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India Legal 04 February 2019


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Modi’s Last Hurrah?
To prove he is a transformational leader, the prime minister will have to bring in sweeping changes in fiscal policy

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India Legal 04 February 2019

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I February4,2019 Modi’sLast Hurrah?Toproveheisatransformationalleader, theprimeministerwillhavetobringin sweepingchangesinfiscalpolicy Upendra Baxi: Bar girls and the Constitution Jaipur’s Royal Divorce
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  3. 3. N the eve of India’s Republic Day, I chanced upon an essay I wrote on the occasion of the nation’s 68th anniversary. In it I reproduced, after some research and self- searching, some of the most stir- ring phrases of leaders who had fought for the nation’s independence and many of whom lived on to become members of the new country’s Constituent Assembly. The most striking ones are those most of us memorised during our formative years in school. But they are worth repeating in the same spirit as we repeat birthday, Christmas and Diwali jingles and good wishes year after year, especially at a time when the next Republic Day will reflect what the people have willed for themselves in the elections less than three months away. So here’s the flashback: “Long years ago we made a tryst with destiny and now the time comes when we shall redeem our pledge. ... At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom.”—Jawaharlal Nehru. “The sanctity of law can be maintained only so long as it is the expression of the will of the people.”—Bhagat Singh. “Every Indian should now forget that he is a Rajput, a Sikh or a Jat. He must remember that he is an Indian.”—Sardar Patel. “We believe in peace and peaceful development, not only for our- selves but for people all over the world.”—Lal Bahadur Shastri. “If yet your blood does not rage, then it is water that flows in your veins. For what is the flush of youth, if it is not of service to the motherland.”—Chandra Shekhar Azad. I have an admission to make. While I am moved by these inspiring words of India’s greatest sons and daughters, I prize one poem above all. It is my personal national anthem, written by the bard Iqbal. “Sare jahan se achha, Hindustan hamara/Hum bubulein hain iske/Yeh Gulsitan hamara….Mazhab nahin sikhaata/Aapas mein bair rakhna/Hindi hain hum watan hai/Hindustan Hamara.” Beatific sentiments… (“We Hindis—not Hindus—but Hindis, the diverse people of Hindustan, live in the greatest nation on earth. We are taught to love all religions.”) Iqbal also intones: “Roma, Mishar, and Yunan/Sab mit gaye jahan se’ Kuschh baat hai ki hast mitati nahin hamaari/Sadiyon raha hai dushman daur-e-jaman hamara. (Rome, Egypt, and Greek civilisations have disappeared from the face of the earth. There is something in us that sustains us forever; for centuries, though our enemy has been at our doorstep)”. Iqbal wrote this before India was given her grand Constitution. I believe he was convinced that India’s indomitable spirit preserved her through the ages. I also believe that it is this inef- fable spirit that gave birth to the Constitution. This document provides institutional protection to the Republic in which the people are sovereign, are guaranteed certain basic rights and are gov- erned according to their will and the supremacy of the rule of law. But many things have changed since January 26, 1950, when our Founding Fathers gifted us this Republic. Have we been able to keep our republic? While we have established our national government and fundamental laws, we need to examine whether the separation of powers between the Executive, Judiciary and Legislature operates as it should. This is a critical system of checks and balances that ensures the sover- eignty of the people and accountability of the government. When our Founding Fathers adopted the par- liamentary Westminster system from England, it may have been suitable at the time. But today, as the government has spread its tentacles into every aspect of our personal lives, the challenge is to keep Executive excesses in check. It is not possi- ble when the Legislature—our Parliament—is a slavish extension of the Executive. The minister who is in the Executive branch cannot be expect- ed to police himself when he is simultaneously a legislator and also in charge of the civil services. HAS ANYTHING CHANGED? Inderjit Badhwar Letter from the Editor 4 February 4, 2019 Themoststirring phrasesofleaders likeJawaharlal Nehru,BhagatSingh, SardarPatel,Lal BahadurShastri, ChandraShekhar AzadandIqbalare worthrepeatingata timewhenthenext RepublicDaywill reflectwhatthe peoplehavewilled forthemselvesinthe electionslessthan threemonthsaway. O
  4. 4. Both, under the doctrine of separation of powers, are expected to be watchdogs over the Executive in order to ensure that it carries out legislative mandates and does not exceed the authority given to it by Parliament. It is also incongruous when, under an archaic British law still in the statute books, a state gov- ernment can order the dropping of criminal charges against its legislators and supporters stemming from violations when its members were not in elected office. We need to seriously look at constitutional changes that will guarantee the independence of legislators as powerful guardians against fraud, waste and corruption. How we can do that is ano- ther story. But for the time being, the Judiciary seems to be playing that role. Social tensions and internecine hatreds and violence and bigoted resistance to free expression and lifestyles are mounting. India’s venerable Supreme Court has mostly risen above politics. It has tried to grapple with Executive excesses such as the misuse of Article 356 and assaults on the right to privacy. But in this surcharged atmosphere of the politicisation of the steel frame of Indian gover- nance, exemplified by politicians calling for the impeachment of a sitting chief justice, will India as a nation rise above its baser instincts on the strengths of the common sense and goodwill of its own people? M y hunch is that India survives the worst and emerges stronger. After our bloody Partition, what emerged was a stronger India, aflame with poverty and exploitation, yet led by wise men and women who kept anarchy and class warfare at bay with minimal repression. There were famines in the early years, caste dis- crimination, misogyny, patriarchal hegemony, mistreatment of widows, outbursts of religious savagery...but the idea of a constitutional India guided by principles of liberty and the rule of law held. Iqbal Sahib’s idea of Sare Jahan Se Achha will probably hold and survive. But men and women of wisdom will have to constantly re-examine the Constitution and model it to suit India’s changing political and social priorities. They will have to focus on empowering people so that the Executive branch is kept in check through a more innova- tive system of the separation of powers. We need more than just words and road shows to move this nation into its manifest destiny as envisaged by those who led us into our freedom. I just drove through central and west Uttar Pra- desh, often promoted as a state (India’s most pop- ulous) into which multinationals and local entre- preneurs are rushing to invest. Roads like bomb craters. Abandoned high-rise buildings on the fringes of cities. Twenty-hour power cuts with most villages barely even boasting of a single light bulb. Invisible infrastructure. Unemployed, angry youth. Distressed farmers. Distress sales along- side food inflation. Closed small industries. Rob- beries and murders rising. (Read about a farmer crushed to death under a tractor in his own field by loan sharks and recovery agents) …. …..then switched on the telly in Delhi and relaxed to the news on NDTV with Vikram Chandra and a suave red-turbaned reporter and FICCI types with their pseudo Brit accents ex- tolling “shining India” as the world’s greatest investment destination, and Prime Minister Modi’s debut in snow-covered ski resort Davos, hyped as an earth-shattering event, while the bot- tom scroll on the TV set talked about the raging senseless violence of censorship and communal hatred over the release of the mythological film Padmaavat… I felt like Alice walking through the Looking Glass. Which world am I living in on this Republic Day? A PR dream nourished by a fawn- ing, overfed media, or a reality show of an uncar- ing political burlesque? PostScript: Has anything changed? Butinthis surcharged atmosphereofthe politicisationofthe steelframeofIndian governance, exemplifiedby politicianscalling fortheimpeachment ofasittingchief justice,willIndiaas anationriseabove itsbaserinstinctson thestrengthsofthe commonsenseand goodwillofits ownpeople? | INDIA LEGAL | February 4, 2019 5 Twitter: @indialegalmedia Website: Contact: UNI
  5. 5. ContentsVOLUME XII ISSUE12 FEBRUARY4,2019 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 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 February 4, 2019 14Modi’s Last Hurrah? If the prime minister wants to prove that he’s a transformational leader, he must bring in two changes in fiscal policy—introduce a 10 percent value-added consumption tax and have Universal Basic Income LEAD 20Bar Girls and Constitutionalism The elegant judgment of the Supreme Court showed how impoverished and hapless women can be helped constitutionally in the face of a moral crusade by the State against their vocation, says Prof Upendra Baxi OPINION 19Call for Transparency Former SC judge Justice Madan B Lokur, while sharing his views on the Judiciary at an event, said he was not happy over the Collegium’s flip-flop on recent appointments in the top court INTERACTION
  6. 6. | INDIA LEGAL | February 4, 2019 7 Quota Quarrels REGULARS Followuson Twitter:@indialegalmedia Cover Design: ANTHONY LAWRENCE Ringside............................8 Courts ...............................9 Is That Legal...................10 Durbar ............................12 Media Watch ..................49 46 STATES No Goal in Sight The lack of a clear fiscal strategy coupled with the meagre allocation of `300 crore shows that sustained efforts for controlling air pollution remain a distant dream 36 Tuskers’ Troubles 42 In a stern move, the NGT has asked the NHAI to furnish `2 crore “performance guaran- tee” for not implementing an apex court directive on constructing an elephant flyover on the Chilla-Motichur corridor in Uttarakhand ENVIRONMENT Welcome Move The passing of the DNA Technology (Use and Application) Regulation Bill will help strengthen the justice delivery system and ensure that DNA tests are done in accredited labs and the data is protected from misuse ACTS&BILLS 39 Gunning for Thrills Celebratory firing has become increasingly reckless, claiming many lives in north India. Yet, there are no specific laws to tackle this menace 25 MYSPACE Bitter End Ending 24 troubled years of marriage, Princess Diya Kumari of Jaipur and Narendra Singh Rajawat asked for a waiver of the six-month waiting period under the Hindu Marriage Act 28 SPOTLIGHT Total Seizure Though high courts have differed on pleas seeking quashing of police orders on seizure of property under Section102, CrPC, the main view is that they are not maintainable 32 LEGALEYE Plea for Procedure A petition in the Punjab & Haryana High Court has prayed that judicial magistrates be made to follow a mandatory procedure while directing the police to register FIRs 34 COURTS Reservation in education and jobs has been the bedrock of Dravidian politics for over a century, but the centre’s 10 percent quota for the poor in the general category has caused a furore in Tamil Nadu 22Lost Pride The credibility of the National Law Institute University, Bhopal, has taken a massive hit after a probe revealed that 188 students had fraudulently obtained their degrees LEGALEDUCATION Lies, Damned Lies Despite the 25-year-old ban on manual scavenging, the practice continues unabated while many states have denied that it exists 30 FOCUS
  7. 7. 8 February 4, 2019 “ RINGSIDE “If someone is mak- ing allegations it is important to ascer- tain whether the charges are right or not. If the charges are wrong, take ac- tion.... If they are right... it is a...serious thing.” —Congress leader Ka- pil Sibal, on claims by a US cyber expert that EVMs were hacked in the 2014 LS polls “I am personally very happy that my sister who is capable and is energetic will work with me.” —Congress President Rahul Gandhi after appointing Priyanka Gandhi as the party's general secretary in eastern UP “How can I go and merge with them? Why did MGR (AIADMK founder M G Ramachandran) leave DMK? He called DMK an evil force. Similarly, they (AIADMK) are a bunch of betrayers...” —AIADMK rebel leader and AMMK chief TTV Dhinakaran on chances of his returning to the AIADMK fold “The permission has been given but there are security issues. Police had said (Amit Shah’s) chop- per should land at some other place. I also change my chopper’s landing on police request....” —Mamata Banerjee after Amit Shah’s cho- pper wasn’t allowed to land at Malda air- port in West Bengal “If Lokpal had been there, a scam like Rafale would not have happened.... One thing I do not understand is how a company formed a month before the deal was made a partner in it.” —Social activist Anna Hazare while announcing his agitation for Lokpal from January 30 “She lost everything and even after that sold her dignity for power. That woman is Mayawati...she is worse than a eunuch.” —BJP MLA Sadhna Singh on the BSP-SP pact despite the 1995 guest house incident “I admit I used to take liquor occasion- ally. But my political opponents maligned me. Today my moth- er is here. She had told me that people maligned me exces- sively on television and then asked me to stop taking liquor. Now they cannot defame me.” —AAP lawmaker Bhagwant Mann ann- ouncing that he had given up drinking “The text of the Constitution only enables the Parliament or the Legislative Assembly to make reservations for socially and educationally backward segments of society not economically weaker sections. To what extent the current programme will be sustained in court, I do not know and it is to be seen.” —Retired SC Justice J Chelameswar in Mumbai
  8. 8. The Supreme Court upheld the Allahabad High Court decision which ruled that reservation for faculty posi- tions in universities should be calculated department- wise and not by taking the total seats in a university as the basis. A bench of Justices UU Lalit and Indira Banerjee rejected the cen- tre’s challenge to the April 7, 2017, decision of the Allahabad High Court. In April 2018, the human resource development min- istry had filed an SLP in the apex court following a furore over the University Grants Commission’s order of March 5, 2018. The order said that the number of res- erved faculty posts across universities and colleges would be calculated depart- ment-wise and not based on the aggregate vacant posts. Courts | INDIA LEGAL | February 4, 2019 9 Twitter: @indialegalmedia Website: Contact: —Compiled by India Legal Team Mentioning process may end soon: CJI ASupreme Court bench of Justices NV Ramana (left) and MM Shantanagoudar held that a child born of a marriage between a Muslim man and a Hindu woman was legit- imate and was entitled to a share in his father’s property. The bench added that such a marriage was neither valid nor void but an “irregular” one as per Mohammedan law. This decision came on a petition in a proper- ty dispute between one Shamsudeen (born of a marriage between a Muslim man and a Hindu woman) and his cousins. The latter had contended that Shamsudeen’s mother was not legally wedded to his father, as she was a Hindu at the time of the marriage. The trial court and the Kerala High Court had ruled against them, saying that Shamsudeen was a legitimate son and was entitled to inherit his father’s property. Thereafter, they had filed an appeal before the apex court, which dismissed it and said the trial court and High Court verdicts “were justified”. The Delhi High Court refused to grant relief to Jessica Lall murder convict Manu Sharma, and instead directed the Delhi govern- ment to reconsider his plea for early release from Tihar jail during the sentence review board meeting in March. Sharma is serving a life term for the murder of model Jessica Lall in 1999. After the Delhi government rejected his plea for early release, he had moved the High Court, seeking relief on the ground that several authorities, including the prison, police and social welfare department, had recommended his early release. No early release for Jessica Lall convict Faculty quota order upheld by apex court Child from Hindu-Muslim marriage legitimate, says SC The Supreme Court declined to stay the Scheduled Castes (SCs) and Scheduled Tribes (STs) (Prevention of Atro- cities) Amendment Act, 2018. The bench, comprising Justices AK Sikri, S Abdul Nazeer and MR Shah, was hearing a plea by Prithviraj Chauhan challeng- ing the restoration of the clause permitting immediate arrest in case of an allega- tion made under the Act. In their plea, the petitioners had termed the amendment by Parliament “arbitrary”, as it overturned the apex court’s decision to defend innocent people from the misuse of the rigorous provisions of the Act. “The government brought the amendment under influence from allies and for political mileage and its fears over antagonising massive vote-bank ahead of 2019 Lok Sabha elections,” the petitioners had contended in the plea. No stay on SC/ ST Amendment Act, 2018 The Supreme Court indicated that the practice of mentioning, whereby lawyers bring matters which they consider urgent to the notice of judges, would soon be discontinued. “I have settled new norms of listing of cases. We are trying to get rid of urgent mention- ing before the court, which un- necessarily takes away time,” said Chief Justice of India Ranjan Gogoi. The CJI, who was sharing a bench with Justices L Nageswara Rao and Sanjiv Khanna, added that a new mechanism will be introduced to ensure that all urgent pleas come up for hearing within four days of filing.
  9. 9. 10 February 4, 2019 ISTHAT Who can decide mercy petitions after the Supreme Court has awarded a convict the death penalty and refused to overturn the decision? Under Article 72 of the Constitution, the presi- dent has the power of pardon, i.e., to grant or deny a mercy plea of a convict who has been convicted of an offence and sentenced to death. The president’s power of pardon extends to any punishment awarded by a court martial and in respect of offences where the executive power of the centre extends. In exercise of this power, the president may make the following decisions: (a) grant pardon; (b) delay the imposition of punishment; (c) give respite/certain specific relief; (d) remit; or (e) suspend the punishment that is handed to a convict by the apex court. There is no time limit for the president to decide such pleas. A governor has similar powers under Article 161 of the Constitution. But a gov- ernor does not have the right to deal with death sentence cases. Is it necessary to pay a service charge to a restaurant after one has paid the due taxes in the form of GST? No. As per guidelines issued by the Depart- ment of Consumer Affairs on April 21, 2017, any restriction on entry by way of imposing an unjustified cost on the custo- mer by forcing him/her to pay service charge as a condition precedent to placing an order for food and beverages amounts to a restrictive trade practice under Section 2 (nnn) of the Consumer Protection Act, 1986. As per this Act, restrictive trade practice means “a trade practice which tends to bring about manipulation of price or conditions of delivery, or affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restric- tions.” The guidelines also say that service charge is voluntary, and any implication of force to pay such amount entitles a custo- mer to exercise his/her rights through the Consumer Disputes Redressal Commission. It’s Not Mandatory to Pay Service Charge —Compiled by Sankalan Pal President Can Grant Pardon to a Death Row Convict 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 is the procedure for a Hindu couple to obtain a divorce by mutual consent? A Hindu couple can seek divorce by mutual consent by moving a Family Court under Section 19 of the Hindu Marriage Act (HMA). The parties will have to record joint statements before the court after filing a joint petition. A necessary precondition is that they should have been living separately for more than a year. They will have to give reasons to support their wish for a mutual divorce. After hearing them, the court will give them a six-month cooling-off period which may be extended to 18 months, after which it will hear the parties and pass a decree. If the case is withdrawn, or the par- ties do not appear on the given dates, the petition will be cancelled. Recently, it has been decided that the cooling-off period may be relaxed in certain cases. As per Section 23 of the HMA, before granting a decree, a court must satisfy itself that the mutual consent divorce was not obtained by any force, fraud or undue influence. HowCanaHinduCouple Get a Mutual Divorce? ? Twitter: @indialegalmedia Website: Contact: Can you help an accident victim or report an accident without being harassed by police? Road accidents are common in India and the victims require immediate medical aid. But people often shy away from helping victims so as to avoid any legal hassles. To curb this practice, the Supreme Court had issued certain guidelines which specify that a good Samaritan should in no way be harassed by the police. The guidelines further say that such persons should not be detained by hospitals or held liable for any civil or crimi- nal liability. Further, they can be made an eye-witness only if they choose to be so, and cannot be forced to disclose personal information. The guidelines also say that such persons should be suitably rewarded so that others may also be encouraged to come to the aid of accident victims. A Good Samaritan is Entitled to be Rewarded
  10. 10. Having won its first ever seat in the Kerala assembly elections held in 2016, the BJP is now fancying its chances of making its Parliamentary debut from the state in the impending Lok Sabha election. Though the party has zeroed in on about five constituencies where it believes it has a rea- sonable chance of winning, it is focusing on the Thiruvanan- thapuram constituency, current- ly held by former Union minister Shashi Tharoor, who is serving his second consecutive term. The reasons for the BJP’s opti- mism are manifold: the capital city has a cosmopolitan mix of people from all over the state and around the country; it has in the past been receptive to “outsiders”, even sending them to the Lok Sabha, as it did with VK Krishna Menon who con- tested and won as an inde- pendent in 1971; it has not sent anyone for a third consec- utive term to the Lower House; the city gave the party its first legislator in the assembly; and, most importantly, women voters outnumber men in the con- stituency. The BJP leadership also believes that, post-Sabarimala, if not a wave there is at least a gentle breeze blowing in its favour which should stand it in good stead in the constituency, among the few in the state with an overwhelming Hindu popula- tion. It is a combination of these factors that has made the BJP sit up and take a serious look at the possibility of fielding Defence Minister Nirmala Sitharaman in the coming elec- tion in which the Congress is certain to field Tharoor for a third time. If the BJP indeed settles on Sitharaman as its candidate, will Tharoor be third time lucky? 12 February 4, 2019 An inside track of happenings in Lutyens’ Delhi Priyanka Gandhi’s formal entry into nation- al politics from the Congress party has not only made national headlines but also caught the attention of the foreign media which rarely takes any interest in India’s internal politics. Among those who played up the story with a positive spin was the powerful Washington Post of Watergate fame which stated: “A daughter of India's most famous dynasty jumped into the political arena on Wednesday, shaking up the race to lead the world’s largest democ- racy ahead of elections set for later in the spring.” The Post elaborated that Priyanka Gandhi Vadra, 47, took up a key position within the Indian National Congress, the party once led by her great-grandfather and currently headed by her elder brother, Rahul Gandhi. It commented: “The Congress Party is attempting to deny Prime Minister Narendra Modi a second term, a task which seemed impossible until several months ago. But then it defeated Modi’s Bharatiya Janata Party in three state elections in December, sug- gesting the fight to govern India may be closer than expected.” The story called Priyanka “a sharp and charismatic orator, bearing a distinct resemblance to her paternal grandmother, Indira Gandhi—India’s only female prime minister, who governed the country from 1966 to 1977 and again from 1980 to 1984.” Singapore’s prestigious Straits Times even reproduced a Facebook post by Priyanka’s husband, Robert Vadra: “Cong- ratulations P… always by your side in every phase of your life. Give it your best.” In its analysis of the advent of Priyanka, the Times wrote: “The three most impor- tant takeaways of the Congress Party’s victory in assembly elections in the heart- land states of India are: (1) it has suddenly opened up the race for power in the parlia- mentary polls due in the first quarter of the New Year; (2) it has dramatically altered the political equation between the Cong- ress and its regional allies; and (3) most significantly, the coming of age of Rahul Gandhi, the fifth generation scion of the Nehru-Gandhi family, as a politician and the helmsman of the 133-year-old party.” Indian political parties will have to comply with a slew of strict regulations if they wish to run ads on Google platforms. With barely three months left for E-day, all competing parties are looking for the biggest bang for their publicity bucks. And Google, with its massive, virtually monopolistic reach, is the medium of choice. But not so fast! The company, which is sensi- tive to the growing criti- cism of social media monopolies and search giants being misused by politicians, businessmen, and con artistes, has just announced regulatory edicts which political par- ties will have to follow. The company is bringing in India-specific “political advertising transparency”. It said in a blogpost: “We have updated the election ads policy for India. It requires that advertisers running election ads in India provide a pre-certifi- cate issued by the Election Commission of India, or anyone author- ized by ECI, for each ad they wish to run.” Google will verify the identity of advertisers before their election ads run on its platform. The advertiser verifica- tion process will start on February 14, 2019. This is the second initiative of this kind by Google which recently implemented a similar strategy in the US. GOOGLE’S GOOGLY A PIE IN THE SKY? FOREIGN KUDOS FOR PRIYANKA
  11. 11. | INDIA LEGAL | February 4, 2019 13 Twitter: @indialegalmedia Website: Contact: Durbar On January 21, a day before Prime Minister Narendra Modi was to inaugu- rate the 15th Pravasi Bharatiya Divas in Varanasi, a booklet was distributed among delegates who had arrived to attend the gala. The cover page of the booklet featured images of Modi, Minister of External Affairs Sushma Swaraj and her deputies—VK Singh and MJ Akbar. The opening leaf of the book- let too featured these images and the designations of these leaders. The blunder was glaring—Akbar ceased to be a minister on October 17 last year when he resigned from the post in the wake of over two dozen women journalists alleging that he had sexually harassed them when they worked with him in various newspapers during the 1990s. As images of the booklet went viral on social media, many wondered if Akbar was making a comeback to Modi’s council of ministers and, if not, how the gaffe missed the eye of Modi who is known to micro-manage such high-profile events. No official explana- tion for the error was provided. Even the MEA spokesperson, who is almost as active on Twitter as Modi and Swaraj, made no comment on the many tweets that had red-flagged the issue and tagged him in the post. Later, unofficially, journalists were informed that the booklet was printed when Akbar was still a minister—that is, prior to October 17—and was distributed “by mistake”. Some journalists were also “requested” to ensure that the faux pas wasn’t given prominence in news reports. Of course, the full-page adver- tisements carried by newspapers on January 22 announcing the inauguration featured images of only Modi and his Mauritius counterpart, Pravind Jugnauth, the chief guests at the event. STAMP OF THE BADSHAH Reeling under a slew of attacks from a near-united Opposition, the Narendra Modi government seems to be in the mood to welcome praise—any praise that comes its way—from any quarters. Even if it is from an about-to-be-married young couple from—where else?— Gujarat. The two-page wedding invitation card they had designed was like none other. The first page carried the customary invitation list- ing the names of the cou- ple and their families, the venue and timing, etc, all taking up much of the first page but it was what was at the bottom of the page and the text on the next page that literally caught everyone’s eye—even the Prime Minister’s. “Our gift would be whatsoever you may wish to contribute towards BJP via NAMO app and your vote for Modi in 2019 Lok Sabha elections,” read the last part of the card’s opening page while the second page, exhorting one and all to “Keep Calm and Trust Namo” appears to be a primer on the truth, according to the government, about the controversial French fighter deal. “Some Facts about Rafale Deal….Even a fool will not compare prices of a simple fly away Aircraft with a weaponized Jet,” it starts and goes on to list what the BJP leaders and their apologists have been saying over the past couple of months. It is not known if an invitation card was dis- patched to Modi, but the PM nevertheless respond- ed. “Heartiest congratula- tions to…. I noticed a unique feature sent on the marriage invitation sent to the guests. The ingenuity of its content reflects your abiding concern and love for the nation. This also inspires me to keep work- ing harder for the coun- try.” Ahem. ACCUWEATHER Most political hawks eagerly await two developments before every Lok Sabha poll to decipher which way the results are likely to swing. The first, and arguably most definitive, weather vane of the political winds is Union minister Ram Vilas Paswan, whose Lok Janashakti Party has been a part of every ruling coalition since 1998. The second is the number of heavy- weights who quit their party to join a rival camp. While Paswan has so far not played his hand despite his public rant against the decisions of the Modi government, the second indicator is likely to unfold in the days to come. If the tittle-tattle in the power corri- dors of Lutyens’ Delhi is anything to go by, a sizeable chunk of BJP MPs is weighing their options of quitting the saffron fold and, in most cases, join- ing the Congress party. At least half a dozen BJP MPs from Uttar Pradesh, the state that alone gave the party 71 lawmakers, are learnt to be in talks with Congress leaders. These include a senior MP who had quit the Congress in the run- up to the 2014 Lok Sabha polls and secured a ticket from the BJP. Similarly, some BJP MPs from Maharashtra, MP, Rajasthan, Jharkhand and even one from Gujarat have reached out to a few Congress leaders working closely with Rahul Gandhi and requested them to facili- tate their entry into the Grand Old Party. Even SP and BSP leaders claim to have received word from some Dalit and backward caste MPs of the BJP who wish to jump off the Modi bandwagon. Sources say the defections are likely to begin after the upcoming budget session in Parliament. Watch this space. MUTUAL ADMIRATION SOCIETY
  12. 12. Lead/ Column/ Budget 2019-20 Sanjiv Bhatia N a few weeks, the Modi govern- ment will present the country’s budget for the fiscal year 2019-20. This will be this administration’s last budget. Although budgets are always hugely anticipated events in India, few have been truly transformational. In 1951, John Mathai presented a budget which announced the creation of a Planning Commission. This set the course for a centrally planned economy in which allocation of resources was dic- tated by politicians and bureaucrats rather than a free-functioning market economy. India’s experience with this Soviet-style central planning model was disastrous and 40 years of potential growth were wasted. The 1991 Man- mohan Singh budget finally rectified this error through a series of economic Iftheprimeministerwants toprovethathe’sa transformationalleader,he willneedtobringintwo changesinfiscalpolicy— introducea10percent value-addedconsumption taxandhaveUniversal BasicIncome I Modi’s Last Hurrah? 14 February 4, 2019
  13. 13. liberalisation measures, including the elimination of quotas, subsidies and licences. Its emphasis was on the private sector and free-market policies, liberali- sation of imports, foreign investment and trade. This budget finally moved India away from socialist policies and marked a paradigm shift in economic thinking. The result? A doubling of GDP growth rates and a nearly 80 per- cent drop in poverty rates since 1991. It was, undoubtedly, India’s first and possi- bly only truly transformational budget. There were a few other notable budgets. The 1957 Krishnamachari budget put severe restrictions on im- ports to promote the idea that India’s economic growth will come from import substitution. But these import curbs made things worse and industrial growth suffered greatly as a result. The 1997 Chidambaram budget low- ered personal and corporate tax rates for the first time. It resulted in improved compliance, and tax collection increased 10-fold over the next decade. Unfortu- nately, very little insight was gained from that budget and no serious att- empts were made to lower tax rates in subsequent budgets. Bureaucratic understanding of tax math is sadly lim- ited to the misplaced idea that higher tax rates are required to increase rev- enue collection, whereas global evidence points to just the opposite—lower tax rates increase compliance and result in higher tax collections. In simple terms, a budget is a state- ment of the revenue collected from taxes and how the government intends to spend that money. But at its core, it is a reflection of how deeply a government is committed to fulfilling its primary responsibilities, namely, protecting its citizens from internal and external threats, building an effective judicial system to protect people’s rights through the expeditious enforcement of con- tracts, investing in human and physical capital through education and infra- structure, promoting overall well-being and quality of life by improving the delivery of public services and reducing externalities like air and water pollution. T he four previous Modi budgets have lacked a consistent direction or vision. There has been no clarity on whether the government intends to pursue socialist or free-mar- ket policies. Does it favour economic freedom or more government control of business? Is Modi making progress towards “limited government” or is he comfortable with the state getting big- ger and more powerful? Does the gov- ernment prefer handouts or is it inter- ested in promoting greater personal responsibility? Does it support free trade or will its recent litany of higher import duties to promote “Make in India” result in hurting manufacturing like the 1957 Krishnamachari “import substitution” budget? The Modi government has one last chance to present a transformational Thefourpreviousbudgetsfromthe NarendraModigovernmenthavelackeda consistentdirectionorvision.Therehas beennoclarityonwhetheritintendsto pursuesocialistorfree-marketpolicies. | INDIA LEGAL | February 4, 2019 15 UNI
  14. 14. budget. Here are two things it should do—one on the revenue side and the other on the expenditure side. On the revenue side, the government should announce a comprehensive over- haul of India’s tax policy. The current tax code with over 53 different taxes is a hodgepodge of conflicting rules and reg- ulations and does not meet any of the requirements of a good tax system. It is not broad-based—less than three per- cent of Indians pay income tax. It is not proportional—the tax burden is borne disproportionately by the middle class. It is not simple—the tax code has thou- sands of complex and often conflicting regulations. It is not easy to monitor as black money is rampant. It is not equi- table and many sectors like agriculture do not pay any taxes. And it is not easy to implement—the average business spends almost 250 hours a year on filing tax returns, and another 400 hours a year on compliance and audits. H ere are some facts about the Indian economy that are un- likely to change anytime soon. A large percentage, about 83 percent, of the Indian economy is in the informal sector, and much of it runs on cash. As a result, the payment of direct taxes like income and corporate taxes remains a voluntary activity. The generation of black money is, therefore, largely an unavoidable consequence of a compli- cated tax code juxtaposed on an infor- mal economic structure. Any attempt to change this by coercion, or other meth- ods, is an exercise in futility. The cost of trying to collect every rupee of tax will far exceed the revenue collected. So, it is imperative that the country adopts a new tax system that mitigates tax evasion and black money structural- ly, rather than administratively. The Modi government should pro- pose a flat 10 percent consumption tax to replace all existing taxes—income tax, corporate tax, capital gains tax, wealth tax and excise tax. Every single existing tax should be scrapped and replaced by a consumption tax in the form of a value added tax (VAT) which is automatically imputed into the price of all goods and services consumed in the country. In its most basic form, a business pays the VAT tax on its purchase of inputs and collects it on its sales, whether those sales are to another business or a final consumer. The company itself will pay no taxes: It acts solely as a collection agent for the government, remitting to the state the difference between the VAT it collects from sales and the VAT it pays Bureaucraticunderstandingoftaxesis limitedtothemisplacedideathathigher taxesincreaserevenue;globalevidence showsthatlowertaxesincreasecompli- anceandleadtohighertaxcollections. Lead/ Column/ Budget 2019-20/ Sanjiv Bhatia FRUITFUL MEASURES (Top) The Modi government must promote Universal Basic Income in this budget to guar- antee basic needs such as food; a flat con- sumption tax on goods and services will broaden the tax base and increase revenue 16 February 4, 2019 UNI Amlan
  15. 15. on inputs. The tax burden on the value added moves up at each stage of the production chain to the final consumer. This chain cannot easily be broken with- out detection, so tax avoidance becomes difficult. The price of all goods and services thus consumed will include a tax. Any- time a good or service is consumed, the tax gets paid automatically, so there is no tax evasion or black money. And as everyone must consume goods and serv- ices, everyone will pay some tax. It will broaden the tax base and increase rev- enue collection. Our estimates show that if all current taxes are replaced with a simple consumption tax, GDP could increase at three percent within two years, and government tax collection by almost 30 percent. Additionally, over five million new jobs will be created, and interest rates would drop below five percent. T he simplest, most efficient way to structure this value-added con- sumption tax is to have a single rate across all products, with no exemp- tions. To mitigate the tax burden on low-income families, the government can provide a transfer of 10 percent of a base income, currently chosen to be `25,000 annually, directly into their accounts as a rebate against taxes paid on the consumption of food and other essential items. In other words, every family classified as below-poverty-line would get a direct transfer of `2,500 annually into their bank accounts to compensate for taxes imputed into their consumption. This tax rebate will cost about `80,000 crore. Based on the 2018 Gross Value Added (GVA) of about `170 lakh crore, a 10 percent VAT will bring `17 lakh crore in tax revenue in the coming fiscal year, which makes it revenue-neutral with current direct and indirect tax collec- tions. In the out-years, there will be a sharp increase in tax revenues from a rise in consumption in response to in- creased economic activity and higher disposable income for consumers and businesses. This transformational tax policy will reduce the generation of black money, and more importantly, create powerful incentives that will unleash unprecedented economic productivity and growth. The second thing the government should do in this budget is the promo- tion of a Universal Basic Income (UBI) scheme to replace all existing welfare schemes. Most countries provide some form of welfare assistance to the less Theprevailingtaxcodeinthecountry, withmorethan53differenttaxes,isa hodgepodgeofconflictingrulesand regulationsanddoesnotmeetanyofthe requirementsofagoodtaxsystem. TAX BLUES (Left) Income tax returns being filed at a camp in Delhi; black money is unavoidable due to a complicated tax code juxtaposed on an infor- mal economic structure | INDIA LEGAL | February 4, 2019 17 UNI Anil Shakya
  16. 16. fortunate. India’s current welfare sys- tem, consisting of hundreds of govern- ment schemes, suffers from two major inefficiencies: High bureaucratic costs associated with running programmes and massive leakages from the system due to corruption. Estimates by the Ministry of Finance show leakages of up to 40 percent and 65 percent in two large subsidy programmes—PDS and MGNREGA. Here is the ultimate irony: India ranks second in total food production, but ranks 100th among 119 countries in the 2017 Global Hunger Index. This is despite allocating `1.8 lakh crore to pro- vide subsidised food grains to two-thirds of the country’s population. India pro- duces more than enough food, yet its people don’t get enough of it. The current welfare system is badly broken primarily because of an ineffi- cient and corrupt middleman—hun- dreds of government departments responsible for distributing welfare. What is required, instead, is a simple welfare system that can virtually be administered by a computer that will eliminate the government depart- ments responsible for distributing welfare. This will reduce leakages and ensure proper delivery of welfare to the truly needy. A UBI scheme will guarantee every citizen a minimum subsistence income that covers basic human needs such as food, shelter and clothing. This income is unconditional and can be supple- mented with other work. Estimates by the Chief Economic Adviser show that a UBI of `900 a month to 75 percent of the population would cost almost five percent of the GDP. Eliminating all the current subsidies and welfare programmes would save about 3.1 percent of the GDP, leaving an addi- tional fiscal burden of about two per- cent of the GDP. This is a substantial cost, so the pro- gramme will need to be limited to adults below a certain threshold income. Another alternative is to provide UBI only to women as a way of acknowledg- ing their uncompensated contribution at home. The UBI amount would be deposited directly into the beneficiary’s bank account or given in the form of a debit card which gets topped automati- cally every month. The latter approach would help promote the push for a cash- less economy and also prevent the money from being used for alcohol or other “restricted” purchases. G iven India’s political realities, it is virtually guaranteed that politicians will tinker with UBI in future and make it fiscally unsustain- able. The only way to insulate UBI from politics is through a constitutional amendment that simultaneously elimi- nates all other welfare programmes and guarantees. The UBI should be designed to help people based solely on their income and not as members of particu- lar occupational groups or castes. Transforming India must start with the institution of the government and how it collects revenues and distributes welfare subsidies. Transforming the rev- enue side by introducing a flat 10 per- cent value-added consumption tax to replace all existing taxes, and the wel- fare distribution side with UBI to replace all current welfare programmes will reduce black money, release capital for growth and truly provide for sabka vikas. These two changes in India’s fiscal policy have the potential to launch India’s growth into double digits. But it will require boldness and courage. It might also be Modi’s last chance to prove his credentials as a transforma- tional leader. —The writer is a financial economist and founder, Twitter: @indialegalmedia Website: Contact: TransformingIndiamuststartwiththe governmentandhowitcollectsrevenues anddistributeswelfaresubsidies.Thisis amusttoreleasecapitalforgrowth,curb blackmoneyandprovideforsabkavikas. Lead/ Column/ Budget 2019-20/ Sanjiv Bhatia UNI NOTHING SPECIAL Union Finance Minister Arun Jaitley and Minister of State for Finance Shiv Pratap Shukla arriving at Parliament House to present the 2018-19 Budget 18 February 4, 2019
  17. 17. | INDIA LEGAL | February 4, 2019 19 Interaction/ State of The Indian Judiciary/ Justice Madan B Lokur HE famous “open rebellion” press conference held by the four seniormost judges of the Supreme Court (SC) last year was justified because it helped make the system more open. It was a measure of last resort after several informal efforts to resolve matters with- in the Collegium failed. This was the view expressed by former SC judge Justice Madan B Lokur at an interactive event, “State of The Indian Judiciary”, held in New Delhi, last week. Justice Lokur insisted that the judges should not be considered hermits, or perceived to be sitting in an ivory tower, and felt that the interaction between the chief justice of India (CJI) and the prime minister (PM) should be more fluid. In fact, he emphasised that the CJI should invite the PM for any func- tion at the Supreme Court. He was referring to the controversy that broke out after Prime Minister Narendra Modi, on the invitation of the CJI, went to the apex court for a function during the last Christmas break. Responding to a question on the con- troversy around the recent appoint- ments of two SC judges by the Colle- gium, Justice Lokur said he was “disap- pointed”. “A decision has been taken. In the normal course, it should have been put up. It was not put up. I am disap- pointed. Why it was not put up is not my business,” he said, adding, “There is no practice or standard operating proce- dure laid down. Once a resolution is passed, I would expect it in the normal course to be put up on the website. Yes, it does disappoint me.” On December 12 last year, the Sup- reme Court Collegium, which then included Justice Lokur, had considered the names of high court judges Justices Pradeep Nandrajog and Rajendra Menon. But a subsequent meeting on January 10 this year—by when Justice Lokur had retired—cleared the names of Justices Dinesh Maheshwari and Sanjiv Khanna, who were later sworn in. “The whole collegium system works well, but it needs tweaking and the Memoran- dum of Procedure in appointment of judges needs to be clarified,” he said. He added that loopholes should be plugged, as there is very little even the CJI could do if the Executive sits indefinitely on a proposed appointment. On the post-retirement issues, Jus- tice Lokur said that a line should be drawn regarding appointments but said that if there is a requirement that the chairman of the Human Rights Commission should be a former Sup- reme Court judge then it should be followed unless the law is changed. Justice Lokur said that he would not accept any lucrative posting post-retire- ment. “I would not accept a governor- ship or membership of the Rajya Sabha,” he added. To another question, Justice Lokur replied that judges’ appointments should not be held up either by the Executive or Judiciary as it would cast aspersions on the state of affairs, and might lead to bias or favouritism. “A time limit should be placed beyond which a candidate should be considered appointed.” Towards the end of the interaction, in response to a journalist’s query whe- ther the media was free to investigate corrupt judges, Justice Lokur responded, “Why not?” “But won’t we then be hauled up for contempt and locked up behind bars?” the journalist persisted. “Please remember that the truth is the best defence against any kind of defamation,” said Justice Lokur. Absolutely, Your Honour! “I Am Disappointed” TheformerSCjudgesaidhewasnothappyoverthe Collegium’sflip-floponrecentappointmentsinthetopcourt By India Legal Bureau Twitter: @indialegalmedia Website: Contact: Ontheappointmentsoftwojudgestothe SC,JusticeLokursaidthatthenames shouldhavebeenputuponitswebsite. However,hesaid,“thereisnopracticeor standardoperatingprocedurelaiddown.” T
  18. 18. ARDUOUS BATTLE (Left) A still from the film Chandni Bar; the Maharashtra government’s ban on dance bars was first overturned by the Bombay High Court (above) in 2006 Opinion/ Mumbai’s Dance Bars Prof Upendra Baxi 20 February 4, 2019 Theelegantjudgmentoftheapexcourtshowedhowimpoverishedandhaplesswomencanbehelped constitutionallyevenwhentheStateismanifestlyobsessedbyamoralcrusadeagainsttheirvocation Bar Girls and Constitutionalism HE January 17 judgment of Justices AK Sikri and Ashok Bhushan in the Maharashtra Bar Girls Union case is an exemplary gift to the nation on the eve of Republic Day. It is everything that a good judgment ought to be. Written elegantly and painstakingly, it upholds a basic principle of the rule of law: ‘‘What cannot be done directly may not be done indirectly.” But it does so in a most nuanced way. Instead of the sledgehammer tactic and strategy of ter- ming the entire Act (The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protec- tion of Dignity of Women (Working Therein) Act, 2016) as constitutionally invalid, it examines each impugned rule. It upholds some rules, invalidates others and leaves the residual to further rea- sonable State action. It shows how it is large number of women dancers, singers and waitresses. It is remarkable that both capital and labour, usually at log- gerheads, protested the regulations. The Supreme Court, in 2013, upholding a relevant High Court deci- sion, had already ruled against regula- tions that manifestly prohibited Article 19 which allows one “to practise any profession, or to carry on any occupa- tion, trade or business”. Under the new regulations, the authorities had issued no licenses till 2019. The latest decision of the Supreme Court has now resulted in at least 75,000 jobs being available again to bar girls. They were denied these jobs for a long stretch of time, with devastating results. Many had taken recourse to sex work and other forms of servile work in India and the Gulf countries. To look after the “weaker sections of society” is a Directive Principle of State T judicially manageable both to respect the plenitude of legislative power and purpose and rigorously apply the over- weening constitutional discipline of fundamental human rights. It further reiterates a basic principle of constitutional good governance: the power to impose reasonable restrictions may never be used to abrogate the basic rights assured by Part III of the Consti- tution; the power to restrict is not the power to act as if the rights never exist- ed in the first place. Two sets of rights were argued as being mortally assailed. One was the right to do business, profession, or trade as urged by the petitioner, Indian Hotel and Restaurant Owners Associa- tion. The other petitioners were Bhar- tiya Bar Girls Union, registered under the Trade Union Act, 1926, who insisted on the arbitrariness of regulations and its impact on the right to work for a Twitter
  19. 19. | INDIA LEGAL | February 4, 2019 21 Policy and was declared a paramount constitutional obligation of the State in making policy and law. Instead, it pro- ceeded to regulate with a heavy hand, virtually outlawing both legitimate busi- ness and the right of women to work! Justice Sikri (writing for the Court) showed how the impoverished and hap- less women can be helped constitution- ally even when the State is manifestly obsessed by a moral crusade against the vocation. It deprived the bar girls of legitimate vocation and chose “under the cloak of regulatory regime” to fur- ther defy constitutional norms and val- ues reaffirmed by the High Court of Bombay and the Supreme Court. It is noteworthy that a complete ban on bar dancing in hotels and restaurants was aimed at by the State. To that end, the new rules to prohibit “performance of dance shall remotely be expressive of any kind of obscenity” were thought necessary by the State. To this were add- ed notions about the dignity of women and the feeling that dancing performan- ces by their very nature entailed the exp- loitation of women. However, in 2013, the Supreme Court held that there was no “material or empirical data” before the State to support such a broad-brush proposition. Although the Court does not say so directly, the fact remains that the Constitution regards policy making by following a hunch or shooting in the dark as arbitrary and unreasonable. The judgment reiterates that considerable Executive homework is needed in making policies and laws if the State is to escape the indictment of “arbitrari- ness” under Article 14. Clearly, this con- stitutional engagement does not amount to “judicial overreach”; rather, it is the vice of constitutional underreach that stands judicially assailed. J ustice Sikri also reminds State managers that whatever constitu- tional morality may be said to mean, it does not mean dual standards. The Supreme Court had already held (following the Bombay High Court) that the State has “failed to justify the classi- fication between the exempted estab- lishments and prohibited establish- ments on the basis of surrounding cir- cumstances, or vulnerability”. It is an exasperatingly “unacceptable presump- tion that the so-called elite i.e. rich and the famous would have higher standards of decency” and an “identical dance item in the establishments having facilities less than three stars would be derogative to the dignity of women and would be likely to deprave, corrupt or injure pub- lic morality or morals; but would not be so in the exempted establishments. These are misconceived notions of a bygone era which ought not to be resur- rected”. In matters of governance of sex- uality, as indeed in all matters, distinc- tions based on wealth, class, and social position in a hierarchy are declared con- stitutionally “bygone” and its reiteration should be most welcome as we approach the first quarter of the 21st century. There are many abiding conceptual takeaways from this significant decision, but the most pre-eminent of these is the quietly implied importance of constitu- tional morality. Justice Sikri explicitly distinguishes three domains of evolu- tionary morality: the morality of society, the morality of the Legislature and con- stitutional morality. In an ideally just society, all three would be in concordance. But in a sub- ideal social order, conflicts would natu- rally arise. At times, legislative morality may be ahead of changes in social moral- ity. The only important question then for courts is whether the legislature trans- gresses the basic canons of constitutional morality. But because social morality may change faster than legislative moral- ity (it may regard bar dancing, serving of liquor and giving direct tips to bar girls as an appreciation of her performance as moral), the latter stands in accord with constitutional morality. It is only when social and legislative morality point to the same end of prohi- bition of a certain pattern of social action and conduct that the standards of consti- tutional morality come fully into force. However, the articulation of norms and standards of constitutional morality may come into peril when legislatures (the political majorities) unite, particularly with massive social formations. The courts may overcome the crisis of judi- cial authority only by keeping a vigil over democracy, freedom, rights and justice guaranteed by the Constitution. They should continue to pay respect to the inner morality of the Constitution. The immeasurable wisdom of the bar girl decision shows that while enriching the limits to power enunciated by the Constitution, constitutional morality can respect the plenitude of legislative morality. —The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer. ThejudgmentbyJustices AKSikri(farleft)andAshok Bhushanreiteratesthat considerableExecutive homeworkisneededin makingpoliciesandlaws iftheStateistoescape theindictmentof “arbitrariness”under Article14. Twitter: @indialegalmedia Website: Contact:
  20. 20. Legal Education/ Bhopal’s NLIU Scam 22 February 4, 2019 HE prestigious National Law Institute University (NLIU), Bhopal, has plunged into a severe crisis of credibility. It has been forced to scrutinise over 8,000 mark sheets and degrees given to its students between 2003 and 2015 after a probe report by a retired High Court judge found huge irregularities. NLIU, Bhopal, which was founded in 1998, is recognised as one of the top law colleges of central India. The probe panel detected 188 stu- dents who fraudulently obtained their degrees with the help of some staff members of the institute. Of these, 101 were allegedly involved in a criminal conspiracy to get their mark sheets stamped as “successful candidates” although they had failed in the final examinations. According to the report, a nexus between certain professors and non- teaching staff at NLIU manipulated marks and helped failed students receive fake degrees from 1998 to 2013. The committee, headed by retired judge Abhay Gohil, has recommended FIRs against nine professors and non-teach- ing staff in this case. The panel has also served showcause notices on six oth- ers—both teaching and non-teaching staff—to explain why disciplinary action shouldn’t be initiated against them. The Justice AK Gohil panel present- ed its investigation report to the NLIU general council on January 19. The report was tabled in the pres- ence of MP High Court Chief Justice Sanjay Kumar Seth who is ex-officio head of the council. The report found that not only the students who failed, but even those absent, had received degrees. Some of them went on to get jobs in the lower judiciary and law firms. The most shocking thing, according to the report, “was that students, who were found absent in the attendance register, received pass marks in the result and later they received degrees. Over-writing was also found in the papers”. Answer sheets and tabulation charts of seven students were found missing from NLIU records. This is because either the mark list, tabulation chart, answer sheets or all three were missing. One student of the 2010 batch flunked in 47 subjects in 14 trimesters but man- aged to receive a pass certificate for all the subjects. Through manipulation at three lev- els—mark list, tabulation chart and answer sheets—scores of failed students were given “pass marks”, the report said. The difference in marks mentioned in the tabulation sheet and the mark sheets was noticed during the inquiry. “Professors concerned should have flagged the matter but they supported the students and staff members,” said the report. “It is a clear case of forgery and creating false documents to make changes in the genuine record of the university under a criminal conspiracy.” Shocking Loss of Face WiththecredibilityofthisUniversitytakingahitafteraprobe paneldetectedthat188studentshadfraudulentlyobtained theirdegrees,over8,000marksheetswillbescrutinised By Rakesh Dixit in Bhopal T CAMPUS ON THE BOIL Students of NLIU, Bhopal, protesting against malpractices, including the allotment of fake degrees Accordingtotheprobepanelreport,a nexusbetweencertainprofessorsand non-teachingstaffatNLIUmanipulated marksandhelpedfailedstudentsreceive fakedegreesfrom1998to2013.
  21. 21. | INDIA LEGAL | February 4, 2019 23 The probe panel has recommended that the general council take “appropriate decision” about these students and the staff members involved in the racket. J ustice Gohil concluded his report with a stern recommendation: “Under the compelling circum- stances, I have no option but to recom- mend that this is a fit case, in the inter- est of reputation of the university, to ini- tiate FIR on nine employees, including professors and non-teaching staff.” The persons named in the report include assistant registrar Ranjit Singh, library assistant Binoy Singh, former examination superintendent professor UP Singh, tabulation chart in-charge Tapan Mohanty, assistant system man- ager Dhirendra Singh, examination sec- tion employee Kamlesh Shrivas, assis- tant grade three employee Narayan Prasad, former assistant professor C Rajshekhar, former employee Arifuddin Ahmed Khan, professor Gayur Khan, associate professor Kavita Singh, former registrar RKS Gautam, assistant regis- trar Ravi Pandey, associate professor Monica Raje and employee Ankit Sharma. The panel had earlier recorded statements of several teachers and employees about the missing records. The malpractice came to light in November 2016 when some students lodged a complaint to then Chief Justice of MP High Court Hemant Gupta, who was head of the general council of the institute. They alleged that degrees were being sold for lakhs of rupees in NLIU. Following the complaints, NLIU set up a three-member internal committee comprising professors SS Kushwah, UP Singh and Ghayur Alam. The committee in its report in Themalpracticecametolightin November2016whenstudentslodgeda complainttothenChiefJusticeofMP HighCourtHemantGupta,whowashead ofthegeneralcounciloftheinstitute. @nliuspeaks/
  22. 22. 24 February 4, 2019 September 2017 recommended a judi- cial probe into the complaints as they were of a serious nature. On the basis of the report, a single-member commit- tee under retired judge Abhay Gohil was formed. The internal committee had noted overwriting and the use of whitener in some tabulation charts at some places with initials and without initials. Justice Gohil, in his first report in March 2018, held then NLIU director SS Singh responsible for the irregulari- ties. Singh retired in November 2017 after a week of student protests against administrative apathy. The report also blamed assistant registrar Ranjit Singh for the manipulation of marks. A two-member committee of the then additional chief secretary, higher education and the principal secretary of law and legislative affairs also probed the allegations in November 2017. The IAS officers’ panel also blamed Ranjit Singh for the irregularities. He was sub- sequently suspended. In March 2018, the Gohil committee found 16 students guilty of manipula- tion of the results as they had either failed or were absent during their exam- ination, but were awarded law degrees. Justice Gohil handed over the list of stu- dents to NLIU registrar Girijabala Singh in October last year to give them a chance to present their side. “Most of the students denied the allegations and said they didn’t know anything. They said the institute had issued degrees and they accepted them. It’s obvious that no one accepts his/her crime so easily. That’s why I have recom- mended criminal action,” said Gohil. G irijabala Singh reportedly said: “In the probe, some of the stu- dents who had failed sought to justify the difference between the marks mentioned in the tabulation chart and the same in their mark sheets, citing the grace marks rule.” The committee submitted the final report to the director of the institute last month and it was presented on January 19 before the NLIU general council. Higher Education Minister Jeetu Patwari, who also attended the general council meeting, said all the recommen- dations of the probe committee will be implemented. Law and Legislative Affairs minister, PC Sharma, said: “This is a serious matter like the Vyapam scam. We will take strict action to save the sanctity of the institute.” Those against whom FIRs have been recommended either refused to talk or pleaded innocence while talking to the media. Ranjit Singh, who was removed as assistant registrar last year, reported- ly said: “I am fighting the case in High Court. I have no idea about the Gohil committee report.” Library assistant Binoy Singh said his name was put on the report because he is Ranjit Singh’s brother. It was alleged that Binoy Singh used to contact failed students and fix a commission to get them passed, though his brother was the mastermind. Prof Tapan Mohanty said: “I have no idea about my name in the probe committee.” Assistant regis- trar Ravi Pandey said: “I can’t comment about it at this stage.” Former NLIU employee Rajshekhar only said he had recorded his statement before the Gohil committee. Former exam superintendent Prof UP Singh also said the same. Exam section employee Kamlesh Shrivas refused to comment on the matter. In view of the serious indictment of the NLIU’s examination malpractices, it has now decided to scrutinise 8,000 mark sheets. Girijabala Singh said: “This is a very serious matter. The credi- bility and integrity of NLIU is at stake. To clear all doubts from the minds of people, the administration has decided to scrutinise the mark sheets and degrees of all pass-out students.” The University will check the marks from 1998 to 2015. Similarly, degree records from 2003 to 2015 will also be checked. Such a huge loss of face for an esteemed institution has posed a chal- lenge before the Congress government. Now all eyes are on Chief Minister Kamal Nath to see how seriously he implements the recommendations of the Gohil panel. Twitter: @indialegalmedia Website: Contact: “ThisisaseriousmatterliketheVyapam scam.Wewilltakestrictactiontosave thesanctityoftheinstitute.” —PCSharma,lawandlegislative affairsminister Legal Education/ Bhopal’s NLIU Scam JusticeGohilinhisfirstreportinMarch 2018heldthenNLIUdirectorSSSingh (above)responsiblefortheirregularities. SinghretiredinNovember2017after aweekofstudentprotests.
  23. 23. | INDIA LEGAL | February 4, 2019 25 My Space/ Celebratory Firing Rajbir Deswal Thisformofcelebrationhas increasinglytakenmanylives innorthIndia.Yet,thereareno specificlawstotackleit, leavingtheperpetrator,who haslittleknowledgeofguns,to goscot-free Guns N’ Poses UST last month, Gaurav, a 14- year-old boy from Noida, had his life snuffed out due to celebrato- ry firing at a wedding indulged in by the groom’s side. In 2017, a groom lost his life in Moradabad the same way. In December 2016, a 24-year-old dancer, Kulwinder Kaur, was killed due to celebratory fir- ing in Bathinda. These are but a few incidents of celebratory firing which have grabbed the headlines. This is essentially a north Indian phenomenon with men brandishing weapons with a falsely acquired sense of power. With the revelry and euphoria surrounding an occasion, the perpetra- tor gets a temporary high and with impunity and total disregard for civility, surrenders to an unbridled killer instinct, killing innocent bystanders. This writer once stumbled upon a video showing hundreds of guntotting men at a wedding function in Afghanis- tan. The weapons included Kalashni- kovs and other automatic firearms. In India, there appears little that can effec- tively check this menace. There is a social background that can explain this phenomenon. In medieval times, bringing a bride home unharmed J was a real challenge as there would be robbers on the way, waiting to loot the dowry articles, jewellery, etc. Therefore, in all Sikh weddings, the bridegroom invariably carries a sword. In Haryana, a groom setting off to bring a bride home gives a pledge to his mother that Representative Image SHOWCASING POWER Celebratory firing at weddings is generally a north-Indian phenomenon he will bring her back safely, unharmed and unravished by any aggressors. Thus, carrying weapons during wed- dings was perceived to be a necessity. However, over a period of time, this became an ostentatious, audacious and aggressive practice and a routine way
  24. 24. My Space/ Celebratory Firing / Rajbir Deswal 26 February 4, 2019 of celebrating a wedding. Unfortunately, musclemen, goons, property dealers, zamindars, big businessmen and influ- ential politicians have started flaunting weapons, mostly to threaten and intimi- date law-abiding citizens. C an celebratory firing be curbed? There is no specific mention of this crime in any penal book, leading to perpetrators going scot-free. Even the courts find it difficult to fix damages and claims of compensation in such incidents. The only legal provision close to this issue is the Arms Act, 1959, which largely deals with acquisition, possession, manufacture, sale, import, export and transport of arms and ammunition. Section 25 of the Act pre- scribes punishments for certain offences, while Section 27 deals with the use of arms. At the most, a law enforce- ment agency can invoke Section 336 of the Indian Penal Code which has “endangering human life” in its ambit. An act of negligence as in Section 304-A of the IPC too can be invoked. In many cases of celebratory firing, Section 302, IPC (murder), has been invoked, but the fact remains that it is very difficult to establish the motive of the murder. There is often no evidence of previous enmity between the parties or any preparation for committing the crime. Hence, these cases end up either in acquittals or with minor punish- ments. There is not even “sudden provo- cation” which could be one ground for some semblance of punishment being awarded. Armymen and those in the police and paramilitary forces are entitled to the lawful use of weapons and are trained in handling them. They are gi- ven training in handling ballistic objects too in a controlled environment. But common licence-holders are required to produce a certificate of having been trained in firing, generally by Home Guards authorities, but this is eye-wash. There is no system of training of such licensee-applicants on the ground. There are no firing ranges built for the purpose. There are no qualified trainers either. Hence, almost all arms licence- seekers are not trained in handling wea- pons. So obviously, when it comes to UNLUCKY VICTIMS (Top left) Archana Gupta and Kulwinder Kaur (left) lost their lives to celebratory firing; flaunting weapons and firing in the air is now a common sight at important gatherings January 18, 2019: A 19-year-old woman was injured after a bullet hit her ankle during her marriage ceremo- ny in east Delhi. She collapsed imme- diately and was rushed to a hospital. She is stable but the perpetrator has not been caught. January 2, 2019: An eight-year-old boy died in northeast Delhi’s New Usmanpur after a bullet fired by his father during a New Year’s Eve cele- bration pierced his cheek. The boy was rushed to hospital, but declared brought dead. December 31, 2018: A 42-year-old woman architect Archana Gupta (top) was shot in the head during celebrato- ry firing at a New Year’s Eve party at former JD(U) MLA Raju Singh’s farm- house in Delhi’s Vasant Kunj. The woman succumbed to her injuries. Singh, who was suspected to be drunk, fled from the spot but was later nabbed and a case was registered against him under relevant provisions of the IPC and the Arms Act. December 12, 2018: A stray bullet hit a 14-year-old boy during an engage- ment ceremony at Jarcha village in Dadri, Noida. He died on the spot. March 1, 2018: A 21-year-old groom died in east Delhi’s Seemapuri area after a bullet hit him when he hopped onto a horse for the baraat. One of the guests had pulled out a pistol and fired a shot in the air. The groom fell off the horse and started bleeding pro- fusely. He was rushed to a hospital where he was pronounced dead. Fatalshots Here are some celebratory firing accidents that took place over the past year in Delhi and the National Capital Region:
  25. 25. | INDIA LEGAL | February 4, 2019 27 indulging in firing of any kind, celebra- tory or otherwise, accidents are bound to happen. In addition, licensees are not trained in the ballistic aspects of firing. They are unaware that the barrel gets heated up due to continual firing. They don’t know that pellets travel like a fountain and not like darts. They are also not aware if the ammunition they are using is fresh, old or so dull that they burst unexpect- hoping “till a law is made in this regard”. There have been petitions in various High Courts about this malaise. One Panditrao Dharennavar sought direc- tions from the Punjab and Haryana High Court not to allow people to carry arms and ammunition to wedding func- tions. After the incident in Bathinda in 2016, the Haryana government banned celebratory firing. Section 144 of the Criminal Proce- dure Code can be promulgated by a district magistrate or deputy commis- sioner of police for containing this menace. But these are just regulatory measures and generally not addressed or implemented. The centre has also sent an advisory to state governments saying that licens- ing of guns should be made uniform throughout the country, keeping in view only the threat perception of a person and his safety concerns, and should not be given at all for display, brandishing, flaunting, threatening, intimidating and celebratory use. However, an arms licence can be issued for transportation of money. In fact, the licensee himself is duty-bound to keep the weapon safe and see that it isn’t misused by anybody else. The licensee has to be medically examined too and has to have a sound mind. But sadly, all these guidelines and advisories are generally overlooked by authorities and the licence-holders. There is a crying need for some kind of legislation to be enacted in celebrato- ry firing cases so that the perpetrators are convicted. In the absence of it, such cases are compromised in courts and the parties settle for compensation. Consequently, the offenders are not brought to justice. —The writer was former Additional DGP, Haryana, after which he joined the Punjab and Haryana High Court as an advocate Twitter: @indialegalmedia Website: Contact: edly when triggered. That is why those who are in close proximity during a wedding or a procession get hurt. These spraying pellets and bullets can hurt even unsuspecting onlookers watching a marriage procession from terraces and windows. I t is, therefore, essential that the law against celebratory firing be strin- gent and specific. The Delhi High Court did take the initiative in fixing the responsibility on organisers to ensure that weapons are not carried to the venues of weddings, social gatherings and occasions like New Years’ or a crick- et match. In one case where the father of a teenage girl who was killed in celebrato- ry firing had claimed a compensation of `50 lakh, the Delhi High Court was pleased to “fix the responsibility on the person who organized the event”. The petitioning father had contended: “By refusing to stop their guest from bran- dishing his firearm in public and caus- ing threat to the life of others, the orga- nizer of the event is failing to discharge his duty properly and is guilty of gross negligence.” In the absence of any specif- ic criminal provision with regard to cele- bratory firing, the Court found itself helpless. It, therefore, made the order GUN CULTURE Illegal weapons, AK-47s, seized in Munger, Bihar Youtube
  26. 26. Spotlight/ Jaipur’s Royal Divorce 28 February 4, 2019 T never was a fairytale marriage for this princess. After 24 tumul- tuous years, Princess Diya Kumari, daughter of the last maharaja of Jaipur, Brig Bhawani Singh, divorced her commoner husband under Section 13B (divorce by mutual consent) of the Hindu Marriage Act. The divorce on December 12, 2018, shocked everyone, just like the marriage had in February 1994, which was a well- kept secret. After filing the divorce peti- tion in a Family Court, both Diya and her husband, Narendra Singh Rajawat, avoided the media and issued a state- ment about parting amicably. Though the court gave them the six- month mandatory period for reconcilia- tion, they said they didn’t wish to recon- cile. They said they had been living sep- arately for more than one and a half years and had settled their differences under which custody of the minor chil- dren would remain with Diya Kumari, and that the mandatory six-month peri- od would only prolong their agony. They cited Amardeep Singh vs Har- veen Kaur, wherein the Supreme Court held that the period of six months as mentioned under Section 13B (2) of the Hindu Marriage Act was not mandatory but directory. It said that it was up to the court to exercise its discretion dep- ending on the facts and circumstances of each case where there was no possibi- lity of the parties resuming cohabitation. The divorce decree thus ended one of the most talked about marriages in Indian royalty. Both Diya Kumari and Narendra Singh declined to give any comments to India Legal. Narendra Singh is the son of Budh Singh, a Rajput who worked as an assis- tant controller in the City Palace in Jaipur. Budh Singh was a very close aide of Maharaja Bhawani Singh and was given quarters in the City Palace where he lived with his family. Narendra grad- uated from the University Commerce College in Jaipur and drifted aimlessly before his father spoke to the maharaja regarding employment for him in the City Palace Museum, where he started working as an accountant. There, he improved the accounting system and stopped leakages. Diya Kumari, as secretary of the museum, became impressed by him. In an inter- view some years back, she reportedly said: “It was not love at first sight, but I started admiring him secretly….he had no clue about the feelings I had for him….I found him to be of a very caring nature. I found something special in Let’s Get It Over With Ending24tumultuous yearsofmarriage, PrincessDiyaKumari ofJaipurandNarendra SinghRajawataskedfor awaiverofthesix-month waitingperiodrequired underSection13B(2)of theHinduMarriageAct By Prakash Bhandari in Jaipur I IN HAPPIER TIMES Members of the Jaipur royal family including Diya Kumari (standing centre) and her former husband, Narendra Singh Rajawat (right)
  27. 27. | INDIA LEGAL | February 4, 2019 29 him and my feelings grew for him.” In 1989, when Bhawani Singh con- tested the election, both Narendra and his father actively campaigned for him. Constant interaction with Diya finally led to the marriage, which was a well- kept secret at first. Many in the royal circle felt it was a well-laid trap by Narendra who emotionally blackmailed Diya and married her. At that time, Maharaja Bhawani Singh was in Brunei as India’s envoy, along with Diya’s mother, Padmini Kumari. Diya was living alone in the City Palace. When her parents learnt of her affair with Narendra, he was removed from palace duty and the family was asked to vacate their accommodation. Narendra was threatened by staff members of the palace and, for three years, he and his wife met secretly at a friend’s place. But when her parents planned to marry her off, she disclosed that she was already married to Narendra. This devastated her parents, but they reconciled them- selves to her marriage with a commoner. As they held a marriage function in the City Palace in August 1997, the Rajput community raised an objection. The Rajput Samaj claimed that as Narendra was a Rajput belonging to the Rajawat clan and the Jaipur royal family also belonged to the same clan, the mar- riage was not valid according to Rajput customs. Undeterred, the royals decided to solemnise the marriage secretly at their Maharani Bagh residence in Delhi along with some trusted friends. Only Dr Karan Singh, the former maharaja of Kashmir, was present at the wedding. This correspondent was present too, but not allowed to enter the house and could see the marriage being performed inside a large hall in the house. T he couple later returned to Jaipur and started living in the City Palace as husband and wife. But senior employees of the Palace often made complaints to the maharaja against Narendra, who reclaimed man- agement control over some of the fami- ly properties. The maharaja became a titular host for special events. In 2002, the maharaja dropped a bombshell by adopting Diya’s son, Padmanabh Singh, as his heir as he had no son. Upon his death in 2011, Padma- nabh was informally “crowned” as the maharaja of Jaipur. In 2013, his younger brother, Laksharaj Singh, was made the “titular maharaja” of the former principality of Sirmur in Himachal. Padmini Devi was from Sirmur and as there was no male heir of this erstwhile state, Laksharaj Singh was made the maharaja and became the owner of the vast property of Sirmur state, which included about 200 acres of private forest. Devraj Singh, a friend of the royal family, told India Legal: “We felt that both Narendra Singh and Diya Kumari were a very lucky couple. One of their sons became the heir apparent of the Jaipur royal family and the second son became the heir apparent of the Sirmur family. What more could God have given them? Yet, there was something lacking in the relationship that led to the bitterness between the two.” However, Narendra was asked to leave the palace on two occasions. Though he managed to retrieve some of the properties that were in the posses- sion of encroachers, some staff members alleged that he was involved in large- scale bungling. He was stripped of his powers. Though called back, he did not regain the confidence of the royal family. He was later again thrown out over alle- gations of infidelity. He was not allowed to enter the City Palace or do any busi- ness dealings of the Jaipur royals. And, on December 9, 2018, the cou- ple moved an application in the Jaipur Family Court seeking dissolution of their marriage. Sources close to the family said they decided to part ways after several meetings. The children, particularly Padmanabh Singh, also insisted on the divorce. And thus ended a tumultuous love story. Twitter: @indialegalmedia Website: Contact: Theformercouplecitedapreviouscase oftheSupremeCourtwhichheldthatthe periodofsixmonthsmentionedunder Section13B(2)oftheHinduMarriage Actwasnotmandatorybutdirectory. A WELL-KEPT SECRET Maharaja Bhawani Singh doing kanyadan at the couple’s wedding ceremony in 1997 Prakash Bhandari
  28. 28. Focus/ Manual Scavenging N the first week of the New Year, two men died of asphyxiation while cleaning a septic tank at a factory outside Chennai. They had been hired by the factory management to clean the septic tank at its prem- ises. Police said that initially one of the men went inside and when he did not come out even after 20 minutes, the other went in too. Later, fire personnel who went in found that both men had died of asphyxiation. The Prohibition of Employment of Manual Scavengers and their Rehabili- tation Act, 2013, defines a “manual scav- enger” as an individual employed by a local authority or agency for manually cleaning, carrying, and disposing of hu- man excreta from insanitary latrines. Shockingly, the two men were not classi- fied as “manual scavengers” as the laws do not recognise septic tank and sewer line cleaners as “manual scavengers”. There have been at least two major Acts passed by Parliament to ban and control manual scavenging, and yet the UN estimates that there are at least 20,500 people engaged in the age-old dehumanising practice. The Narasimha Rao government in 1993 passed a land- mark legislation in the form of the Manual Scavengers Act, banning manu- al scavenging altogether and aimed at rehabilitation of scavengers. UPA II passed another Act in 2013 after it was reported that manual scavenging per- sists despite some progress. The latest round of identifying and counting of manual scavengers began in 2014, was carried out again in 2017, and then restarted in January-June 2018. Two surprising facts have emerged: One, the practice persists and 95 percent of home scavenging is done by women; and, two, some states have resorted to under-reporting or misreporting the actual numbers. According to the India Census of 2011, there are more than 2.6 million dry latrines in the country. There are 13,14,652 toilets where human excreta is flushed in open drains, and 7,94,390 dry latrines where human excreta is cleaned manually. Seventy-three percent of these are in rural areas and 27 percent in urban areas. A UN report in 2014 also estimated that in the House Listing and Housing Census 2011, states such as Andhra Pradesh, Assam, Jammu and Kashmir, Maharashtra, Tamil Nadu, Uttar Pra- desh and West Bengal accounted for more than 72 percent of the insanitary latrines in India. States like Haryana, Madhya Pradesh, Chhattisgarh and Rajasthan have caused concern regard- ing erroneous reporting. Under the process of identification of manual scavengers, each district is re- quired to host a minimum of three self- declaration camps. The last round of counting was held in 170 districts across five states. I Lies, Damned Lies And Numbers DEHUMANISING TASK Risking health, a manual scavenger enters a septic tank to clean it Over25yearsafteritwas bannedbyanAct,thepractice continuesandmanystates havetakentheeasywayoutby outrightlydenyingthatitexists By Neeraj Mishra Shockingly,thetwomenwhodiedinthe firstweekofJanuarywerenotclassified as“manualscavengers”sincethelawsdo notrecogniseseptictankandsewerline cleanersas“manualscavengers”. 30 February 4, 2019
  29. 29. details on whether the person is still engaged in the practice and how many latrines are cleaned per day. All this results in the identified person getting a one-time sum of `40,000 in his/her bank account. A ccording to one of the govern- ment’s surveys, there are 12,742 manual scavengers in 13 states and a whopping 82 percent of these are in Uttar Pradesh alone. There has been a major dispute over these figures not only from activists and Dalit politicians but even the Supreme Court which has said that this number is a gross under-representation. In contrast, the Economic Caste Census 2011 said that there are 1,82,505 fami- lies in rural India engaged in manual scavenging. A district-wise survey by an NGO in Haryana recently revealed that in just three districts which had declared themselves scavenger-free, 145 cases were found. The Ministry of Social Justice and Empowerment, after pressure from courts and activists, has recognised that the counting of India’s manual scaveng- ers needs to be divided into two phases. The first involves counting those who clean night soil (buckets and cesspools in which excreta is collected overnight) and pit latrines. The initial figure men- tioned above is from this count. The sec- ond phase, which has still not been completed, will look at people who clean septic tanks, sewers and railway tracks. The survey is expected to include those who have left the profession since 2013. The problem with both pieces of leg- islation and their subsequent implemen- tation is that the government’s arms themselves are involved in deploying manual scavengers in various regions. The Railways and municipalities across the country employ manual scavengers to clean railway tracks and drains, and community sewers and manholes. Not enough mechanisation has been done and the jamadaar community still exists in government papers and offices. What, however, can be totally obliterat- ed is dry household latrines through the Swachh Bharat initiative and persist- ence of district collectors. Twitter: @indialegalmedia Website: Contact: AndhraPradesh,Assam,Jammuand Kashmir,Maharashtra,TamilNadu,Uttar PradeshandWestBengalaccountforover 72percentoftheinsanitarylatrinesin India,asperaUNreportof2014. Tthe construction or maintenance of insanitary toilets is prohibited The engagement or employment of anyone as a manual scavenger is prohibited Violations could result in a year’s imprisonment or a fine of `50,000 or both Prohibits a person from being engaged or employed for hazardous cleaning of a sewer or a septic tank Offences under the Act are cognis- able and non-bailable Calls for a survey of manual scav- engers in urban and rural areas within a time-bound framework. There remain several challenges in implementing the legislation to ensure that manual scavengers can work and live with dignity. These include: Time-frame within which land is to be allotted as part of the rehabilitation package for former manual scav- engers as provided for in the 2013 Act Correct and timely identification of insanitary latrines and manual scav- engers Implementation of provision regard- ing prohibiting “hazardous cleaning” of sewers and septic tanks While the Act is encouraging in that it focuses on the responsibility of offi- cials to ensure its implementation, it does not outline administrative meas- ures beyond conduct rules that can be imposed if officials do not act Thelawandafter The key features of the Prohi- bition of Employment as Manual Scavengers and their Rehabili- tation Act, 2013, are as follows: People are informed about the camps through newspaper ads, pamphlets and village-to-village campaigns. Transport- ation to and from the counting centres is provided. Personal documentation is also necessary to authenticate identity through the Aadhaar card, photocopy of bank passbook, and a declaration from either an employer or self. Once the documents are verified, a form is filled in with photographs and RAW DEAL Railway sweepers manually clean the tracks daily UNI | INDIA LEGAL | February 4, 2019 31
  30. 30. Legal Eye/ Section 102, CrPC N every police investigation, it’s common to find the investigating officer seizing certain properties involved, or alleged or suspected to have been stolen, or found in cir- cumstances creating suspicion of the commission of any offence. These powers are derived from Section 102 of the Criminal Procedure Code (CrPC) which empowers a police officer/investi- gating officer to seize any property, which includes physical properties as well as commercial properties like bank accounts, bank lockers, shares, etc. Sub- section (3) of this provision contempla- tes the procedure to be followed by a police officer immediately after seizure of the properties. It’s pertinent to note that this Section does not stipulate any specific remedy for the aggrieved person. However, the aggrieved party has a remedy under Section 457 r/w Section 451, CrPC. But often, petitions are filed before high courts under Section 482, CrPC, seeking quashing of orders passed under Section 102(1). Some high courts entertain such petitions while others do not. Predominantly, the petitions under Section 482, CrPC, are filed on the ground that there was non-compliance with the procedure contemplated under Subsection (3) by the police officer, and in relation to the ownership of such pro- perties. The following three questions arise from the above: Whether a petition filed under Section 482, CrPC, questioning the proceedings under Section 102 is maintainable in view of the alternative remedy available under the CrPC? Whether non-compliance with the procedure contemplated under Section 102(3) vitiates the entire proceedings of freezing of the properties? Whether a police officer can seize only the properties of the named accused, or can also seize the properties in the name of or in the possession of third parties? The first point to be considered is that high courts cannot entertain a peti- tion under Section 482, CrPC, when an alternative remedy is available to the aggrieved under Sections 451 and 457, CrPC. The remedy under Section 457 can be availed of during the pendency of investigation, while Section 451 can be invoked where the investigation has been completed and the case is pending trial. Now the question that arises is whether, instead of availing of these remedies, an aggrieved person can approach a high court invoking its in- herent jurisdiction under Section 482. In this regard, there are different views or judgments. In State of Haryana vs Bhajanlal (1992), the apex court laid down seven guidelines for entertaining an application under Section 482, CrPC, to quash criminal proceedings. Similarly, in RP Kapur vs State of Punjab (1960), four principles were laid down on the basis of which criminal proceedings can be quashed by the high court. At the same time, there are several judgments which have categorically held that when there is an alternative remedy available under Section 457 r/w Section 451, CrPC, the aggrieved must exercise them; he must approach the jurisdictio- Total Seizure Thoughhighcourtshave takenvaryingviewsonpleas underSection482,CrPC, againstpoliceorderspassed underSection102,themain viewisthattheyarenot maintainable By K Raghavacharyulu I UnderSection102,CrPC,apoliceofficer haspowerstoseizeanypropertyinvolved, orallegedorsuspectedtohavebeen stolen,orfoundincircumstancescreating suspicionofcommissionofacrime. 32 February 4, 2019