India Legal 01 May 2017

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I
Controversial
LegacyPresident Pranab Mukherjee’s
pronouncement on Hindi
ignores India’s plurality and
sends the wrong farewell
message, says
Shiv Vishwanathan
Section 142:
Cudgel or Balm
Liquor Bans:
Good vs Bad

NDIA Legal was a step ahead of the
curve in the denouement of the Babri
demolition case in the Supreme Court
as the arguments unfolded and the
honourable judges indicated their view
in the course of the hearing in the past
many weeks. My colleague, Parsa Venka-
teshwar Rao Jr, looked at the implica-
tions—legal and political—in the India
Legal issue of April 10, where he wrote in
the report, Babri Masjid Case: An Open-
ended Issue: “The judges have clearly indi-
cated that there should be a joint trial at
Lucknow, and that the criminal conspiracy
charge should be restored.”
On April 19, the Court ordered the
same. Many of our discerning readers
appreciated the report and they did not
stint on their praise for the magazine, a pat
on the back—a high five!—which always
gives a high to me and my team.
The Babri Masjid demolition issue rem-
ains both sensitive and explosive given the
electoral success of the BJP in Uttar Pra-
desh. I had no doubt that it is not a mere
legal quibble or a criminal indiscretion
where the instigators and arsonists who
razed the 400-year-old monument to
ground will be duly punished. The case has
lingered for a quarter-of-a-century now,
and Justices Pinaki Ghose and Rohinton
Nariman were appalled by the unjustified
legal procrastination, where procedural
fumbles created avoidable confusion
amounting to moral fudging. The Court’s
directive was for reinstating the conspi-
racy charges under Section 120B of the
Indian Penal Code (IPC) and the merging
of the separate trials dealing with the dem-
olition which had been going on at special
courts at Rae Bareli and Lucknow. Now,
there will be single trial which will be held
at Lucknow.
The political fallout of the Court’s deci-
sion remains to be deconstructed. Union
Finance Minister Arun Jaitley was asked
about the issue when he was briefing the
media about the decisions of the Union
cabinet on April 19, and he gave the expect-
ed non-committal, passive response that
the Court’s decision did not alter the posi-
tion of any of the politicians who would
now face the criminal conspiracy charge. It
is what he could say given the constraints of
the Modi government. It is the CBI, a part
of the central government, which had arg-
ued for the restoration of the criminal
conspiracy charges against BJP leaders
LK Advani, Murli Manohar Joshi, Kalyan
Singh, Uma Bharati and Vinay Katiyar
among others.
Advani and Joshi do not hold any con-
stitutional position. They are members of
the Lok Sabha. Bharati is a minister of
water resources in the Union cabinet. The
question arises whether she will choose to
resign in conformity with political norms.
Singh is the governor of Rajasthan. The
Court, keeping in mind the immunity he
enjoys due to his constitutional position,
said that the charges could be framed
against him after he demits office.
It is surely the case that Advani et al are
not the pillars of the BJP that they once
were, and a criminal conspiracy charge,
according to calculations in 11, Ashoka
I
INDIA LEGAL LEADS AGAIN
Inderjit Badhwar
Letter From The Editor
4 May 1, 2017

Road (the BJP’s national headquarters in
Delhi), against them would not in any way
dent the party’s image. The helmsman of
the party is none else than Prime Minister
Narendra Modi, and the man who steers its
affairs is BJP national president Amit Shah,
the confidante of Modi. The old guard does
not matter anymore.
B
ut the BJP cannot shrug off the rip-
ple effects of the Babri Masjid dem-
olition case and its political corol-
lary, the promised construction of a Ram
temple at the site of the mosque. The con-
struction of the temple remains part of the
core agenda of the par-ty. The issue is
indeed a political minefield. Modi, Shah
and others in the BJP cannot afford to
ignore it completely. They would have to
evolve a game plan to handle the explosive
issue with care if not with kid gloves.
Whatever the political seismicity of the
issue, the legal road map is quite clear. We
are very much aware of the fact that the
criminal conspiracy charge against Advani,
Joshi and others does not in any way
impugn their presumed innocence. The
charge has to be established
beyond reasonable doubt and it
is open to challenge at the high court and
Supreme Court levels in case the special
court at Lucknow upholds it.
The Supreme Court has established the
principle that prosecution cannot take a
lenient stance against those responsible for
the demolition of the mosque. It remains a
criminal act of vandalism and arson. It also
stands to reason that it was not an unpre-
meditated explosion. It is for this reason
that the charge of criminal conspiracy
becomes a necessary assumption.
The directive that the trial should be
conducted without adjournments and that
it should be completed in two years’ time is
a salutary assertion that a criminal act does
not lapse with the passing of time, and that
those responsible for it have to be convicted
and punished.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
FOLLOWING THE
CASE CLOSELY
(Left) Twitter
handle of India
Legal, showing
coverage of the
Babri Masjid
demolition case in
the apex court;
(Above) Parsa
Venkateshwar Rao
Jr’s analytical
piece on the
implications of
the case in the
magazine
| INDIA LEGAL | May 1, 2017 5

Contents
Controversial Legacy
President Pranab Mukherjee's pronouncement on Hindi ignores India's plurality and sends
the wrong farewell message
14
LEAD
VOLUME. X ISSUE. 24
MAY1,2017
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Managing Editor (Web) Parsa Venkateshwar Rao Jr
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Technical Executive Anubhav Tyagi
6 May 1, 2017
Truce, for Now
The Bar Council’s protest against the Law Commission’s draft Bill to amend the Advocates
Act has been withdrawn post government assurances, but concerns remain
16
SPOTLIGHT
King of Bad Times? 18
PROBE
Vijay Mallya’s extradition from the UK will be easier said than done, but it will set a prece-
dent for those who cross international borders to escape the consequences of their crimes
Tax of the Matter 21
ECONOMY
Considering the current state of preparedness of taxpayers, taxmen and the network,
would it have been wiser to shift the target date for GST implementation to September 1?

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Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs................12
Media Watch ..................31
International Briefs..........32
Satire ..............................50
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
Less is More
The government’s move to
specify the portion size of meals
in restaurants aims to minimise
wastage. But it can be success-
ful only if mindsets change
48
Dry? Not Really
There are leakages in Gujarat’s famous prohibition law, as the
high court has pointed out. Why is the policy not succeeding?
38
Spanner in the Works
A housing project started by the Tatas in Chandigarh on cheap farmland bought
by MPs and MLAs has run aground with the Delhi High Court refusing to clear it
44
ENVIRONMENT
Room for Subjectivity
Article 142 confers on the apex court powers bordering on the
absolute. Past precedents show these have been used wisely
34
FOCUS
Fair’s Unfair
Actor Abhay Deol’s roast of fellow
Bollywood stars endorsing fairness
creams gives a new twist to an old
controversy—the obsession of
Indians with fair skin
46
SOCIETY
A Mixed Blessing?
Data shows that crime rates have declined significantly post the alcohol ban in
Bihar and the socio-economic conditions of the poor have changed for the better
40
Centralising Power
The GST Council as a super-federal cabinet is a beguiling but
insidious bid to involve states in deciding taxes
24
MYSPACE
Bringing Kulbhushan Home
An Indo-Pak people’s initiative has been launched, but what are
the chances that the former Indian Navy officer will get a fair trial?
26
DIPLOMACY
Eve’s Battle
The law against harassment of women at the workplace may not
be a deterrent, but it ensures that the dogged victim gets justice
28
ACTS&BILLS
Two’s Company
Assam’s draft population policy is seen as a move to reduce the number of
Bangladeshi settlers there. In the process, are fundamental rights being denied?
42
Limited High-ways
The court ban has hit Kerala hard as it has no land to relocate the
shops, sparking fears of a parallel drugs and illicit liquor network
36
STATES

The threat of imprisonment will not deter
me. Bring your money bags and your
lawyers. File the criminal case against me
for using the phrase “nation wants to know”.
Do everything you can…. Arrest me. I am
waiting right now, on my studio floor. The
phrase “nation wants to know” belongs to
you, me and to all of us. To every citizen of
this country.
—News anchor Arnab Goswami, on a notice
served to him, restraining him from using the
line “The Nation Wants to Know”, on YouTube
8 May 1, 2017
“
RINGSIDE
Every Indian is special. Every
Indian is a VIP. These symbols
are out of touch with the spirit
of new India.
—Prime Minister Narendra Modi,
ending the culture of lal batti on
VIP cars, on Twitter
I do not repent my role.
Jahan bhi gai, Ganga, Ram
aur Tiranga ka apmaan hoga
wahaan ladoongi (wherever
the cow, the Ganges, Lord
Ram and the national flag are
insulted, I will fight).
—Union Water Minister Uma
Bharti, on the SC restoring
criminal charges against her
in the Babri Masjid demolition
case, in Hindustan Times
I have only recently and reluc-
tantly come to this conclusion.
Since I became prime minis-
ter I’ve said there should be
no election until 2020, but
now I have concluded that the
only way to guarantee certain-
ty and security for the years
ahead is to hold this election
and seek your support for the
decisions we must take.
—British Prime Minister
Theresa May, announcing
early elections in the country
It was one of those spur-of-the-
moment decisions.... If an army
major got away without hurting
anybody, it's a great job.... There
was nothing wrong, considering the
circumstances. If it has to be done
again, it should be done again.
—Attorney General Mukul Rohatgi,
speaking about a Kashmiri man
being used as a human shield by the
security forces, on CNN-News18
Never get excited or show misplaced bravado
over slight provocations as anger is a sign of
weakness of a community; instead show
restraint to take the odds in your stride.
—Jamiat Ulema-e-Hind general secretary
Maulana Mahmood Madani, addressing a
convention organised by the Jamiat
God bless everyone. I’m not a Muslim and I
have to be woken up by the Azaan in the
morning. When will this forced
religiousness end in India?
—Singer Sonu Nigam, on Twitter
Any self-respecting nation should
have shot 100 stone-pelters by now.
India is a country of pseudo-liberals
enjoying tea in Pak High Comm.
—Air Marshal (retired) Anil Chopra,
on Twitter

Delhi
DurbarAn inside track on
happenings in Lutyen’s Delhi
There is much speculation
about Punjab chief minister
Amarinder Singh’s refusal to
meet the visiting Canadian
Defence Minister Harjit Singh
Sajjan as he was a “Khalistan
sympathiser”. Diplomatically, it
was embarrassing for the NDA
government, which also had to
deal with Ontario’s recent
assembly motion terming the
1984 Sikh riots as “genocide”.
The fact is that whatever little
support there is for “Khalistan”
comes mainly from members
of the influential population of
Sikhs in Canada. Sajjan, one of
four Sikhs in Justin Trudeau’s
cabinet, has denied any such
connection but what could
have got Amarinder’s goat are
the annual Remembrance Day
ceremony and the Baisakhi
parade in Surrey, in British
Columbia, which has the
largest number of Sikhs in that
country, where photos of “mar-
tyrs” like Bhindrenwale are dis-
played. As a prominent Sikh,
Sajjan has been an invitee.
Indian intelligence agents are
always present as well, to take
photographs which are in the
Home Ministry files. It is possi-
ble that some may have shown
Sajjan on stage with photos of
Sikh radicals in the back-
ground. It is no proof that he is
a sympathiser, but Amarinder
knows he can score political
points by his gesture.
KHALISTAN AND
CANADA
Does it augur well for a party in the dumps,
like the Congress, to create a wall between
its senior leaders and party MPs? It
doesn’t. Unfortunately, those on the high
table never seem to learn. This arro-
gance and class distinction was visi-
ble at the dinner hosted for party
MPs by Sonia Gandhi, at the end of
the second half of the recently con-
cluded budget session of
Parliament. The occasion would
have served as an opportunity to
boost the morale of party leaders.
Instead, it became an “us and them”
affair with Sonia Gandhi, Rahul
Gandhi, Manmohan Singh, AK
Antony, Ghulam Nabi Azad, Anand
Sharma and Mallikarjun Khagre seat-
ed at one exclusive table, and the others
scattered elsewhere. To make matters
worse, the top leaders (read the first three)
did not mingle with the others, making the
entire evening a “stuck up” affair. No won-
der that prominent party stalwarts are quit-
ting to join the BJP, complaining of lack of
access to the leadership.
Do all our MPs have Aadhaar
cards? Last week, three of our
vocal law makers who frequently
express their views on the subject
of Unique Identity Numbers in the
House were on a TV channel
when they were asked if they had
Aadhaar cards. All three—
Subramanian Swamy, Dinesh
Trivedi and Rajeev
Chandrasekhar—admitted to not
being in possession of the ID
card which is a hotly debated
issue today. We do not know if
the honourable members have
even applied for one. Presumably,
they have not. Parliament has
its privileges.
THE IVORY TOWER
SYNDROME
NO AADHAAR
FOR MPs
Afghanistan cricketer, 18-year-old Rashid Khan
is making waves in the IPL, and had earned the
title of “million dollar baby” when he was picked
by Sunrisers Hyderabad for the 2017 tourna-
ment. Veteran all-rounder Mohammed Nabi was
the second player from Afghanistan to be
picked by the same franchise. The Indian gov-
ernment exerted some pressure on the franchis-
es to induct players from Afghanistan, a country
seen as crucial to India’s strategic interests. It is
well known that the previous UPA regime had
asked IPL owners not to induct cricketers from
Pakistan. What gave the game away was that
when the teams were announced, the Secretary
in charge of Afghanistan in the MEA, wished the
Afghan players success in the tourney as did
the Indian ambassador in Kabul. Sunrisers
Hyderabad is backed by Sun TV, owned by the
politically prominent Maran brothers.
CRICKET DIPLOMACY

The chief justice of India JS
Khehar slammed advocate
KK Venugopal for trying to save
an advocate-on-record, Mohit
Chaudhary, from contempt act-
ion by the Supreme Court. “If a
counsel insults the court, you all
support and stand by him, but
why don’t you ever do that for
us.” Khehar asked.
Chaudhury had alleged that
the Supreme Court registry did
not list his case before a regular
bench but placed it before a spe-
cial bench. On this ground, he
had alleged manipulation by the
court registry.
Venugopal pleaded before
CJI Khehar that Chaudhury had
already apologised for his con-
duct, was remorseful and was
taking back his comments made
against the Supreme Court reg-
istry. But the CJI retorted: “He
was not there in the case. He
came for the mentioning at the
last minute. He charged a fee for
making those insinuations and
you stand by him.” The Court
took a serious note of his con-
duct and blamed him for “bench
hunting”. It had earlier started
contempt proceedings against
the advocate. The verdict was
later reserved.
CJI Khehar’s
outburst
The Special Leave Petition (SLP) against
the Delhi High Court’s verdict upholding
the privacy policy of WhatsApp came up in
the Supreme Court. A five-judge constitu-
tion bench took up the matter. WhatsApp
has now been taken over by Facebook.
The SLP filed by KS Sareen had raised
objections to WhatsApp sharing personal
information of users with Facebook and
other messaging entities
and contended that it
was violating the right
to privacy.
Considering the
importance of the mat-
ter, it had been referred
to a constitution bench by
the chief justice of India.
The centre sought some time from the
court on the ground that it was framing a
comprehensive “data protection” policy
and a law would be in place by October. It
wanted the Court to wait till then. It also
pleaded that another privacy-related matter
(Aadhaar card) was before another consti-
tution bench, and the matter could wait for
some time.
The counsels for WhatsApp and
Facebook argued that privacy issues were
taken care of under the users’ agreement,
and there was no point in bringing up the
issue before a constitution bench.
But the bench fixed April 27 as the next
date of hearing. It also asked the petitioner
to prepare questions of law to be placed
before the constitution bench and submit
them on April 24.
Taking a serious note of the extra-judicial
killings in Manipur under AFSPA, the
Supreme Court felt that all such killings
needed to be probed dispassionately. The
Court was responding to a PIL filed by
Extrajudicial Execution Victims Families
Association, which alleged that more than
1,500 persons had been killed by the Army
and other security forces in Manipur in the
last 30 years.
The centre objected to the doubts
raised and argued that re-examining the
alleged rape and murder cases after more
than a decade would be improper as they
had been disposed. It also contended that
anti-insurgency operations would suffer if
actions of the security forces came under
the scanner. The centre also questioned the
conclusions of many judicial commissions
which had accused the forces for extra-
judicial killings.
But the Court was not convinced and
showed particular interest in probing the
killings of 2003. It cited the example of
legal action initiated against politicians and
the armed forces personnel for war crimes
committed by them in Bangladesh in 1971.
The Court insisted on setting up an SIT
consisting of five senior (DIG-level) CBI
officials or high-level state police officers
(additional director general of police) to
probe the killings. It observed that the
centre and the states couldn’t ignore the
crimes and must bring those responsible
to book. It asked them, along with the peti-
tioners, to come up with names of those
who could do the job effectively.
On the line will be three cases (rape
and murder) related to 2003 that would be
investigated by the probe committee.
Courts
10 May 1, 2017
Probe
killings
under
AFSPA
WhatsApp privacy
issue postponed

Former BCCI chief N Srinivasan was not
allowed by the Supreme Court to represent
the cricket board at the ICC meeting on April
24. The Court referred to its earlier verdicts
where his integrity as the-then BCCI president
was questioned and conflict of interest issues
were raised. It ruled that instead of Srinivasan,
BCCI acting secretary Amitabh Chaudhary and
CEO Rahul Johri will attend the ICC meeting.
The arguments raised by the counsels for
state associations that the conflict of interest
issue was not relevant as Srinivasan was no
longer holding any post in either state associa-
tions, BCCI or even in the IPL, was brushed
aside by the top court.
FormerBCCIadministrators
barredasnominees
The Supreme Court will look into the plea
filed by BJP spokesperson and advocate
Ashwini Kumar Upadhyay that the singing of
national anthem and song be made mandatory
in parliament, assemblies, public offices, courts
and schools. He also wanted the centre to
come up with a national policy aimed at pro-
moting and propagating the national flag.
The Court sought a response from the cen-
tre within four weeks.
The petitioner claimed that he was left with
no option but to approach the top court after
his requests to the law ministry and the home
ministry did not elicit any response.
The Supreme Court gave a dead-
line of two months to the Kerala
Water Authority (KWA) to clean the
two tanks located in the precincts of
the Sree Padmanabhaswamy Temple
in Kerala. The KWA assured the
Court that it would act.
It was pointed out by senior
advocate Gopal Subramanium, ami-
cus curiae in the case, that the there
was need to stop sewage and con-
struction material flowing into the
tanks, and that the job was separate
from regular cleaning activity.
During an earlier hearing, Subra-
manium had brought up the need to
clean tanks. He had also apprised
the Court of the need to undertake
other works at the temple, including
the need for restoring the temple
deity and the structure of the sanc-
tum sanctorum. The Court, while
heeding to his submissions, had
asked KWA to clean the tanks and
come up with ways to block sewage
and construction debris.
KWA filed its progress report
before the Court and pleaded that all
tank cleaning operations would be
completed by May 10. However, the
Court asked the temple administra-
tion to submit a fortnightly progress
report by or on May 2. The next
hearing is on May 3.
Temple cleaning to
continue: Court
Questioning the need to have a
pre-censorship law for films in
this age when there was free-flowing
content on the internet and TV, veter-
an actor Amol Palekar pleaded in the
Supreme Court that the Cinemato-
graphy Act 1952 needed a complete
revamp. He argued that at a time
when social media ruled, Section
4(1)(iii) of the Cinematography Act
1952 was unconstitutional as it vio-
lated the Right to Freedom of Speech
and Expression. The
section gives Central
Board of Film Certifica-
tion (CBFC) the power
to hold back a film’s
release until certain cuts
are made as per its
directions.
In an era of new
technologies and a para-
digm shift in mass
media, individual freedoms needed
to be looked afresh in a new per-
spective, pleaded Palekar.
The counsels for Palekar con-
tended that the Act also needed a
change as absolute powers granted
under it to CBFC were being used
subjectively and unreasonably. This
was due to undeserving persons
being appointed on the board, they
said, and contended that the current
provisions related to selection must
be changed. The Court took cog-
nizance of these points and sought a
reply from the centre and CBFC.
Change CBFC rules:
Amol Palekar
— Compiled by Prabir Biswas
Shouldnationalsongsbe
allowedinpublicplaces?

Briefs
Prime Minister Narendra Modi has
promised that his government will
bring a law to ensure doctors prescribe
low-cost generic medicines to patients.
Inaugurating a multi-speciality hospital
in Surat, Modi said: “We will bring in a
legal framework whereby if a doctor
writes a prescription, he has to also write
in it that it will be enough for patients to
buy generic medicines only.” While
generic medicines are good quality
low-cost drugs with equal efficacy as
branded drugs, doctors and chemists
often push the more expensive alterna-
tives in collusion with big pharma com-
panies. This step is aimed to break that
nexus, the PM said.
The Supreme Court collegium,
headed by Chief Justice of India
JS Khehar, has okayed 90 names for
the appointment of judges to high
courts, clearing every pending file.
It had to reject almost 40 percent of
the total recommended names as
most of the candidates lacked
integrity, The Indian Express
reported.
The collegium also finalised the
new Memorandum of Procedure
(MoP), though the government is yet
to take a final call on the disputable
clauses. Under the new MoP, an age
cap of 45 years and above for lawyers
and 55 years and below for appoint-
ment as a judge of a high court has
been recommended.
The Central Bureau of Investigation
(CBI) has filed a case against
12 senior members of the Trinamool
Congress, including Rajya Sabha
member Mukul Roy, former West
Bengal minister Madan Mitra, and Lok
Sabha members Saugata Roy, Aparupa
Poddar, Sultan Ahmed, Prasun
Banerjee and Kakoli Ghosh Dastidar,
for alleged criminal conspiracy and
corruption in the Narada scam.
Dismissing the FIR, West Bengal Chief
Minister Mamata Banerjee said: “Let
them first prove the guilt.” The CBI
move came following a sting operation
by Narada News portal editor Mathew
Samuel. The tapes were released to
news organisations before the 2016
assembly elections in West Bengal.
SC collegium clears
90 names
After three cases of high-handed-
ness by MPs, Air India is plan-
ning to impose hefty fines of up to
`15 lakh on unruly flyers who
create a ruckus over
petty issues, thus causing flight
delays. A police complaint will also
be filed immediately under relevant
sections of the IPC.
The airline is planning to fine
`5 lakh for delaying a flight up to an
hour; `10 lakh for delay between
one-two hours; `15 lakh for delay
beyond two hours. The fine is not
based on actual damages caused
or losses incurred but is a symbolic
amount that is to be charged.
AI to fine flight delayers
PMpromiseslaw
topushfor
genericdrugs
12 May 1, 2017
CBI books 12
TMC leaders
Keeping in view the “sensitivity of
the single separated mother”,
Women And Child Development
Minister Maneka Gandhi has requested
for a change in the rule that mandates
that the father’s name should be there
on a student’s degree certificate.
In a letter to HRD minister Prakash
Javadekar, she wrote: “I have been
approached by several women who are
separated from their husbands and
who face problems getting degree
certificates issued for their children
without their father's name.”
She further stated that
“breakdown of mar-
riages and separation
between husband
and wife is now a
reality” and hence,
the father’s name
must be made
optional on the
documents.
Maneka for making
father’s name optional

Karti Chidambaram, son of former
Union finance minister P
Chadambaram, has been issued a show-
cause notice by the Enforcement
Directorate for alleged violation of the
Foreign Exchange Management Act
(FEMA) worth `45 crore. The ED men-
tioned that the FEMA violations were
routed through venture capital firms like
Sequoia Capital and Westbridge Capital,
while infusing foreign money into the
Vasan eye care chain. The ED questioned
the investments as the shares were bought
indirectly through Vasan promoter AM
Arun. Chidambaram Jr. rubbished the
notice stating “the more my father speaks
up, the more I am targeted”.
P Chidambram is also on the radar for
FIPB approval in the Airtel-Maxis case.
Karti Chidambaram gets
ED showcause notice
The Delhi Police has registered an
FIR against TTV Dhinakaran,
AIADMK deputy general secretary and
nephew of jailed party leader VK
Sasikala, for allegedly trying to bribe
Election Commission officials through a
middleman to obtain the party’s poll
symbol and issued a lookout notice
against him.
The middleman, Suresh
Chandrasekhar, was arrested from a
five-star hotel in south Delhi, allegedly
with `1.3 crore in cash. Dhinakaran was
the AIADMK candidate for the RK
Nagar bypoll, which was cancelled by
the Election Commission on April 9, fol-
lowing allegations of voters being
bribed. He and his aunt Sasikala have
since been ousted from the party, which
is fast heading towards a merger with
the O Panneerselvam-led faction.
Lookout notice against
TTV Dhinakaran
The National Green Tribunal has
ordered all industries around the
highly-polluted Bellandur Lake in
Bengaluru to be shut. A `5 lakh fine will
be slapped on anyone found dumping
waste in and around the lake. A bench,
headed by NGT chairperson Justice
Swatantar Kumar, said industries violat-
ing directions should be sealed by the
state pollution control board.
The green tribunal has given the
state authorities a month’s time to free
the lake of pollutants. The Bruhat
Bengaluru Mahanagara Palike has said
it would soon draw up an action plan.
NGT shuts units near
Bengaluru lake
The ministry of corporate affairs is
planning to make the Aadhaar card
mandatory for all Companies Act-relat-
ed transactions, including becoming a
board director, as well as for filing
returns at the level of chartered account-
ants and company secretaries. An
Infosys team has been asked to put the
new system in place. This would be done
in phases, starting with the allotment of
a Director Identification Number, a
must for heading a company board. The
minsitry has found several instances of
appointments made to boards without
the knowledge of the person concerned.
Hence, it has decided to make biometric
verification of the candidate using the
Aadhaar card mandatory, for this as well
as other functions.
The All India Shia Personal Law Board (AISPLB)
has asked the UP government to draft a law
against triple talaq. “Merely boycotting those who
give talaq without sharia reasons will not suffice as
it will not do any justice to the aggrieved woman.
There is nothing like triple talaq in one go,” AISPLB
spokesperson MaulanaYasoob Abbas said. The
board pitched for a law similar to the one outlawing
sati, the practice of burning Hindu widows on the
funeral pyres of their husbands. Earlier, the All
India Muslim Personal Law Board had adopted a
resolution to boycott those who give talaq without
following sharia.
Board wants law against triple talaq
—Compiled by Ratnadeep Choudhary
Soon, Aadhaar must for heading company boards

Lead/ Hindi Language
14 May 1, 2017
A Matter
of CultureWhilePresidentPranabMukherjeehasclearedtheproposals
ofaparliamentarypanelthatsayspeechesofdignitaries
shouldbeinHindiiftheycan,thissmacksofignoranceof
India’scultureandrevealshisbureaucratic,majoritarianbias
By Shiv Visvanathan
WRONG SIGNAL
By pushing for
Hindi, Pranab
Mukherjee gave
out a message of
chauvinism
RANAB MUKHERJEE
has not been one of our
great presidents or even
a memorable one. He
lacks the scholarship of
Sarvepalli Radhakrish-
nan, the integrity of Rajendra Prasad or
even the aesthetic eccentricity of an
Abdul Kalam. He survived by accommo-
dating to power and yet ironically, his
two major pronouncements were dis-
ruptive ones. His enthusiasm for rank-
ings and productivity bureaucratised
quality and eventually, threatened excel-
lence itself. Similarly, his last pronoun-
cement that dignitaries should speak in
Hindi if they can in parliament had a
contrary edge to it. The President’s
speech becomes, ironically, disruptive
in the name of unity.
In fact, the problem of Hindi has
P
Photos: UNI

been one of the main indices of the fu-
ture of democracy. Time and again, our
politicians have referred to the primacy
of Hindi. Yet, one has to be clear that
Hindi is not a national language. It is
an official language like 21 others. The
statistics often invoked are that Hindi is
a language spoken by the largest num-
ber. Yet, even statistics are deceptive.
True, large numbers speak Hindi, yet 60
percent speak a language other than
Hindi. Moreover, most Indians speak a
variety of Hindi which is charming.
They are happy to speak the language
but the renditions of most are comical
or eccentric, yet deeply functional in a
polyglot India.
I
ndia is a civilization which is diver-
se and syncretic, while the idea of a
nation state forces uniformity and
standardisation. The idea of one lan-
guage for a nation state does not work
all over. It has been successful in Indo-
nesia and Israel but makes little sense in
an India where the notions of diversity
and unity are different. A nation like
India thrives on diversity and difference.
India is a nation with 1,50,000 varieties
of rice. No one ever asks which one is
national. Rice is a celebration and symp-
tom of India’s diversity. Similarly, our
attitude to language created a multi-
verse of democracy. Sad-ly, it is our not-
ions of education and the idea of the
nation state that impoverishes language.
Kannada novelist, the late UR Anan-
thamurthy summed it pithily when he
observed: “India is a strange country,
where an illiterate speaks seven lan-
guages and a convent school girl speaks
only one.” Indian pluralism is such that
most of us without being too purist, pick
up other languages. Even English today
is an Indian language. I remember
Nirad C Chaudhuri complaining that
the English speak a poor level of Eng-
lish. Meanwhile, to make it speak Punja-
bi or Hindise is a fascinating part of
Indian diversity. We make English say
what we want it to say. Unfortunately,
we have in power today a regime illiter-
ate about diversity and tyrannical about
imposing Hindi and Hindutva on a pop-
ulation. The BJP does not realise it goes
against the cultural grain. A country
which has a pluralistic framework now
confronts a regime which is mechanical,
uniform and intolerant.
What one often faces in India is a
clash between electoral democracy and
plural cultures. Electoral democracy
seems to feel that numbers count and
seeks the greatest good of the biggest
majority. Plurality seeks a balance bet-
ween communities without threat of
dominance, hegemony or majoritarian-
ism. In a linear world, plurality repre-
sents diversity and electoral democracy,
majority. Our parliament has no sense
of the contradiction between the two.
A way of life which cannot be visualised
OBLIVIOUS TO OUR
RICHNESS
India’s strength lies in its
diversity without the fear
of hegemony
in majoritarian terms
fades away.
Secondly, parliament
like other forces of reform
does not understand the
logic of culture. Hindi
was doing well as a lan-
guage, thanks to Bolly-
wood, thanks to the cul-
tural ability to pick up
languages. This populari-
ty of Hindi comes from the adaptability
of our people. But by legislating domi-
nance, parliament demonises a lan-
guage, threatens the minority, sends the
wrong signals.
B
ut there is no deep concern for
language or culture by this reg-
ime. India is facing the extinction
of languages, especially oral ones. Yet,
the one survey after Grierson is inspired
by civil society.
Imagine a different situation. Pranab
Mukherjee in one of his last speeches
talks about language diversity and lan-
guage extinction. He talks of the need
for linguistic innovation, the necessity
for a new social contract between the
oral, the textual and the digital. Just this
speech would have made his tenure his-
torical. For a man who projects a patina
of culture, quoting Tagore almost auto-
matically, he revealed an ignorance of
culture which was devastating. By push-
ing for Hindi, Mukherjee revealed his
bureaucratic, majoritarian bias. There is
a sadness to this message before depar-
ture. One wishes he had been more tho-
ughtful and imaginative. Chauvinism in
farewell is hardly necessary.
The author is a social science nomad

Spotlight/ Advocates Act
16 May 1, 2017
F the resolutions passed at the joint
meeting of the Bar Council of India
(BCI) and the representatives of
High Court Bar Associations on
April 15 in Delhi were any indica-
tion, a long drawn-out battle app-
eared to be imminent between the
lawyers and the Law Commission. The
BCI and the Bar Associations alleged
that the Law Commission, by proposing
amendments to the Advocates Act, was
trying to snatch the autonomy and inde-
pendence of the Indian Bar.
Even as lawyers across the country
protested by abstaining from work for
half a day on April 21, a meeting held
between BCI’s representatives and
Union Law Minister Ravi Shankar
Prasad on the same day resulted in the
government’s assurance that it would
not amend the Act without consulting
the lawyers.
REGULATING LAWYERS
Although the BCI has subsequently
withdrawn its agitations over the Law
Commission’s proposed amendments,
the government is far from allaying its
concerns over them. First, the Law
Commission’s proposed composition of
Bar Councils has stirred a hornet’s nest.
The BCI and Bar Associations have
Bridge over
Troubled Waters
TheBarCouncilofIndia’sagitationagainsttheLawCommission’sdraftbilltoamendthis
Acthasbeenwithdrawnfollowinggovernmentassurancesbutconcernsremain
By Venkatasubramanian
I
HEAT OF THE MOMENT: Lawyers burn
a copy of the Law Commission’s
recommendations in Delhi on April 21
Anil Shakya

taken umbrage at the LCI’s recommen-
dation that Bar Councils, composed of
people nominated from other walks of
life apart from the legal profession,
would conduct proceedings relating to
any complaint of misconduct against the
advocates who face disciplinary pro-
ceedings. That such councils comprising
of non-lawyers would regulate the legal
profession and education is another sou-
rce of concern to the lawyers.
The BCI has described the LCI’s rec-
ommendation that lawyers would have
to pay compensation to their clients in
case they go on strikes, abstain or fail to
appear in cases even for genuine reasons
as draconian. The LCI has proposed
that on receipt of a complaint or other-
wise, if a State Bar Council has reason
to believe that any of its advocates has
been guilty of professional or other mis-
conduct, it shall refer the case for dis-
posal to its disciplinary committee.
While it has fixed the limit of the fine to
be paid by errant lawyers as `3 lakh, it
has also recommended a fair and rea-
sonable compensation, subject to the
maximum of `5 lakh, be paid to the per-
son aggrieved by the misconduct of the
concerned advocate. If the complaint is
found to be vexatious, the BCI has rec-
ommended imposition of costs up to
`2 lakh on such a complainant.
Another provision, considered dra-
conian, is that during the pendency of a
disciplinary proceeding after a com-
plaint of grave misconduct, the BCI and
State Bar Councils may suspend the
advocate from practice, but with the
prior recommendation of the concerned
Disciplinary Committee.
PROHIBIT BOYCOTTS
A crucial amendment is the one seeking
to prohibit boycotts or absenteeism from
work, for which there is no provision in
the law at present. Viola-
tion of this clause shall be
treated as misconduct and
shall be liable for discipli-
nary action contemplated
under the Act and Rules,
says another proposed
clause in the Act.
The BCI and State Bar
Associations wanted the
resignation of the chair-
man of the Law Commi-
ssion, Justice BS Chauhan,
even though such a demand, simply on
the ground that they disagree with the
LCI’s recommendations, is uncalled for.
Burning copies of the LCI’s reco-
mmendations and the proposed Bill to
amend the Advocates Act on April 21
was perhaps an extreme form of mani-
festation by the lawyers. But whether
such extreme steps would help to
strengthen or weaken the BCI’s institu-
tional image is debatable.
PRIMARY ROLE
The BCI’s resolution also announced
massive rallies and jail bharo campaigns
across the country, making one wonder
whether it has forgotten its primary role
as a regulatory body and assumed the
role of a trade union. Fortunately, better
sense prevailed on the body, after its
meeting with the law minister, when it
withdrew its aggressive postures.
The Bill proposed by the LCI is not a
perfect remedy for the ills plaguing the
legal profession. Concerns have been
expressed, for instance, that its defini-
tion of “misconduct” of lawyers in the
proposed Bill is and vague, and can
potentially be misused by clients in
order to claim compensation.
The LCI’s mandate is to propose a
legislation to improve the regulation of
the profession, as it has been assigned
the task by the Supreme Court in the
Mahipal Singh Rana’s case last year.
In this case, the Supreme Court found
that the present system of elected state
Bar Councils and the BCI had clearly
failed. Therefore, professional bodies
like the Bar Councils must engage with
the government in critiquing the latest
proposals to reform the legal profess-
ion rather than throw the baby with
the bathwater.
TROUBLING FACTOR
Lawyers of Patna hit the streets on April 21
against the Law Commission’s proposals
UNI
TheBCI’sresolution
announcedralliesandjail
bharo campaignsacross
thecountry.Fortunately,
bettersenseprevailedafter
itsmeetingwithLaw
MinisterRaviShankar
Prasad,whenitwithdrew
itsaggressivepostures.

Probe/ Mallya Arrest
18 May 1, 2017
IJAY MALLYA, the abs-
conding industrialist who
owes a whopping `9,000
crore in defaulted loans to
Indian banks, was arrested
by the Scotland Yard and
released on bail within three hours. The
Westminster Magistrates’ Court in cen-
tral London took only 10 minutes to
hear the case and granted him condi-
tional bail on a surety bond of GBP
6,50,000 (`5.3 crore)—a pittance con-
sidering Mallya’s wealth and assets in
the UK alone.
Leaving the Magistrates’ Court look-
ing relaxed in a white open-necked
shirt, black trousers and a blue blazer,
Mallya tweeted: “Usual Indian media
hype. Extradition hearing in court star-
ted today as expected.”
“Officers from the Metropolitan
Police’s Extradition Unit have this
morning, (Tuesday, April 18) arrested a
man on an extradition warrant. Vijay
Mallya, 61 (18/12/1955), was arrested on
behalf of the Indian authorities in rela-
tion to accusations of fraud,” Scotland
Yard said in a statement. Mallya had
found out about the warrant and gone
to a central London police station where
he was arrested.
CHASED BY BANKS
The liquor baron had fled to Britain in
March 2016 after Indian banks began to
chase him to repay the thousands of
crores he owed them after the collapse
of his Kingfisher airline. Claiming
inability to service the debts, the self-
styled King of Good Times had even
asked the government to bail him out
when Kingfisher was grounded after
showing repeated losses for five years.
Probably getting wind that he may be
arrested in India, the former playboy
had decamped to the UK.
Mallya has been living in Britain ever
since and continues to maintain his mil-
lionaire lifestyle, partying mostly with
friends from India and elite NRIs. He
resides either at his London home in
Baker Street a few doors away from the
famous waxwork museum, Madame
Tussauds, or at his “secret mansion” in
Tewin village in Hertfordshire. His
home in this village is the largest bunga-
low there and he is a regular at the vil-
ThoughtheextraditionofthisliquorbaronfromtheUK
willbeeasiersaidthandone,itwillsetagoodprecedent
forthosewhocrossinternationalborderstoescapethe
consequencesoftheircrimes
By Sajeda Momin in London
V
Caught,
Finally!

lage pub, the White Horse, where he
mixes with local English villagers.
Mallya and his son are always seen at
races at Silverstone as he still owns
Force India, a Formula One racing
team. Else, he is able to maintain a pret-
ty anonymous life in the UK where the
paparazzi has even wealthier A-listers
from around the world to chase.
Mallya possessed a right of abode
visa for Britain in his Indian passport,
which was revoked by India in April last
year. India tried to get him deported but
UK officials said long-term right to resi-
dence here did not depend on his pos-
session of a valid passport.
According to the terms of his bail,
the former chairman of United Brew-
eries is not allowed to leave or should
attempt to leave the UK. He is expec-
ted to not try and obtain any other
international travel papers either or be
in possession of them. His revoked
Indian passport will remain with the
Scotland Yard.
NON-BAILABLE WARRANT
The flamboyant tycoon has been desig-
nated a proclaimed offender and is amo-
ng the most wanted in India. Despite
several summons to appear before the
Enforcement Department, Mallya
refused to present himself. It was only
after a CBI court issued a non-bailable
warrant against him in January this
year that the Indian High Commission
in London handed over an extradition
request to the British Foreign Office,
saying India had a legitimate case and
sending Mallya back was a way of show-
ing “sensitivity towards our concerns”.
Extradition has been sought as he
defaulted on IDBI Bank loans worth
`950 crore. Mallya has denied fleeing
his debts and described his decision to
live in the UK as “forced exile”.
The Extradition Treaty between
India and the UK came into being
VijayMallya,whoowes`9,000
croretoIndianbanks,was
arrestedbyScotlandYardand
grantedbailonasuretybond
of`5.3crore.
f1fanatic.co.uk

Probe/ Mallya Arrest
20 May 1, 2017
in 1993 but India’s track record of bring-
ing absconders back is pretty poor. Lalit
Modi, former IPL chairman, Ravi
Shankaran, accused of stealing sensitive
documents from the Indian Naval War
Room and musician Nadeem accused
in the Gulshan Kumar murder case are
just a few of the most wanted that India
would like extradited from the UK.
The only person to have been extra-
dited by the UK to India in the last 24
years is Samirbhai Vinubhai Patel,
wanted for burning alive 23 Muslims in
Ode village during the Gujarat riots of
2002. Patel was sent back in October
2016 and is currently in a jail in Anand.
Unlike all the other absconders, Patel
had not fought his extradition. In fact,
Patel’s consent had helped the British
government take a decision in the case.
DOUBTFUL CASE
“I doubt very much if Mallya’s extradi-
tion plea will succeed,” says Sarosh
Zaiwalla of Zaiwalla and Co., the first
Indian to start a law firm in London as
far back as 1982. Zaiwalla had won the
Bofors libel case for the Bachchan
brothers in 1990 and had famously
sacked former British Prime Minister
Tony Blair for preparing a bad case
when he worked for Zaiwalla as a young
barrister. “The judge has to be satisfied
Mallya will get a fair trial in India. His
lawyer will argue that he is being politi-
cally hounded and is a victim of a media
trial. He might also point out that other
businessmen owe much more money to
Indian banks, but his client has been
singled out for persecution,” said
Zaiwalla about Mallya’s possible line
of defense.
Extradition cases in the UK follow
the dual criminality procedure, where
an action is an offence in both countries.
It is often resisted by offenders on the
grounds that there is a biased judicial
system back home, they would not get a
fair trial, it is a politically motivated
case, etc.
Even at the magistrate’s level, this
could be a long-drawn-out battle last-
ing anything between 18 months to two
years. If Mallya loses here, he still has
two or three higher levels of the
judiciary to appeal. If he fails to win
even at the topmost Supreme Court,
then he can appeal to the British home
secretary who would make the final
determination, which would be a
political one.
“The level of proof required here in
the case is very high,” admitted an
Indian official. “However it is a good
precedent to set. We want to shatter the
myth that by crossing international
boundaries, you are out of bounds.
Mallya’s extradition will act as an
important test case,” the official said.
The Modi government and particu-
larly Finance Minister Arun Jaitley have
been keen to get Mallya’s extradition as
he was seen to be close to the former
UPA government. Jaitley personally
took up the matter with his counterpart,
Philip Hammond, when they met in
London in February. Some analysts feel
that Britain is anxious to woo India in
the uncertain post-Brexit climate and
therefore there is a “political will” on the
part of the British government to meet
India’s expectations.
The next hearing for the case has
been set for May 17 when a senior magi-
strate will start the proceedings and
Indian authorities will have to present
the case for Mallya’s extradition.
SaroshZaiwalla
doubtsMallya’s
extraditionplea
willsucceedas
thejudgehasto
besatisfiedthat
Mallyawillgeta
fairtrialinIndia.
CRITICAL TIES
Finance Minister Arun Jaitley took up
the extradition of Mallya with his UK
counterpart Philip Hammond
FormerIPL
chairmanLalit
Modi,accusedof
widespreadmisap-
propriationof
funds,isoneof
thosemostwanted
byIndiaintheUK.
PIB

HE journey to introduce
Goods and Services Tax
(GST) in India is now
nearly complete, after a
long wait of 11 years. The
final hurdle was cleared in
the beginning of April when parliament
approved four legislations related to it—
the Central GST (CGST) Act, Integrated
GST (IGST) Act, Union Territory GST
(UT GST) Act and the GST
(Compensation to the States) Act. The
last Act deals with compensation by the
centre to the states for possible revenue
loss due to GST. The presidential assent
for these legislations has also been
received. As for the remaining fifth leg-
islation, relating to the State GST
(SGST) Acts, 31 states would now follow
suit in getting them passed in their leg-
islatures. No further delay is apprehend-
ed because the template was decided
Taxing
Times?
Thoughthe“onemarket,onerate”tax
regimeislikelytobeimplementedfrom
July1,someconcernsremain,making
itadvisabletodelaythetarget
toSeptember1,2017
By Sumit Dutt Majumder
T
PAY FOR VARIETY
India cannot afford to
have a single rate for
different classes of
goods meant for the
common man
UNI
Economy/ GST

by the GST Council unanimously.
The GST Council has also put into
the public domain nine important draft
rules relating to procedural matters like
registration, payment, filing of returns,
claiming refunds, tax invoices, value of
taxable supplies, claiming and utilisa-
tion of input tax credit, transitional pro-
visions, composition scheme and so on.
These rules are expected to be notified
by the end of May. A few working
groups have also been studying certain
areas of concern, the removal of which
would further ease business dealings in
the GST regime.
REALISTIC TARGET
Meanwhile, certain concerns relating to
GST have been raised in some impor-
tant quarters and therefore, a more real-
istic and workable target date for imple-
menting GST should be September 1,
2017 and not July 1 as announced.
The first concern is that the GST leg-
islation is an emasculated one and
would not achieve the objectives of “one
market and one rate”. The concern is
misplaced. India, with its current socio-
economic and political situation, cannot
afford to have a single rate for all goods.
It is a socio-economic compulsion that
there would be different GST rates for
different classes of goods meant for con-
sumption by the common man, the
poor, the very poor and by the rich.
Surely one can’t expect the same GST
rate for a “dhoti” and a “suit”. However,
for one single commodity, there will be
only one GST rate throughout the coun-
try and there will be no entry tax or
octroi at inter-state borders. Thus, for a
particular commodity, it will indeed be
“one market, one rate”.
The second concern is about keeping
petroleum products, alcohol, electricity,
stamp duty, and so on, outside the ambit
of GST. From the inception of the nego-
tiations between the centre and the
states in 2006, it was made clear by the
latter that they would like to keep these
items outside GST during the initial
period. This is because they were appre-
hensive of a major revenue loss in the
GST regime. They also said that cur-
rently, petroleum products alone con-
tribute 50-55 percent to the total state
VAT collection. Thus, it’s not a new con-
cern. In fact, the 115th Constitution
Amendment Bill introduced in parlia-
ment in 2011 also excluded these items
from the ambit of GST. In any case,
course corrections can be made after
one or two years, when GST shows tax
buoyancy and the state’s apprehensions
about revenue loss are belied.
INSPECTOR RAJ
The third main concern is that the Anti-
profiteering Law in the GST Act will
bring back arbitrariness and “inspector-
raj” in the GST regime. This concern is
also misplaced. Abuse or misuse of a law
can be controlled by proper monitoring
and supervision of its administering. It
is only normal for consumers to expect
that in the GST regime, the prices of
commodities would decrease as the inci-
dence of taxes and compliance costs
would come down. It is, therefore, nec-
essary for the government to make sure
that the benefits percolate down to con-
sumers by trade and industry. The Anti-
profiteering Law is a tool for this pur-
pose. It has already been clarified by
policy-makers that this provision will
not bring back Inspector Raj and that it
will be used rarely in the cases of undue
profit. One can expect some instructions
on this soon.
Another concern is that the Dual
GST model, as has been propounded
through legislations, is an imperfect one
and will bring chaos. This concern is
also unjustified. There is no perfect
model of GST in practice anywhere in
the world. In the words of Prof Richard
Bird, the reputed international expert in
GST/VAT, there is no “a VAT”, but only
VATs—different in different countries
according to the demand of the socio-
economic and political situation there.
GST in India is typically suited for
the Indian situation. It’s not perfect, but
it’s a good GST. The compromises made
by the Union finance minister were in
the spirit of “cooperative federalism” and
GSTinIndiaistypicallysuitedfor
theIndiansituation.Thecompro-
misesmadebyFinanceMinister
ArunJaitleywereinthespiritof
“cooperativefederalism”.
COMMON NEEDS
For a single commodity, there would be one
GST rate throughout the country
Anil Shakya
Economy/ GST
22 May 1, 2017

they were necessary to bring the states
on board in this joint venture. With tax
buoyancy in the coming years, there will
definitely be course corrections which
will make it a better one.
MANY DISCUSSIONS
Another allegation is that trade and
industry did not get a chance to hold
talks with the GST policymakers. This
allegation is unfair. While releasing the
First Discussion Paper, which gave the
prima facie features of the GST model to
be adopted in India, the chairman of the
committee of state finance ministers
explained in November 2009 that this
paper would facilitate interactions with
all stakeholders so as to finalise the form
and structure of GST. And interactions
with trade and industry had started
from then.
Later, during October-December
2015, the draft business process docu-
ments on registration, payment, filing of
returns and claiming of refund were
released. Based on the feedback on the
aforesaid documents, the first draft
Model GST Laws were released in June
2016. Trade and industry responded
enthusiastically, and based on their sug-
gestions, the redrafted Model GST Laws
were released in November 2016.
Around the same time, the draft rules
relating to procedural requirements for
implementing GST were also put into
the public domain. The second draft of
the Model GST Laws was further
improved in consultation with trade and
industry and the Final GST Laws relat-
ed to the centre were cleared in April
2017. Thus, GST laws and procedures
have come out through a democratic
process of sustained and continuous
consultations between taxpayers and
tax policymakers—a sure sign of a
vibrant democracy.
The last important concern has been
with respect to the preparedness of the
GST Network, the IT infrastructure and
about the constitution of it as a private
entity. The decision to have GSTN as a
private entity was taken in 2012 and
reportedly, the concerns regarding secu-
rity and secrecy of the tax data were
taken into consideration before deciding
so. Thus, it’s not a new concern. But, the
worry regarding preparedness of the
GSTN is a genuine one and cannot be
brushed aside. GSTN must be fully
operational at least two months before
the date of implementation, with a few
pilot runs relating to all the business
processes completed. A well-tested and
fully operational GSTN prior to
implementation of GST will give confi-
dence to both taxpayers and tax
authorities to successfully interact
through this portal.
Finally, considering the current state
of preparedness of taxpayers, taxmen
and the GST Network, a two-month
implementation delay will be advisable
to provide adequate preparation time.
Thus, a more realistic and workable tar-
get date for implementing GST should
be September 1, 2017.
The writer is former chairman,
Central Board of Excise & Customs and
author of a book on GST
Foronesinglecommodity,
therewillbeonlyoneGSTrate
throughoutthecountryand
therewillbenoentrytaxor
octroiattheinterstateborders.
NO MORE OCTROI
Vehicles halt to pay
the toll tax

24 May 1, 2017
N the none-too-enlightening deb-
ate over GST, which is all set to roll
out from July 1, what has escaped
notice is the new constitutional
entity, the GST Council. It com-
prises the finance ministers of sta-
tes and Union Territories and is headed
by the Union finance minister. The 101st
Constitutional Amendment has created
the Council through Article 279 A.
We know that Articles 74 and 75 ref-
er to the Union council of ministers and
the prime minister, and Articles 163 and
164 to the council of ministers in states
and the chief minister. These cabinets
form the executive branch in the classic
triadic legislature-executive-judiciary.
CONSTITUTIONAL STRUCTURE
The GST Council seems to be an inter-
mediate level of the executive, and
unlike the cabinets at the centre and the
states, it has the mandate of determin-
ing the rates under GST through a con-
sensus. The mandated task is specific,
and because it is written in black and
white in the text of the constitution, the-
re is no wiggle room of any kind.
The idea of GST, which creates a single
tax regime across the country, has been
so alluring to bureaucrats and politi-
cians that they rarely pause to look at
the morphological changes that they are
bringing about in the constitutional
structure and what it would mean to the
philosophy of constitutional governance
in the long term. The council of finance
ministers is placed in an odd position in
the scheme of things because it falls
between the Union and the state cabi-
nets. Unlike the cabinets, it has been
tasked with specific functions.
Its decisions will be decided on the
basis of three-fourths of the weighted
votes, with the complex arithmetic of
the centre enjoying one-third weightage
of votes and the states, three-fourths of
the votes. It is meant to ensure that nar-
row margins will not suffice to decide on
rates and that there has to be a substan-
tial majority to do so. It would mean
that the politicking between the centre
and states and among the states them-
selves will become that much more
messy. This would, however, allow the
centre to prevail if it can carry a suffi-
cient number of state finance ministers
with it, and the states can hope to sty-
mie the centre’s moves if two-thirds of
them stand united. Its decision is not
final. The rates recommended by the
Council will have to be approved by the
parliament and the state legislatures.
Finance Minister Arun Jaitley has
been thrilled by the working of the
Council so far, describing it in ecstatic
terms as the finest example of “delibera-
tive democracy” and of federalism. The
success of the Council as well as that of
the GST regime is based on the premise
that in matters of finances and taxation,
every state and every party in power will
follow rationality. There is as yet no
GST Council:
A Mini-federal
Cabinet?
My Space Parsa Venkateshwar Rao Jr
WhathappenswiththeGST
andtheGSTCouncilisthatall
taxationissuesarevestedina
mini-federalsetup.Itmarks
asignificantchangeintheDNA
oftheIndianconstitution
asitstandsnow.
Theattempttoinvolvestatesindecidingtaxesandassuring
themthattheirshareinthetaxpoolwillbehigherisbeguiling.
Inthelongterm,thefederalstructureoftheconstitutioncould
beeroded
I

federal structure of the constitution.
The Council seems to be an attempt
to forge homogeneity in tax matters by
subtly forcing the states to fall in line.
The only safeguard against the exec-
utive tyranny of the Council is that the
parliament and state legislatures will
have to be more alert than ever on taxa-
tion measures. Given the parliamentary
form of government where the party
with the majority can force legislatures
to accept the executive’s decisions, it
looks like the latter will remain mere
pawns in the hands of the former. There
is a need to check the growing powers of
the executive to maintain that elusive
ideal of the separation and balance of
powers in the constitutional structure.
That is the keystone of a democracy.
instance where the Council disagreed on
rates and other measures to be taken.
MIND-BOGGLING LABYRINTH
What should worry those who are sub-
ject to GST is whether in their desire to
create an ideal tax regime, they have
ended up creating a constitutional
machinery which is anything but simple.
Also, in an attempt to rationalise things,
has it created a mind-boggling labyrinth
of definitions and rules. It will be argued
that taxation matters are always compli-
cated and to argue for simplicity in
these matters is plain foolishness. It will
also be argued in favour of the Council
of finance ministers that it helps to
bring to-gether the multiple tax regimes
and administrations of states and the
centre into effective alignment.
But the idea of a Council of finance
ministers stands out like a sore thumb
from whichever angle you look at it. It
appears to be a super-sub-cabinet com-
mittee of the centre and states, whose
decisions have to be taken back to the
respective general cabinets and then to
parliament and the state legislatures.
What happens with the GST and the
GST Council is that all taxation issues
are vested in this mini-federal setup. It
marks a significant change in the DNA
of the Indian constitution as it stands
now. A new strand has been introduced.
While there has been an elaborate
discussion on the merits and demerits
of the GST itself with almost all parties
appearing to agree on its advantages,
there has been no discussion on the
mechanisms that are being set in place
to administer the GST. The basic
assumption seems to be that if GST is
deemed good, whatever necessary
administrative and constitutional chan-
ges that are being introduced should be
also good. It is not sound logic. It is a
well-known fact that the goals might be
laudable, but the means adopted to
achieve them may not be so.
The GST Council as the super- or
mini-federal cabinet looks more trou-
bling than reassuring. There is a beguil-
ing attempt to involve the states in
deciding taxes and assuring that their
share in the tax pool is higher. But the
long-term impact could be to erode the
TYRANNY OF THE FEW?
Finance Minister Arun Jaitley chairing the GST
Council meeting in January this year
PIB

Diplomacy/ Death Sentence by Pakistan
ILL Kulbhushan
Jadhav, the former
naval officer arrested in
Baluchistan in 2016 for
alleged spying and sen-
tenced to death by
Pakistan’s Field General Court Martial
(FGCM) on April 10, return home alive?
This question has been hounding
bureaucrats in the Ministry of External
Affairs (MEA) ever since the news of the
sentencing hit the headlines. New Delhi
has been working overtime to secure the
release of Jadhav.
It has communicated to the Pakistan
government that if the death sentence is
carried out, it would see it as nothing
less than “a premeditated murder”. A
series of demarches (petitions or pro-
tests dispatched through diplomatic
channels) have been sent by the Min-
istry to Islamabad. India is also trying to
build up international pressure to per-
suade Pakistan to desist from executing
the alleged spy.
But far removed from the diplomatic
moves, lawyers on both sides of the bor-
der are doing their bit to ensure that
Jadhav receives a fair public trial.
Heading that initiative is the India-
Pakistan Joint Defence Committee for
Prisoners formed by a group of lawyers
in 2014. Its chairman, the ebullient
Jammu politician and Supreme Court
lawyer, Professor Bhim Singh, has been
AjointIndo-Pakpeoples’initiativespearheadedbylawyershasbeenlaunchedtosavethe
officerfromthegallowsofourneighbour.Isitpossibleforhimtoreceiveafreshandfairtrial?
By Ajith Pillai
W
26 May 1, 2017
Saving
Kulbhushan Jadhav

Muhammad Habib Zahir, disappearing
from Nepal in the first week of April. He
was stationed there to allegedly coordi-
nate covert operations in India. Pakistan
links his going missing to Indian agents
active in Nepal. Such tit-for-tat is not
uncommon among intelligence agencies.
While Bhim Singh is hoping for the
best and cites his association with cases
in which he has managed to free prison-
ers held illegally on both sides of the
border, much will depend on how the
Pakistan Supreme Court responds to the
petition. In cases where military con-
cerns come into play, it is feared that
justice often eludes the accused.
In fact, it is only in instances of fish-
ermen or civilians unwittingly straying
into “enemy” territory that both
Pakistan and India have shown leniency.
Over 500 Pakistani fishermen arrested
for straying into Indian waters have
been released in recent years. An equal
number from India have been set free
and repatriated by authorities across the
border. But they were not arrested on
charges of espionage. More importantly,
the army and the ISI were not inter-
ested in them.
coordinating with counterparts in
Islamabad and Lahore and they have
filed a petition in the Pakistan Supreme
Court seeking justice for Jadhav.
Meanwhile, a PIL filed in the High
Court of Delhi urging directions to the
MEA to take up the Jadhav matter in
the International Court of Justice was
dismissed on April 19.
PRIMARY PETITION
The primary plea on behalf of Jadhav by
the India-Pakistan Joint Defence
Committee before Pakistan’s Supreme
Court is that a review of the FGCM is
well within the ambit of the law.
According to the petition, Section 7
(2.3) of the Pakistan Army Act is cate-
goric that “Military Court convicts can
have decisions (of the Military Court)
reviewed by Civilian Courts”. And under
the provision of the constitution of
Pakistan, “any affected person has a fun-
damental civil right to challenge a deci-
sion by any Forum/Authority including
the Military Court for the enforcement
of fundamental rights/civil rights of
any person”.
But to present Jadhav’s case, lawyers
of the Joint Defence Committee need a
copy of the order of the military court
which they have not been provided so
far. According to Bhim Singh, that is the
primary obstacle. “Before we get a move
on, we have to get a copy of the judg-
ment of the Military Court. We must
know the nature of the evidence against
him and why the death penalty was
awarded,” he told India Legal.
According to the petition: “The only
accusation against Indian national
namely, Kulbhushan Jadhav was narrat-
ed in a statement by the Pakistani
Military Publicity Wing, Inter Services
Public Relations (ISPR), which said that
Jadhav was declared guilty of waging
war against the country (without nam-
ing the country).” The judgement and
the sentencing were also communicated
in a terse note by the ISPR on April 10.
The operative part is quoted in the peti-
tion: “Today Chief of Army Staff General
Qamar Javed Bajwa confirmed his
(Kulbhushan Jadhav) death sentence
awarded by FGCM.”
Of course, the Pakistan media has
been carrying confessional video state-
ments of Jadhav in which he has admit-
ted that he functioned as a RAW agent
in Baluchistan and was coordinating
“anti-state” activities with Baloch sepa-
ratist groups. India has rejected the con-
fessions as being false and extracted
through coercion. It maintains that the
former naval officer was kidnapped from
Iran where he was conducting business
and presented as a spy to counter Indian
arrests of ISI operatives in Delhi. It also
dovetailed with Islamabad’s script that
Indian agents were active in Balu-
chistan. The truth or otherwise of the
Pakistani charge and India’s counter
should have come up in an open court
and ought to have been subjected to
legal scrutiny.
TIT-FOR-TAT RESPONSE?
So why was Jadhav sentenced in such
haste and in an in-camera trial? One
theory doing the rounds was that it was
in response to an ISI official, Lt Col
ItwasPakistanArmyChief
GeneralQamarBajwawho
confirmedJadhav’sdeath
sentencethroughapressnote.
ButthejudgementoftheMilitary
Courtwasnotmadepublic.
FIGHTING FOR JUSTICE
Lawyer and politician Bhim Singh is
championing Jadhav’s cause in Pakistan’s
Supreme Court

lly harassing her. The website’s other co-
founders, Sattvik Mishra and Sriparna
Tikekar, were accused of abetting the
harassment. The company was also
accused of leaking the identity of the
complainant in its internal emails, thus
violating Section 228A of the IPC.
Under this provision, whoever prints
or publishes the name or any matter
which may reveal the identity of any
person subjected to sexual harassment
or violence shall be punished. This could
be imprisonment for a term which may
extend to two years; the culprit shall
also be liable to a fine.
The provision, however, exempts cas-
es where the victim has given her con-
sent to make her identity public—in
writing—or cases where the victim is
dead, a minor or of unsound mind when
her next of kin could give such authori-
Acts & Bills/ Sexual Harassment Act
28 May 1, 2017
HREE recent reports in the
media brought into the
focus the potential of the
Sexual Harassment of Wo-
men at Workplace (Preven-
tion, Prohibition and Red-
ressal) Act, 2013, and how it ensures
that perpetrators do not enjoy any im-
punity. But ironically enough, the three
instances have also raised questions
about the effectiveness of the law in pre-
venting harassment in the first place.
Perhaps its deterrent effect may kick in
after many others who commit such
crimes are booked under the law.
At the moment, only high-profile ca-
ses have come to light, although sexual
harassment at the work place is known
to involve a large number of lower-rung
employees as well. Studies in the West
have found evidence that supervisors
use harassment as an equaliser against
women in power. Therefore, whether
laws alone are enough to mitigate a
social menace like sexual harassment
will continue to be debated.
WEBS OF HARASSMENT
Last fortnight, Suparn Pandey, co-foun-
der of news portal ScoopWhoop, was
accused by a former employee of sexua-
sation. It is alleged that the manage-
ment of ScoopWhoop was guilty of vio-
lating this law.
In March, the CEO of entertain-
ment website The Viral Fever (TVF),
Arunabh Kumar, was arrested and later
granted anticipatory bail by the Din-
doshi Sessions Court, Mumbai. Cases
of sexual harassment had been regis-
tered against him. As several former
women employees of the portal com-
plained of sexual intimidation by Kumar
during their employment with the com-
pany, TVF denied the allegations, and
vowed to bring the authors of the arti-
cles or blog posts insinuating such
harassment, to justice.
Advocate Rizwan Siddiqui filed a
third party complaint against Kumar
because he claimed the women com-
plainants are reluctant to set the law
into motion for fear of inviting stigma,
social isolation, loss of their reputation
and procedural hassles.
STRINGENT PENALTY
In both cases, pressure is being brought
upon the complainants to withdraw the-
ir cases. This is typical of most sexual
harassment cases where powerful or
influential persons are the guilty and the
victim is not of equal status. The big
question then is whether the complai-
nant can doggedly fight the case despite
having the backing of a very strong law.
The jury is still out on that, although
there have been cases where strong
orders have been passed.
For example, in January, the labour
department of the Karnataka govern-
ment imposed a monthly penalty of
Alandmarklawalonecannotbringaboutashiftinattitude
towardswomenemployees,butitcanensurethatthe
guiltydon’tenjoyimpunity,providedthevictimdoggedly
pursuesthecase
By Venkatasubramanian
T
Thelabourdepartmentofthe
Karnatakagovernmentimposeda
monthlypenaltyof`50,000for
fiveyearsonaseniormanagerof
asoftwarecompanychargedwith
sexualharassment.
The Mindset
Must Change

`50,000 for five years on a senior man-
ager of a software company, who is fac-
ing charges of sexual harassment. The
department also directed the company
not to promote him or give him any inc-
rement for the next three years. The
additional labour commissioner, who is
the appellate authority, held the compa-
ny also responsible for the violation, and
asked it to pay monetary compensation
to the woman.
The complainant, who was an emp-
loyee of IP Infusion Software India
Private Limited in Mahadevapura, a
suburb of Bengaluru, alleged that Bha-
rat Chandrashekhar, senior manager
(HR) sexually harassed her while she
was in service. She appealed to the lab-
our department after the company’s
internal complaints committee quashed
her petition.
In his December 27, 2016, order,
T Srinivas, additional labour commis-
sioner, directed the company to hold
back Chandrashekhar’s annual incre-
ment and other monetary benefits for
three years from January 1, 2017. He
directed the company to deduct
`50,000 from Chandrashekhar’s salary
every month for 60 months, and pay the
same to the complainant. He also ruled
that in case Chandrashekhar leaves the
company, then the amount should be
deducted from the money payable to
him by the company and the same sho-
uld be paid to the complainant. And if
the company failed to do so, then it
would have to pay the amount to the
petitioner from its own funds.
The appellate authority further ruled
that under the provisions of Prevention
of Sexual Harassment of Women at
Workplace (Prevention, Prohibition
Perhapsthedeterrenteffectof
thelawonsexualharassmentat
theworkplacemaykickinonce
manymoreofthoseguiltyare
bookedunderthelaw.
Representative photograph Anil Shakya

and Redressal) Act 2013, the company
management has to pay the com-
plainant her monthly salary of `30,000
for 16 mon-ths (between September
2015 when she was relieved of her
duties and Decem-ber 2016), which
came to a total of `4,80,000.
Another recent high-profile instance
of sexual harassment involved RK Pach-
auri of The Energy and Resources Ins-
titute (TERI). In 2015, the Delhi Police
filed an FIR against him on allegations
of sexual harassment, stalking and crim-
inal intimidation. The Delhi High Court
granted him anticipatory bail. The inter-
nal complaints committee of TERI later
found him guilty and the institute sev-
ered all connections with him. But the
fact that prior to that he was allowed to
continue holding a position of power in
the organisation for a year even as
investigations were on meant he was in
a position to influence witnesses. Two
years since the complaint was filed, the
case is nowhere near closure.
LANDMARK LAW
The coming into effect of the Sexual
Harassment of Women at Workplace
(Prevention, Prohibition and Redressal)
Act, 2013, was a landmark. The Act
retains the essence of the Vishaka
Committee Guidelines laid down by the
Supreme Court and expands on its pro-
visions. It widens the definition of
“aggrieved woman” to include all wom-
en, irrespective of age and employment
status, and it covers clients, customers
and domestic workers. It expands
“workplace” beyond traditional offices to
include all kinds of organisations across
sectors, even non-traditional work pla-
ces like telecommuting and places visit-
ed by employees for work.
The Act mandates the constitution
of internal complaints committees
(ICCs), and the filing of an audit report
on the number of complaints and action
taken at the end of the year. The emp-
loyer is expected to organise regular
workshops and awareness programmes
to educate employees about the Act, and
conduct orientation ones for the mem-
bers of the ICC.
If the employer fails to constitute an
ICC, or does not abide by any other pro-
vision, the Act envisages a fine of up to
`50,000. The fine is doubled for repeat
offences. If the employer has been previ-
ously convicted of an offence under the
Act, he shall be convicted for twice the
punishment, and the second offence can
also lead to cancellation or non-renewal
of his licence.
The legal regime for combating sexu-
al harassment at the work place is aim-
ed at exploding the dichotomy between
the private realm and public one as far
as sexual behaviour is concerned. A law
prohibiting sexual harassment is an eff-
ort to militate against a mindset that
does not shun wrongful sexual behav-
iour, bias, prejudice and unequal treat-
ment of women at the work place.
A paradigm shift in workplace cul-
ture, practices and gender attitudes will
take time. Such a shift would require
employers to be pro-active and prevent
sexual harassment at the work place by
pursuing sound principles of corporate
governance.
The 2013 Act has certainly created
awareness among victims of sexual har-
assment and explains why there has
been a rise in such complaints getting
public notice. But the fact that the
recent complaints, which have drawn
public attention, are high-profile cases,
shows that there must be many other
cases where complainants who are vul-
nerable do not pursue their grievances.
30 May 1, 2017
MISUSE OF POWER
(Clockwise from far
left) Arunabh Kumar
of The Viral Fever,
Suparn Pandey of
ScoopWhoop and
RK Pachauri of TERI
have been accused
of sexual harrass-
ment by women
employees of their
respective
organisations
Acts & Bills/ Sexual Harassment Act

Media Watch
W
ith days to go for the launch of Arnab
Goswami’s new channel, the stakes
are being raised in what is the mother
of all battles. The Goliath that he is pitted
against—Bennett Coleman and Company
Limited (BCCL) which owns The Times of
India and Times Now news channel—has
been trying for months to make life difficult for
Goswami’s channel, Republic TV. These
included threats to invoke clauses in the
employment contract to prevent staffers from
joining the new channel and claiming owner-
ship of a punchline associated with Arnab.
Within a month of his quitting Times Now on
November 1, BCCL had applied for the regis-
tration of the catch phrase “Nation Wants to
Know” which the anchor frequently used in his
Newshour show on primetime. This move
came to light only after Republic TV also
applied for the same punchline in January this
year. BCCL responded last fortnight by send-
ing a six-page “cautionary” notice to the chan-
nel stating that it had already staked claim to
the phrase. In response, Arnab remained defi-
ant and dared BCCL to file a case against
him. Interesting Times lie ahead.
I
t’s always been an
uneasy relationship
but recently Oppo-
sition leaders in the Rajya
Sabha decided that
reporters accredited to
cover parliament needed
to be lectured on what
makes news. It started
when MPs from the
Samajwadi Party and JD
(U) approached Rajya
Sabha deputy chairman
PJ Kurien with the request
that he censure the
media on “dishonest”
reporting. Their com-
plaint, supported by other
Opposition leaders, was
that the media only
reported on disruptions in
the House but gave very
little coverage to issues
actually being debated. It
conforms to the standard
journalistic maxim that
“bad news is good news”
and it was left to a mem-
ber of both tribes, BJP-
nominated MP Swapan
Dasgupta, to suggest that
it would be dangerous for
parliament to be giving
sermons to the media.
A
fter having wound up
several editions and
sacking hundreds of
employees in the beginning of
the year to facilitate the so-called
“digital push,” Hindustan Times
is back to bringing out new print
editions! First up, it is planning a
Pune edition and two more are
said to be in the pipeline. The
buzz among senior managers is
the new “products” will be in
“fresh, strategically chosen loca-
tions”. So, what was all that talk
of broadening its online pres-
ence? Ex-employees allege that
it was nothing but an excuse to
get rid of
staffers and
to employ
fresh hands
at lower
salaries.
Y
et another celebri-
ty TV anchor is in
the news, this time
in a bizarre ruling by the
Censor Board over a
Bollywood film. The film
in question is Noor,
directed by Sunhil Sippy.
In the film, Noor, played
by Sonakshi Sinha, is an
aspiring journalist whose
role model is a real life
media personality,
Barkha Dutt. The Board
let the first name go, but
cut out her last name,
Dutt, in order, the noting
said, to avoid references
to a living person. The
director did not protest.
Barkha, however, found it
“whimsical” that her
name had become the
subject of censorship.
Up, the
Republic
Sermon from the Mount
Anchors
Away!
T
he general knowl-
edge of
Doordarshan TV
anchors leaves much to
be desired. Last week, an
anchor referred to US
National Security Adviser
as “M.C. Master.” The
NSA’s real name is
McMaster! Doordarshan
officials were left red-
faced but not as much as
when another of their
anchors had referred to
Chinese President Xi
Jinping as “Eleven
Jinping!”
Tailpiece
Back to Print
Twitter: @indialegalmedia/ Website: www.indialegallive.com

In 2015, Russia’s competition
watchdog, FAS, ruled that Google
was breaking the law as using it on
Android mobile devices necessitated
pre-installation of applications,
including its
own search tool.
The complaint was
filed by Russian
company Yandex,
which specialises in
Internet-related services
and products. In a bid to
settle this two-year dispute
Google has entered a deal for a
term of six years and nine months
which will open up its Android
mobile operating system to rival
search engines in Russia. It will also
develop a tool allowing users to
choose a default search engine on
their Android devices. Google will
also pay 439 million roubles ($7.85m)
in fines. The deal was approved by a
Russian court.
Political situation in Nepal compli-
cates further as local elections
approach. The Federal Alliance
(Sanghiya Gathabandhan), an alliance
of Madhes-based parties and groups, is
opposed to the new constitution of
Nepal and are demanding changes in
various provisions of the constitution,
such as citizenship, language, propor-
tional representation of various mar-
ginalised communities and inclusion of
the Madhesis, indigenous people, the
Tharus, Muslims, Dalits and others.
The CPN-UML is vehemently opposed
to their demands, whereas the two rul-
ing parties, the Nepali Congress and
the CPN (Maoist Centre) are opting for
a middle path, saying that Madhesi
participation in elections is a must.
Meanwhile, a move is on to organise
processions, mass meetings and a
nationwide shutdown.
Authorities in the Thai capital want
to clear street food vends as well as
stalls selling clothes
and counterfeit
goods from
Bangkok’s roads by
the end of this year
in a bid to bring
order and hygiene
to the city. The
move is part of a
crackdown that began after the coup
d’état of 2014, on prostitution, street
stalls and other informal businesses
that have traditionally skirted around
regulations due to corruption, and legal
loopholes. Sadly,
the drive comes a
month after US
TV network CNN
named Bangkok’s
street food the best
in the world for
the second year in
a row.
—Compiled by Usha Rani Das and
Shailaja Paramathama
Bangkok’s street
food banned?
Briefs
Turbulent times in Nepal
Theresa May has called for a snap
general election on June 8, claim-
ing that opposition parties were jeop-
ardising her government’s prepara-
tions for Brexit. In a press statement,
she said: “We need a general election
and we need one now…I have only
recently and reluctantly come to this
conclusion but now I have concluded
it is the only way to guarantee certain-
ty for the years ahead…After the
country voted to leave the EU, Britain
needed certainty, stability and
strong leadership.”
But under the Fixed-term
Parliaments Act, May cannot
call an election directly.
Hence she said she
would lay down a
motion in the House of
Commons that would
require two thirds of
MPs to back it.
May calls for snap polls
The Turks voted in favour of a criti-
cal referendum that would bring
constitutional changes in the country
and give unprecedented powers to its
controversial President, Recep Tayyip
Erdogan. Though Erdogan won with
a narrow margin of 51 percent, the
three largest cities—Istanbul, Ankara
and Izmir—voted against the changes.
If the constitutional amendment
bill is passed, it would limit any one
president to two terms but under
certain circumstances he/she could
seek a third term. Hence, Erdogan
can extend his tenure, potentially
winning the next two elections and
serving until 2029.
Erdogan wins; acquires
sweeping powers
32 May 1, 2017
Google’s
out-of-court
Russian deal

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T

be used without
any check and
balance to over-
ride existing
laws or executive decisions? Some legal
scholars and judges have argued that the
Article does, in fact, confer powers bor-
dering on the absolute to the Supreme
Court, but that its benches, occupied by
reasonable men and women of goodwill
and conscience, will exercise this power
with reason and restraint.
The counter-argument is that innate
good sense and a respect for natural jus-
tice cannot by themselves prevent abus-
es and that there are institutional
restraints carved out by the judiciary
itself which can curb any judicial over-
reach under this Article.
There is a five-judge judgment of
2001 and a subsequent one passed in
2010, relying on the earlier one, which,
if read together, make it clear that the
powers, under Section 142, generally
cannot be exercised to pass an order
in contravention of or ignoring statu-
tory provisions.
The larger Supreme Court bench
Focus/ Article 142
34 May 1, 2017
HE Supreme Court’s tenac-
ity in not budging from its
directive prohibiting the
sale of liquor along high-
ways has renewed the con-
tinuing debate on the mer-
its and demerits of judicial activism and
its impact on the concept of separation
of powers enshrined in the constitution.
This article questions neither the inten-
tion of the order, nor does it seek to take
sides on the issue. What I will attempt,
however, is to put into perspective the
key legal edifice on which the judges
relied and the extent of the powers it
confers on them to influence the course
of public policy.
Under heated discussion in the corri-
dors of various courts and in lawyers’
chambers is Article 142 of the constitu-
tion, which the judges cited as the
authority under which they passed the
order. This Article permits the Supreme
Court to pass decrees or make orders
necessary for doing “complete justice” in
any matter pending before it enforceable
across India.
How absolute is this power? Can it
consisting of Justices GB Patnaik, S
Rajendra Babu, DP Mohapatra,
Doraiswamy Raju and Shivaraj V Patil
(Civil Appeal No. 441, E.S.P. Rajaram vs
Union of India) observed in 2001 that
Article 142 contains no limitation
regarding the causes or the circum-
stances in which the power can be exer-
cised nor does it lay down any condition
to be satisfied before such power is exer-
cised. Then comes the caveat: “However,
this power is not to be exercised to over-
ride any express provision. It is not to be
exercised in a case where there is no
basis in law which can form an edifice
for building up a superstructure.
Supreme Court has not hesitated to
exercise the power under Art 142 of the
Constitution whenever it was felt neces-
sary in the interest of justice.”
Citing a precedent for this observa-
tion, the five-judge bench referred to a
1998 case, Supreme Court Bar
Association v. Union of India (AIR SCW
Cudgel
or
Balm?WhilethisArticleconferspowersbordering
ontheabsolutetotheapexcourt,ithasbeen
usedinthepastwithreasonandrestraint
By Inderjit Badhwar
T

1706: AIR 1998 SC 1895) which held
that under Article 142 of the constitu-
tion, the Supreme Court “cannot alto-
gether ignore the substantive provisions
of a statute and pass orders concerning
an issue which can be settled only
through a mechanism prescribed in
another statute”.
In other words, this power cannot be
used to “ignore the substantive rights of
a litigant while dealing with a cause
pending before it. This power cannot be
used to substantive law applicable to the
case or cause under consideration of the
Court. Article 142, even with the width
of its amplitude, cannot be used to build
a new edifice where none existed earlier,
by ignoring express statutory provisions
dealing with a subject and thereby to
achieve something indirectly which can-
not be achieved directly. The very nature
of the power must lead the Court to set
limits for itself within which to exercise
those powers”.
The same judgment then referred to
an earlier five-judge ruling, Prem Chand
Garg v. Excise Commissioner, U.P.,
(1963 Supp (1) SCR 885) which estab-
lished the precedent that Article 142
must be issued with the concurrence of
the majority of judges hearing the mat-
ter. “The powers of this Court are no
doubt very wide and they are intended
to be and will always be exercised in the
interest of justice. But that is not to say
that an order can be made by this Court
which is inconsistent with the funda-
mental rights guaranteed by Part III of
the Constitution.”
T
hat Court made a significant
observation: “Article 142 would
not entitle a Judge sitting on a
Bench of two Judges, who differs from
his colleague to issue directions for the
enforcement of his order although it
may not be the agreed order of the
Bench of two Judges. If this were to be
permitted, it would lead to conflicting
directions being issued by each Judge
under Article 142, directions which may
quite possibly nullify the directions
given by another Judge on the same
Bench. This would put the Court in an
untenable position. Because if in a
Bench of two Judges, one Judge can
resort to Art 142 for enforcement of his
directions, the second Judge can do like-
wise for the enforcement of his direc-
tions. And even in a larger Bench, a
Judge holding a minority view can issue
his order under Article 142 although it
may conflict with the order issued by the
majority. This would put this Court in
an indefensible situation and lead to
total confusion. Article 142 is not meant
for such a purpose and cannot be resort-
ed to in this fashion.”
In 2010, Justices Aftab Alam and Dr
BS Chauhan ruled in Manish Goel v
Rohini Goel (Special Leave Petition (C)
No.2954), a marital dispute: “In Anil
Kumar Jain (2009 AIR SCW 5899)
(supra), this Court held that an order of
waiving the statutory requirements can
be passed only by this Court in exercise
of its powers under Article 142 of the
Constitution. The said power is not vest-
ed with any other court.
“However, we have also noticed vari-
ous judgments of this Court taking a
contrary view to the effect that in case
the legal ground for grant of divorce is
missing, exercising such power tanta-
mounts to legislation and thus trans-
gression of the powers of the legislature,
which is not permissible in law. (Chetan
Dass v. Kamla Devi, AIR 2001 SC 1709 :
(2001 AIR SCW 1660); and Vishnu
Dutt Sharma v. Manju Sharma (2009)
6 SCC 379) : (2009 AIR SCW 2984).
“Generally, no Court has competence
to issue a direction contrary to law nor
the Court can direct an authority to act
in contravention of the statutory provi-
sions. The courts are meant to enforce
the rule of law and not to pass the
orders or directions which are contrary
to what has been injected by law.”
Again, I stress, this article is not an
opinion on the Supreme Court’s ban on
liquor sales along highways but rather a
brief legal recounting of the Court’s
admirable history of awareness of
exercising restraint when invoking
Article 142.
“ThepowersofthisCourtareno
doubtverywideand...willalways
beexercisedintheinterestof
justice.Butthatisnottosaythat
anordercanbemadebythis
Courtwhichisinconsistentwith
thefundamentalrights
guaranteedbyPartIIIofthe
Constitution.”
—RulinginPremChandGargv.Excise
Commissioner,U.P.,(1963Supp(1)
SCR885)
LEFT HIGH AND DRY
Closed liquor shops along
a highway in Punjab

India Legal 01 May 2017

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