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India Legal 03 December 2018


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How Healthy is India’s Constitution?
On Constitution Day, an analysis of the remarkable document created by our founding
fathers and how it has evolved to keep pace with contemporary times
Prof NR Madhava Menon, father of modern legal education in India; Prof Ranbir Singh, Vice-Chancellor, National Law University,
Delhi and PDT Achary, former Secretary General of the Lok Sabha analyse different aspects of the Constitution

Published in: News & Politics
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India Legal 03 December 2018

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I December3, 2018 Government versus RBI: Uneasy truce CBI Crisis: Chief justice loses his cool How Healthy is India’s Constitution? OnConstitutionDay,ananalysisoftheremarkabledocumentcreatedbyourfounding fathersandhowithasevolvedtokeeppacewithcontemporarytimes Prof NR Madhava Menon, fatherofmodernlegaleducationinIndia; Prof Ranbir Singh, Vice-Chancellor,NationalLawUniversity, Delhi and PDT Achary, formerSecretaryGeneraloftheLokSabhaanalysedifferentaspectsoftheConstitution
  2. 2. T is not easy to fathom as an outsider whe- ther the recent outburst of indignation by Chief Justice Ranjan Gogoi at the publication of answers to questions posed by the Central Vigilance Commission to exiled CBI Chief Alok Verma was directed at an irresponsible press or at some deep-state vested interests trying to muddle a judicial process. No matter what the motivation behind the story coming out, there is little doubt that India’s judiciary—with the Supreme Court leading from the front—has for the most part considered the Press the Fourth Pillar of Democracy. And it is for this reason that on January 12, 2018, Justices J Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Joseph had turned to the media as a plat- form from which to raise a litany of allegations against then Chief Justice of India Dipak Misra. They had complained that the situation in the top court was “not in order” and many “less than desirable” things had taken place which had put India’s “democracy at stake”. The judges’ rebellion provoked nationwide debate as well as strong criticism from stalwarts like former Chief Justice TS Thakur who called the press conference a “dis- turbing” event because it afforded the media and politicians an opportunity to discuss matters which “ought to have been addressed and solved within the confines of the Supreme Court”. The controversy notwithstanding, major deci- sions taken by the courts over the years have buttressed the Indian Constitution’s emphasis on the free press as a powerful pillar of the edifice of deep-seated civil liberties. Freedom of speech is one of the six fundamental rights conferred to the citizens of India under Part III of the Constitution. It is one of the most important aspects in the hierarchy of personal liberties pro- vided under Article 19 to Article 22 of the Indian Constitution. Article 19(1)(a) states that all citizens shall have the right to freedom of speech and expres- sion. But this right is subject to limitations im- posed under Article 19(2) which empowers the State to put “reasonable” restriction on various grounds, namely, security of the State, friendly relations with foreign States, public order, decen- cy and morality, contempt of court, defamation, incitement of offence and integrity and sovereign- ty of India. A major judicial decision which emphasised the primacy of free speech embodied in Indian Express Newspapers vs Union of India (1985), reiterated the Court’s language in Harijai Singh AIR 1997 SC 73: “It is, therefore, the primary duty of courts to uphold the freedom of press and invalidate all laws or administrative actions which interfere with it contrary to the constitu- tional mandate.” And at a time when India’s institutions seem under organised attack from an insecure and self- serving political establishment, the recent words of Chief Justice Ranjan Gogoi came as a breath of invigorating breeze: “Independent journalists and sometimes noisy judges are democracy's first line of defence.” In that same speech Justice Gogoi favoured a more pro-active judiciary. But last week sprang more than a few surpris- es. When the Supreme Court learned of the Ver- ma deposition before the CVC from the newspa- pers even before the official report had been handed over in a sealed envelope to the Court, as it had ordered, Justice Gogoi’s reaction in open court was swift and harsh. Thundered the chief justice: “What is this? We will not hear you today. None of you deserve a hearing.” Senior advocate Fali Nariman, repre- senting Verma, emphasised that stories were on Alok Verma’s responses to questions the CVC put to him. These were not in a sealed cover and were not meant for the Supreme Court. But the Court remained unmoved. It refused to take on record the reason for adjournment of the hearing. “For reasons which the court is not inclined to record", the hearing was deferred to the end of the month. The Verma “leak” was not the only matter per- taining to the press that annoyed the chief justice. Almost simultaneously, another story appeared THE CHIEF JUSTICE AND THE MESSENGER Inderjit Badhwar Letter from the Editor I Thecorridorsofthe SCarestillabuzz witharguments aboutwhythe CVC’sreportshould havebeendelivered undersealedcover andwhythe removalofAlok Vermawithout recoursetodue processcouldnot havebeentakenup separatelyfromthe chargesandcounter chargesofcorrup- tionwithintheCBI. | INDIA LEGAL | December 3, 2018 3
  3. 3. featuring CBI Deputy Inspector General Manish Kumar Sinha who had been probing corruption charges involving CBI special director Rakesh Asthana and who had moved the apex court chal- lenging his transfer to Nagpur. In his plea to the Court, he alleged interference by National Secu- rity Adviser (NSA) Ajit Doval. “The transfer was arbitrary, motivated and mala fide, and was made solely with the purpose and intent to victimise the officer as the investiga- tion revealed cogent evidence against certain powerful persons,” Sinha said. The Supreme Court, however, denied an urgent hearing into this case. Gogoi expressed further displeasure over this matter also having appeared in the press: “Here is a litigant who mentions it before us and then goes out to distribute the petition to everyone… This court is not a platform for people to come and express whatever they want... This is a place where people come for adjudication of their legal rights. This is not a platform and we will set it right.” The corridors of the Supreme Court are still abuzz with controversial arguments about why the CVC’s report should have been delivered under sealed cover (were national security secrets involved), and why the “service related matter” regarding the summary removal of Verma with- out recourse to due process could not have been taken up separately from the charges and counter charges of corruption within the CBI. Nariman may have done his best to control the damage and smoothen the Court’s ruffled feathers, but his inexplicable plea that the editors of the online portal which broke the stories should be hauled up by the Court and made to explain their con- duct simply shifted the debate from the real issue. That issue is applicability of the rule of law and administrative propriety of dealing with wide- spread allegations of corruption within the CBI to that of the freedom of journalists to report and the media to publish. T his is ironical in view of Justice Gogoi’s own demonstrated advocacy of a free and fearless press. Below are excerpts from the stirring speech he made a few months ago at the third Ramnath Goenka Lecture in New Delhi: Not too long back, I had read an interesting news article talking about the surprising surge— which is not so surprising, all things considered— in the sale of George Orwell’s 1984 in the United States. That piqued my interest in revisiting the classic. And, for some reason, I want to recollect a thought from it today. “Freedom is the freedom to say that two plus two make four. If that is grant- ed, all else follows.” (Ramnath Goenka) could call Spade a Spade. Someone who could speak truth to power. Even if 4 December 3, 2018 Letter from the Editor RIGHTEOUS INDIGNATION Chief Justice of India Ranjan Gogoi; CBI director Alok Verma TheVerma“leak”was nottheonlymatter pertainingtothe pressthatannoyed CJIRanjan Gogoi.Almost simultaneously, anotherstory appearedfeaturing CBIDIGManish KumarSinhawhohad beenprobing corruptioncharges involvingCBIspecial directorRakesh Asthanaandhad movedtheapexcourt challenginghistrans- fertoNagpur.He allegedinterference byNSAAjitDoval. Anil Shakya Photo Courtesy: Facebook
  4. 4. it came at a cost. To be ready to break, but not bend could be called obstinacy by some, and determination by others. Is it a matter of perspec- tive? I do not know. And, I cannot say for others but as far as I am concerned, I only feel that we need to ask ourselves some questions: Where is the Goenka in us; his ideals; his values? The 2015 ruling in Shreya Singhal v. Union of India …improved upon the jurisprudence on the independence of the Press to attain and promote the Constitutional precept of plurality of thought, diversity of opinion and the ethos of democracy in the tech-age and in the context of online speech. The Vision of Justice was indeed attained in the courtroom …But has it translated into real- ity? Has the success of these sterling verdicts reached the ground? I will let the facts speak for themselves. On the ground, it is a descent into chaos. And it is worrisome on all counts when you sue the messenger or when you shoot the messenger, or when the messenger itself declines to deliver the message because of the fear psychosis. It is said… that, “…independent judges and noisy journalists are democracy’s first line of defence… It needs defenders”. I agree but will only suggest a slight modification in today’s con- text—not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges. The judiciary must certainly be more pro- active, more on the front foot. This is what I would call as redefining its role as an institution in the matters of enforcement and efficacy of the spirit of its diktats, of course, subject to constitu- tional morality (= separation of powers). Alexander Hamilton, while contemplating the U.S. Constitution said that the judiciary is the weakest of three branches because it neither has force of the Executive nor the will of the Legis- lature, but only judgment. This, and which I agree with absolutely, he said, was the “simple view of the matter”. The complex view is this. And which he was wise enough to warn about over two centuries ago. He had said that while civil liberties will have nothing to fear from the judici- ary alone, they will have everything to fear from the union of the judiciary with either of the other two branches. In all humility, being an Orwell admirer my- self, I would like to add two bits to Justice Gogoi’s words of wisdom. One of my favourite quotes from Orwell: “If liberty means anything at all, it means the right to tell people what they do not want to hear.” Twitter: @indialegalmedia Website: Contact: | INDIA LEGAL | December 3, 2018 5 Thereislittledoubt thatIndia’sjudiciary hasforthemostpart consideredthePress theFourthPillarof Democracy.Anditis forthisreasonthat onJanuary12,2018, (fromleft)Justices KurianJoseph,J Chelameswar,Ranjan GogoiandMBLokur hadturnedtothe mediaasaplatform fromwhichtoraise allegationsagainst thenCJIDipakMisra. UNI
  5. 5. ContentsVOLUME XII ISSUE3 DECEMBER3,2018 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: website: MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Associate Editor Sucheta Dasgupta Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 December 3, 2018 The Constitution’s Journey With its ingenuous interpretations, the Supreme Court has breathed life into a document which would have otherwise meant little for the ordinary Indian. On Constitution Day, Prof NR Madhava Menon, Prof Ranbir Singh and PDT Achary analyze various aspects of this remarkable corpus of laws and how it has evolved over time LEAD 14 Mixed Messages Chief Justice Gogoi’s outburst over “leaked” details in CBI director Alok Verma’s case has raised a controversy, given his earlier assertion of the need for “noisy journalists” to protect democracy SUPREMECOURT 22 Capital Shamed The Delhi High Court has issued notice to the centre and the state government on a petition seeking details of steps being taken to address the issue of starvation deaths of children COURTS 24
  6. 6. Friend in the Indian Ocean REGULARS Followuson Twitter:@indialegalmedia | INDIA LEGAL | December 3, 2018 7 Cover Design: ANTHONY LAWRENCE Ringside............................8 Courts ...............................9 Is That Legal...................10 Delhi Durbar ...................12 International Briefs..........33 Media Watch ..................37 Satire ..............................50 With the Maldives electing Ibrahim Mohamed Solih president, old ties stand restored and India again has a chance of being an influence in the region 48 Federalism versus Graft Fight Though Andhra Chief Minister Chandrababu Naidu has barred the CBI for political reasons, it could spell the death knell for anti-corruption efforts 40 More Haste, Less Speed Infrastructure is hardly in place, so the Kerala government’s hurry to implement the apex court order on Sabarimala temple is misguided 38 Moment of Reckoning 44 Pakistan is in a quandary after the country’s top court asked the government to define Gilgit-Baltistan’s legal and constitutional status Risky Business The Delhi High Court issues notices to the centre and the Drug Controller General of India on a petition seeking to prohibit the fraudulent practice of recycling expired medicines 26 Big Brother’s Gaze A circular seeking details of spouses’ “gainful employment” may cause friction between the higher and lower judiciaries in the capital 28 But is there a crisis in the offing, seeing as not a single paisa has been added to the top bank’s reserves in the last four years? 30 STATES GLOBALTRENDS As the Brexit deadline draws close, the prime minister is under attack for a draft deal that has left her country without a voice in the European Union Theresa’s Burden 42 RBI Forces a Draw ECONOMY Coming down hard on Volkswagen for flouting emission norms, the green tribunal has asked it to shell out `100 crore 34NGT Fells Auto Giant ENVIRONMENT VW’s trick of placing a secret code in its diesel vehicle software to signal when the car is being tested has sullied its reputation 36Das Scandal
  7. 7. 8 December 3, 2018 “ RINGSIDE “Democracy and rule of law are under attack. Friends, we have to fight this on- slaught on our institutions; other- wise history shall never forgive us.’’ —Former Prime Minister Manmo- han Singh, while addressing the media at Indore, Madhya Pradesh “If I am involved in any kind of anti- national activities then Modiji, Raj- nathji & Fadnavisji can take action against me.” —Senior Congress leader Digvijaya Singh after his name cropped up in the Elgaar Parishad case “You HAVE claimed my party has been acting at the behest of Pakistan....Place the evidence of your alle- gation of NC boycott of ULB polls at Pak behest in public do- main. It’s an open challenge to you....” —Former J&K CM Omar Abdullah, after a comment by BJP’s Ram Madhav that PDP and NC were asked by Pakistan to form the govt in J&K “Our late PM Pan- dit Jawaharlal Neh- ru, in the last three years of his tenure, was ill. He...could not function as a Prime Minister... our leaders...did not take out a mor- cha to his house and demand his resigna- tion as we saw in Goa.” —Goa BJP President Vinay Tendulkar “It is the party which decides, but I have made up my mind not to contest the next (Lok Sabha) elec- tions due to health reasons.” —External Affairs Minister and sen- ior BJP leader Sushma Swaraj, while talking to media at Indore “Many are question- ing why we (the Shiv Sena) remem- bered Ram now, when the elections are nearing. Why should I hide it? I have taken up this issue because of the elections only. I am going to Ayodhya to remind the BJP about the promise.” —Shiv Sena chief Uddhav Thackeray at an event in Mumbai “You eulogise the cow in MP but Congress leaders in Kerala slaughter calf and take pictures of them eating beef...So, which is the real Congress, the one in Kerala or the one in MP....” —PM Modi at an election rally in Chhindwara, MP “He is the very epitome of integrity, humility, sagacity and gravitas. Not for him tall claims. Not for him empty and fanciful boasts. Not for him self-promoting bombast. Not for him falsi- fications of facts and history. Not for him the language of abuse and vitriol.” —UPA chairperson Sonia Gandhi on former PM Manmohan Singh at a function in New Delhi
  8. 8. The Supreme Court gave two weeks’ time to Trinamool Congress MLA Mahua Moitra to produce documentary material in support of her contention that the centre’s move of hiring a social media monitoring agency amounts to unwar- ranted surveillance. A three-judge bench headed by Chief Justice Ranjan Gogoi said: “Please show us from your pleadings that the State will surveil the online activities of citizens. File supplemen- tary affidavit within two weeks to show that this exercise is meant for state surveillance.” In her petition, Moitra alleged that the Unique Identification Authority of India (UIDAI) was planning to hire a social media agency that will use ‘social listening’ tools to monitor and influence conversations related to Aadhaar on social media platforms. Moitra claimed that the proposed social media hub is aimed at “mounting sur- veillance on social media plat- forms” and is violative of the fundamental rights. Courts | INDIA LEGAL | December 3, 2018 9 Twitter: @indialegalmedia Website: Contact: —Compiled by India Legal Team Hardik Patel booked for sedition First death penalty in 1984 riots case The Supreme Court refused to take any action against Delhi BJP chief Manoj Tiwari for break- ing the seal of a locked house in an unauthorised colony in North East Delhi. While disposing of the petition, the Court said it did not find Tiwari guilty of contempt of court, but slammed him for the unlawful act. A bench of Justices Madan B Lokur and Deepak Gupta, who had last month reserved its order on contempt pro- ceedings initiated against Tiwari, called him a “rebel without a cause”. The bench said: “Mr Manoj Tiwari took the laws in his hand and broke and tampered with the seal...What shocked us was the reason given by him for breaking the seal and instead of acting responsibly he acted blindly under mob pressure....” However, there are whispers amongst senior lawyers asking that if the top court found Tiwari not guilty, why were contempt of court proceedings entertained at all. As many as six hearings have been wasted on the case, they argue. They also feel that the Court seems to have acted in a contradictory manner by saying that the Supreme Court sealing order has not been violated. AGujarat court framed charges against Hardik Patel and his two key aides, Dinesh Bambhaniya and Chirag Patel, in a sedition case filed in connection with the violence during the Patidar community’s quota agita- tion in August 2015. The three accused will be tried for sedition (Section 124A IPC) and cons- piracy to commit offences punish- able by Section 121 (IPC) read with criminal conspiracy (Section 120B IPC). The trial is likely to begin from January 29, the next date for the hearing in the case. Produce material to show surveillance: SC While hearing a plea on the inhuman conditions prevailing in jails, the Supreme Court slammed the centre and states for not addressing the issue of high vacancies in forensic sci- ence laboratories (FSLs) across the country. The Court also asked the centre how it would ensure speedy trial for undertrials in such a situation. Additional Solicitor General Aman Lekhi, appear- ing for the centre, told the Court that the process of fill- ing the vacancies was underway. In response, the bench said that “the process is underway for the past 20 years” and described the sit- uation as “utter chaos”. The bench also directed the states to file their response on this issue and posted the matter for further hearing on November 29. ADelhi court awarded the death penalty to convict Yashpal Singh and sentenced another con- vict, Naresh Sehrawat, to life im- prisonment, for their role in the 1984 riots. A fine of `35 lakh each has been imposed on both convicts. This verdict follows the conviction order passed earlier this month, which held both men guilty for killing two Sikh men in South Delhi’s Mahipalpur area in the wake of Prime Minister Indira Gandhi’s assassination in 1984. SC reprimands states for vacancies in forensic labs No contempt of court by Manoj Tiwari: SC
  9. 9. ISTHAT The police often misuse the power to arrest in order to show their might. Those arrested are also subjected to physical and mental har- assment. Can any action be taken against such err- ant policemen? The police have been given the power to arrest under certain conditions—it could be before a crime/offence takes place (preventive) or after the offence has been commit- ted. However, he will need to justify the arrest by invoking a particular sec- tion of the law which allows such arrest. In case the arrest is without any reason what- soever, legal action can be initiated against the con- cerned policeman. A com- plaint can be sent to his senior or to the concerned magistrate, describing the arrest and the harassment the complainant has faced, and how it is affecting him/her. The concerned police- man can then be asked to appear before the magis- trate under the Indian Po- lice Act, 1861, and legal action initiated against him for misusing his powers. Once proved guilty he can be imprisoned, fined or both. The Delhi High Court has decriminalised beg- ging in the capital. But can any action be taken against policemen or civic authorities if they still harass beggars or demand money instead of implementing the Court’s order? Many provisions of the law which prohibited begging have been declared unconstitutional by the Delhi High Court in Harsh Mander and Another vs Union of India. The ruling also said that cases under trial related to begging in various courts be dropped. If any policeman is found arresting a beg- gar in Delhi, legal action under the Indian Police Act of 1861 can be taken against him. Legal action for human rights violation can also be initiated. A complaint can be sent to his seniors and the concerned magistrate. The errant policeman can also be tried for contempt of court. Harassing Beggars Compensation Withheld —Compiled by Deepankar Malviya Action Against Errant Policeman Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis What are the laws regarding rampant honking and use of loudspeakers? Can any action be taken against those violat- ing the law? Honking and rampant use of loudspeak- ers are covered under the Noise Pollution (Regulation and Control) Rules, 2000. According to the Rules, loudspeakers can only be used after obtaining writ- ten permission from the concerned authorities. However, they can’t be used at night. Horns can’t be used in silence zones, like hospitals, schools, courts, religious places, etc, and at night—after 10 pm in residential areas. If a person is found violating these laws, complaints can be filed with the concerned authority and the authority can take action against the violator under the Rules. Regulating Noise ? Twitter: @indialegalmedia Website: Contact: What legal steps can be taken by the people and against which authority if the government fails to give them compensation for demolish- ing their houses or places of work for the sake of development projects? The government takes away properties and land for development projects in many cities and towns. But adequate compensation is granted to those affected. Certain people in authority are given the responsibility to award the compensation and ensure that there are no glitches. However, if the government fails to do so, a petition seeking the writ of mandamus can be filed under Article 226 of the Constitution against the secretary of the concerned depart- ment and the officers responsible for distribut- ing the compensation amount among the people. 10 December 3, 2018
  10. 10. The NDA gov- ernment was left with egg on its face following US President Donald Trump’s rejection of its invitation to be chief guest at the Re- public Day celebrations. The government had gone pub- lic about the invitation and when Trump finally refused, it led to some panic-stricken meetings at the PMO and the ministry of external affairs to find a suitable sub- stitute. At least four world leaders were sounded out but they all declined because of the late invita- tion, and knowing Trump had turned it down. Finally, a senior IFS officer at the MEA who had served in Pretoria remembered that President Cyril Ramaphosa was a great fan of Mahatma Gandhi from his student activist days with the ANC, and had often expressed a wish to spend time in India. An official invitation was sent from Prime Minister Modi, mentioning the Gandhi con- nection and the fact that Ramaphosa takes part in the annual Gandhi Walk in Johannesburg (above). The letter mentioned that he would walk where Gandhi walked. Before that, a bizarre suggestion was floated at the PMO, ostensi- bly to impress Modi, that this time, Republic Day could be celebrated at the foot of the Patel statue, because of its scenic surroundings and world record. Thankfully, it was quickly shot down. 12 December 3, 2018 An inside track of happenings in Lutyens’ Delhi For once, the BJP seems to have been caught flat footed. Mehbooba Mufti (cen- tre), traditional rival Omar Abdullah (right) and Congress leaders Ghulam Nabi Azad and Ambika Soni (left) secretly and care- fully communicated with each other. They decided to forge an unlikely alli- ance to stake a claim to form the government in Srinagar, to thwart the BJP’s attemp- ts to form its own government by backing local leader Sajad Lone and potential defectors from Mufti’s PDP. They had no idea that the coalition had firmed up the required numbers, till Mehbooba’s fax landed in Governor Satya Pal Malik’s tray. He ignored the letter, and frantically called BJP’s trouble shooter for Kashmir, Ram Madhav, who spoke in turn, to Amit Shah. Within minutes, Malik issued an order dis- solving the assembly—on the same fax that had not worked when Mufti’s missive arrived. That the BJP was foxed by the development was obvious from Madhav’s disgraceful tweet accusing Omar and the Congress of acting on orders from Pakistan. The key players—Omar, Meh- booba and Soni—mainly used go-bet- weens to connect and negotiate since Mehbooba visiting Omar would not go unnoticed or, for that matter, Azad being in Srinagar. Soni was the ideal choice as catspaw, and when the trio did need to meet, it was very late at night with no security convoys or guards to give the game away. In fact, so unthinkable was the prospect of an alliance between Omar, Mehbooba and the Congress, that the BJP had no wind of it till it was almost too late. The media went into a tizzy after Sushma Swaraj, the Union minister for external affairs, announced that she will not be contesting the Lok Sabha polls next year due to her poor health. The announcement trig- gered immediate speculation on social media that Swaraj’s decision was the result of her being sidelined within the BJP since Narendra Modi and Amit Shah took total control of the party. Some even claimed that Swaraj had been feeling slight- ed ever since she was trolled by right-wing loonies on Twitter with the foul moniker of Visa Mata for helping a Muslim woman get a passport. However, the announcement was actually not as sudden as it seemed. Swaraj had had lengthy discussions with Modi and Shah over the past several months. The BJP veteran had apparently told them soon after her kidney transplant that her health will no longer permit her to devote time to electoral poli- tics and that she would prefer a Rajya Sabha berth if the party wishes for her to continue in Parliament. The Modi-Shah duo had accepted Swaraj’s wish but told her to make a formal announcement “strategically”. Swaraj has been representing MP’s Vidisha constituency in the Lok Sabha since 2009. However, given her ministerial responsibilities and failing health, she has largely been an absentee in Vidisha since her re-election in 2014—a fact that has caused substantial resent- ment in her constituency. With the BJP facing heavy anti- incumbency in MP, Swaraj’s announcement was perhaps aimed as a justification to her voters for not being available and an assurance that they will get a new BJP candi- date in 2019. STRATEGIC TIMING THE KASHMIR CONUNDRUM DONALD AND CYRIL
  11. 11. | INDIA LEGAL | December 3, 2018 13 Twitter: @indialegalmedia Website: Contact: Delhi Durbar You’d think that the technology they use, like the ideology they propound, is outdated. While Communism is being increasingly rejected around the world, there’s hope still among desi comrades that the CPI(M), which just a decade ago was the power behind the Delhi throne but now is in the dumps, will bounce back. If it doesn’t, it won’t be for lack of trying. A recent communiqué that went out from a CPI(M) area committee head to all cadres read thus: “Dear Comrade, To make our social media outreach effec- tive, it is imperative that we get our message across to as many people as possible. In this case, we reach everyone who owns a smartphone. Towards this end, all comrades are requested to save your area commit- tee office WhatsApp number xxxxxxxxxx on your phones. Please send a message from your WhatsApp to the area committee office giving your name, address, details of your booth etc. You will then start receiving dozens of messages, photos and videos from your local committee office. As members committed to the party’s cause, you should forward these to all groups that you are asso- ciated with as also all those on your contact list and also share it on Face- book, Twitter etc. Your efforts will not go unrewarded. At the end of each month, the area committee will evalu- ate your performance on social media and if your name figures among the top 50 who shared/posted/forwarded the party’s messages, you will be given 2 GB free data every day for the subsequent month.” Lal Salaam. NEAR EXTINCT, BUT TECH-SAVVY The Congress party has fielded all its heavyweights for the assembly polls in Rajasthan while its chief ministerial hopefuls in MP—Kamal Nath and Jyotiraditya Scindia—are not even in the electoral fray. In Rajasthan, Ashok Gehlot and Sachin Pilot (above)—both frontrunners for the CM’s chair—are contesting and so are veterans Girija Vyas and CP Joshi. Many believe that this is the Congress’s most aggres- sive pitch to return to power in any of the five poll-bound states. However, insiders say the decision is more a mark of Gehlot’s brinkman- ship. Despite emerging as an indis- pensable leader in Rahul’s coterie in New Delhi, Gehlot’s heart pines for the seat of power in Jaipur which he has held twice before. Pilot has been vying for the chair ever since Rahul chose him to lead the party’s state unit. Joshi and Vyas are also CM hopefuls despite knowing that they don’t really stand a chance against Gehlot and Pilot. Sources say that it was Gehlot’s idea that these warhorses must con- test the polls. The former Rajasthan chief minister has also succeeded in cornering a lion’s share of party tick- ets for his loyalists; his own victory from the Sardarpura seat is a fore- gone conclusion. This would be Pilot’s debut in an assembly election—he has been elected to the Lok Sabha twice earlier—and is contesting from Tonk, new electoral ground for him. For Rahul, it would be a tough call to pick the CM if the party indeed de- feats Vasundhara Raje’s BJP in Raj- asthan. Even if Rahul decides to anoint Pilot in the CM’s chair, Gehlot has ensured that a majority of the elected MLAs are from his faction, giving him ample room for flexing his political muscles, if and when the need arises. AGRICULTURAL SHOT In what is seen as a huge embarrass- ment for the Modi government which has so far expressed no regrets for its ill-fated introduction of demonetisation, and does, in fact, continue to justify it as a successful step, one of its own ministries has admitted that it had a disastrous effect on the farming com- munity across the country. In a meeting of the standing committee of the ministry of finance, the ministry of agriculture acknowl- edged that due to the lack of cash, millions of farmers were unable to purchase seeds and fertilisers ahead of the rabi season when PM Modi sprang his surpise in November 2016. The agriculture ministry has pointed out that the timing of demonetisaion was unfortunate since it came when the farmers were either selling their kharif yield or sowing rabi crops. With demonetisation, all the cash that they had collected for buying seeds and other agricultural aids virtu- ally turned to ash. The ministry report says that even subsidised government seeds remained unsold. The report says that due to the sudden cash crunch, about 1.38 lakh quintals of wheat seeds of the National Seed Corporation were left to rot. POLL VAULT
  12. 12. November 26 is celebrated as Constitution Day, in celebration of the remarkable document that rep- resents the supreme law of India, the Constitution of India, which came into effect on this day, 68 years ago. Has it lived up to its sublime promise? A Special Report. The Constitution of India is the supreme law of India. It frames fundamental political principles, procedures, practices, rights, powers, and duties of the government. It imparts constitutional supremacy and not parliamentary suprema- cy, as it is not created by the parliament but by a con- stituent assembly, and adopt- ed by its people, with a decla- ration in its preamble. The parliament cannot override it. The constitution declares India a sovereign, socialist, secular, democratic republic, assuring its citizens justice, equality and liberty, and endeavours to promote fra- ternity. Bhimrao Ramji Ambedkar was appointed chairman of the drafting com- mittee on August 28, 1947, with one objective—to draft a permanent and organised constitution for India. The constitution was drawn from a number of sources, includ- ing the Government of India Act, 1858, the Indian Councils Acts of 1861, 1892 and 1909, the Government of India Acts of 1919 and 1935, and the Indian Independence Act, 1947. The latter, which led to the creation of India and Pakistan, divided the former Constituent Assembly into two. Each new assembly had the sovereign power to draft and enact a new constitution. The origins go back to 1928 when a committee with Motilal Nehru as the chairman was set up “to determine the principles of the constitution for India”. The Nehru report was submitted on August 10, 1928. It was an outline of a draft constitution for India. Most of its features were later included in the constitution. The Nehru report laid special emphasis on securing fundamental human rights for the people of India. Of the 19 rights listed in the Nehru report, 10 were incorporated into the con- stitution. The Constitution of India was finally drafted by the Constituent Assembly, which was elected by members of the provincial assemblies. A galaxy of learned wise men framed the constitution in its present form after lengthy debate and discussion on each proposal. On November 26, 1949, India adopted the Constitution, which was signed by 284 members. The day is celebrated as Constitution Day. The original Constitution is hand-written, with each page decorated by artists from Santiniketan, including Nandalal Bose. The Constitution has seen a number of amendments since then but its basic objective—to preserve the concepts of parliamentary democracy, civil liberties, social and eco- nomic justice—remain to this day. The Constitution of India provides its citizens with six fundamental rights. These rights are the Right to Freedom, Right to Equality, Cultural and Educational Rights, Right to Constitutional Remedies, Right against Exploitation. Recently, the Right to Privacy has also been added to the list of fundamental rights. Lead/ Constitution Day 14 December 3, 2018 Making of India SACRED TEXT The preamble to the Constitution declares India a sovereign, socialist, secular, democratic republic
  13. 13. | INDIA LEGAL | December 3, 2018 15 THE Constitution of India is the longest written constitution of any sovereign nation in the world. It con- sists of approximately 1,45,000 words. In its original avatar, it had 395 articles in 22 parts and eight schedules. Currently, it has a pream- ble, 25 parts with 12 schedules, five appendices, 448 articles, and 101 amendments. The Constitution of India was adopted on November 26, 1949, but only came into effect on January 26, 1950, now celebrated as Republic Day. The 389-member Constituent Assembly (reduced to 299 after the partition of India) took Jawaharlal Nehru, C Rajagopalachari, Rajendra Prasad, Vallabhbhai Patel, Kanhaiyalal Maneklal Munshi, Ganesh Vasudev Mavalankar, Sandipkumar Patel, Abul Kalam Azad, Shyama Prasad Mukherjee, Nalini Ranjan Ghosh and Balwantrai Mehta were key figures in the assembly. Frank Anthony represented the Anglo-Indian community while the Parsis were represented by HP Modi. Harendra Coomar Mookerjee, a Christian, chaired the minorities com- mittee and represented non-Anglo- Indian Christians. Female members included Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh, Amrit Kaur and Vijaya Lakshmi Pandit. HISTORY IN THE MAKING (Clockwise from left) Dr BR Ambedkar (seated, centre), chairman of the drafting committee of the Constitution, with other members; Prime Minister Jawaharlal Nehru signing the Constitution; BR Ambedkar presenting the final draft of the Constitution to Constituent Assembly President Dr Rajendra Prasad on November 25, 1949; (bottom) the original Constitution on display at Parliament House in New Delhi almost three years to draft the constitu- tion, holding eleven sessions over a 165- day period. The estimated cost of the Constituent Assembly was `6.3 crore. The original 1950 Constitution is pre- served in a helium-filled case at Parl- iament House in New Delhi. BR Ambedkar, Sanjay Phakey, Factoid
  14. 14. Lead/ Column Prof NR Madhava Menon 16 December 3, 2018 ONSTITUTION Day (Nov- ember 26) is an occasion to look at the performance of the State in terms of constitu- tional governance on the one hand, and to make an assessment of the extent to which constitutionalism has taken root on the other. EXPECTATIONS AND ACHIEVEMENTS The expectations are vividly explained in the preamble to the Constitution and the terms of their implementation in the Fundamental Rights, Directive Prin- ciples of State Policy and Fundamental Duties are outlined in the Constitution itself. The very fact that the Constitution is alive and kicking in India, while many countries which gained independ- ence along with India have had their constitutions annulled or overthrown by authoritarian regimes, is testimony to the dynamism of Indian politics and the commitment of the people of India to democracy, rule of law and human rights. Despite several challenges from cross-border terrorism and border skir- mishes with neighbouring countries, the country could maintain its unity and integrity, asserting the sovereignty of the republic. There are, of course, un- resolved border disputes which are largely legacies of the colonial past. The good news is that India today is far stronger, both economically and militar- ily, than in the past and can negotiate from a position of strength for settle- ment of all disputes with other coun- tries, big and small. On the “socialist and secular” charac- ter of the State, there are different views possible on performance, depending on the meaning and content one ascribes to these words. The Supreme Court in DS Nakara v Union of India said that the “principal aim of a socialist State was to eliminate inequality in income, status and standard of life”. While Parliament and state legislatures have been legislat- ing to equalise opportunities and status, in respect of inequalities in income, the situation is considered unsatisfactory, particularly in the rural and tribal sec- tors. It is true there is no more starva- tion and famine anywhere in the coun- try and people below the poverty line have been steadily decreasing over the years. The affirmative action pro- grammes of central and state govern- ments have enabled the Scheduled Castes, Scheduled Tribes and backward classes of people, particularly women and children, to lift themselves to a bet- ter quality of life as compared to the ini- tial decades of the republic. The build- ing of an egalitarian social order is work in progress. SECULARISM: VICTIM OF VOTE BANK POLITICS Given the diversity of the population and the guarantee of religious freedom to all citizens with special rights for minorities, secularism in the Indian context was conceived differently in con- cept and application to that prevailing in Europe and America. In SR Bommai v Union of India, the Supreme Court declared that as per the constitutional provision, secularism means equal treat- ment of all religions by the State with- out the State subscribing to any religion. That India preferred to remain secular despite the fact that the country was partitioned on the basis of its Hindu- Muslim population is testimony to the secular commitment and desire to accommodate all religious groups in the multi-religious republic of India. No doubt, there are continuing tensions and occasional religious conflicts which adversely affect the development journey and the spirit of common broth- erhood and fraternity, essential for nationhood. The inability of the State to imple- ment the mandate of Article 44 in respect of a Uniform Civil Code for all citizens and the manipulation of reli- gious groups for vote bank advantages by political parties have, however, creat- ed a false image in the public mind C We’ve Come a Long Way Anil Shakya
  15. 15. | INDIA LEGAL | December 3, 2018 17 about the practice of secularism by suc- cessive governments. All religions con- tinue to prosper in this land and issues being settled through rule of law augur well for the secular future of India. On democracy and republicanism, India has an enviable record comparable to the so-called developed countries. Democracy has taken deep root with smooth transfer of power every five years (sometimes more often) after free and fair polls involving over 650 million voters! Power is devolved to panchayats and local bodies where people partici- pate directly in local governance. Representative bodies duly elected by the people are managing the provincial and Union governments. In short, the democratic experiment in India has picked up dynamism and inclusiveness on the constitutional path in a short period and proved to the world that unity in diversity is possible under a democratic regime. COMPLEMENTARITY OF CONSTITUTIONAL INSTITUTIONS It is unnecessary for the purpose of this essay to decipher the role of each of the three wings of the State in the achieve- ments made during the last seven decades. Constitutional institutions are expected to play complementary roles in achieving the constitutional goal though, on occasion, their functions and powers are so organised as to act as checks and balances to advance the con- stitutional scheme of good governance. The Constitution has assigned a unique role to the Judiciary with the Supreme Court as the final interpreter of it and its laws. The Court is also sup- posed to be the guardian and protector of the Fundamental Rights of the peo- ple. The performance of the Judiciary in safeguarding and strengthening consti- tutional governance and protecting the guaranteed rights of the people is there- fore important for making an assess- ment of the status of the Constitution when it turns 70 in November 2018. SC PERFORMANCE IN NATION-BUILDING The Supreme Court has safeguarded and strengthened the Constitution and made a qualitative difference in gover- nance under rule of law. Firstly, by the introduction of the innovative doctrine of “basic structure”, the Court in the Kesavananda Bharati case declared that the Constitution has certain basic fea- tures that cannot be altered or destroyed through the amending power of Parlia- ment. By not specifying the basic fea- tures, the Court consolidated its supremacy on matters of constitutional interpretation and restrained possible excesses by a future majoritarian gov- ernment. Secondly, by introducing the “due process of law” clause (expressly excluded in Article 21) through the Maneka Gandhi case, the Court assumed the power to redefine the con- tours of the Fundamental Rights and strengthened the scope for preventing arbitrariness in all governmental deci- sion-making. More importantly, by a stroke of judi- cial activism, the Court found the tradi- tional rule of “locus standi” coming in the way of equal access to justice for those who, because of their poverty or socially or economically disadvantageous posi- tion, are unable to approach it for relief. Pioneering the concept of public interest litigation (PIL), the Court permitted public-spirited persons to file petitions for the enforcement of rights of any other person. Using the PIL jurisdiction, the Court, in a series of decisions, widened the ambit of constitutional provisions to enforce the human rights of citizens, enlarge the range of rights protected by the Constitution and democratise legal remedies to provide appropriate relief in cases of violations. The Supreme Court, thus, became the people’s court in the real sense of the term. Of course, in the process of becoming an activist, the Supreme Court had to face criticism for allegedly encroaching on the domain of the Executive and Legislature and seeking to be populist while lacking democratic accountability. While presenting the report card on seven decades of constitutional go- vernment, the picture emerging is of growing constitutionalism amidst un- certainties of institutional roles and responsibilities in facing the challenges of contemporary politics in a globalising economy. —The writer is a reputed legal educator Twitter: @indialegalmedia Website: Contact: editor@indialegallive.comUNIDEMOCRATIC IDEALS: India’s record on democracy is one of the best in the world
  16. 16. HE constitution of a country is the supreme law—it is the source of all governmental power, legislative, executive or judicial. It is the law which delineates the regulation and management of power in governmental institutions. Apart from the inter-institu- tional dynamics, a modern democratic constitution has another important role to play—to provide fundamental guaran- tees and freedoms for every individual or community to live with dignity. Despite being the lengthiest in the world, the Indian Constitution makers ensured that its flexibility is not affected due to its specificity. Its flexibility is evi- dent from constitutional practice over the last 68 years and in particular, from the manner in which the Supreme Court has interpreted it to suit the needs of the times and by breathing life into it. There are also special provisions to enforce rule of law and constitutional mandate, viz. due process of law; public interest litiga- tion; and the treatment of women, juve- niles, senior citizens and mentally chal- lenged persons. DUE PROCESS OF LAW The constitution-makers deliberately avoided the use of the term “due process” while guaranteeing the right to life and personal liberty. Article 21 provides that “no person shall be deprived of his life or personal liberty except according to pro- cedure established by law”. The draft Article 15 (now Article 21) attracted con- siderable attention and polarised opinion both within the Constituent Assembly and outside. Eventually, the “due T Rule of Law the Court can now test a procedure established by law on the anvil of it being “just, fair and reasonable” and it can strike down a procedure if it is found to be fanciful, oppressive or capricious. The impact of the Maneka Gandhi case on Indian jurisprudence, and indeed judicial thinking, is so deep that it would not be an understatement to say that though the Constitution was con- ceived in 1950, its birth was in 1978 when this case came up. Decades later, Article 21 is a positive obligation to ensure that persons live with dignity and the high ideals of the Constitution are translated into meaning for an ordinary Indian’s routine existence. PERSONAL LIBERTY The Supreme Court has extended the process” requirement on the lines of the American Constitution was dropped in favour of the phrase “procedure estab- lished by law”, which finds place in the Japanese Constitution. The entire exer- cise was undertaken to limit judicial review of the government’s powers, espe- cially in the area of preventive detention. The bare reading of Article 21 is, thus, all that the State needs to do to deprive a person of his liberty. This bare reading was reinforced by the Supreme Court in AK Gopalan v State of Madras, where the Court held that once there is a procedure estab- lished by a law, such a procedure will be immune from any judicial scrutiny. However, the Supreme Court correct- ed itself. After the Emergency, it asserted itself and gave meaning to the right to life and personal liberty by introducing the test of reasonableness to this “proce- dure established by law” in Maneka Gandhi v Union of India. In other words, Lead/ Column Prof Ranbir Singh 18 December 3, 2018 LEARNING FROM THE PAST After the Emergency, the SC introduced the “just, fair and reasonable” test in Article 21 IndiaHistorypic/Twitter
  17. 17. | INDIA LEGAL | December 3, 2018 19 ambit of Article 21 and this provision has been the cornerstone for strengthening the rule of law. A long list of cases decid- ed on Article 21 is illustrative of the extent to which the Supreme Court has given importance to personal life and liberty. It has also extended the list of unenumerated Fundamental Rights. PUBLIC INTEREST LITIGATION Once the Supreme Court paved the way in the Maneka Gandhi case for a liberal and meaningful interpretation of the rights charter, in SP Gupta v Union of India, the Court relaxed the requirement of locus standi in PILs. If we look at the text of Article 32 which bestows on every person the right to constitutional reme- dies, it is found that the requirement of locus standi is absent. It states: “The right to move the Supreme Court by appropriate proceedings for the enforce- ment of the rights conferred by this Part is guaranteed.” It does not specify who is required to approach the Court for enforcement of fundamental rights. Yet, it guarantees the right to get such rights enforced by the Supreme Court. RULE OF LAW, EQUALITY AND JUDICIARY In Dr Subramanian Swamy v Dr Manmohan Singh, Justice AK Ganguly observed that both rule of law and equal- ity before the law are fundamental ques- tions in the Constitution as well as in international rules. In this judgment, Justice Ganguly elaborates that Parliament should contemplate constitu- tional overbearing of Article 14 enshrin- ing the rule of law wherein “due process of law” has been read into it by introduc- ing a time limit in Section 19 of the Prevention of Corruption Act, 1988. SPECIAL LEGISLATION Gender Justice The policies of the government are com- mitted to enable women to be “equal partners and participants in develop- ment”. The Constitution guarantees equality of status of women and has laid the foundation for such advancement. It also permits reverse discrimination in favour of women and many important programmes that have been designed specifically to benefit girls and women. A number of laws have been enacted which have brought forth a perceptible improvement in the status of women. These include the Immoral Traffic (Prevention) Act, 1956; Hindu Succ- ession Act, 1956; Dowry Prohibition Act, 1961; Maternity Benefit Act, 1961; Equal Remuneration Act, 1976; Indecent Representation of Women (Prohibition) Act, 1986; Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994; Protection of Women from Domestic Violence Act, 2005, and Prohibition of Child Marriage Act, 2006. The Criminal Amendment Act, 2012, framed under the Justice Verma Committee Report is another tool to ensure gender justice in India. Juvenile Justice Realising the importance of juvenile jus- tice in Sampurna Behrua v Union of India & Ors (2011), the Supreme Court observed that the Home Departments and DGPs of states/UTs will ensure that at least one police officer in every police station is given appropriate training and orientation and designated a juvenile or child welfare officer. He will handle the juvenile or child in coordination with the police as provided under sub-section (2) of Section 63 of the Act. The required training will be provided by the district legal services authorities under the guidance of the State Legal Services Authorities (SLSAs) and Secretary, National Legal Services Authority, will issue appropriate guidelines to SLSAs for training and orientation of police officers who are designated juvenile or child welfare officers. The training and orientation may be done in phases over a period of six months to one year. An independent judiciary, independ- ent constitutional review and the notion of the supremacy of law all work togeth- er to ensure that the letter and spirit of the Constitution are complied with in the working of a constitutional govern- ment. Rule of law, therefore, has been claimed as the most important constitu- tional principle. It is, therefore, heartening to note the working of the Constitution and the role of the Supreme Court in promoting the rule of law and enforcing justice. — The writer is Vice-Chancellor, National Law University, Delhi Twitter: @indialegalmedia Website: Contact: UNI CHARTING PROGRESS The ambit of right to life has been extended to include other rights like the right to education
  18. 18. and the constitutional rights of citizens continue to be the most challenging task before the judiciary and the Supreme Court has brought greater clarity and predictability in the dealing of religious rights of citizens and institutions. A landmark judgment by a Constitution Bench of seven judges of the Supreme Court laid down the law relating to this right in the famous Shirur Mutt case in 1954. The pre- Constitution decisions of Indian courts and the Privy Council usually were in favour of not infringing on religious matters, including worship as well as management of religious affairs. But the Shirur Mutt case laid down the follow- ing propositions: Religion includes rituals, practices, customs, usages, etc Only those customs, practices, etc, which are essential and integral to the religion get constitutional protection The Court alone will decide whether a custom or practice is an essential and integral part of the religion The Court will decide it on the basis of fundamental right to manage their own affairs in matters of religion. Religion under the Constitution does not merely consist of the doctrinaire aspects, but also the rituals, customs, practices, usages, etc, associated with worship. The right to practise religion, it must be understood, is not an absolute or untrammelled freedom. As Article 25(1) clearly states, it is subject to public order, health and morality and also to the other provisions in Part III (fun- damental rights). Other provisions are Articles 14, 15, 19, 21, etc, which are the most fundamental of the fundamental rights under the Constitution. An analysis of the decisions of the apex court relating to Articles 25 and 26 during the past decades reveals that the judiciary has been consistent in uphold- ing the right to practise religion and also to manage the affairs in matters of reli- gion. The unravelling of complex and often knotty religious practices and tra- ditions and propounding the right doc- trines for benchmarking them and find- ing of the right balance between faith Lead/ Column PDT Achary 20 December 3, 2018 HE preamble of the Constitution proclaims that it aims at securing for all cit- izens inter alia liberty and faith and worship. Articles 25 and 26 embody this objective. Article 25 provides freedom to practise religion to individuals, whereas Article 26 gives this freedom to religious denominations. Though a secular republic, India is not an irreligious nation. Rather, it is tradi- tionally one of the most religious coun- tries in the world. But it did not become a theocratic country thanks to the secu- lar vision of the leaders who led India during the freedom struggle and for long thereafter. Thus, right to worship was enshrined as a fundamental right in the Constitution. Article 25 confers the right to “prac- tice religion” on all “persons” and not merely citizens. Similarly, Article 26 confers on religious denominations the T LAW OVER FAITH Women were not allowed to enter the Haji Ali shrine (below) until the SC intervened in 2016 Religion and the Courts Photos: UNI
  19. 19. | INDIA LEGAL | December 3, 2018 21 the tenets of the religion. These propositions were followed in most of the subsequent decisions. In fact, in Ratilal Panachand Gandhi v State of Bombay (1954), the Supreme Court laid down an additional proposi- tion—that if a custom or practice is the belief of a community, a secular judge should accept it and should not sit in judgment on it. Thus, apart from the tenets, the opinion of the community has also become an important factor in deciding whether a custom is essential. A nother important case which did a thorough analysis of the rights under Articles 25 and 26 is Venkataramana Devaru v State of Mysore (1958). It followed the Shirur Mutt propositions, but held that Article 26(b), which gives religious denomina- tions the fundamental right to manage their own affairs in the matter of reli- gion, should be read as subject to Article 25(2)(b) which allows Hindu religious institutions to be opened to all sections and classes of Hindus. But the Court said here that as far as possible, both should be given effect through the process of harmonious construction. The concept of essentiality and inte- grality of customs, practices, etc, has been treated as the core aspect in decid- ing the question of constitutional pro- tection to be given to a custom prevail- ing in a place of worship. It assumes importance in the context of Hindu temples because the Hindu religion is not a monolith and contains diverse customs, beliefs, practices, systems of faith, etc. So, how to apply the doctrine of “tenets of religion” in the case of an important custom or practice in a tem- ple is a difficult question. This question was made somewhat more difficult by the Supreme Court judgment in the sec- ond Ananda Marga case in 1984. The question raised in this case was whether a dance in public with a skull and trident by the followers of the Ananda Marga sect was an essential and integral part of religion. The answer was an emphatic no. But the elucidation of the “essential part” of religion given by the Court has made the determination of this issue more complicated. For example, the Court says that the test to find out whether a custom or practice is an essential part of the religion is whether the nature of the religion will change if that practice is abandoned. The real difficulty will arise when deciding whether the Hindu religion will change if a custom or practice, howsoever important, is abandoned. A unidimensional application of this doc- trine to a Hindu religious custom in a place of worship can create enormous difficulties. This is what happened after the Sabarimala judgment was delivered by the Constitution Bench. The central issue in that case was whether the prac- tice of excluding women between 10 and 50 years of age from the temple is an essential part of the religion. The judg- ment said that such an exclusion is not an essential part of the Hindu religion. But the actual issue is which tenets of the Hindu religion this practice of exclu- sion should be tested on. The dictionary meaning of “tenet” is principle or belief. Belief is more appropriate in the context of religion. The presence of divinity in the idol installed and consecrated in a temple is regarded as a core belief of Hindus. A custom prevailing in a temple should be tested on the touchstone of the core belief of the worshippers. However, the Sabarimala Bench went into the lofty principles of consti- tutional morality and the right of women to worship. Framing the Sabarimala issue in terms of the polarity between women’s rights and an anti- women custom fostered by a patriarchal society is fundamentally wrong. This has created a huge turmoil in Kerala. If the Supreme Court had adopted the approach of the Venkataramana Devaru case in harmonising the contradictions, a time-honoured custom as well as the fundamental right of excluded women to worship the deity could have been harmonised. The general approach of the highest judiciary in matters of religion has been to exercise a certain degree of restraint. The basis of religion is faith which is not amenable to judicial review. No doubt the stamping out of the evil practices associated with places of worship of Hindus has the support of society, but it becomes difficult for the judiciary to for- mulate judicially manageable standards in dealing with customs which evoke deep resonance among the people. —The writer is a former secretary general of the Lok Sabha Twitter: @indialegalmedia Website: Contact: FramingtheSabarimala(above)issuein termsofthepolaritybetweenwomen’s rightsandananti-womencustomfostered byapatriarchalsocietyisfundamentally wrongandhascreatedturmoilinKerala.
  20. 20. Supreme Court/ CBI Case 22 December 3, 2018 HE week gone by saw an uncharacteristic, even misdirected, outburst by Chief Justice Ranjan Gogoi as a Supreme Court bench headed by him heard a petition filed by CBI chief Alok Verma. Visibly upset over the “leak” of confidential details pertaining to the case, the chief justice wrapped up the proceedings on November 20 in a matter of minutes after asserting that the parties in the case “do not deserve any hearing”. Adjourning the case till November 29, CJI Gogoi made his displeasure known to Verma’s counsel, senior advo- cate Fali Nariman, about the purported leak of the CBI chief’s response to the Central Vigilance Commission’s (CVC) inquiry report against his alleged cor- ruption and professional misconduct. The other trigger for the CJI’s fury was a request by advocate Gopal Sankaranarayanan to the bench a day prior. Appearing for Verma before the bench, also comprising Justices SK Kaul and KM Joseph, on November 19, Sankaranarayanan had sought an exten- sion of the deadline given to the CBI director to file his reply with the Court to the CVC’s findings. Shortly after the case was adjourned, the CJI allowed Nariman to offer his clarification on the issues that had riled the Court. And it turned out that the “leak” was more a case of “much ado about nothing”. Sankaranarayanan’s appearance was a classic example of how litigants (Verma, in this case) must be extra cautious in handling their legal battles, especially ones where they have an edge, and it wasn't surprising that the CJI attributed the mess to the “inef- RanjanGogoi’soutburstover a“leak”ofconfidential detailsinCBIdirectorAlok Verma’scaserunscounterto hisearlierassertionofthe needfor“noisyjournalists” toprotectdemocracy By India Legal Bureau T Chief Justice Loses His Cool Anil Shakya “Weexpressedthathighestdegreeof confidentialitymustbemaintained andthislitigant(theCBIdirector)takes thepapersandsharesthemwith everyone.Ourrespectforthisinstitution isnotsharedbyanyone.” —CJIRanjanGogoi
  21. 21. ficiency of counsel”. Handing a copy of an article pub- lished by news portal The Wire to Nariman, Chief Justice Gogoi said: “We expressed that highest degree of confi- dentiality must be maintained and this litigant (the CBI director) takes the papers and shares them with everyone. Our respect for this institution is not shared by anyone.” Earlier in the day, when the bench had first assembled to hear the case, Nariman had told the CJI that the pur- ported leaks had not been authorised by him or anyone in Verma’s legal team. T he article published by The Wire was about Verma’s response to a questionnaire that the CVC had sent to him during the two-week apex court-mandated period of the inquiry against him, which was being super- vised by retired Supreme Court judge Justice AK Patnaik. This inquiry had ended on November 10 and its report was filed with the Supreme Court’s reg- istry on November 12 in a sealed enve- lope. The order of the apex court to maintain confidentiality (read: file in sealed covers) was given in relation to this report. Subsequently, on November 16, Verma’s response to the inquiry’s findings was filed in a sealed envelope on November 19. The corridors of the Supreme Court are still abuzz with questions on why the CVC’s report should have been delivered under sealed cover (were national secu- rity secrets involved?), and why the “service related matter” regarding the summary removal of Verma without recourse to due process could not have been taken up separately from the charges and counter charges of corrup- tion within the CBI. But this is a differ- ent debate altogether. Nariman pointed out to the CJI that the confidentiality order did not apply to Verma’s response to the CVC during the course of the inquiry. The CJI said nothing to this submission, but expressed further displeasure over the publication of new allegations made in a petition filed before the Court by CBI officer MK Sinha. Sinha’s petition has levelled serious allegations against National Security Adviser Ajit Doval (of stymieing the Agency’s probe against its special direc- tor, Rakesh Asthana), Union minister Haribhai Chaudhary (of being paid bribes by Hyderabad-based business- man Sathish Sana), and other senior government officials. Sinha was part of the CBI team that was probing the cor- ruption cases against Asthana. He was transferred to Nagpur by the Agency’s interim chief, M Nageswara Rao, soon after the government on October 24 divested Verma and Asthana of their respective responsibilities. Sinha’s petition—though its contents have the potential of undermining the CBI, the CVC and even the Prime Minister’s Office—has not yet been heard by the top court, and so, there is no bar on its publication. It is evident that none of what the Supreme Court had deemed “confiden- tial” in Verma’s case has come into the public domain, so far, by way of news reports. So the CJI’s outburst was sur- prising. Editors and veteran journalists were quick to comment that journalism thrives on investigative stories and leaks, not just in India, but globally. The Indian Express, through an editorial, sought to remind Chief Justice Gogoi, “with due respect”, of a rousing speech he had delivered this year during the Ramnath Goenka Memorial Lecture. He (hadn’t been elevated as CJI then) had quoted an article published by The Economist which said that “independent judges and noisy journalists are democ- racy’s first line of defence”. It is difficult to reconcile this address with the chief justice’s recent outburst against an article that many believe was responsible reportage. It was not too long ago that Gogoi broke estab- lished traditions to participate in the famous “judges’ press conference” and hit out at the then chief justice in an ostensible bid to protect one pillar of democracy—the judiciary. | INDIA LEGAL | December 3, 2018 23 Twitter: @indialegalmedia Website: Contact: AGREE TO DISAGREE (Left) Senior advocate Fali Nariman pointed out to the CJI that the confidentiality order did not apply to Verma’s response to the CVC; Advocate Gopal Sankaranarayanan ItisevidentthatnoneofwhattheSChad deemed“confidential”inVerma’scase— orintherelatedmatterofthemessthat theCBIhasplummetedinto—hascome intothepublicdomain. Anil Shakya
  22. 22. Courts/ Starvation Deaths 24 December 3, 2018 HE recent deaths due to star- vation of several children in many parts of the country, including the capital city it- self, forced a Delhi advocate to file a PIL in the Delhi High Court seeking directions to the centre and the AAP government to take steps to address the issue. The plea, filed by advocate Maneesh Pathak, contends that deaths due to starvation and inci- dents of malnutrition are more preva- lent in families living in slums as many of them do not have ration cards for accessing subsidised food grains. “Mak- ing food security conditional (on a ration card) is a violation of the funda- mental right to life under the Const- itution,” Pathak has said in his petition. The plea was initially moved by Pathak in the Supreme Court, which on September 7, asked him to first appro- ach the Delhi High Court. In his PIL, Pathak has referred to the deaths of three minor girls in July this year, who according to the post-mortem report were suffering from extreme malnutrit- ion, and contended that such cases were on the rise in other states too. He has claimed that often poor families living in slums do not have ration cards due to lack of address proof and contended that that should not be a ground for denial of subsidised food to them. He has sought framing of a policy so that marginalised sections of society receive adequate supply of food and drinking water to ensure that a proper nutritional level is maintained amongst them. As many as 56 starvation deaths have been reported in the last four years in India, of which 42 deaths took place between 2017 and 2018. Jharkhand and Uttar Pradesh account for a major share, with 16 deaths each. Earlier this year, activists had compiled a list of hunger related deaths to mark the first death anniversary of Santoshi Kumari, who had starved to death in Jharkhand last year. A statement issued by them said: “This is a telling reminder of the precarious living conditions of the Indian poor.” During their research, the activists found that out of the 42 hunger deaths in 2017 and 2018, a majority (25) of the cases were related to the Aadhaar issue. Further investigation revealed that out of these 25 cases, 18 were due to loss of one’s ration card or pension for lack of Aadhaar linkage which is compulsory in several states. While the remaining seven deaths were due to individuals being denied PDS rations or a ration card for unspecified reasons, which are likely to be related to Aadhaar in some cases at least, the statement said. Speaking to India Legal, advocate Pathak said his main concern was that “the government should allow the for- mulation of a policy so that slum dwelling families with minor children get minimum supply of food until they obtain their ration cards”. The Court has asked him to implead the Department of Social Welfare, Depar- tment of Women and Child Welfare, Government of NCT of Delhi in this matter. “I will be sending notices to the said departments soon,” he said. Death from Hunger TheDelhiHighCourthasissuednoticetothecentreandthestategovernmentonaPILthat soughtdetailsofstepsbeingtakentoaddresstheissueofstarvationdeathsofchildren By Shaheen Parveen Twitter: @indialegalmedia Website: Contact: T Thepetitionerhascontendedthatstarva- tiondeathsaremoreprevalentinfamilies livinginslumsasmanyofthemdonot haverationcardsforaccessing subsidisedfoodgrains. LIVES CUT SHORT 11-year-old Santoshi Kumari died of starvation in Jharkhand last year; her mother (right)
  23. 23. Courts/ Expired Medicines 26 December 3, 2018 MONG the major chal- lenges that relief workers faced in the aftermath of the floods that ravaged Kerala in August this year was the job of sifting the vast amounts of expired medicines that the camps received. These were mixed with medicines with valid dates and volunteers had a tough time sifting the good from the bad. In April last year, Kolkata Police arrested several persons in multiple cases where expired medicines were made to look new by replacing the label. Police later found that three pharmaceu- tical companies were involved in the expired medicines racket; using special machines, they simply erased labels that carried the expiry date and put new labels on them. In 2014, a Mumbai district consumer forum dealt with a complaint wherein a person was sold medicines, after con- suming which he fell ill. The district forum imposed a fine of `30,000 on the medical store and its licence was sus- pended for six months by the Food and Drugs Administration (FDA). Till not too long, such incidents were few and far between, but they are spreading like a virus. Last week, the Delhi High Court issued notice to the central government as well as the Drug Controller of India seeking their response on a PIL filed by advocate Amit Sahni to prohibit the fraudulent sale of expired medicines as new. Medi- cines that are past their expiry date are considered ineffective and consuming them, far from giving the desired results, may end up doing the opposite. The expiration date is basically a guarantee of the manufacturer that says that up to the said date, the medicine would possess its full potency and is safe for consumption for the illness pre- scribed. A medicine does not always become ineffective after it reaches its expiry date. However, there is a possibil- ity that after it reaches its date of expira- tion, the medicine, if consumed, may result in other illnesses or side effects, which is why it is not advisable to con- sume medicines post their expiry date. Under the Drugs and Cosmetics Act, 1940, manufacturers have to mention the true and correct date of expiry of the medicine on the product itself. In 2016, the Ministry of Environ- ment, Forests and Climate Change had released a notification regarding bio- medical waste management rules which lays down the procedure that is to be followed while discarding expired medi- cines. The rules specify that expired medicines must be sent back to the manufacturer or supplier who would then destroy the spurious medicine by incineration. Despite rules and regula- tions being in place, there are numerous incidents where expired medicines are sold as valid over-the-counter drugs. But, as happened in the Kolkata case, organised gangs sell these medicines on attractive discounts to dupe consumers. An investigation into the matter reveal- ed that medical stores and chemists received just about 20 percent of the unsold expired medicines, and thus the accused resorted to illegal selling of expired medicines in an attempt to recover the costs. They had been in the illegal business for nearly eight years before the law caught up with them. In his petition, advocate Sahni says he came across a YouTube video which showed a person erasing the original expiry dates by use of certain chemicals and re-stamping the medicines with a new set of details. Alarmed at the ease with which such crimes were commit- A Fatal Dosage TheDelhiHighCourtissuesnoticetothecentreandtheDrug ControlleronaPILthatseekstoprohibitthefraudulentand oftendangerouspracticeofrecyclingexpiredmedicines andpassingthemoffasnew By Pragya Ratna InAprillastyear,Kolkata Policearrestedseveralpersons inmultiplecaseswhereexpired medicinesweremadetolooknew byreplacing thelabel.
  24. 24. | INDIA LEGAL | December 3, 2018 27 ted, he said he filed a PIL before the Delhi High Court against the sale of expired drugs in an attempt to curb the practice. Before approaching the High Court, the petitioner had brought it to the notice of the Ministry of Health and Family Welfare and the Drugs Con- troller General of India in July as they have the authority to frame rules and regulations in respect to the sale and packaging of medicines. But he did not receive any response from them, nor was any action taken by them. It was then that he decided to approach the High Court. Sahni’s petition highlights the ease with which perpetrators are toying with the health and well-being of the public for their own financial gain. Citizens suffering from serious illnesses purchase such expired medicines, many of which are often expensive, without realising that they are shelling out their hard- earned money to buy spurious stuff that could endanger their lives. S ahni pleaded that the government authorities are under “constitu- tional obligation” to protect the lives of citizens. To highlight the gravity of the issue, the petition states that “expired medications are at a risk of bacterial growth and sub-potent antibi- otics can fail to treat infections, leading to more serious illnesses and antibiotic resistance. Certain medicines have a narrow therapeutic index and little decreases in the pharmacological activi- ty can result in serious consequences for the patients”. The current method that is being fol- lowed to stamp the medicines with expiry date and other information makes it very easy to alter the date of manufacture and other such details because of which people motivated by financial gain have been playing with the health of innocent citizens by selling expired medicines which may be detri- mental to their health. Therefore, the petitioner has moved the Delhi High Court seeking its inter- vention on this sensitive issue which affects the health and well-being of the general public and pleaded that the court issue directions to the respondent to “replace the existing mechanism of stamping the strip of medicine with other method viz printing etc so as to avoid or minimise the re-use of expired medicine by stamping afresh new expiry date after erasing existing manu- facturing date/expiry date/price” along with other necessary steps to curb the practice. But there is a contrarian view that many doctors hold. According to this, an expiration date is the date at which the manufacturer can still guarantee the full potency and safety of the drug. A study by the US Food and Drug Adminis- tration came to the conclusion that 90 percent of more than 100 drugs, both prescription and over-the-counter, were perfectly good to use even 15 years after the expiration date. However, there are certain medi- cines whose potency decreases at a rel- atively faster pace. Medicines such as eyedrops, liquid antibiotics and those that are classified as life-saving drugs should not be consumed post their date of expiry. This is based on the premise that any medicine which is to be con- sumed in order to treat a fatal illness must be consumed when it has its orig- inal potency still intact. There is another view that suggests that the expiration date printed on every bottle and strip of medicine is just a ploy by drug manufacturers to ensure that you keep buying new medicines to replace the old so that they enrich themselves. That, of course, calls for another PIL. UndertheDrugsandCosmeticsAct, 1940,manufacturershavetomention thetrueandcorrectdateofexpiryofthe medicineontheproductitself,asexpired medicinesmayresultincomplications. Twitter: @indialegalmedia Website: Contact: “Expiredmedicationsareatariskof bacterialgrowthandsub-potent antibioticscanfailtotreatinfections, leadingtomoreseriousillnessesand antibioticresistance.” —AdvocateAmitSahni
  25. 25. Courts/ Assets of Spouses 28 December 3, 2018 FTER issuing a circular two months ago, the aim of whi- ch was to keep a close watch on the assets of judges of the subordinate courts, the Delhi High Court is now training its gaze on their spouses. The High Court last week issued a circular seeking details of the “gainful employment of spouses of offi- cers of Delhi Higher Judicial Service and Delhi Judicial Services which is to be maintained by the High Court”. It directs 11 district and sessions judges to compile such information in respect of all officers under their con- trol, and also in respect of officers who have proceeded on deputation from their respective districts. Judicial offi- cers have been told to promptly intimate any change in the status of gainful employment of a spouse. A similar circular in September had sparked a row between the higher and lower judiciary, with the latter claiming that they were being targeted for no rea- son. They had questioned the need for such a directive especially when all sys- tems were in place to check wrongdoing on the part of anyone. This circular is likely to further exacerbate relations, considering that some of its clauses are deemed very harsh. The circular says: “Delhi High Court orders that in cases where the Judicial Officers, while submitting intimations under the Conduct Rules, state that part of the amount of a particular transac- tion is paid by someone else, including their spouse, parents, children, relatives, friends, etc., or they have borrowed some amount from any of them, they should disclose in their intimation the nature of employment of that person, his/her annual income and source of accumulation of the amount in his/her bank account.” The Central Civil Services (Conduct) Rules, 1964, that govern the working of officials in the civil services or posts that are connected with the affairs of the Union include judges in the subordinate courts. Under these rules, it is mandato- ry for judges or officers of higher ranks to file reports about accepting gifts and lavish hospitality, making investments or lending and borrowing money, pur- chasing vehicles and buying of immov- able and movable assets as well as other properties beyond a certain price. India Legal tried to contact judges from the lower judiciary. Though no one was willing to come on record, the refrain was that they “are being targeted ... as already they are giving intimations as per the rules but this circular puts them under more scrutiny”. India Legal had reported in Sept- ember when the last circular was issued by the Delhi HC that sought appoint- ment of officials from the Subordinate Accounts Services (SAS) or those with specialised qualification from the Insti- tute of Costs & Works Accountants (ICWA). This was meant to assist in assessing reports filed by judges with regard to movable and immovable prop- erty, acceptance of gifts and hospitality, foreign travel and high value transac- tions made by them. A retired district and sessions judge of Tis Hazari Courts, who spoke on con- dition of anonymity, said: “This is the first time that these circulars are being issued, otherwise it’s always been a nor- mal routine exercise.” Earlier, intima- tions were sent through the District and Sessions Judge to the Registrar General of the High Court, which were then for- warded to the Vigilance Department. In cases where there was suspicion of a lack of integrity, internal inquiry was ordered. What was the exception has now become the norm. Big Brother Is Watching ADelhiHCcircularseekingdetailsofspouses’“gainful employment”maytriggeranintra-judiciaryrow By Kunal Rao Twitter: @indialegalmedia Website: Contact: A UNDER THE SCANNER Judicial officers in lower courts say that the latest circular puts them under more scrutiny
  26. 26. Economy/ RBI-Government Ties 30 December 3, 2018 HE ministry of finance and the Reserve Bank of India (RBI) recently engaged in a dangerous game of chicken. Eventually, both sides realised that “winning” or playing such a game to its conclusion is not in the best interest of either player. The RBI cleverly appeared conciliatory and gave a little on two issues that are unlikely to impact markets, but held its ground on the critical issues of independence and preserving its capital reserves. There were three issues of contention between the government and the RBI: The government has promised too many things to too many people, and now it doesn’t know how to pay for them. Its fiscal deficit 2018-19 is already 95 percent of the budgeted esti- mate in just the first five months of this year. An increase in the deficit may adversely affect the country’s credit rat- ing. The government asked the RBI to transfer one-third of the roughly `10 lakh crore it shows as a surplus on its books. The RBI prudently resisted, cit- ing the growing risk in the banking sec- tor and its responsibility as the lender of last resort. On this point, the sides agreed to form a committee to “study” the issue of the magnitude of the RBI surplus. Essentially, the can was kicked down the road past May 2019. The RBI under- stands that getting this issue away from the heat of the election season will allow it to present facts to a committee and more rational heads will recognise that RBI’s capital surplus is a mirage. The government wants the RBI to provide more credit to micro, small and medium enterprises (MSME) which have been decimated by demonetisation and shoddy GST implementation. The RBI argued that the next build-up in non-performing loans (NPAs) would be in this sector and additional lending will only increase the risk in the banking system. But it has now relented and agreed to increase credit flow to this sector and develop loan restructuring schemes for businesses with a credit facility up to `25 crore. The RBI regulates the banking sector Temporary Truce Thewarbetweenthetopbankandthecentrehasabated,thoughnotasinglepaisahasbeen addedtotheRBI’sreservesinthelastfouryears.Thiscouldheraldbadtimesfordepositors By Sanjiv Bhatia T COMPROMISE FORMULA Finance Minister Arun Jaitley addresses the Central Board of Directors of the RBI. In a meet- ing on Nov 19, the board acceded to the govern- ment’s request to work out a loan restructuring scheme for small and medium enterprises UNI
  27. 27. | INDIA LEGAL | December 3, 2018 31 to ensure that banks don’t go bust. In March 2017, the government approved an RBI policy which puts banks that have high NPAs and breach minimum capital requirements on a Prompt Corrective Action (PCA) list. A bank on the PCA list is restricted from further lending. Currently, 11 of the 21 govern- ment-run banks are on it, with six more on the brink. Now the government wants the RBI to relax these require- ments and remove banks from the PCA list so they can start lending money they don’t have. The RBI has agreed to reduce the minimum capital required by banks on the PCA list by an aggregate of `40,000 crore. Banks can now lend against this amount and, assuming a leverage of 10 times, another `4 lakh crore will become available for these banks to lend. It appears that the government won on two issues and the RBI on two— essentially a convenient draw. The RBI won the principled war on keeping its operational independence and on pre- serving its capital reserves. It relented on opening up the credit spigot for small and medium businesses and threw a lifeline to weak government-run banks giving them additional time to build up their capital reserves. B ut if the Modi government gets re-elected, expect this can of worms to get reopened again. Its most recent appointment to the RBI Board is S Gurumurthy, an accountant and economist. He concocted the idea of demonetisation and convinced Modi that a decrease in the RBI’s liability from the unreturned currency would release about `3.4 lakh crore from its capital account to the government. That didn’t pan out as only `10,720 crore of the junked currency did not return to the banking system. Call it coincidence, but the amount the government wants to grab from the RBI surplus (around `3.3 lakh crore) is almost identical to the surplus Gurumurthy envisioned from demonetisation. But does the RBI really have a capital surplus and if it does, can it be just trans- ferred to the government? Chapter 4, Section 47 of the RBI Act, titled 2017-18 2016-17 2015-16 2014-15 2013-14 2012-13 2011-12 2010-11 2009-10 Contingency reserves 2321.00 2282.00 2201.00 2216.00 2216.00 1954.00 1707.00 1585.00 1533.00 CGRA 6916.00 5299.00 6374.00 5591.00 5721.00 4731.00 1822.00 1191.00 1988.00 RBI revenue 782.81 618.18 808.7 792.56 646.17 743.58 531.76 370.07 328.84 RBI expenses 282.77 306.63 149.90 133.56 119.34 125.49 101.37 86.55 84.03 Transfer to reserves 0 0 0 0 0 287.94 270.25 134.02 57.18 Transfer to government 500.00 306.59 658.76 658.96 526.79 330.10 160.10 150.09 187.59 % of profits to govt 99.99 99.99 99.99 99.99 99.99 53.40 37.20 52.94 76.63 Source: RBI Source: RBI Figures in ` billion Revenue,expenses,profitsandreservesoftheRBIoverthelastnineyears Not a single paisa has been added to the central bank’s reserves during the tenure of the incumbent government despite a significant increase in risk in the banking system 14 12 10 8 6 4 2 0 2006 2008 2010 2012 2014 2016 2018 2020 RBI’sdecliningcapitalreserves 9.6 11.9 11.3 10.3 9.7 10.1 9.2 8.4 7.5 7.6 7.05 Rajender Kumar Contingency + asset development reserves as a percentage of total assets
  28. 28. Economy/ RBI-Government Ties 32 December 3, 2018 “Allocation of Surplus Funds”, mandates the RBI to transfer the profits from its operations to the centre in the form of a dividend. Anyone who has studied accounting knows the difference between profits and capital. The RBI Act requires only that the central bank transfer its profits to the government and not the reserve capital built up over time. As the nation’s bank, the RBI gener- ates income from lending money to the government and other commercial banks. It also maintains deposits of gold, foreign currency and currency notes which are invested in global capi- tal markets to generate income. It uses this income for its operations and to print new bank notes. Whatever surplus is left is given to the government as a dividend after setting aside reserves to cover financial contingency. A table shows the revenue, expens- es, profits and reserves of the RBI over the last nine years. In the previ- ous five years, the RBI has transferred `2.124 lakh crore to the government— more than the entire previous decade. It has also been more generous to the Modi government than it was to the Manmohan Singh government. During the two terms of Singh, the government received an average of 46.5 percent of the surplus, but the Modi government received 100 per- cent of the surplus. Here is the real irony. Not a single paisa has been added to the RBI’s reserves in the last four years despite a significant increase in risk in the bank- ing system. And this has to concern everyone who has a bank deposit. Is the government justified in its claim that the RBI has excess reserves? The RBI’s reserve capital consists pri- marily of two parts: a contingency reserve to be used if the RBI is required to provide liquidity to protect deposi- tors in case of a banking crisis, and the currency and gold re-evaluation account (CGRA) which is the daily gain/loss in the value of gold and for- eign exchange it holds. As of June 2018, there was `2.321 lakh crore in the con- tingency reserve account and `6.9 lakh crore in the CGRA account. The graph overleaf shows the RBI’s contingency reserves as a percentage of its total assets. Shockingly, the RBI’s contingency reserves have dropped steadily from 2008 despite more than doubling of the risk associated with the NPA problem. Even if it was legally pos- sible for the RBI to give some of this capital to the government (it is not), is it prudent to do so? I n 2009-10, with the economy grow- ing at 10 percent, and no NPA cri- sis, the contingency fund had `1.53 lakh crore or about 12 percent of assets. Today, with a less robust economy and a growing NPA crisis, the reserves are `2.32 lakh crore or seven percent of assets. Clearly, not the excess the gov- ernment claims. It would be reckless for the government to touch this amount given the state of India’s banking sys- tem. That would endanger the country’s monetary stability and the life’s savings of millions of depositors. What about the reserve capital in the CGRA account? This amount fluctuates daily with the price of the gold and for- eign exchange reserves held by the RBI. In 2009, when gold was `1,456 per gram, and the dollar/rupee exchange rate was 46.3, this amount was `1.988 lakh crore. In June 2018 (the end of the RBI’s latest fiscal year), with gold at `3,038/gm and the dollar/rupee exchange rate at 68.4, the value of this account was `6.9 lakh crore. Can the government claim this “unrealised” gain? The only way to realise this gain is by selling the coun- try’s gold and foreign exchange reserves. This would be extremely imprudent, and from an accounting standpoint, it makes no sense. The RBI’s balance sheet is unlike a corporate balance sheet because its assets (gold and exchange reserves) sup- port the issuing of currency. Selling assets to capture realised gains will require a corresponding reduction in liabilities, i.e., currency in circulation. The net increase in capital in the system from this transaction would be zero. So, if the government thinks it is getting free money by raiding these reserves, it is only an illusion. The only real effect from a decrease in reserves would be to put pressure on interest rates. The Modi government needs to play its hand very carefully. It appears that the government wants to be more involved in “managing” the country’s monetary policy. And that is a scary thought. Politicians and bureaucrats always overestimate their capabilities, but doing so at a time when the nation’s banking system faces a severe crisis could have a devastating impact on the economy. Elections are not that far away, and economics plays a big part in how people vote. And when it comes to economics, it is not the 56 inches of chest but the six inches between the ears that matter. Twitter: @indialegalmedia Website: Contact: Thegovernment’smostrecent appointmenttotheRBIBoardis SGurumurthy(above),anaccountant andeconomist.Heisthemanwho concoctedtheideaofdemonetisation.
  29. 29. The Polish government has passed a law that will pave the way for the rein- statement of Supreme Court judges. The amendment rolls back a provision imple- mented earlier this year lowering their retirement age from 70 to 65, prematurely ending the terms of many. The amendment was introduced by the ruling Law and Justice party. In October, a ruling by the European Court of Justice asked Poland to put an end to what critics called a bid to take over the country's high- est seat of justice. Poland’s chief justice Malgorzata Gersdorf requested 23 judges aged 65 or above, including herself, to return to work a few days after this decision. | INDIA LEGAL | December 3, 2018 33 Briefs —Compiled by Sucheta Dasgupta Twitter: @indialegalmedia Website: Contact: Poland rolls back controversial reform Thirty-five-year-old family doctor Thet Htwe is pushing bound- aries while doing her bit to make her countrymen more enlightened and have healthier, problem- free lives. Though talking about sex is taboo in Myanmar, the 35-year-old Muslim woman has become one of its leading sex educa- tors. Travelling around the country, she provides classes and workshops to students as well as cor- porate staff on menstru- ation, women’s rights and sexual orientation. Htwe’s classes, run by her organisation, Strong Flowers, since 2016, also tackle sensitive topics such as gendered vio- lence and consent. According to the United Nations Population Fund, violence against women is a “silent emer- gency” in Myanmar. In Buddhist-majority Myanmar, Htwe has also become a symbol of reli- gious understanding. She says her life’s mis- sion is to enlighten one mind at a time. Muslim woman leads change in Myanmar Saudi Arabia is arbitrarily detaining and torturing human rights activists, as reported by Amnesty International. Since May, the activists, men and women, are reportedly subjected to torture, including electric shock and flogging, “leaving some unable to walk or stand properly”, in Dhahban Prison. AI Middle East research director Lynn Maalouf said, “Only a few weeks after the ruthless killing of Jamal Khashoggi, these shocking reports of torture, sexual harass- ment and other forms of ill-treatment expose further outrageous human rights violations by the Saudi authorities.” AI has called for the Saudi government to imme- diately release the activists and launch an investigation into the torture reports. Amnesty reports torture of Saudi activists Amember of a violent California white supremacist group arrested on riot charges has pleaded guilty to assaulting protesters at a political rally in Huntington Beach, California, in 2017 (above). Twenty-two-year-old Tyler Laube (inset) pleaded guilty in the US District Court in central California on November 20 to a single count of con- spiracy to violate the federal riots act over his role in an attack on protesters and others, including a journalist, at a Make America Great Again rally in Huntington Beach on March 25, 2017. Laube admitted to participating in the attack with other members of the Rise Above Movement. The movement has been described as a militant white supremacist group by the protesters. In the plea agreement, Laube admitted that he had engaged in combat training with the group in the months leading up to the rally. Meanwhile, seven other accused members or associates of the group also face federal riot charges, over their roles in the August 2017 “Unite the Right” rally in Charlottesville, Virginia, and other clashes the same year. As a result of his plea, Laube’s prison term, which could have been five years, may now stand reduced. The sentencing date has been set for March 25, the sec- ond anniversary of the Huntington Beach rally. White supremacist pleads guilty