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India Legal 04 March 2019


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On The Boil Again
Intelligence specialist Col R Hariharan takes a hard look at the options—military, legal, political—open to India to tackle Kashmir and Pakistan in the aftermath of the Pulwama bomb attack

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India Legal 04 March 2019

  1. 1. NDIA EGALL ` 100 I March4,2019 Jet Airways: Risky bailout Tax Ombudsman: Facing guillotine IntelligencespecialistColRHariharantakesahardlookattheoptions—military,legal, political—opentoIndiatotackleKashmirandPakistanintheaftermathofthePulwamabombattack On The Boil Again
  2. 2. AST week’s Pulwama suicide attack on a paramilitary convoy in which 45 soldiers were killed is yet another grim reminder that Kashmir is India’s number one secu- rity headache. It continues to fester be- cause sins of omission and commission past and present play like horror movie re-runs into the hands of Pakistan-backed terror brigades. Kashmir was very much a part of my life in the late Eighties until the mid-Nineties, after which, for a period, I had to avoid going to the Valley because I was on a militant hit list for taking a strong position against terrorist violence in my articles for India Today. The latest terror attack demonstrates, once again, the volatility of the Kashmir issue—prone to sudden, mercurial shifts—and the changeability of the mindset of ordinary Kashmiris and their leaders. An attack of this magnitude signals the latest declaration of war. Is there, or can there ever be, a “political” solu- tion? Or is the Kashmir problem like diabetes about which you can do nothing except keep it under control with periodic shots of insulin? Briefly, I covered Kashmir from 1986 to 1991, and then returned to cover the 1996 election which was described by former intelligence chief AS Dulat as a political “master-stroke”. I saw the Congress-NC alliance between Rajiv Gandhi and Farooq Abdullah emerge in 1986 and then the fatally flawed and rigged February 1987 election in which the wildly popular, youth-oriented MUF party was trounced and moderates such as Abdul Ghani Lone of the People’s Conference were hounded out of Handwara by National Conference goons. I wrote about that election: “Congress may have won an election but India has lost Kashmir.” The consequent backlash, within the next cou- ple of years, was the emergence of the gun, street battles, political assassinations, repression, mass marches, bombings and disappearances. India had played into Pakistan’s hands. Since the late 1940s, after Indian troops helped Kashmir trounce and repel the Pakistani invaders who had tried to take Kashmir by force, Pakistan had not succeeded in training and sending armed mili- tants to try and destabilise Kashmir on the ideo- logical premise of the two-nation theory that Muslims are a separate nation and Pakistan is their natural homeland. It is remarkable that while Pakistan was able to arm Khalistani militants in Punjab, it failed to achieve the same result in Muslim- majority Kashmir. This is largely because the Kashmiris are fiercely independent. After all, in 1948, innocents butchered and raped in Anantnag and Baramulla by the Pakistani invaders were themselves Muslims. Historically, Kashmiris had fought the Afghans, Mughals, Dogra rulers and Maharaja Ranjit Singh. Their concept of Kashmiriyat was— and is—based on their historical fight against, and then submission to, outside rulers who treated them with disdain. That is why the concept of azaadi is so deeply ingrained in the Kashmiri psyche no matter how much Kashmir has benefited from being a part of the Indian Union. The various legal resolutions on the Line of Control, the ceasefire, UN observers, plebiscite, passed in the United Nations, as well as Article 370, while kept alive as debating points in Kashmir, do not really impact the internal reality of the Kashmiri psyche. The Kashmiri is taught as a child that he is the subject of the “Dilli Durbar” and anybody who makes a pact with “Dilli” is betraying Kashmir to “India”. He feels the same about Pakistan. India, for the sake of its own ideological secu- lar identity and unity, will never cede Kashmir. The Kashmiri knows this. He may wave the Indian flag at times but, always, with two fingers crossed behind his back. India has learned to con- trol Kashmir through a combination of politics, democracy whenever possible, force when POLITICS OF BLACKMAIL? Inderjit Badhwar Letter from the Editor L Thelegal resolutionsonthe LineofControl,the ceasefire,UN observers, plebiscite,passedin theUN,aswellas Article370,donot impacttheinternal realityofthe Kashmiripsyche. TheKashmirisare rewardedbyIndia and Pakistan.In theirpoliticsof blackmail,theyuse eitherthePakistani ortheIndianflag. | INDIA LEGAL | March 4, 2019 3
  3. 3. necessary, undercover operations, money, bribes, sting operations, chicanery, jingoism and cajoling puppet leaders. The Kashmiris have been smart enough not to escalate violence to such an extent that it would become a full-fledged armed rebel- lion inviting fearsome retribution. Both know where to draw the line. Both sides play the game. Kashmiris are rewarded handsomely by India, as well as from across the border. In their politics of blackmail—all Kashmiri parties participate in this—they use either the Pakistani or the Indian flag, whichever comes handy. Indian politicians keep Kashmir alive because it is a handy tool to whip up nationalist fervour. Pakistan does the same because without claiming Kashmir on the grounds of its Muslim majority, the underpinning of their ideological identity as an Islamic state would collapse. And so the game goes on. This is the game that Dulat writes about so engagingly, and in the process, fills a yawning gap about what tran- spired in the 1990s in the spy-versus-spy humint game—far more effective than warfare or “encounter battles” in creating and weaning lead- Letter from the Editor 4 March 4, 2019 IN RIGHT PERSPECTIVE (Clockwise from top) The Pulwama attack has kept alive the Kashmir issue; Former J&K governor Jagmohan, Journalist MJ Akbar, Brigadier Amar Cheema and security expert AS Dulat have given vital insights on Kashmir in their books
  4. 4. ers to the Indian side. The Kashmir dilemma is beautifully summed up by MJ Akbar in Kashmir: Behind the Vale: “Kashmir lies at the edge of India’s borders and at the heart of India’s consciousness. It is not geog- raphy that is the issue; Kashmir also guards the frontiers of ideology. If there was a glow of hope in the deepening shadows of a bitter partition, then it was Kashmir, whose people consciously rejected the false patriotism of fundamentalism and made common cause with secular India instead of theocratic Pakistan. Kashmir was, as Sheikh Abdullah said and Jawaharlal Nehru believed, a stabilizing force for India.” According to the book’s summary, Kashmiri- yat is the identity and culture that has blossomed within the ring of mountains for thousands of years. Akbar records Kashmir’s struggle in the century to first free itself from feudal oppression and then enter the world of modern India in 1947. “Placing the mistakes and triumphs of those early, formative years in the perspective of history, the author goes on to explain how the 1980s have opened the way for Kashmir’s hitherto marginal- ized secessionists. Both victory and defeat have their lessons; to forget either is to destabilize the future. Kashmir and the mother country are inex- tricably linked. India cannot afford to be defeated in her Kashmir.” W here Akbar left off, Dulat pitches in to take the narrative further. But there are other important books that fit beauti- fully into the puzzle. Governor Jagmohan’s book, My Frozen Turbulence, is a scathing indictment of Delhi’s abysmal misunderstanding of the Kashmir issue and of the Kashmiri psyche and the policy of benign neglect alternating with gratuitous politi- cal gamesmanship and interference that further fuelled militancy and violence in Kashmir just when successful doses of good governance under governor’s rule had helped to pacify much of the Valley. Brigadier Amar Cheema’s The Crimson Chinar is a brilliant perspective on how India keeps blun- dering in its approach to Kashmir. He relies heav- ily on BK Nehru, former governor, Kashmir, and Indira Gandhi’s cousin, in pinpointing the roots of discontent, starting with the arrest of Sheikh Abdullah, the “Lion of Kashmir,” in 1953, which virtually rendered the state’s constituent assembly a puppet grouping followed by a series of rigged or uncontested elections until 1976 which proved Indian claims of democracy in Kashmir a farce. But Cheema is correct in pointing out that the Sheikh had himself become a corrupt and author- itarian leader and had completely rigged the elec- tion to the constituent assembly itself. History repeated itself in the 1987 election, largely fought on the corruption issue. The Farooq Abdullah government was widely perceived as venal to the core and the Sheikh Abdullah dynasty was as unpopular as the Shah of Iran before his downfall. For Rajiv Gandhi to have allied with this cor- rupt party and then look away as the election was openly rigged and brazenly manipulated was the last straw. And both Kashmir and India are still paying the price. Prime Minister Narendra Modi learns quickly from history and tends to avoid the pitfalls of his predecessors. So far, his Kashmir initiatives have been sensible. Each Indian PM writes his own chapter to the Kashmir story. One can only hope that Modi’s chapter will be fresh and someone in his administration will have learned the lessons spelt out in the books and deal with the fallout of the Pulwama terror attack within cali- brated perspectives. Twitter: @indialegalmedia Website: Contact: | INDIA LEGAL | March 4, 2019 5 SEEDS OF SEPARATISM (Left) The arrest of Sheikh Abdullah, the “Lion of Kashmir”, in 1953 is one of the reasons for the discontent in Kashmir; so far, the Kashmir initiatives of PM Modi have been sensible
  5. 5. ContentsVOLUME XII ISSUE16 MARCH4,2019 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 March 4, 2019 14Kashmir: India’s Achilles’ Heel The terror attack in Pulwama has caught New Delhi napping and shows the need to evolve a holistic strategy to combat Pakistan’s Deep State which is using terrorism to destabilise India LEAD 20New Yardstick In a move that could transform the judiciary, the Supreme Court Collegium has tweaked a key criterion for eligibility of lawyers for appointment as high court judges SUPREMECOURT 23Not Ceding Ground The Supreme Court Collegium has reiterated its recommendation to the ministry of law and justice to appoint an advocate a judge of the Kerala High Court
  6. 6. | INDIA LEGAL | March 4, 2019 7 Heritage First REGULARS Followuson Twitter:@indialegalmedia Cover Design AMITAVA SEN Ringside............................8 Courts ...............................9 Is That Legal...................10 Durbar.............................12 Media Watch ..................49 46 STATES No Precision Here Do surgeries where swabs and instruments are left inside the body of a patient fall under the ambit of criminal negligence, and how have courts adjudicated in such matters? 34 MYSPACE In a novel approach, a Karnataka court has asked four vandals to re-erect a pillar they had pulled down in Hampi, a UNESCO heritage site Turning a Blind Eye While the government has been crying itself hoarse about retribution against Pakistan for the Pulwama attack, it has ignored the fact that NSA Ajit Doval’s son, Shaurya, is doing business with Pakistanis 28 SPOTLIGHT Payback Time Found guilty of contempt of court by the Supreme Court, RCom chairman Anil Ambani faces a three-month jail term if his company fails to pay up `453 crore to Ericsson within a month Poachers’ Paradise 44 The Uttarakhand government seems to be looking the other way as poachers act hand- in-glove with forest officials, even as the tiger population falls alarmingly 42Credibility Crisis MP Chief Secretary SR Mohanty is in a tight spot over the inter-corporate deposits scam with the Supreme Court asking the state government if he is tainted Audacious Call In a shocking case, a person pretending to be Chief Justice Ranjan Gogoi called up two high court judges and asked them to recommend the names of advocates to be elevated as judges Taxing Issue In a short-sighted move, the government has abolished the post of Indirect Tax Ombudsman that was bringing relief to taxpayers and addressing their tax-related grievances, writes SSumit Dutt Majumdar 30 Crash Landing The move by banks to swap cash-strapped Jet Airways’ debts for equity may not change the quality of the airline’s assets. Was there pressure to make this deal? 37 ECONOMY 40Disaster in the Making The Haryana government’s move to amend an Act that bars construction activity in large sections of the Aravalis could spell ecological doom for the NCR 25 26 A Question of Status A seven-judge bench of the apex court will look into the issue of defining parameters for grant of minority status to the 147-year-old Aligarh Muslim University 27 COLUMN FOCUS
  7. 7. 8 March 4, 2019 “ RINGSIDE “I am not contesting in the forthcoming Parliamentary elec- tions. Our target is only the Assembly polls. I am not supporting anyone and no one should use my picture or outfit’s flag for political campaign purposes.” —Tamil superstar Rajinikanth, who floated his outfit, the Rajini Makkal Mandram “There is no scandal in the Rafale deal. We are going to deliver 36 aircraft. If the Government of India wants more aircraft, we will be pleased to deliver....” —Dassault Aviation CEO Eric Trapper at the Aero India Show “We will now go all- out to earn full state- hood for Delhi. A judgment here or a judgment there won’t do anymore. We demand full rights for people of Delhi and Puducherry....” —Delhi CM Arvind Kejriwal in a media interaction with Puducherry CM V Narayanasamy “There is nothing wrong if an alliance happens naturally. But in Tamil Nadu an alliance has been formed in a forceful manner and you will see it.” —DMK President MK Stalin, referring to the AIADMK-BJP tie-up before the Lok Sabha elections “Who is finishing the party? Our own party people. It was such a strong party. We formed govern- ment on our own three times. All three times I was chief minister, I was also defence minister.” —Mulayam Singh Yadav, criticising Akhilesh Yadav over seat sharing with BSP “If Pak people have done this, how did you allow them to do it? What action have you taken in the past five years? When election is knocking on the door, you have felt a need to wage a war. You have felt there is a need to engage in a shadow war.... Instead of being responsible, they are indulging in politics.” —West Bengal CM Mamata Banerjee lashing out at the Modi government’s approach after the Pulwama attack “After the last assem- bly elections when general secretary Mr Digvijaya Singh did not allow me to hand over the letter to the Governor for the for- mation of the govern- ment, I resigned from the PCC...refused to become the CLP leader and leader of Opposition.” —Former Goa CM and Congress MLA Luizinho Faleiro “I would like to tell the parents of Kash- miri youth, especial- ly the mothers... to request their sons, who have joined ter- rorism, to surrender and return to the mainstream. Anyone who has picked the gun in Kashmir will be eliminated, unless he surrenders....” —GOC, Lieutenant General KJS Dhillon
  8. 8. Courts | INDIA LEGAL | March 4, 2019 9 Twitter: @indialegalmedia Website: Contact: —Compiled by India Legal Team Sterlite to remain shut, says SC ASupreme Court bench headed by Justice Arun Mishra has directed state govern- ments to ensure the eviction of forest dwel- lers whose claims to forest land under the Forest Rights Act, 2006, were rejected by the forest department. The bench, which also comprised Justices Navin Sinha and Indira Banerjee, was acting on a PIL challenging the constitutional validity of the Forest Rights Act. The Act was intended to give back to traditional forest dwellers their right to acc- ess, administer and regulate forests within their village boundaries. The bench asked the chief secretaries of Andhra Pradesh, Assam, Bihar, Chhattisgarh, Jhar- khand, Karnataka, Kerala, Madhya Pradesh, Maha- rashtra, Odisha, Rajasthan, Tamil Nadu, Telangana, Tripura, Uttarakhand, Uttar Pradesh and West Bengal to explain why the rejected claimants have not been evicted. It also directed the states to ensure the evictions are carried out by July 24, the next date of hearing. The e-committee of the Supreme Court Bar Asso- ciation (SCBA) has set up an e-grievance cell for grievances and complaints related to different authorities. The new cell will look into all these issues. It is part of the e-committee of the SCBA. SCBA sets up e-grievance Cell SC orders eviction of forest dwellers Aconstitution bench of the Supreme Court headed by Chief Justice Ranjan Gogoi will resume hearing on a clutch of petitions in the Ram Janmabhoomi-Babri Masjid title suit on February 26. The bench also comprises Justices SA Bobde, DY Chandrachud, Ashok Bhushan and S Abdul Nazeer. It may be recalled that Justice UU Lalit, who was part of the original constitution bench constituted by Justice Gogoi to hear the case, had recused himself in January. With Justice Lalit recusing, Justice Gogoi had reconstituted the constitution bench. The new bench was scheduled to commence the hearing on January 29. However, a day before the hear- ing, the centre filed a controversial applica- tion in the Supreme Court seeking transfer of the “undisputed” but acquired land in Ayodhya—except the 0.313 acres on which the Babri Masjid stood—to the Ram Janmabhoomi Nyas and other petitioners. Ayodhya case hearing on February 26 The Supreme Court refused to allow reopening of the protest- hit Sterlite copper plant in Tuti- corin, but allowed its owner, the Vedanta Group, to approach the Madras High Court for resolution of its dispute with the Tamil Nadu government. The state govern- ment had ordered closure of the plant on grounds of violation of environmental norms. A bench of Justices RF Nariman and Vineet Saran set aside a December 15 order of the National Green Tri- bunal (NGT) which had quashed the Tamil Nadu government’s order for closure of the plant. The NGT had called the order “non- sustainable” and “unjustified”. The Tamil Nadu government had then moved the top court, seeking quashing of the NGT’s order. The Supreme Court will hear final arguments on a batch of petitions challeng- ing the amendment to the SC/ST (Prevention of Atrocities) Act from March 26 for three straight days. One of the petitions has been filed by the centre for review of the apex court’s March 20 verdict in Subhash Kashinath Mahajan vs State of Maharashtra. In this case, the apex court had quashed certain provisions of the SC/ST Act which mandate immediate arrest of persons accused of offences laid out in the Act and denial of anti- cipatory bail to them against these crimes. Subsequently, the SC/ST Act was amended by the centre after nation- wide protests broke out against the dilution of the Act by the top court. Final hearing on SC/ST amendments from March 26
  9. 9. 10 March 4, 2019 ISTHAT How essential is an affidavit under Indian law? An affidavit is a mode of placing evidence before a court. The General Clauses Act, 1897, defines an affidavit as “affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing”. Further, Order 19 of the Civil Pro- cedure Code (CPC) provides that a court has the power to ask for affidavits if it de- ems that any particular fact or facts must be proved by affidavit. As per this rule, affida- vits must be confined to those facts that a deponent (the person who makes and signs the affidavit) can prove to his personal kno- wledge, except for interlocutory applications. The CPC also provides that oath on affida- vits can be administered by any court, mag- istrate, notary, or any officer appointed by a high court or any other court. If a person files a false affidavit, he can be punished under Sections 191 and 193 of the IPC. Is public smoking permitted in India? Smoking in public is banned under the Prohibition of Smoking in Public Places Rules, 2008, as it has adverse health eff- ects on the smoker and others around him due to passive smoking, and has ill effects on the environment. The Cigarettes and Other Tobacco Products Act, 2003, also regulates public smoking. As per this Act, tobacco cannot be sold to any person who is below the age of 18 years, or in an area within a radius of one hundred yards of an educational institution. The Act defines public places as including hotels, restau- rants, auditoria, public conveyances, libraries, court premises, etc. In certain places like airports, clubs, etc, smoking is permitted, provided there is a specially enclosed place for smoking. Any person acting in violation of these conditions can be punished as per the law. Smoking in Public is Banned in India —Compiled by Sankalan Pal Filing of False Affidavit is a Punishable Act Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis Can a company enjoy the rights of a legal person? A company is a separate legal and arti- ficial person. This means that in the eyes of the law, a company is consid- ered to have a separate legal identity. Thus, a company can be sued and can sue separately in its name. Given that a company has been given the status of a legal person, it can also enter into contracts with third parties. A compa- ny may also be called a juristic person. A company is distinct from a partner- ship as the latter is not recognised as a separate entity distinct from its mem- bers. A company can also hold proper- ty in its own name. A company does not have citizenship status, yet it has a nationality, domicile, residences, etc. In order for a corporate entity to enjoy legal status, it must be registered and incorporated as a company under the Companies Act, 2013. ACompanyisa SeparateLegalPerson ? Twitter: @indialegalmedia Website: Contact: Has the death penalty been abolished in India? The death penalty has not been abolished in India and is the highest form of punishment which can be awarded to a convict. But, it can be awarded only in the rarest of rare cases. In landmark judgments like Bachan Singh v State of Punjab, the Supreme Court has held that life imprisonment is the norm and the death penalty the exception. It was further held that a court will have to take into consideration all the mitigating and aggravating circumstances before awarding the death penalty. Under Section 354(3) of the Code of Criminal Procedure (CrPC), a judge must give reasons as to why the death penalty is being imposed instead of life imprisonment on a convict. The judges will also have to see whether reformation of the accused is possible or not; in cases where reformation is possible, the death penalty should not be awarded. The death penalty is applicable to offences like murder, rape of a child below 12 years, waging war against the Government of India, abetting the suicide of a minor, aiding or abetting the act of sati, banditry, repeat drug offences, rape of a per- son who is in a vegetative state, etc. Death Penalty Limited to Rarest of Rare Cases
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  11. 11. 12 March 4, 2019 It is now public knowledge that while the nation reacted with shock, horror and anger, the February 14 terror attack in Pulwama, Prime Minister Narendra Modi was busy shooting for a Discovery channel documentary at Jim Corbett National Park. The subject of the documentary, reportedly, was Modi himself—his self-publicised “spir- itual” sojourns in the jungle before his meteoric political rise. Modi’s decision to keep shooting instead of rushing back to Delhi has triggered public outrage, evident on all social media platforms. As images of Modi shooting in Corbett and leaving the national park late evening—by when the Pulwama ambush was already streaming on all news chan- nels—made their way to Twitter, his spin doctors, and a complicit main- stream media, were back at work. Modi confidant Ajit Doval has been made the predictable fall guy with “sources” telling journalists that Modi was extremely upset with the NSA for not informing him about the terror attack. To make the spin sound more “Modi-esque”, some media outlets even claimed that Modi refused to eat anything after finally getting to know of the attack! There are few takers for this manip- ulation. Whichever way one looks at this implausible narrative, Modi doesn’t come out looking like the leader he projects himself to be. As one Twitter user said: “If the NSA couldn’t reach the PM via secure channels, it is a dis- aster. If NSA deliberately did not inform the PM, it is a disaster. If the PM, was informed & yet didn't stop shooting, it is a disaster. (sic)”. FALL GUY DOVAL The Supreme Court’s recent verdict on the separation of powers of the Delhi govern- ment and the Lt-governor had left Chief Minister Arvind Kejriwal disappointed. The apex court remained non-committal on who controls the state’s bureaucracy, but restored the powers of the LG over the anti-corruption branch and for constituting commissions of inquiry. Kejriwal slammed the apex court and lamented that despite the AAP’s brute majority, it still had no powers over critical matters of the state’s governance. With Lok Sabha polls due in two months, Kejriwal has revived his pitch for Delhi’s statehood. The new campaign, however, comes with a twist. Besides Kejriwal and his colleagues enumerating the reasons why full statehood is neces- sary for better governance, the party has also dug out video clips of interviews that BJP leaders, especially from Delhi, gave to various news channels in the run-up to the last assembly polls in the national capital. BJP leaders like Harsh Vardhan and Vijay Goel had repeatedly impressed the need for granting Delhi full statehood during their campaigns for the past two assembly polls and the BJP’s manifesto too had highlighted the promise. Now, Kejriwal and AAP leaders are widely circulating these videos on social media. One such video shared by AAP on Twitter shows Union minister and Delhi MP Harsh Vardhan addressing a gathering where he speaks of the need for Delhi to be granted full statehood. The tweet by AAP says: “BJP MP @drharshvardhan supports the demand of full statehood for Delhi. RT & Share if you agree with Dr. Harshvardhan”. REVERSE STRIKE An inside track of happenings on the national stage Netas have a penchant for milking a tragedy, particularly in the poll season. In the wake of the February 14 terror attack in Pulwama, which killed over 40 CRPF per- sonnel, the ruling BJP as well as the Opposition parties clearly saw an opportu- nity to earn some goodwill. They visited the families of the martyrs, camera teams in tow, to show their solidarity. Prime Minister Narendra Modi even tasked former armyman and now Union I&B minister Rajyavardhan Rathore with ensuring that all central ministers and key BJP leaders visit the families of the martyrs in their respective states. Overzealousness to comply with the diktat proved costly for Union minister Satyapal Singh, Uttar Pradesh cabinet minister Sidharth Nath Singh and BJP MLA Rajinder Agarwal when they reached Basa Tikri village in Meerut to attend the cremation of jawan Ajay Kumar. In a video that has gone viral, relatives of Kumar can be heard shouting at the BJP leaders for coming to the funeral site wearing shoes. The leaders and their security detail can be seen trying to pacify the angry family members who wanted the netas to leave the site. Sidharth Nath Singh is seen removing his shoes and handing them to an aide seated behind him. Another video shows Satyapal Singh laughing animatedly while at the cremation ground. INSENSITIVE POLITICIANS Satyapal Singh Sidharth Nath Singh Durbar
  12. 12. Lead/Pulwama Attack 14 March 4, 2019 HE suicide attack by Adil Ahmed Dar, a 20-year-old Kashmiri cadre of the Jaish-e-Mohammed (JeM) on a CRPF convoy in Pulwama on February 14, killing over 40 CRPF jawans, is a water- shed moment in our long history of fighting militancy in J&K. The never- before-seen outburst of anger and out- rage across the country at this attack showed that public patience is wearing thin at the insouciant way successive governments have been handling the Kashmir issue. Immediately after the attack, an elat- ed JeM claimed responsibility for it. Public reaction to it ranged from a flood of hate messages in social media against Pakistan and Kashmiri terrorists to non- partisan protest rallies to Bollywood sla- pping a ban on the participation of Pak- istani film artistes in films. A Pakistani prisoner with suspected links to the Lashkar-e-Taiba, another Pakistan-ba- sed terrorist group, serving a life term in Jaipur jail, was killed by other inmates, ostensibly in a quarrel with them. The sense of outrage was reflected in the body language of Prime Minister Narendra Modi after the Pulwama attack. The usually taciturn Modi rep- eatedly emphasised that the sacrifice of the jawans would not go in vain and warned Pakistan it would pay a heavy price for the killings. Buoyed by the huge success of the Pulwama attack, the JeM is likely to keep up the momentum by carrying out more terror strikes. In follow-up opera- tions in Pulwama after the attack, four security forces personnel, including an Thehorrendouskillinghas caughtIndianappingand showstheneedtoevolvea holisticstrategytocombat Pakistan’sDeepStatewhichis usingterrorismtobleedIndia throughathousandcuts By Col R Hariharan T ANGER AND OUTRAGE: A scene after the Pulwama attack Kashmir: India’s
  13. 13. | INDIA LEGAL | March 4, 2019 15 army major, were killed and a few oth- ers, including a DIG and a brigadier, were injured, sending a clear signal that, far from being a lone wolf attack, Pulwama was a well-planned one. Security forces, meanwhile, eliminated three JeM terrorists, including the sus- pected mastermind of the Pulwama attack and IED expert Abdul Rashid Gazi. INDIA’S OPTIONS Strategic analysts have been discussing a number of mili- tary options available to India. These ranged from carrying out air strikes on the JeM headquarters in Bahawalpur in Sindh to missile attacks on terrorist camps across the Line of Control (LoC) in PoK to carrying out covert operations to eliminate Masood Azhar, the founder-patron of JeM who is living in Pakistan. While carrying out any of these military options would satisfy the widespread demand for revenge, it would not persuade Pakistan to dismantle its proxy war apparatus. In the wake of the Pulwama attack, India has taken a series of measures on the diplomatic, trade and financial fronts. It has requested the international community to take concrete diplomatic steps such as issuing statements con- demning Pakistan, supporting India’s efforts to blacklist it by the Financial Action Task Force (FATF) and designat- ing Azhar a global terrorist by the UN. Though over 50 countries have con- demned the Pulwama attack, only the US seems to have named the JeM as the Pakistan-based terrorist group involved in the attack. India has withdrawn the Most Favo- ured Nation status given to Pakistan in 1996, although it is unlikely to have much impact as the total trade between the two neighbours was only $2.4 billion in 2017-18, just 0.31 percent of India’s total trade. Coming to FATF, it is a policymaking body to promote effective implementa- tion of legal, regulatory and operational measures for combating money launder- ing, terrorist financing and other MasoodAzhar’sJeMclaimedresponsibilityforthePulwamaattack. ItssupplyconduitsfromPakistanandwithinJ&Karestillintactinspite ofoperationsbysecurityforcestocutthemoff. Achilles’ Heel
  14. 14. related threats to the integrity of the international financial system. Pakistan was placed in the grey list of monitored jurisdiction of FATF in 2018. India proposes to present a dossier on its support to the JeM to persuade FATF to place it in the high-risk and non-cooperative cate- gory. Though China had not object- ed to placing Pakistan in the grey list, it is likely to obstruct any move by India to blacklist it. However, India’s move is likely to highlight Pakistan’s complicity in the terrorist attack in Pulwama among the 38 countries in FATF. RESPONSE TO TERRORISM The Pulwama attack is significant, not only because it has the dubious distinction of topping the number of security forces personnel killed in a single terrorist attack in J&K during the last decade, but it indi- cates the scaling up of the JeM’s terrorist technique when it used a car bomb in the Pulwama attack. According to the South Asia Terrorism Portal (SATP), the last vehicle-borne suicide attack in the state was carried out on November 2, 2005, near the residence of then chief minister Mufti Mohammed Sayeed, killing three policemen and six civilians. In another attack on a CRPF camp in Avantipora a little over a year ago, JeM terrorists had used steel- jacketed ammunition that penetrated body armour for the first time. Two days before the February 14 attack, there was intelligence input about the JeM preparing for a car bomb attack against security convoys on the Jammu-Srinagar road. However, it did not specify when and where it would take place. According to K Vijaya Kumar, the governor’s security adviser, sanitising the road was “impossible” as there were 70 intersections, 35 on each side. CRPF authorities did not seem to have factored in the risks of sending an unwieldy 70-vehicle-long convoy on this road without sufficient security. The explosives-laden vehicle was reported to have followed the convoy, despite warning from the convoy’s secu- rity detail. That the vehicle ultimately managed to ram a bus carrying CRPF troops to complete its mission indicates the lack of alertness of the escort vehi- cles which should have been prompt in responding to a potential threat situation. Usually, when military convoys move in militancy-prone areas, civilian traffic 16 March 4, 2019 MASSIVE PROTESTS Muslims shouting slogans and burning the effigy of Masood Azhar and Pakistan’s Prime Minister Imran Khan in Ranchi Anobjectiveintrospectionofthereasons fortheincreaseinPakistan-inspired terrorismactivityinJ&Kwouldattribute ittotheBJP-PDPalliance’spoliticsof expediencyandopportunism. Lead/Pulwama Attack UNI UNI
  15. 15. | INDIA LEGAL | March 4, 2019 17 is stopped. However, in J&K, this stan- dard security procedure was discontin- ued as the state government wanted to avoid inconvenience to civilian vehicles on this lifeline. Only now, after paying a compromise cost of over 40 lives, have the authorities reimposed the restriction on civilian traffic when convoys of secu- rity forces move. Though initial reports said 350 kg of explosives were used in the blast, proba- bly it was much less. Investigators who found a jerrycan which was probably used for the blast said that it could not have held more than 30 kg of military grade RDX. It was probably smuggled across the border over a period of time and stashed in safe houses. This would indicate that the JeM’s supply conduits from across the border and within the state are still intact in spite of sustained security force operations to cut them off. The increased involvement of local youth in terrorist attacks shows the abil- ity and resilience of the JeM to recruit, train and motivate them to undertake suicide missions despite 2018 proving to be the bloodiest year for militancy in J&K. MILITANTS ON THE BACKFOOT Only last month, Northern Army Com- mander Lt Gen Ranbir Singh, speaking in the backdrop of “Operation All Out”, claimed that 2018 was the most success- ful year in anti-militancy opera- tions in the passed decade. According to home ministry fig- ures, during 2018, over 257 terror- ists (including many leaders) were killed in 614 incidents, while 91 security personnel and 38 civilians lost their lives. The data showed that between 2014 and 2018, there was a 93 percent increase in the number of security personnel killed in terrorist incidents in the state which increased by 176 percent. According to SATP, “the total fatal- ities recorded in 2018 are the high- est recorded in the state since 2010”. SATP’s assessment also showed progressive increase in the spread of terrorist activity in J&K. This was gleaned from fatalities report- ed from districts. In 2018, fatalities were reported from 16 of 22 dis- tricts in the state as against 13 dis- tricts in 2014. The SATP assess- ment says: “Significantly, by end 2011, at least seven districts in the state had been declared completely free of militancy…,” while the state home ministry had reported mili- tancy related incidents “in single digits”. An objective introspection of Indianeedstocleanupitsactandevolve aholisticstrategybeyondthevagueand sketchyKashmirnarrativethatswings betweencosmeticsolutionsanda combatnarrativeinfitsandstarts. HITTING HARD (Above) The surgical strikes carried out across the LoC by India in September 2016; (left) A security personnel near the site of an encounter in J&K UNI RSTV
  16. 16. rity forces and loss of lives and resour- ces, our Kashmir narrative continues to be a work in progress regardless of who is occupying the hot seat in New Delhi. The Pulwama attack is only a reiteration of the fact that Kashmir continues to be India’s Achilles’ heel in statecraft. There is no doubt that the Pakistan Army is waging a hybrid war to avenge its rout in the 1971 war against India and terrorism in Kashmir is part of it. Peter Chalk and Christine Fair have quoted Hamid Gul, the former director-general of the ISI, in their December 2002 article, “Lashkar e Tayyiba leads the Kashmir insurgency” in Jane’s Defence Review, as saying: “We have gained a lot because of our offensive in Kashmir. This is a psycho- logical and political offensive that is designed to make India bleed through a thousand cuts.” Pakistan Prime Minister Imran Khan has the blessing of the Pakistan Army, which gives it enormous clout in shaping the country’s India policy more than ever before. So it is doubtful whether international pressure could influence Pakistan to give up its strate- gic option to use the Kashmir insur- gency to bleed India. So we need to clean up our own act and evolve a holistic strategy beyond the vague and sketchy Kashmir narrative that swings between cosmetic solutions based on political opportunism and expediency and a combat narrative in 18 March 4, 2019 the reasons for the increase in Pakistan- inspired terrorist activity in the state would attribute it to the BJP-PDP alliance’s politics of expediency and opportunism to stay in power. During the ill-conceived coalition rule, the “war on terrorism” became a bundle of con- tradictions; security forces taking meas- ures to safeguard men and material were slapped with FIRs, while stone- throwing mobs guided by Pakistan- inspired terrorists were allowed to go scot-free. Flying of Pakistani and Islamic State flags on top of mosques and city centres were dismissed as acts of misguided youth. Terrorist leaders killed in clashes were glorified by politicians, including those in power. It sent a strong signal that the state government was not serious about ensuring security in the face of growing terrorist activity. LOSS OF CREDIBILITY Undoubtedly, this eroded the Modi gov- ernment’s credibility in tackling terror- ism in the Kashmir Valley, despite the much-publicised surgical strike carried out across the LoC. It is sad that in spite of the huge sacrifices made by our secu- Lead/Pulwama Attack In Assam, the Asom Gana Parishad snapped ties with the BJP on January 7 soon after the controversial Citizenship (Amendment) Bill, 2016, was passed in the Lok Sabha. However, the BJP-led coalition govern- ment in the state has the support of 12 MLAs of the Bodoland People’s Front (BDF), a vocal and often violent proponent of a new state of Bodoland Taleoffailedalliances Pakistan’sPrimeMinisterImranKhanhastheblessingofthePakistanArmy,which givesitenormouscloutinshapingthecountry’sIndiapolicymorethaneverbefore.So itisdoubtfulwhetherinternationalpressurecouldinfluencePakistantogiveupits strategicoptiontousetheKashmirinsurgencytobleedIndia. Just like the much-hyped but failed alliance between the BJP and the PDP in J&K, the party has burnt its fingers in the Northeast. Alliances here have been with parties known for their militant agitations on demands for greater autonomy or separate statehood.
  17. 17. | INDIA LEGAL | March 4, 2019 19 fits and starts. Unfortunately, the politi- cal narrative goes into periodic hiberna- tion, while the combat narrative is large- ly reactive to the Pakistan Deep State’s actions using terrorism to further its strategy to bleed India. DISOWNING RESPONSIBILITY Kashmir politicians have never been serious about doing their bit politically to counter terrorist propaganda. They have always disowned responsibility for the situation in the state. Typical was the reaction of National Conference chief Farooq Abdullah to the Pulwama attack. He said the com- mon people have no role in the attack. “Such attacks will continue and will not come down till the Kashmir issue is resolved politically. Please don’t beat us. We have no role in it (attack) and we are not with it (terrorism). We want to live with dignity, study and earn our two meals and do not wish to build castles.” National political consensus is essen- tial for evolving a holistic Kashmir strat- egy. In a welcome move after the Pulwa- ma attack, Union Home Minister Raj- nath Singh called for an all-party meet- ing to discuss the follow-up action. Political parties of almost all hues, including the irrepressible Congress president, Rahul Gandhi, curbed their temptation to score brownie points against the Modi government and attended the meeting. They expressed solidarity with security forces fighting terrorism in Kashmir. It showed the potential to build a national consensus on Kashmir. However, five days after the meeting, the Congress and the BJP seemed to be back in business and doing what they do best—name-calling, using the Pulwama tragedy. And as the country nears a gen- eral election, the Kashmir issue and the Pulwama attack will be buried under other bread and butter issues in pre- electoral oration by politicians. In the meanwhile, rather than wait- ing for the mythical national consensus on Kashmir to emerge, a few urgent measures need to be taken. First, create a counter narrative using social media to confront Kashmiri terrorists who are carrying out propa- ganda to attract and motivate youth to join them. Secondly, take instant action against politicians and other people who glorify terrorists. The withdrawal of security for 18 Hurriyat leaders and 150 other politi- cians is a step in the right direction. Lastly, allow the security forces to do their job without taking populist actions that block their work. India should get ready for the long haul now. —The writer is a military intelligence specialist on South Asia, associated with the Chennai Centre for China Studies and the International Law and Strategic Studies Institute Twitter: @indialegalmedia Website: Contact: to be carved out of Assam. In Meghalaya, the United Democratic Party recently left the BJP-led North-East Democratic Alliance (NEDA) over the saffron party’s aggressive stance on this Bill. While Meghalaya CM Conrad K Sangma hasn’t yet snapped ties with the BJP, he too has indicated that all’s not well in the alliance. In Tripura, the BJP has partnered with the Indigenous People’s Front of Tripura (IPFT), which has threatened to quit NEDA over this Bill. The IPFT allegedly has links with militant organisations like the National Liberation Front of Tripura (NLFT) which seeks secession from India and has been an active participant in the insurgency in the Northeast. In Mizoram, the BJP has tied up with the ruling Mizo National Front (MNF) which has also threatened to reconsider its ties with the BJP if the latter contin- ues to push for this Bill. The MNF start- ed out as an insurgent outfit in 1961 demanding autonomy for the Mizo Hills. Continuing its alliance with the BJP is a practical compulsion for the Nationalist Democratic Progressive Party (NDPP) in Nagaland. But even here, Chief Minister Neiphiu Rio and his party have passed a unanimous resolution rejecting the Bill. The NDPP needs the support of the BJP’s 12 legislators in Nagaland to stay in power. The alliance had shaped up after the BJP gave Rio an assurance, though still unfulfilled, of passing a new Naga Accord granting massive autonomy to the state, including rights to have its own flag and set of laws. “Suchattackswillcontinueandwill notcomedowntilltheKashmirissue isresolvedpolitically.Pleasedon’t beatus.Wehavenoroleinit(attack) andwearenotwithit(terrorism).We wanttolivewithdignity,studyand earnourtwomealsanddonotwish tobuildcastles.” NationalConferencechiefFarooq AbdullahafterthePulwamaAttack
  18. 18. Supreme Court/ Collegium Appointments/ SC/ST/ OBC Candidates 20 March 4, 2019 N February 12, the Supreme Court Collegium recommended 10 advocates as judges of the Allahabad High Court. The number of recommendees could have been less had not the Collegium decided to tweak a key criterion long used to assess the eligibility of advocate-candi- dates for the post of high court judges. According to the Memorandum of Procedure (MoP) for appointment and transfer of chief justices and judges of high courts, a lawyer candidate should have a minimum average net professional income of `7 lakh in the preceding five years for being consid- ered for elevation to the post of a high court judge. The three-member Collegium com- prising the Chief Justice of India Ranjan Gogoi, Justice AK Sikri and Justice SA Bobde took note of the fact that net pro- fessional income of some of the recom- mendees was less than `7 lakh per annum. The Collegium, its resolution claimed, considered it appropriate to relax the income criterion to a reason- able extent in cases where such recom- mendees belong to an SC/ST/OBC or Breaking the Yardstick Inamovethatcouldtransformthejudiciary,theCollegium hastweakedakeycriterionforeligibilityofalawyerfor appointmentasahighcourtjudge By Venkatasubramanian O NEW HORIZON Advocates at the Patiala House Courts in New Delhi T here is an approved strength of 1,079 posts of judges in 25 high courts. As of February 1, there are only 679 judges (527 permanent and 152 additional judges), leaving 400 vacancies (for 244 permanent and 156 additional judges) to be filled. The position as on January 1 was 687 judges (535 perma- nent and 152 additional judges), as against 392 vacancies (for the posts of 236 permanent and 156 additional judges). With more judges retiring, the number of vacancies will keep rising, with the stakeholders—Supreme Court and High Court Collegiums and the centre— unable to keep pace with the process of filling them up in time. According to a news report, over 120 recommendations by 13 High Courts for appointment of judges are pending with the government and the Supreme Court Collegium. This means that the High Courts are yet to recommend suitable names for the remaining 280 vacancies. Chief Justice Ranjan Gogoi recently denied reports that the centre was sitting over the Collegium’s recommendations. According to him, only 30 recommenda- tions are with the government, which clears appointments quickly. He also admitted that 65 proposals of the Collegium, sent back to it by the centre for reconsideration, are pending with it. The Memorandum of Procedure (MoP) for appointment of High Court judges requires that a time-bound schedule should be followed so that appointments are made well in advance, preferably a month before the occur- rence of the anticipated vacancy. The MoP also requires that the vacancies of permanent judges ought to be filled up first, before recommendations for appointing additional judges are consid- ered. This shows that none of the three stakeholders has complied with the MoP in letter and spirit. When a permanent vacancy is ThelongwaitforHCjudgescontinues represent the government in their capacity as standing/panel counsel before the courts. This is a significant amendment of the MoP which the Collegium has on its
  19. 19. own decided to follow. This was done because the centre’s revision of the MoP, on the lines suggested by the Collegium following the Supreme Court’s judgment in the National Judicial Appointments Commission case in 2015, is still incom- plete. The Collegium has apparently carried out this reform for valid reasons. The centre has not yet notified the | INDIA LEGAL | March 4, 2019 21 comprising the then chief justice, Dipak Misra, and Justices J Chelameswar and Ranjan Gogoi had considered the names of six advocates as judges of the Calcutta High Court. It had also rejected the name of one of the candidates, Piush Chaturvedi, after finding that his aver- age professional income was well below the prescribed minimum professional SupremeCourtjudgeJustice Chandrachudsaidthatifoneneedsa greatersenseofinclusivityinthejudici- ary,theyardsticksforselectionoflawyers asjudgeswillhavetobechanged. expected to arise in any year in the office of a judge, the chief justice will as early as possible, but at least six months before the date of occurrence of the vacancy, communicate to the chief minis- ter of that State his views as to the per- sons to be selected for appointment. The MoP requires that as the gover- nor is bound by the advice of the CM, a copy of the chief justice’s proposal, with a full set of papers, should simultaneous- ly be sent to the governor as well to avoid delay. Similarly, a copy may also be endorsed to the CJI and the Union minis- ter of law, justice and company affairs to expedite consideration, it says. The MoP further requires that the gov- ernor should forward his recommenda- tion to the law minister as early as possi- ble but not later than six weeks from the date of receipt of the proposal from the chief justice of the High Court. If the comments are not received within the said time frame, it should be presumed by the law minister that the governor (i.e. the chief minister) has nothing to add to the proposal and proceed accordingly, the MoP adds. The Union law minister, after consider- ation of the recommendations, forwards them to the CJI, that is, the Collegium, which sets its process in motion, and is expected to send its recommendation to the minister within four weeks. The law ministry then has three weeks to put up the Collegium’s recommendations to the prime minister, who advises the president to make the appointment. Thus, for a recommendation from the chief justice of the High Court to come to fruition, it should not take more than 13 weeks, although the maximum time avail- able to a chief justice of the High Court is six months. If the stakeholders are trans- parent about the time taken to process a recommendation at every stage, one can determine who is guilty of non-compli- ance with the MoP. Data on pendency of recommendations with a constitutional functionary reveals nothing unless the date of initiation of the proposal and the time taken to process each recommen- dation are also disclosed. —By Venkatasubramanian revised amount pertaining to the mini- mum income threshold for recruitment as judges. However, according to a re- port, candidates belonging to the SC/ST/OBC categories who earn up to `5 lakh a year will be considered. For others, the income threshold will remain unchanged. On December 4, 2017, the Collegium Photos: Anil Shakya
  20. 20. income limit. The resolution passed that day read: “As regards Shri Piush Chaturvedi…. his average professional income is well below the prescribed minimum profes- sional income limit. As he does not qua- lify the income criterion, the proposal for his elevation to the High Court does not inspire confidence and is, therefore, rejected.” The professional income of an advo- cate is deemed to be an important crite- rion in deciding whether he merits selection as a judge. According to Namit Saxena, a lawyer practising in the Sup- reme Court, the income suggests whe- ther the candidate is only earning from advocacy and reflects his dedication to the profession. It also helps the deci- sion-makers in gaining knowledge about the background of the candidate and how he has maintained himself, he said. It also helps the Collegium to satisfy itself whether the candidate’s earnings are in consonance with the judgments he has assisted the court in dealing with, he added. However, the income earned by a lawyer depends on the field of his prac- tice. Advocates doing pro bono work or taking up labour cases may earn less than corporate lawyers. There are also geographical variations. An advocate in Kolkata may earn less than one in Delhi. While income may be an important cri- terion in considering the eligibility of a candidate, it cannot be the sole criteri- on for rejecting him, said Saxena in an article. O n October 12, 2017, the Sup- reme Court held in Ms. Indira Jaising v Supreme Court of India through Secretary General and Others that insistence on any particular income was a self-defeating exercise while considering the eligibility of an advocate for designation as a senior advocate. The Court found that different high courts had prescribed different slabs of income as minimum condition for eligibility for designation as a senior advocate. Justice Gogoi, who authored that judgment on behalf of the bench, which included Justices Rohinton Fali Nari- man and Navin Sinha, observed: “If merit and ability is to be the determin- ing factor, in addition to standing in the Bar and expertise in any specialised field of law, we do not see why we should insist on any minimum income as a con- dition of eligibility. “The income generated by a lawyer would depend on the field of his practice and it is possible that a lawyer doing pro bono work or who specializes in a par- ticular field may generate a lower return of income than his counterpart who may be working in another field of law. Insistence on any particular income, therefore, may be a self-defeating exercise”. The criterion found relevant for elevation as a senior advocate may also be valid for elevation of a lawyer as a judge. Union Law Minister Ravi Shankar Prasad was also reported to have expressed the view that pro bono legal services rendered by a lawyer would be a consideration for elevation to the bench as a lawyer’s income is bound to be less if he or she decides to forgo fees for arguing a case in public interest. It may be unfair to make such a lawyer ineli- gible to become a judge if his income falls below a prescribed limit. Justice DY Chandrachud of the Supreme Court, while participating in a recent roundtable discussion, was of the view that unless conventional yardsticks for assessing women lawyers are broken, we can’t see more women judges on the bench. The yardsticks used to assess women lawyers are not gender neutral, he said. He recounted an instance during his tenure as chief justice of the Allahabad High Court when the name of a woman lawyer had to be removed from the list of candidates recommended for eleva- tion to the bench on the ground that her income did not match the prescribed yardsticks. Despite her being articulate and good at her work, her name was removed though the fact was that she largely fought labour law cases and for the very poor, he recalled. Justice Chandrachud added that if one needs a greater sense of inclusivity in the judiciary, then the yardsticks for selection of lawyers as judges will have to be changed, and merely changing the Collegium system will not yield the desired results. The Collegium’s February 12 reso- lution, therefore, has the potential to transform the judiciary if it is backed with sincerity by all the stakeholders. 22 March 4, 2019 Twitter: @indialegalmedia Website: Contact: Thethree-memberSCCollegiumcomprisingChiefJusticeofIndiaRanjanGogoi(left), JusticeAKSikriandJusticeSABobde(right)tooknoteofthefactthatthenetprofes- sionalincomeofsomeoftherecommendeeswaslessthan`7lakhperannum. Supreme Court/ Collegium Appointments/ SC/ST/ OBC Candidates
  21. 21. T was way back on March 7, 2018, that the Kerala High Court Collegium proposed the names of seven advocates, including PV Kunhikrishnan, for appoint- ment as judges in the Kerala High Court. On October 9, the Supreme Court Collegium approved five names for elevation. Among them was advocate Kunhikrishnan. However, the Depart- ment of Justice referred his file back to the Chief Justice of India (CJI) for reconsideration. Since then, the Kunhikrishnan file has been moving back and forth and on | INDIA LEGAL | March 4, 2019 23 Supreme Court/ Collegium Appointments In Kerala In the latest round of recommenda- tions, the SC Collegium had recom- mended the appointment of three High Court advocates and two district judges for elevation as High Court judges. The Collegium had considered the panel of seven candidates and cleared the names of VG Arun and N Nagesh who were functioning as assistant solicitor generals at the High Court and PV Kunhikrishnan. Bench Proposes, Ministry Disposes ExhibitingitsresolvetoappointanadvocateithadproposedlastOctobertotheUnionMinistryofLaw andJusticeasjudgeoftheKeralaHC,theSCCollegiumreiterateditsrecommendationsonFebruary12 BY NV Ravindranathan Nair in Thiruvananthapuram I DECKS CLEARED Justice VG Arun taking the oath of office in the Kerala High Court February 12, the apex court Collegium comprising Chief Justice Ranjan Gogoi and Justices AK Sikri and SA Bobde met and “carefully scrutinised the mate- rial placed on record, including the rea- sons recorded in the file for seeking reconsideration of the proposal” as regards Kunhikrishnan, and concluded that “the Collegium while clearing his name on October 9, 2018 has already considered material on the basis of which the proposal has been referred back for reconsideration” and resolved to reiterate the October 9 rec- ommendation on Kunhikrishnan. Photo SNS
  22. 22. In the category of judicial officers, TV Anilkumar and N Anilkumar, both of whom had entered judicial service in 1991 and were serving as registrar generals of the High Court, were recommended. Kunhikrishnan had enrolled at the bar in 1989 and has been practising for 24 years in the high court, the Colleg- ium noted. The SC Collegium wants his proposal processed expeditiously. In the case of a few others, the Collegium had noted that in order to ascertain their suitability for elevation to the High Court, it had consulted their colleagues conversant with the affairs of the Kerala High Court. The centre, while referring back the recommendations, had pointed out that some of the lawyers had failed to meet the income criteria, a clear indication that they lacked sufficient professional experience or practice as successful advocates to get picked from the Bar for elevation as High Court judge. In August 2018, the state govern- ment had also resubmitted the Kerala High Court Collegium’s recommenda- tions without making any change in the nominations. This led to raised eye- brows in the Kerala High Court Bar and indeed even among the general public as doubts crept in about the criteria adopt- ed for the selection of advocates to be elevated as High Court judges. “There was conspicuous absence of applying the judicial mind in the selec- tion of nominees. There were glaring instances of nepotism which undoubt- edly had caught the attention of the Centre prompting it to refer the list back,” a senior lawyer in the High Court told India Legal on condition of anonymity. There have been complaints in the legal fraternity that one of the members of the Collegium had personally inter- vened to make sure that a certain advo- cate’s name was included in the list of nominees. The fact that those judges who are willing to toe the line of the govern- ment will get plum posts in commis- sions and other quasi-judicial bodies post-retirement has also been influenc- ing the judges. The casualty in the process is quality, impartiality and high integrity expected of a judicial officer, a senior lawyer pointed out, preferring anonymity. One of the interesting facts that came to light was that when the Sup- reme Court Collegium considered the advocates for elevation, the income cri- teria was found to be inconsistent. In one case, one of the HC Collegium members reportedly endorsed the claim made by an advocate about his income. The SC Collegium stepped in to say that it was the IT department’s job to ascer- tain the income of the advocate. I t may be noted that out of the seven nominees recommended by the Collegium led by former Kerala High Court Chief Justice Antony Dominic, four had failed the stipulated income criterion as prescribed by the Union Ministry for Law and Justice. When the file was sent to the state government, it promptly intimated the matter to the Kerala Chief Justice. But instead of revisiting the proposal, Dominic sent the same set of seven names back to the chief minister on March 20 and—believe it or not—with a fresh set of income certificates produced by the same lawyers who had earlier failed to meet the stipulated criterion. According to the memorandum of procedure for appointment of chief jus- tices and judges of high courts framed by the apex court, the candidates should have a minimum average professional income of `7 lakh annually in the pre- ceding five years for being considered for elevation as judges of a high court. While three lawyers produced fresh income certificates, they did not cite any explanations for failing to meet the cri- teria the first time around. Only one among them said that the certificate he had originally produced did not take into account his share of profit from a partnership firm, M/S United Maritime Law Chambers, where he has been a partner since 2013-14. There were reports that the centre, while referring back the nominations, had raised allegations of moral turpi- tude against one of the lawyers on the list. But the state government came to his rescue, citing that there was no evi- dence to support the allegation and hence it could be ignored. “A mere inquiry about the names cropping up in the nomination for appointment of judges will make one convinced that a majority of the nomi- nees had very little professional stand- ing or ability to command respect from the colleagues on account of their pro- fessional track record,” says a senior lawyer on condition of anonymity. The sanctioned strength of the Kerala High Court now stands at 47. On November 1, the president of India’s office notified the appointments of VG Arun, N Nagesh, TV Anilkumar and N Anilkumar, and all were sworn in four days later. The presidential notification for the appointment of Kunhikrishnan is still awaited. 24 March 4, 2019 Twitter: @indialegalmedia Website: Contact: AdvocatePVKunhikrishnanhadenrolled atthebarin1989andhasbeenpractis- ingfor24yearsintheHC,theCollegium noted.TheSCCollegiumhassoughtthat hisproposalbeprocessedexpeditiously. Supreme Court/ Collegium Appointments in Kerala
  23. 23. On February 13, Chief Justice Ranjan Gogoi had summarily dismissed two court masters of the Supreme Court for tampering with a court order and allegedly giving the impression that Anil Ambani had been exempted from personal appearance in the contempt case. In the dock were court masters Manav Sharma and Tapan Kumar Chakraborty, who held the rank of assistant registrars. They are res- ponsible for ensuring that court orders are uploaded on the SC website. On January 7, the order had read that “personal appearance of the alleged contemnor(s) is dispensed with”. In simple terms, this meant that Ambani’s appearance had been exempted. However, three days later, Ericsson’s lawyers informed Justices Nariman and Saran about the uploaded order and pointed out that they had, in fact, given clear directions demanding Ambani’s personal appearance in court. A revised order to the effect was then uploaded. Several legal luminaries have raised eyebrows on the manner in which strident action was taken against the court masters without first probing whether they had deliberately tampered with the order, made an inadvertent error, or, more seriously, acted under someone’s instructions. It is learnt that Justice Gogoi has tasked Supreme Court secretary-gen- eral Sanjeev Kalgaonkar and seven senior registrars to investigate how the tampered order was uploaded and whether someone other than these court masters was involved. Sources say suspicion has been cast on a senior advocate and his law firm for the “mischief”. Mischievousupload? | INDIA LEGAL | March 4, 2019 25 Supreme Court/ Order On Reliance NIL Ambani, once the bil- lionaire with ambitions of building an empire analo- gous to elder brother Mukesh Ambani’s Reliance Industries, was, on February 20, left staring at the possibility of spending time in jail. The Supreme Court held Anil Ambani, chairman of the cash-strapped Reliance Communications (RCom), and two chairmen of his subsidiary compa- nies—Reliance Telecom and Reliance Infratel—guilty of contempt of court for their failure in complying with its earlier orders for clearing `550 crore dues to telecom services major Ericsson India Pvt Ltd. The Reliance companies had earlier deposited `118 crore with the Supreme Court registry as part of the payments they had to make to Ericsson. The Supreme Court has ruled that this amount is to be transferred by the reg- istry to Ericsson within a week. The remaining `453 crore (`432 crore in principal dues and `21 crore in interest) must be paid to the Swedish multi- national within four weeks. Non-com- pliance would attract a jail term of three months for the chairmen of the three defaulting companies. In a strongly worded judgment, the apex court bench of Justices Rohinton Fali Nariman and Vineet Saran slam- med Ambani, Reliance Infratel chair- man Chhaya Virani and Reliance Telecom chief Satish Seth for their “cav- alier attitude”, attempts at “circumvent- ing the orders of this court” and “willful default”. The bench also slapped a fine of `1 crore each on all three, to be “paid to the Registry of this Court within four weeks from today” and said that if the chair- men fail to pay up, they “will suffer one month’s imprisonment”. The reason why Ambani and his associates escaped being sent to prison rightaway was because the bench felt that “contempt of this Court needs to be purged by payment of the sum of `550 crore together with interest till date”. Caught in Own Net Foundguiltyofcontemptofcourt,AnilAmbanifacesathree- monthjailtermifhefailstopayup`453croretoEricsson By India Legal Bureau Twitter: @indialegalmedia Website: Contact: A TheSupremeCourtslammedRComchairmanAmbani,RelianceTelecomchiefSatish Seth(centre)andRelianceInfratelchairmanChhayaVirani(right)fortheir“cavalier attitude”,attemptsat“circumventingtheordersofthiscourt”and“willfuldefault”.
  24. 24. Supreme Court/ Fraudulent Calls 26 March 4, 2019 ECENTLY, Chief Justice B Radhakrishnan of the Tel- angana High Court and the acting chief justice of the Karnataka High Court, L Narayana Swamy, recei- ved calls from a person claiming to be Chief Justice of India Ranjan Gogoi. He asked them to recommend names of advocates to be elevated as judges of high courts. This incident reportedly came to light during a routine conversation bet- ween the CJI and the judges. A probe ordered by the secretary general of the Supreme Court, Sanjeev Kalgaonkar, revealed that the calls originated from the Supreme Court’s Electronic Private Branch Exchange system, but were actu- ally made from a mobile phone. The impersonator first called Justice Narayana Swamy and claimed that he was HK Juneja, the personal private secretary to Chief Justice Gogoi. He cla- imed that the CJI wanted the names of some advocates from the Karnataka High Court to be elevated as judges in the High Court. He claimed that he was acting on behalf of the CJI and request- ed that the recommended names be sent to the CJI. After two days, he called Justice Swamy again, stating that he was Juneja and that this time the CJI himself wanted to talk regarding the recommendations. Then the caller or someone else imitated Chief Justice Gogoi and spoke to Justice Swamy, reit- erating the request for elevation of advocates. The person then called Chief Justice B Radhakrishnan. According to reports, the caller was so convincing that the two judges believed they were speaking to CJI Gogoi himself! The Supreme Court registry has now lodged a complaint. CJI Gogoi summoned a meeting of officials of the Supreme Court, including the staff of its telecommunication wing. At the meeting, it was reported that a software could enable a person to make calls from a mobile using any EPBX sys- tem and this appears to have been done in this case too. CJI Gogoi has issued an advisory to all chief justices of high courts and other judges to not entertain any calls in his name or from his office. It must be emphasised that this practice of selecting or recommending judges through phone calls is dangerous and would lead to a bad precedent. Such incidents have happened before as well in the apex court. It recently sacked two of its officials for a mix-up in an order directing Reliance Commun- ications chairman Anil Ambani to per- sonally appear in court in a matter of contempt. CJI Gogoi dismissed them after they uploaded an order on the Supreme Court website which stated that the requirement for Ambani’s pres- ence had been dispensed with instead of stating that it hadn’t. —By Deepankar Malviya Impersonating the CJI Inashockingcase,apersonpretendingtobethechiefjusticecalleduptwojudgesandasked themtorecommendthenamesofadvocatestobeelevatedasjudges Twitter: @indialegalmedia Website: Contact: R CJIRanjanGogoihasissuedan advisorytoallchiefjusticesofhighcourts andotherjudgesthattheymustnot entertainanycallswhichcomeinhis nameororiginatefromhisoffice. Anil Shakya
  25. 25. | INDIA LEGAL | March 4, 2018 27 Supreme Court/ AMU/ Minority Institution HE question of minority sta- tus of the Aligarh Muslim University (AMU) may be about to reach its denou- ement with a three-judge bench of the Supreme Court, headed by Chief Justice Ranjan Gogoi, last week referring the issue of defining the parameters for grant of minority status to the educational institution to a larger seven-judge bench. The apex court was dealing with a petition filed by the then UPA govern- ment, challenging the Allahabad High Court’s 2006 order holding that the var- sity was not a minority institution. While AMU had filed a separate plea against the high court, the central gov- ernment in 2016 decided to withdraw the appeal on the grounds that a five- judge constitution bench had in 1968 in the Azeez Basha case held that AMU was a “central university” and not a minority institution. The history of AMU goes back to 1920 when it was accorded university status by an act of parliament, by the then British government. Prior to the establishment of the university, AMU, founded by Sir Syed Ahmed Khan, was functioning as the Mohammedan Anglo-Oriental College, from 1875. In 1951, the AMU Act was amended to remove the compulsory religious instruction to Muslim students, and the university was thrown open to everyone, “to persons of either sex, and of whatev- er race, creed, caste or class”. In 1968, the Supreme Court, in its landmark judgment in the S Azeez Basha and Anr vs Union of India case, held that AMU was not a minority insti- tution as it was not established by a minority body. The judgment had fur- ther elaborated that the university was established by an act of parliament and not by a religious minority. It was there- fore concluded that only institutions “established” by minorities can be “administered” by minorities. Article 30 (1) of the Indian Constitution says: “All minorities, whether based on religion or language, shall have the right to estab- lish and administer educational institu- tions of their choice.” According to the Supreme Court in TMA Pai Foundation vs State of Karnataka (2002), a particular commu- nity, whether linguistic or religious, can only be called a minority if its strength is demographically low in that particular state. Therefore, calling a community a minority does not depend on its num- bers at the national level, but at the state level. In 1981, the AMU Act was amended to give the varsity the status of a minority institution, established by the minority community. However, the question of whether AMU is a minority institution has been left hanging. Delhi’s Jamia Millia Islamia Univer- sity faces a similar predicament. Jamia was accorded minority status in 2011 by the National Commission for Minority Educational Institutions. Jamia’s history is linked with AMU. In 1920, when the latter was established, a group of former students and teachers, among them the future president of India, Zakir Husain, set up Jamia in tents outside AMU, as they were upset that the institution was taking funds from the British govern- ment. It shifted to Delhi in 1925 and over the next three decades, Jamia’s ethos and functioning were largely aligned with the nationalist movement. All eyes will be on the seven-member bench that will decide whether the sta- tus of the over 100-year-old university remains what it is or needs to change. —By Naved Ahmed T Status Symbol Aseven-judgebenchofthe apexcourtwilllookintothe issueofdefiningparameters forgrantofminoritystatusto the147-year-oldAligarh MuslimUniversity Twitter: @indialegalmedia Website: Contact: In1951,theAMUActwasamended toremovethecompulsoryreligious instructiontoMuslimstudents,and theuniversitywasthrownopen toallcategoriesofpeople.
  26. 26. Spotlight/ Ajit Doval’s Sons 28 March 4, 2019 MONG the more endur- ing images of statecraft over the past five years is that of Prime Minister Narendra Modi hugging presidents and prime ministers, kings and princes. However, last week when he broke protocol and drove up to Indira Gandhi International Airport to receive Saudi Arabian Crown Prince Mohammed bin Salman, all hell broke loose. The Congress party, among others, asked whether according a “grand welcome” to the prince who just two days earlier had pledged a $20-bil- lion investment in Pakistan and praised its “anti-terror” efforts was Modi’s way of remembering the Pulwama attack martyrs. Crown Prince Salman was in Pakistan just a day after 40 CRPF per- sonnel were killed in Pulwama on February 14 by a suicide bomber of the Jaish-e-Mohammed, a Pakistan-based terrorist group. Congress leader Randeep Surjewala said on Twitter: “National interests v/s Modiji’s ‘hugplomacy’ breaking protocol, grand welcome to those who pledged USD 20 billion to Pakistan and praised Pakistan's ‘anti-terror’ efforts. Is it your way of remembering martyrs of Pul- wama?” He also tagged photographs of Modi in a bear hug with the prince as he alighted from his aircraft. This tweet takes one back to a year ago when Surjewala had lashed out at the govern- ment over its commitment to fighting terrorism and corruption. Specifically, he sought a response to allegations that National Security Adviser (NSA) Ajit Doval’s son had a business partner Walk the Talk WhilethegovernmenthasbeencryingitselfhoarseaboutretributionagainstPakistan,ithas ignoredthefactthatNSAAjitDoval’sson,Shaurya,isdoingbusinesswithPakistanis By India Legal Bureau A RIGHT CONNECTIONS National Security Adviser Ajit Doval’s son, Shaurya Doval (left), and Vivek Doval (right) based in Pakistan and another who was a Saudi prince from the ruling House of Saud. “On one hand, Amit Shah claims that crackers will be burst in Pakistan if the BJP loses (in Gujarat assembly elec- tions that were then due) while on the other NSA Ajit Doval’s son Shaurya Doval’s business partner, Syed Ali Abbas, is a Pakistani. His another busi- ness partner is from Saudi Arabia,” Surjewala said in a statement. Over the last few months, several media outlets, in particular The Wire and Caravan magazine’s web edition, have reported extensively on the busi- ness dealings of Doval’s two sons. Most of these have not been contradicted and it was only recently that Vivek Doval, the NSA’s younger son, filed a criminal defamation suit against Caravan for Overthepastfewmonths,severalmedia outlets,inparticularTheWire and Caravan magazine’swebedition,have reportedextensivelyonthebusiness dealingsofDoval’stwosons.
  27. 27. running a story titled “The D Com- panies”. It alleged that Vivek “runs a hedge fund in the Cayman Islands” which is “an established tax haven” and was “registered merely 13 days after Prime Minister Narendra Modi’s gov- ernment demonetised all existing Rs 500 and Rs 1,000 currency notes, in 2016”. It claimed that Vivek has a part- ner, Mohamed Althaf Musliam Veetil, who is also a regional director for Lulu Group International, one of the largest hypermarkets in West Asia. The Caravan reported on the interlinks between Vivek’s firms and those run by his elder brother, Shaurya, and stated that these links indicate a larger finan- cial universe run by them, with compa- nies that are connected to the House of Saud. Shaurya and his myriad businesses have raised many eyebrows. Gemini Financial Services is a company he runs along with Syed Ali Abbas, a Pakistani partner, and Saudi Prince Mishaal Bin Abdullah Bin Turki Bin Abdullaziz Al Saud. He also runs India Foundation, which has four Union ministers as directors, including Defence Minister Nirmala Sitharaman. Given the highly influential status of Shaurya Doval in | INDIA LEGAL | March 4, 2019 29 Ajit Doval. Human rights activists and others were livid that the diplomat was allowed to leave. Officially, it was stated that the case was a sensitive one and India had to bend as some three million Indians live and work in Saudi Arabia. The country has also, for nearly two decades, been the largest supplier of oil to India. The government’s view evoked curiosity considering the stand the BJP, then in the Opposition, took when Indian diplomat Devyani Khobragade was arrested in New York in 2013. India has always taken a strong stand on diplomatic immunity in cases as hers. Khobragade was arrested and accused of submitting false documents to secure a work visa for her housekeeper and paying her below legal wages. But what led to a diplomatic row between India and the US was the alleged treatment that she was subjected to from American authorities. In the case of the Saudi diplomat, there was a strong section that believed that the Indian government could have asked the Saudi embassy to waive diplo- matic immunity. That India finally pre- ferred to bend over backwards is said to have been due to the intervention of the NSA, who many say is the second most powerful man in the government. Two days after the Pulwama attack, the government reacted in many ways— withdrawing Most Favoured Nation sta- tus to Pakistan and raising customs duty on goods from there with immedi- ate effect. Already, film bodies and sports federations are issuing state- ments about denying work visas to film and TV artistes from Pakistan and skip- ping ties with the country. Such acts would have carried more conviction if the Augean stables at home had been cleaned by the PM. Maybe he could start by directing his right-hand man to ask his sons to stop doing business with Pakistanis. India’s power circles and his father’s powerful grip in the Prime Minister’s Office, his role in the investment compa- ny raises questions about lobbying. T he fraternity in this cosy little club is not limited to clinching multi-million dollar deals; it is also about getting someone off the hook. When a Saudi diplomat in Delhi was accused of torturing and raping his two Nepali maids in his Gurgaon flat in 2015, Indian authorities first allowed him to move into the Saudi embassy in Delhi with his family and then to leave the country. His diplomatic immunity did not cover the criminal offence com- mitted on Indian soil, but the Indian government, unlike Turkey in the mur- der of journalist Jamal Khashoggi, did not make an issue of it. The quiet depar- ture of the diplomat is believed to be part of a bargain struck between India and the Saudis after the intervention of UNI Twitter: @indialegalmedia Website: Contact: Modibrokewithprotocolandwenttothe IndiraGandhiInternationalAirportto receiveCrownPrinceMohammedbin Salmanandlateralsowelcomedhimat theforecourtofRashtrapatiBhavan.
  28. 28. Column/ Indirect Tax Ombudsman Sumit Dutt Majumder 30 March 4, 2019 HERE is disappointment in certain quarters of trade and industry with the gov- ernment abolishing the institutions of Income Tax Ombudsman and Indirect Tax Ombudsman. Many saw virtues in a grievance redressal system independent of tax departments. The institution of Income Tax Om- budsman was created in 2003 and that of Indirect Tax Ombudsman in 2011. The powers and duties of both are very similar and governed by certain guide- lines. Let me devote myself to the insti- tution of Indirect Tax Ombudsman as I was appointed to this post (2012-14). The concerns of this office would be broadly valid for Income Tax Ombuds- man as well. An Ombudsman is “an official appointed to investigate an individual’s complaints against maladministration, especially that of public authorities”. Indirect Tax Ombudsman Guidelines, 2011 made it clear that these were intro- duced “with the objective of enabling the resolution of complaints relating to public grievances against the Customs, Central Excise and Service Tax Depart- ment and to facilitate the satisfaction or settlement of such complaints”. The guidelines state that the Om- budsman can receive complaints from taxpayers on certain grounds. These include delay in various areas such as issue of refunds or rebate, in giving effect to appellate orders, in adjudica- tion, in release of seized books of acc- ounts and assets even after the proceed- ings are completed, non-acknowledg- ment of letters or documents, violation of administrative instructions and circu- lars issued by the higher authorities, etc. The Ombudsman also has the power to ask the tax department to provide infor- mation or furnish certified copies of any document relating to the complaint. Anyone can make a complaint to the Ombudsman against a particular tax department official. However, the guide- lines state that a complaint will not be taken up unless a written representation has been made to the grievance cell or an authority superior to the one com- plained against, and no reply is forth- coming for a month or the reply is unsatisfactory. On receipt of a valid complaint, the Ombudsman is to consider such com- plaints and facilitate their satisfaction or settlement by agreement, between the Department and the aggrieved parties. In case of failure to do so, the Ombuds- man was to pass an award which was to be a ‘speaking order’. However, the Ombudsman was debarred from issuing directions affecting the quantum of tax assessment or imposition of penalties under the Customs, Central Excise and Service Tax statutes. It was thus made clear that Ombudsman was not to inter- fere in the normal quasi-judicial pro- ceedings in respect of tax assessment, imposition of penalty, etc. The Ombuds- man also had the power to direct the concerned department to pay token compensation not exceeding `5,000 for the loss suffered by the complainant. It was also clarified that the proceed- Premature Closure Inashort-sightedmove,thegovernmenthasabolishedapostthatwasbringingreliefto taxpayersandhelpingthemsolvetheirtax-relatedissues T Amitava Sen
  29. 29. | INDIA LEGAL | March 4, 2019 31 ings before the Ombudsman would be summary in nature. He would not be bound by any legal rules of evidence and could follow a procedure that appears to be fair and proper. The Ombudsman is independent of the jurisdiction of the indirect tax department but has no authority over the Central Board of Indirect Taxes and Customs (CBIC) or CBEC, as it was then called, and the directorates under it. Further, he has no power to pass an award in a case where the responsibility for taking action by virtue of his find- ings lay with the CBEC. In such cases, the decisions of the Ombudsman are to be recommendatory. The government justified the abol- ishing of the institutions of two tax Ombudsmen by stating in a press release that the decision came “in the wake of alternative complaint redressal mechanism chosen by the public” and that “the institution of Ombudsman could not prove to be more effective than regular, existing, parallel channels of grievance redressal”. It was further stated that the “institution of Ombuds- man failed to achieve its objectives”, and that “institutions of new complaints have in turn fallen to single digits”. It further said that taxpayers started pre- ferring alternative methods of grievance redressal like CPGRAMS (Centralized Public Grievance Redressal and Moni- toring System), Aaykar Seva Kendra, etc. Finally, it said that “it was also deci- ded in 2011 to close vacant offices of In- direct Tax Ombudsman”. This last asser- tion is not correct. Rather, the decision to set up the institution of Indirect Tax Ombudsman was taken in May 2011. L et us now look at the justifica- tions given for closure of the two institutions. First, the “alternative complaint redressal mechanism” men- tioned in the press release was already in place for quite some time before the institution of Indirect Tax Ombudsman started working from April 2012. One of the main objectives for introducing the guidelines was “enabling the resolution of complaints relating to public griev- ances against the indirect tax authori- ties”. Obviously, if the existing alterna- tive methods of grievance redressal like CPGRAMS were good enough, there was no need to set up the institution of Indirect Tax Ombudsman. In fact, this office was to supplement the efforts through CPGRAMS. Secondly, if the institution of Om- budsman failed to achieve its objectives, the step forward should have been to look into its shortcomings and take cor- rective actions. The guidelines have laid down, in the concluding paragraph, that if any difficulty arose in giving effect to the provisions of these guide- lines, the central government was authorised to make such provisions as considered necessary or expedient for removing the difficulty. Apart from the basic function of dealing with complaints and grievances of taxpayers, the Ombudsman was given some other onerous responsibilities as well. It was his duty to identify issues that increased the compliance burden for taxpayers, and bring them to the attention of the CBEC and the finance ministry. He also had the power to sug- gest remedial measures for redressal of grievances. Further, the Ombudsman was to furnish an annual report where he was to review the quality of working of tax departments on the basis of grievances handled by him and make recommendations to improve tax administration. Based on my experience as the first Indirect Tax Ombudsman in 2012 after completing my tenure as chairman, CBEC, I would say that at the initial stage, there was lukewarm response from aggrieved taxpayers. Their main concern was that tax department offi- cials against whom they were complain- ing may not take their complaints kind- ly. Also, some of them would have to deal with the same officials in future too. So, they preferred to make the com- plaint anonymously. But this was not permissible. It took some efforts by supervisory officers in the tax TheneedforanOmbudsmaninthetwo taxdepartments,whicharemoreprone topublicgrievances,cannotbe undermined.Theinstitutionhasbeen operatingsuccessfullyacrosstheworld. NO ROOM FOR COMPLAINTS Income tax returns being filed at a camp set up for the purpose in New Delhi Anil Shakya
  30. 30. not exceeding `5,000. Fourthly, unlike CPGRAMS which could be accessed by taxpayers online, proceedings before the Ombudsman were not IT-enabled. It has been reported that CPGRAMS received over 1,80,000 grievances in 2019 alone. But CPGRAMS was being used for all sorts of grievances, both tax and non-tax. In contrast, the Ombuds- man could accept only tax grievances and that too, on specified grounds. Besides, one does not have CPGRAMS data relating to tax grievance only. It is also not known how many of the tax grievances out of the 1,80,000 received at CPGRAMS were actually redressed. Therefore, it would not be fair to com- pare the data relating to these two redressal mechanisms. Finally, the institution of Ombuds- man for resolving public grievances in respect of government authorities has been successfully operating across the world. Even in India, we have Ombuds- men in many government departments including insurance, banking, etc. Very recently, the government approved a three-tier structure for resolution of consumer grievances in the telecom sec- tor through setting up of an Ombuds- man. So, the need for an independent authority like an Ombudsman in the two tax departments which are more prone to public grievances cannot be undermined. It would, therefore, be fair to con- clude that the institution of Ombuds- man has been given a not-so-decent burial and that too, unjustifiably. Ra- ther, IT-enabled and adequately empowered Ombudsmen for both Income Tax and Indirect Taxes would have served the cause of aggrieved tax- payers better. —The writer is former Indirect Tax Ombudsman and former Chairman, Central Board of Excise & Customs 32 March 4, 2019 departments to build confidence among the taxpayers in using the platform of the Ombudsman. I n the first two years, the maximum complaints were about delays in giving effect to appellate orders that had provided relief to taxpayers and had attained finality. Another grouse was delay in refunds or rebates and in releasing seized books of accounts and assets even after proceedings relating to them were completed. Gradually, taxpayers started warming to the institution of Ombudsman when they started seeing results and their misapprehensions about retaliation from tax officials were belied. The sharp decline in the number of complaints, cited as justification for the closure of this office, can be attributed to many reasons. First, the posts of Ombudsmen at different places were kept vacant for a long period during the past five years, giving an impression to taxpayers that the government was not serious about their functioning. Secondly, their functioning was gov- erned by the guidelines, and there was no act of law empowering Ombudsmen with different functions. Without a legal backing and without any effective power to ensure compliance by the tax official, the institution of Ombudsman was toothless. Thirdly, an Ombudsman could settle complaints either through agreements between the complainant and the tax department through conciliation and mediation or by passing an award. Compensation for loss suffered by a complainant was only a token amount Twitter: @indialegalmedia Website: Contact: Column/ Indirect Tax Ombudsman/ Sumit Dutt Majumder FillpostsofInformationCommissioners,Lokpals W hile on the one hand, the insti- tution of Income Tax Ombuds- man is being abolished, on the other hand, the posts of Informa- tion Commissioners and Lokpals are not being filled. Recently in Anjali Bhardwaj and Others vs Union of India and Others, a slew of directions regarding filling of information commissioners’ vacancies was passed by a bench of Justices AK Sikri and Abdul Nazeer. The petitioners said more than 23,500 appeals and complaints were pending before the Chief Information Commission as on April 4, 2018. They also said there was lack of transparency in the appoint- ment of the Information Commissions, an issue on which many cases have been filed in high courts. The petition- ers also said that although states should function with not more than 10 Information Commissioners working under one Chief Information Commis- sioner, there were many that did not have the required number. In the case of Andhra Pradesh, there was no CIC. The Court then issued the following directions: For the purpose of transparency, all the necessary information should be placed on the website by the state as well as the central government. The terms and conditions for the appointment should be specifically mentioned in the advertisement and be put on the website. Criteria for shortlisting the candi- dates should be made public. Information Commissioners should be appointed from other streams as well and should not only be govern- ment employees or ex-government employees. The process of filling up the vacan- cies should begin one or two months before the date of vacancy. Regarding the appointment of Lokpal, the apex court took a stern view earlier this year and asked the centre to file an affidavit showing what steps had been taken by it since its last order on the matter in September 2018. The Court also asked the Search Committee on Lokpal to rec- ommend names for the appointment by the end of February. —By Deepankar Malviya
  31. 31. My Space/ Medical Negligence Dr KK Aggarwal 34 March 4, 2019 ECENTLY, two doctors at Nizam’s Institute of Medi- cal Sciences in Hyderabad were booked under Sec- tions 336 and 337 of the Indian Penal Code for alleged medical negligence after surgical forceps were found in the abdomen of a woman who had undergone surgery last year. The forceps were surgically re- moved. Such cases where swabs and scissors are left behind after an opera- tion are often reported in the media. Is this willful negligence or carelessness? A retained surgical instrument is any item inadvertently left behind in a pa- tient’s body in the course of surgery. As a preventable medical error, it occurs more frequently than “wrong site” sur- gery and it incidence has a reported rate of 0.01-0.001 percent. Of these, swabs make up 70 percent of the cases and the remainder, surgical instruments. The consequences of retained surgical tools include injury, repeated surgery, excess monetary costs, loss of hospital credibility and in some cases, death of the patient. These errors are more common after an emergency surgery, an unplanned intra-operative change of procedure, changes in theatre staff and failure to count swabs in and out. An operation by a single surgeon carries a greater risk than when a team is involved. Other sit- uations are obesity and a sudden change during surgical procedure (such as a change of surgeon). Whatever be the situation, the occurrence of a retained swab should not happen, and is A Cross to Bear Dosurgerieswhereswabsandinstrumentsareleftinsidethebodyofapatientfallunderthe ambitofcriminalnegligenceandhowhavecourtsadjudicatedinsuchmatters? DEMANDING ATTENTION The father of a three-year-old girl who allegedly died due to medical negligence protesting in Kerala R D espite medical negligence being widely prevalent, why are there few convictions? For criminal negligence, one has to prove either a wrong intent or knowledge on the part of the doctor that a particular action is like- ly to cause harm and was still done with- out consent. Informed consent in most cases is the bridge between a wrong act and an untoward event. Any adverse event or non-criminal medical negligence will attract compen- sation under the law of torts or the Consumer Protection Act. Today, com- pensation is awarded in upto 5-10 per- cent of consumer cases, which is a sig- Whyaretherefewer convictions? UNI