done or giving authority to do a specified act.The development of English CommonLaw relied on the courts to issue writs that allowed 
persons to proceed with a legal action. Over timethe courts also used writs to direct other courts, sheriffs, and attorneys to perform certain actions. In modern law, courts primarily use writsto grant extraordinary relief, to grant the right of appeal, or to grant the sheriff authority to seize property. 
Under the Indian legal system, jurisdiction to issue ‘prerogative writs’ is given to the Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating to writs are set forth in the Constitution of India.

Article 32 and 226 of the Constitution (Writ Jurisdiction)
The Supreme Court, the highest in the country, may issue writs under Article 32 of the Constitution for enforcement of Fundamental Rights and under Articles 139 for enforcement of rights other than Fundamental Rights, while High Courts, the superior courts of the States, may issue writs under Articles 226.
Scope of Article 32: Article 32 provides a quick and summary remedy of the enforcement of Fundamental Rights . Any person complaining of infraction of any of his fundamental rights by an administrative action can go straight to the Supreme Court for vindication of his right without required to undergo the dilatory proceedings from the lower court to the higher court. 
Article 32 is itself is a fundamental right (Mohd. Yasim v Town Area Committee, AIR 1952 SC115) and cannot be diluted or whittled down by legislation and can be invoked even when a law declares a particular administrative action final.
However, article 32 can be invoked only when an administrative action is in conflict with fundamental rights of the petitioner and it cannot be invoked even if the administrative action is illegal unless it is violation of fundamental rights.

Article 32 (1) provides the discretionary power to Supreme court to whether entertain the petition or not and not right of the petitioner. Once, it is admitted through the discretionary power of Supreme Court , Article 32(2) provides the remedies for the petition filed thereafter. 
Scope of Article 226: Article 226 is unlike Article 32 is writ jurisdiction of High Court’s discretionary power and equitable jurisdiction. The power under this Article is to reach justice wherever it is found. Where no legally enforceable right of the petitioner exists and can be invoked to enforce not only the Fundamental rights but also legal rights as well. It has broader in range than that of Article 32 . Because of its broad ambit, it serves as a big reservoir of judicial power to control administrative action and hundreds of writs can be moved under this Article in High Court.

Exception to writ Petition
a.       LACHES
A writ petition will be thrown out if the petitioner is guilty of laches. The Court helps the vigilant  and not the indolent. The petitioner should be diligent in pursuing his remedy and file writ petition within a reasonable time from the date of the order challenged and an undue delay on his part will debar him from getting and relief (Druga Prasad v Chief Controller of Imports, AIR 1970 SC769)
Articles  32 and 226 does not prescribe any period of limitation nor they are bound by limitation Act. The Supreme Court in the case of (Druga Prasad v Chief Controller, AIR 1970 SC769) stated that:
No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and it otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the court, in this matter too discretion must be exercised judiciously and reasonably.

b.       Principle of Res Judicata
Principle of Res Judicata in the same court: The rule of res judicata is based on considerations of public policy as it envisages that finality should attach to the binding decisions pronounced by the courts of competent jurisdiction, and that individuals should not be made to face the same litigation twice. Res Judicata in latin means “a matter (already) judged”. It is also called a Claim Preclusion. It is a common law practice meant to bar re-litigation of cases between the same parties in the court.  The issue should be between the same parties for the same cause of action and same relief. It such is writ petition, it will be rejected by the court once it is filed in the one court  if it is already filed in another court.
Res Judicata aims to prevent:
                  i.   Injustice to the parties of a case that has been supposedly concluded
                ii.   Injustice to the parties of a case that has been supposedly conclude
              iii.   Unnecessary waste of court of resources
              iv.   Prevent multiplying of judgments
                v.   Recovery of damages from the defendant twice for the same injury 

Res Judicata between Arts. 32 and 226 petitions
The Principle of res judicata applies in another context as well. A person complaining of infraction of his Fundamental Rights has a choice: he can either straightaway invoke the jurisdiction of the Supreme Court under Art. 32, or that of a High Court under Art. 226. If a person goes first to a High Court under Art.226, and his petition is dismissed there on merits , then he cannot approach the Supreme Court under Article 32 because of res judicata  as in case of Daryao v. State of U.P. AIR 1961 SC 1457. Where a petition under Art. 226 is disposed of on merits by a speaking order, such dismissal would amount to res judicata and would bar a petition under Art. 32 on same facts (K.Vidyasagar v. State of U.P. 2005). Where petition under Article 226 a relief is given up, the same cannot be sought in a writ petition under Article 32.

In such situation, he can reach the Supreme Court only by way of appeal. If, however, the High Court dismisses the petition not on merits but on some other technical ground, like laches or availability of an alternative remedy, through a speaking order, the re judicata does not apply and the petitioner can move the Supreme Court under Art.32. Consideration of an application under Article 32 is not barred by a previous application of High Court under Art.226, if it not decided on merits. Similarly, no res judicata arises if the petition is dismissed in limine without passing a speaking order (Ghulam Sarwar v, Union of India, AIR 1967 SC 1335).  
In limine is a Latin term meaning Latin "at the threshold," referring to a motion made before a trial begins. A motion in limine is usually made to exclude reference to anticipated evidence which is objectionable, so that a determination of the admissibility of the evidence can be made outside the presence of the jury. Such motions seek to avoid having the jury tainted by irrelevant, inadmissible, or prejudicial evidence. For example, a motion in limine may be a motion to suppress illegally obtained evidence

To Whom Writs can be issued
Writs are public law remedies and are generally designed to redress grievances against public officials or bodies. In the modern welfare state, the administration has assumed a sprawling and varied character. The state functions not only through the traditional Government Departments, officials, boards, administrative bodies and local governments but also through diversified various other agencies called public corporations, government public companies, commissions etc which discharge various types of functions.
Therefore, writs may be issued to:
a.        The Government
b.       Local Authorities
c.        Other authorities (under Article 12 related cases laws)
d.       Statutory Bodies
e.        Non-statutory Bodies

Who can apply for a writ
Locus Standi: Article 32 and 226 do not prescribe persons or classes of persons who may seek writs for redressal of their  of their grievances against the administration. The matter of “standing” thus lies within the realm of the courts. 

This was provided in case of J.M. Desai v. Roshan Kumar, AIR 1976 SC 578
i.                     Only he can take recourse to the writ jurisdiction whose own legal rights of person or property are directly and substantially injured.
ii.                   When a person suffers along with other members of the public by administrative action, he cannot chellenge the action in question unless he can show some special injury to himself, over and above what others have suffered.
iii.                 Where a person challenging an administrative action is a total stranger (whom the courts call as a meddlesome interloper), the court will not ordinarily entertain his petition.

Kinds of Writs and Grounds for issuance of these writs.
‘Writ’ is eminently designed by the makers of the Constitution, and in the same way it is developed very widely and efficiently by the courts in India. The Constitution broadly provides for five kinds of “prerogative” writs:
a.        Habeas Corpus,
b.       Mandamus;
c.        Certiorari;
d.       Quo Warranto; and
e.        Prohibition.



The scope of the writ of habeas corpus has considerably increased by virtue of the decision of the Supreme Court in Maneka Gandhi v. Union of India5 and also by the adoption of forty-fourth amendment to the Constitution. Since the judicial interpretation of Article 21 has extended the magnitude of the concept of the personal liberty and the Court introduced the element -of fairness and justness in the 'procedure established by law', now a writ of habeas corpus would lie if the law depriving a person of his personal liberty is not fair, just and equitable
(i) body of persons having legal authority to determine question;
(ii) the determination must affect the rights of subjects;
(iii) having the duty to act judicially;
(iv) act in excess of their legal authority.

(ii) the determination must affect the rights of subjects;
(iii) having the duty to act judicially;
(iv) act in excess of their legal authority.
(i) Lack or excess of jurisdiction
(ii) Violation of the principles of natural justice.
(iii) Error of law apparent on the face of the records.


a.        Habeas Corpus ( You may have the Body)
This writ is used primarily to secure the release of a person who has been detained unlawfully or without any legal justification. The great value of the writ is that it enables immediate determination of the right of person as to his freedom (Ranjit v. State of Punjab AIR 1959 SC 843).  The writ of habeas corpus has always been looked upon as an effective means to ensure release of the detained person from the prison. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. However, even when writ of habeas corpus is issued, it does not automatically exonerate the detained person from liability. It merely ensures his release from prison and it does not have any bearing on his guilt or otherwise. 
Kanu Sanyal v. District Magistrate AIR 1973 SC 2684 .
The court in that case held that habeas corpus was essentially a procedural writ dealing with the machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ, declared the court is a command addressed to the person who is alleged to have another person unlawfully in his custody, requiring him to bring the body of such person before the court in order that the circumstances of the detention may be enquired into and an appropriate judgment rendered upon judicial enquiry into the alleged unlawful restraint. The characteristic element of the writ and the theory behind the whole procedure observed the court was the immediate determination of the right of the applicant's freedom and his release when the detention is found to be unlawful.

An application for habeas corpus can be made by any person on behalf of the prisoner as well as by the prisoner himself, subject to the rules and conditions framed by various High Courts. The writ of habeas corpus is an effective means of immediate release from unlawful detention whether in prison or private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient Legal necessities and technicalities are no impediments to the court entertaining the writ of habeas corpus if the basic facts are found. The writ of habeas corpus cannot only be used for releasing a person illegally detained but it will be also used for protecting him inhumane treatment inside the jail as stated in Sunil Batra case4 

b.       Mandamus;
It is a command issued by a court to an authority directing it to perform a public duty imposed upon it by law. Eg., when a body omits to decide a  matter which it is bound to decide, it can be commanded to decide the same (Mysore v. Chandrasekhara, AIR 1965 SC 532).
In India, mandamus can be issued to undo what has already been done in contravention of a statute, or to enforce a duty to abstain from acting unlawfully. Mandamus is employed to enforce a duty the performance of which is imperative and not optional or discretionary with the authority concerned. Mandamus is not to enforce the performance of public duties by public authorities. Mandamus is not issued when Government is under no duty under law.
c.        Quo Warranto
The term Quo Warranto means what is your Authority?. The writ of quo warranto is used to judicially control executive action in the matter of making appointments to public offices under relevant statutory provisions. The writ is also used to protect citizen from the holder of a public which he has no right. The writ calls upon the holder of a public office to show to the court under authority he is holding the office in question. If he is not entitled to the office, the court may restrain him from acting in the office and may also declare the office to be vacant (University of Mysore v. Govinda Rao, AIR 1965 SC 491). The writ proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of which he has right to hold the office.

d.       Certiorari
Certiorari is a Latin term being in the passive form of the word ‘Certiorare’ meaning to inform. It was a royal demand for information. Certiorari can be described as “one of the most valuable and efficient remedies.” Certiorari is one of the five prerogative writs adopted by the Indian Constitution under Article 226 which would be enforced against the decisions of the authority exercising judicial or quasi judicial powers. Such powers are exercised when the authorities have failed to exercise the jurisdiction though vested in it or failed to exercise the jurisdiction though vested on him or to correct the apparent error on the face of record or there is violation of the principle of natural justice.  
According to the above statement the conditions are –

The most controversial condition was the requirement of acting judicially. It was interpreted as an additional requirement apart from affecting the rights by Lord Hewert in R. v. Legislative Com  1928 (1) KB 411 etc. This was confirmed by the Privy Council in Nakkuda Ali case 1951 AC 66. Our courts also adopted this interpretation. In England this confusion was cleared by Lord Reid in the landmark decision of Ridge v. Baldwin 1964, AC 40, Lord Reid reinterpreted Atkin LJ's words about the duty to act judicially. Accordingly it was not additional condition but a qualification of the earlier condition. Therefore, acting judicially means acting fairly where the determination affects a person's rights. This interpretation has extended the writ to administrative actions also which of course affect his rights.
         i.            In A.K.Kraipak v. Union of India AIR 1970 SC 150, the Supreme Court accepted Lord Reid's interpretation and held that distinction between quasi-judicial and administrative has become thin but it is not completely obliterated for other purposes. Therefore, since Kraipak a new trend has emerged in the expanding horizon of the writ of certiorari in India to control the administrative actions. It applies not only to legal authority but also to any agency or instrumentality of the state who acts arbitrarily in violation of law or Constitution. The broad grounds for issuing the writ are:
The last ground 'error of law apparent on the face' has become redundant in English law since the decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commissioner 1969(2AC) 147, where the Court (Lord Reid), brought all errors of law under the jurisdictional law. This position is now confirmed after some controversy in the earlier stages after the decision in the Anisminic case. In India, our courts are still hesitant in this regard. The ground of 'error of law apparent on the face' is still being employed for certiorari. It is hoped that our courts will also follow the broad principle of 'jurisdiction law' as laid down in Anisminic case.
Thus the writ of certiorari is an important remedy to quash a decision of any court, tribunal or administrative authority if it acted ultra vires their powers.
e.       Writ of Prohibition
The writ of Prohibition is issued by the court exercising the power and authorities from continuing the proceedings as basically such authority has no power or jurisdiction to decide the case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying principle is that ‘prevention is better than cure .’ In East India Commercial Co. Ltd v. Collector of Customs , a writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise
In the same manner Electricity Commission case 1924(1KB) 171 Lord Atkin LJ said: “I can see no difference in principle between certiorari and prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters, which would result in its final decision being subject to being brought up and quashed on certiorari, I think that prohibition will lie to restrain it from so exceeding its jurisdiction.”
In Hari Vishnu Kamath v. S. Ahmad Ishaque AIR 1955, SC 233, the Supreme Court said: Both the writs of prohibition and certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction and they could be issued not merely to court but to authorities exercising judicial or quasi-judicial functions.
Since these decisions the scope of prohibition has expanded and it lies against the administrative authorities also. Lord Denning said, “It is available to prohibit administrative authorities from exceeding their powers or misusing them. In particular, it can prohibit a licensing authority. from making rules or granting licenses which permit conduct which is contrary to law” 11. In India, prohibition is issued to protect the individual from arbitrary administrative actions.
It is an efficacious and speedy remedy where a person does not desire any other relief except to stop the administrative agency. An alternative remedy does not bar the issue of this writ. It can be issued even when the matter is decided to stop the authority from enforcing its decision. If the lack of jurisdiction is patent, the writ is issued as a writ of right.
  
Grounds for issuance of writs
a.       Cases of Nullity
 It is trite law that an order passed without jurisdiction is a nullity (Kiran Singh v. Chaman Paswan AIR 1954 SC 1062). According to the original or pure theory of jurisdiction, the jurisdiction of a tribunal is determinable at the commencement of a proceeding and if jurisdiction is properly assumed any order passed thereafter will be within jurisdiction and conclusive though it may be erroneous in fact or law.
 The case of Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621, shows that an adjudication by a tribunal of limited jurisdiction is void, when:
i.                     Action is taken under an ultra vires statute
ii.                   The subject-matter of adjudication is beyond its competence or the order passed is such which it has no authority to pass
iii.                 The adjudication is procedurally ultra vires being in violation of fundamental principles of judicial procedure, and
iv.                 Jurisdiction is assumed by wrongly deciding jurisdictional questions of law or fact.
(a)     Cases of nullity may arise when there is a lack of jurisdiction at the stage of commencement of enquiry eg. When (i) authority is assumed under an ultra vires statute (ii) the tribunal is not properly constituted, or is disqualified to act, (iii) the subject-matter or the parties are such over which a tribunal has no authority to inquire and (iv) there is want of essential preliminaries prescribed by the law for commencement of the inquiry
(b)     It may also rise during the course or at the conclusion of the inquiry. These cases of are also want of jurisdiction if the word “jurisdiction” is understood in wide sense. Eg. (i) When the tribunal has wrongly determined a jurisdictional question of fact or law, (ii) when it has failed to follow the fundamental principles of judicial procedure.
b.       Error of law apparent on the face of the record

A decision of an authority can always be quashed if there is an error of law apparent on the face of the record even though the error is non-jurisdictional. Theoretically, neither certiorari nor prohibition is issuable merely on the ground that the decision of an authority involves an “error of law” which is neither “jurisdictional” nor “patent”. However, with the expansion of the concept of “patent error of law”, the scope of mere “error of law” has been very much narrowed down. Whenever a court wants to interfere, it can characterize an “error of law” as either “Jurisdictional “ or “patent”.

Jurisdictional Facts
There are two types of facts: facts which an authority has to determine to dispose of a dispute before it; and facts which must exist before an authority could exercise jurisdiction in a matter. The latter are known as “jurisdictional” or “collateral” facts. The existence of these facts is condition precedent for the application of a statutory standard or the assumption of jurisdiction by a body over a dispute and to decide it on merits. Thus, where an authority has power to requisition a vacant house, it is a condition precedent for requisitioning the house that it must be vacant which is a “jurisdictional “ or a “Collateral” fact.
A Statute may or may not give power to a body to determine the jurisdictional facts for itself. When no such power is conferred, judicial review extends to consideration of the evidence  by the court upon independent judgment, as if it is an appeal and to decide the existence of jurisdictional facts. The reason for this approach is that the jurisdiction of the body depends  on a correct decision as to jurisdictional facts and that by wrongly deciding a jurisdictional fact, body cannot give jurisdiction to itself which it does not possess under the law (Naresh v. Maharashtra, AIR 1967 SC1).

Findings of Fact
A court would not interfere with a decision of an authority merely on the ground of errors of fact. The writ jurisdiction is supervisory in nature, a court exercising the same is not to act as an appellate authority and it would not ordinarily review findings of fact by tribunals, for if it were to do so, these authorities would become merely transmitting agencies of evidence to the court, and much of the advantage of administrative adjudication will be lost.

Procedural Defects
If an authority fails to observe a procedural requirement which is considered to be mandatory, then its decision is liable to be quashed on the ground of ultra vires. Whether disregard of procedure would vitiate administrative actions or not depends upon whether the procedure is held to be directory or mandatory. Breach of directory procedure does not invalidate administrative action but breach of a mandatory provision would.  Article 320(3) lays down that while taking disciplinary  action against any civil servant in state the State Public Service Commission “shall be consulted.” Interpreting the provision, the Supreme Court held that it is only directory  and not mandatory and non-compliance with it would not vitiate the action of the Government (State of U.P. v. Manbodhan Lal AIR 1954 SC 912).

Moulding of Relief
Ordinarily the function of certiorari is to quash the decision of an authority leaving it to decide the matter again if it so likes. Similarly, mandamus directs the authority to discharge a mandatory duty laid on it by law and the court in doing so ask the authority to act in one specific way, eg. To grant a licence or not to cancel licence, without going into the merits of the case or laying down guidelines, as to how the authority is to act. In recent years the courts have not looked upon their task in such a mechanical manner and have tended to  mould their relief according to the exigency of the situation. They have tried to tailor the relief in accordance with the demand of justice in the circumstances of the specific case, lay down guidelines, go into the merits and even at times dilute the logical consequences of their own ruling on the law.
 State of Kerala v. T.P. Roshana AIR 1979 SC 765
SC held that though certain admission were found to be unconstitutional,seats in the medical colleges be increased by 30 so that all those who were injustifiably left out could be admitted without disturbing those who had already been admitted. The court action here may called as affirmative action.


 DISCLAIMER

The  above  publication is an academic note prepared for my Semester exam on Administrative Law. Most of the parts in this are either direct reproduction from various books or online sources and sources are not cited here. The major source for this article is from Principle of Administrative Law by M.P. Jain (Jain and Jain). Therefore, the author here bears no responsibility for any suits against  plagiarism or not citing references. Further, readers may only use this article to understand the concepts given here for their  self purpose and not for any commercial purpose. The author takes no responsibility on matters arising out of any use except for personal reading and understanding of the concepts provided here. 

My Blog

My Blog

Search This Blog