India Legal 06 August 2018

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August 6, 2018
Upendra Baxi: Delayed decisions on
judge’s appointments disrespectful
Sabarimala: Are we heading
towards a uniform civil code?
WHATHAPPENEDTO
ONE-NATION,ONE-TAX?Electoralcompulsionsandvote-catchingsopsmakeamockeryofGSTafterthe
latestreductionson88items.Therehavebeen600changestowhatwas
originallytoutedasthebiggestevertaxreform

EVERAL years ago while dwelling on
the subject of the Himachal Pradesh
High Court’s order banning the ritual
Hindu sacrifice of animals, I wrote that
judges often have to rush in where
angels have feared to tread. Especially in dealing
with matters of immense social, religious, ethnic,
cultural sensitivity. When legislators and admin-
istrators, fearing a popular backlash, a violent
repercussion or a political recoil, back off from
making tough decisions or enacting laws that will
be politically unpopular, the courts have the obli-
gation to step in to advance society’s movement
towards achieving goals which the march of civi-
lization has come to accept as self-evident, uni-
versal truths—kindness, fair play, equal rights, the
right to liberty and the pursuit of happiness.
These ethical compulsions, our cultural evolu-
tion as a species—propelled by religious and spir-
itual doctrines, revelations, philosophical treatis-
es, reasoned discourse, the voices of peripatetic
preachers—mark what is often referred to as the
Ascent of Man. It is an obstacle course in which
the impediments—religious sanction, supersti-
tion, bigotry, racial rage, violent conquest—are
removed, sometimes by the terrible weapons of
war, sometimes by non-violent, passive resistance,
preachers, movements, the ballot, legislation, the
courts. And we move on.
The Indian Supreme Court has already ruled
on sensitive cases such as Shah Bano (a Muslim
woman’s right to alimony following a divorce) in
the mid-1980s, and more recently Triple Talaq—
both of which impacted the lives of women and
had the more conservative elements of the Mus-
lim clergy up in arms against what they consider
state intrusion into religious matters.
Today, the Supreme Court is seized of another
vexatious issue—the right of Hindu women to
enter halls of worship—in particular, the Sabari-
mala temple in Kerala. A similar controversy
erupted in August 2016 when the High Court in
Mumbai ruled that banning women from the
sanctum sanctorum of the 15th century Sufi Haji
Ali shrine “violated the constitution” and was dis-
criminatory towards women. The shrine trust
challenged the ruling in the Supreme Court but
later agreed to rescind the ban.
The entry of socially active rights groups as
well as the courts into what were hitherto consid-
ered forbidden religious terrain has once again
raised the seminal issue of whether India is head-
ing—or can, indeed, head—into a new era of
encoding a Uniform Civil Code (UCC). This has
been the subject of endless controversies starting
with the debates in the Constituent Assembly.
Different ideologies have propagated its necessity
as the ultimate ideal of a secular democracy in
which no religious group or entity should have
the right to violate the code. One country, one
code, the proponents argue, but the opinions start
becoming anodyne when they realize that this
precept could be a double-edged sword. It
becomes a question of whose ox is being gored.
Dr BR Ambedkar, the father of the Indian
Constitution, personally favoured a uniform code
but realized how difficult it may be to implement
on the ground. As a compromise, Article 44 was
added to Constitution as a Directive Principle of
State Policy. The nascent Indian state would
make its achievement an objective rather than
casting laws in stone. As a commentator in
LexisNexis explains: As distinct in their scope
and character from public laws that govern the
relation between individuals and the state, the
private laws or the personal laws concern the
relations amongst individuals and private
entities in a society. On the face of it, “voicing for
a Uniform Civil Code as done by Shah Bano, it
was realised as to how a Uniform Civil Code was
much big a battle in politics than in law. And
politics in India is about people. Thus, it now
seems to me, that unless all stakeholders come to
the same page on this, any attempt to bring on
a Uniform Civil Code would be an attempt
at futility”.
The commentary adds that while not all
Muslims (or other religious minorities) are
SABARIMALA: MOVING TO
A UNIFORM CIVIL CODE ?
Inderjit Badhwar
Letter from the Editor
S
| INDIA LEGAL | August 6, 2018 3
Theentryofsocially
activerightsgroups
andcourtsintowhat
werehitherto
considered
forbiddenreligious
terrainhasonce
againraisedthe
seminalissueof
whetherIndiais
heading—orcan,
indeed,head—intoa
neweraofencoding
aUniformCivilCode.
Thishasbeenthe
subjectofendless
controversies.

4 August 6, 2018
opposed to a common civil code, they express
trepidation from several quarters. Any need put
forth for a Uniform Civil Code must also be seen
in the light of its potential efficacy. “The first
question would be whether it is possible to recon-
cile the differences within the Indian society to
come up with a code that could be acceptable to
all religious communities residing within India. A
comparison of the personal laws of Hindus,
Muslims and other communities will expose the
sheer and stark diversity of these laws.”
As Dr Faizan Mustafa, Vice-Chancellor, NAL-
SAR, states: “Between uniformity and legal plu-
ralism, the latter is a superior value. History con-
tains many instances of pluralistic legal systems
in which multiple sources of law existed. Even in
the states of Goa and of Jammu and Kashmir,
there are no uniform provisions governing the
personal domains of marriage and divorce. Thus,
pluralism in legal sources and rules is inevitable,
especially in a multicultural democratic republic
like India.”
This, indeed, is the primary argument used by
the Sabarimala board in defense of its right to
disbar women from the temple. Their main cru-
tch is Article 25 of the Constitution under which
people have a right to practice their religious
beliefs and propagate their faith so long as no
coercion is involved. The state is permitted to
interfere in the religious matters of its peoples on
very limited grounds.
P
roponents of the continued ban on women
argue that discontinuance of this practice
through a Court edict would open a
“Pandora’s Box”. They told the five-judge Consti-
tution bench headed by Chief Justice Dipak
Misra that the test of constitutional morality can-
not be applied to old religious practices. “All mos-
ques, except those of Dawoodi Bohra Muslim
sect, do not allow women inside... It will open the
pandora’s box. There are several religions and
several practices, and millions of faiths and
beliefs and they may not pass the constitutional
morality test.
“My belief may be fickle, irrational. There are
sects of Shias who believe in self-flagellation.
Many will call it barbaric, others will say it is reli-
gious. It is certainly not in consonance with 2018
notions, but it is still my belief.”
Most sensible laws emanate from an unwritten
concept called natural justice. This does not mean
an eye-for-an-eye retributive jurisprudence but
rather the evolution of ethical, just, humane and
fair behaviour which all religions ostensibly
espouse. In this sense, just as freedom of speech
and expression under Article 19 cannot be com-
pletely unfettered, freedom of religion, as it trans-
lates into personal law, under Article 25, cannot
be absolute or we would be glorifying retrograde
practices like Sati or Triple Talaq, and at the
extreme end, the burning of heretics and witches.
Nor can Article 25 be allowed to take precedence
over the basic structure of the Constitution as
exemplified by Article 21 guaranteeing the right
to life, liberty, livelihood as well as freedom
from discrimination.
What needs careful calibration is whether the
denial of women into Sabarimala, proposing (as
the recent National Commission on Women has
done) a ban on women’s confessions in Church,
the long-standing Parsi ritual of confining their
dead to the Tower of Silence, marriage of Catholic
priests, entry of nuns into the priesthood and
related proscriptions deprive the victims of the
right to livelihood, the right to worship, the right
to equal opportunity, the right to equal justice.
It is a politico-legal minefield because of the
social and political tensions involved. Yet, the
Indian courts have dared to navigate it while
simultaneously getting drawn into any open proc-
Justasfreedom
ofspeechand
expressionunder
Article19can’t
becompletely
unfettered,freedom
ofreligion,asit
translatesinto
personallaw,under
Article25cannotbe
absoluteorwe
wouldbeglorifying
retrogradepractices
likeSatiorTriple
Talaqandthe
burningofheretics
andwitches.
Letter from the Editor
VEXATIOUS ISSUE
(Clockwise from above
left) A Supreme Court
constitution bench
comprising of CJI
Dipak Misra and
Justices Rohinton F
Nariman, AM
Khanwilkar, DY
Chandrachud and
Indu Malhotra is
hearing petitions
against the entry of
women in the
Sabarimala temple

lamation of supporting a Uniform Civil Code. The
Himachal High Court walked this tightrope with
rare legal dexterity in its landmark judgment
banning animal sacrifice as a display not of reli-
gion but of unbridled cruelty. Its proponents had
argued endlessly about the right to religious prac-
tices guaranteed under Article 25.
In that judgment, India took a great step in
moving on when Justices Rajiv Sharma and
Sureshwar Thakur gaveled a new prohibition:
The High Court banned the sacrifice of
animals in temples, saying they “cannot be per-
mitted to be killed in a barbaric manner to
appease Gods”.
“Religion, therefore, be construed in the con-
text of Articles 25 and 26 in its strict and etymo-
logical sense. Every religion must believe in a
conscience and ethical and moral precepts….
There is nothing which a man can do, whether in
the way of wearing clothes or food or drink,
which is not considered a religious activity. Every
mundane or human activity was not intended to
be protected by the constitution under the guise
of religion.
“The approach to construe the protection of
religion or matters of religion or religious prac-
tices guaranteed by Articles 25 and 26 must be
viewed with pragmatism since by the very nature
of things, it would be extremely difficult, if not
impossible, to define the expression religion of
matters or religion or religious belief or practice.
The religious freedom guaranteed by Articles 25
and 26, therefore, is intended to be a guide to a
community-life and ordain every religion to act
according to its cultural and social demands to
establish an egalitarian social order. Articles 25
and 26, therefore, strike a balance between the
rigidity of right to religious belief and faith and
their intrinsic restrictions in matters of religion,
religious beliefs and religious practices and guar-
anteed freedom of conscience to commune with
his Cosmos, Creator and realize his spiritual self.”
They added: “The rituals attached to animal
sacrifice reflect only cruelty, superstition, fear and
barbarism and have nothing to do with either
religion or culture. Practices like Sati, female
feticide, child marriage, untouchability, etc.,
were continuing since generations and were
deeply ingrained in the social milieu, but
have been almost eradicated with the education
and reformation movements as well as judicial
intervention.”
What was truly courageous and luminous
about this nearly 200-page judgment is its
unflinching upholding of human and humane
values above every counter-argument based on
freedom of religion and worship, the right to eat
meat, religious personal laws, ritualistic non-veg-
etarianism, ancient traditions, scriptural edicts,
verses from religious texts and international
cases. With the wisdom of a Daniel come to judg-
ment, the judges took the arguments of their
detractors head-on with scholarly research,
matching argument for argument, separating fact
from fiction, myth and superstition from reality
and common sense, and argued their case for
moral core values that are essential spiritual bea-
cons to guide a nation and a people into the radi-
ance of knowledge.
Readers of this column would do well to read
this judgment (High Court of Himachal Pradesh,
CWP No. 9257 of 2011 along with CWP
No.4499/2012 and CWP No.5076/2012) in full,
not only because of the light it sheds on religion
and religious practices, but also because it is a
transformative experience.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
RIGHT TO DIFFER
(Top) The Sabarimala
Temple board has
argued in the SC that
the state is permitted
to interfere in the
religious matters of its
people but only on
limited grounds;
(above) Bombay High
Court had ruled in
2016 that banning
women from the
sanctum sanctorum of
the Haji Ali shrine was
discriminatory
towards women
tourism-of-india.com
UNI

ContentsVOLUME XI ISSUE 38
AUGUST6,2018
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6 August 6, 2018
Neither Good, Nor Simple
It was launched to bring about economic unification, but a
year into its launch, the much-hyped Goods and Services
Tax has turned into a businessman’s nightmare and is
hampering investment and the growth of the nation
LEAD
14
Balancing All Counts
The apex court
has taken the
middle path in
allowing activists
to protest
peacefully at
New Delhi’s Jantar
Mantar while
enabling residents
to live there without
having to endure
noise pollution
SUPREMECOURT
18

City City Bang Bang
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Followuson
Facebook.com/indialegalmedia
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Contact:editor@indialegallive.com
| INDIA LEGAL | August 6 2018 7
Cover Design:
ANTHONY LAWRENCE
Ringside............................8
Delhi Durbar ...................10
Courts.............................12
Media Watch ..................49
Satire ..............................50
Don’t Sit on It
It is the Executive’s constitutional obligation
to take immediate action on a reiterated
recommendation of the Collegium. To not
do so is to disrespect the office of the chief
justice, writes Upendra Baxi
24
MYSPACE
COLUMN End of Impunity
The Haryana government’s time-bound action plan in rape and molestation cases is
expected to cut short the near-free run of perpetrators and bring relief to survivors
42
Save Modern Slaves
The introduction of the Trafficking of
Persons Bill in Parliament is expected to
help in prevention of this abhorrent
practice and go a long way in rehabilitat-
ing its victims, says Amod Kanth
28
Perhaps an Eyewash
Questions are being
raised as to how
effective amendments
to the Prevention of
Corruption Act would
be given that major
issues such as
electoral graft
go unaddressed
31
What Smells like a Scam
The super-secrecy surrounding the Rafale
deal, Dassault’s long and desperate search
for a market notwithstanding, leads one to
conclude there is something fishy about it
34
ACTS&BILLS
They Who Must
Not Be Shamed
A major Malayalam magazine is forced
to stop serialising a novel which
suggests that Hindu women go to temples
not to pray but to seduce priests
40
STATES
DEFENCE
The Poison
Runs Deep
A study has found that toxic waste buried
near the Union Carbide factory in Bhopal
has seeped into the ground and affected
the water supply of 42 nearby colonies,
endangering residents
37Red Flag for the Greens
The National Green Tribunal opens a 15-day window for authorities to
respond to petitioners before they move it, but is silent on its risks
21
46A New Innings
As Pakistan’s new leader, Imran
Khan's remarks on Indo-Pakistan rela-
tions seem reassuring. But will the
army allow him the liberty of taking his
own decisions?
COURTS
No Special Status Here
The Delhi High Court has said all vehicles, even VVIP ones, should be
registered and have number plates, thereby making all citizens equal
22
Punjab and Haryana are on the warpath with Capt Amarinder Singh writing to the home
minister, seeking the perfectly-run Union Territory, Chandigarh, be restored to his state
44
GLOBALTRENDS

8 August 6, 2018
“
RINGSIDE
“It has been almost
15 years as CM for
Nitish Kumar. He
should now quit
as the CM and do
bigger level politics.
He should make
way for others
(in Bihar).”
—Rashtriya Lok
Samata Party
(RLSP) chief and
Union Minister
Upendra Kushwaha
“If they are serious
about fighting
corruption, the
ruling party must
speak from the
heart and say how
they are fighting
elections...when
the PM goes for
an election rally,
who pays for it?”
—Shiv Sena MP
Arvind Sawant in
Parliament
“There will be differ-
ences among judges.
There have been in
the past also. But let
us trust the foresight
and statesmanship
of the judiciary itself
to set those differences
aside and resolve
them. Political
process should never
intervene....”
—Union Law Minister
Ravi Shankar Prasad
at the inauguration of
the Delhi High Court’s
new building
“To Iranian President Rouhani:
NEVER, EVER THREATEN THE UNITED STATES
AGAIN OR YOU WILL SUFFER CONSEQUENCES
THE LIKES OF WHICH FEW THROUGHOUT
HISTORY HAVE EVER SUFFERED BEFORE. WE
ARE NO LONGER A COUNTRY THAT WILL
STAND FOR YOUR DEMENTED WORDS OF
VIOLENCE & DEATH. BE CAUTIOUS!”
—US President Donald Trump’s tweet after Rouhani warned
that war with Iran would lead to the“mother of all wars”
“...they have been
opening up slowly. So
probably this is the
right time as it is the
150th year. Also our
vision has changed....”
—Rajendra Shinde, the
first non-Christian to
become principal
of St Xavier’s College
in Mumbai
“I am not too
keen. If I want to
I can become that
in a minute, but I
don’t like to be
tied up. My free-
dom of movement
will end.”
—Bollywood actor
and BJP MP Hema
Malini while talking
to mediapersons
in Banswara city
Rajasthan
“This is a pattern. It’s
not just about Alwar
or Jharkhand. If you
see the last two years,
these incidents seem
to be directly or indi-
rectly state-spon-
sored. There has been
no action in any of
these cases.”
—Social activist Swa-
mi Agnivesh on the
Pakur attack on him
and Alwar lynching
“Has the person (Ra-
hul) officially ann-
ounced that he is the
PM candidate?...
Mamata Banerjee,
Sharad Pawar,
Mayawati as well as
Rahul Gandhi, all
can become PM. I
don’t have reserva-
tions on any name.”
—RJD’s Tejashwi
Yadav on the many
PM options

10 August 6, 2018
An inside track of
happenings in Lutyens’ Delhi
Rahul Gandhi’s attacks on the Modi govern-
ment on the unchecked cases of lynching
seem to have had the desired effect. The gov-
ernment has moved in haste to show it is seri-
ous about tackling the issue. There are now two
separate committees looking at ways to handle
the crisis, one headed by the home secretary
and the other by a Group of Ministers (GoM)
led by Home Minister Rajnath Singh.
Home Secretary Rajiv Gauba (right) will be
assisted by his counterparts handling justice,
legal affairs, legislative and social justice and
empowerment, and recommend measures to
do with the nuts and bolts of appointed nodal
officers, and freeing bottlenecks. The GoM will
look at how to contain the political and diplo-
matic fallout, which is why External Affairs
Minister Sushma Swaraj is a key member, along
with Nitin Gadkari, Ravi Shankar Prasad and
Social Justice and Empowerment Minister
Thawar Chand Gehlot. They will report directly
to the prime minister.
THE NOOSE TIGHTENS
Something odd took place at the July
19 meeting of the Lokpal selection com-
mittee. The committee consists of the
prime minister, Chief Justice of India
Dipak Misra, Speaker of the Lok Sabha
Sumitra Mahajan, and jurist Mukul
Rohatgi. The only progress made in the
long-awaited appointment of a Lokpal
was the submission to the apex court
that a search was on for a search com-
mittee to shortlist suitable candidates.
Here’s where the tale gets a twist.
The Supreme Court bench, headed by
Justice Ranjan Gogoi, expressed dis-
appointment with the submission in the
form of an affidavit which merely
recorded that the leader of the
Congress had been invited but
declined and a search committee
would be formed.
The bigger twist is that a suggestion
was made by the prime minister during
the meeting that Misra himself take up
the vacancy when he retires on October
1, when, by convention, Gogoi will
become the CJI and hence part of the
selection committee.
There is, in fact, nothing that pre-
vents the proposed seven-member
search committee from recommending
Misra’s name. Sources say the CJI sug-
gested that there be a panel of names
but so far, he remains the frontrunner to
become the country’s first ombudsman.
ODDS ON OMBUDSMAN
For a party that
has some of the
country’s most
renowned law-
yers within its
ranks, the absence of any of these
legal eagles from the newly-constitut-
ed Congress Working Committee
(CWC) is hard to miss. With the
exception of P Chidambaram (who
has been retained as a permanent
invitee), all other senior advocates
associated with the party—Kapil
Sibal, Abhishek Manu Singhvi,
Salman Khurshid (left to right),
among others—failed to find inclu-
sion in the CWC.
This development comes at a
time when Sonia Gandhi and Rahul
Gandhi are facing a legal battle in the
National Herald case while their party
has been trying to score political
points over important issues that
have a direct link with judicial mat-
ters—the dilution of the SC/ST Act by
the Supreme Court, the Aadhaar and
Ram Janmabhoomi-Babri Masjid title
suit, and so on.
With the general election drawing
near, many of these legal battles will
have political ramifications. So why
then does Rahul not want legal lumi-
naries of the party to get seats in the
CWC?
The answer may lie in the fact that
nearly all senior advocates associat-
ed with the party are involved as
counsel in controversial cases in vari-
ous courts, including the Supreme
Court, and that they are not neces-
sarily advocating issues that the
party wants to be linked with. Sibal
had triggered unwanted opprobrium
with his arguments in the Ram Janm-
abhoomi and triple talaq cases last
year. Singhvi is advocating a continu-
ation of the ban on entry of women in
Kerala’s Sabarimala Ayyappa tem-
ple—a stand that goes against the
party’s strident advocacy for gender
equality. Rahul believes that profes-
sional commitments of these lawyers
could cost the party, politically.
CAGING
LEGAL
EAGLES

Delhi
Durbar
SAFFRON SETBACK
The bitter internal war between the two
top officers in the CBI, director Alok
Verma (right) and deputy Rakesh
Asthana, has crippled the agency at a
time when it is investigating major
cases like the PNB scam involving
Nirav Modi, the Vijay Mallya,
AgustaWestland and AirAsia cases and
allegations of corruption against former
Railways Minister Lalu Yadav and for-
mer Finance Minister P Chidambaram,
among others.
It is well-known that Asthana, who
had served under then chief minister
of Gujarat, Narendra Modi, was fast-
tracked into the CBI’s number two
post, not without controversy. It was
the first time that the appointment of a
serving top officer of India’s premier
police investigating agency was heard
by the Supreme Court because he was
himself being investigated in a corrup-
tion case by the very agency.
Asthana belongs to the Gujarat
cadre and was appointed special direc-
tor of the CBI via an order issued by
the Appointments Committee of the
Cabinet comprising Prime Minister
Modi and Union Home Minister Rajnath
Singh. Asthana, incidentally, had inves-
tigated the Godhra train burning and
other politically sensitive cases in
Gujarat and became close to Amit
Shah when he was serving in sensitive
postings in Gujarat.
Now, the government seems to
have backed Asthana in his battle
against Verma—recommendations
made by Verma for induction of some
officers into the CBI were not accepted
by the government.
Both officers have now written sepa-
rate letters to the PMO but it is obvious
who will emerge victorious in the end—
at huge cost to the agency and
its credibility.
NO CAGED PARROT
The biggest hurdle facing a united
opposition is the question of who will
be the prime ministerial candidate. The
Congress had started out with the
premise that it would be Rahul Gandhi
but now seems to have softened its
stand, realising that there would be
resistance to the proposal and it could
affect the chances of bringing down the
BJP and forging a truly united front.
The change in stance has come from
Sonia Gandhi who has
told partymen via Rahul
to indicate that the
party would not be
averse to projecting
Mayawati and even
Mamata Banerjee as
the opposition’s PM
candidate. Mamata has
been speaking to Sonia
quite frequently and the
message seems to
have got home that she is wary of sup-
porting Rahul’s projection. The
Congress’s willingness to back the two
M’s is due to the reality that the only
way to defeat the BJP lies in strategic
alliances. The Congress fought the
Bihar and Uttar Pradesh elections in
alliance with the Rashtriya Janata Dal
and Samajwadi Party, respectively, and
with Uttar Pradesh being key to 2019,
Mayawati cannot be ignored.
THE OPPOSITION DILEMMA
The chorus from NDA allies and a sec-
tion of BJP lawmakers seeking the
removal of Justice AK Goel from his
recent appointment as chairman of the
National Green Tribunal (NGT) is expect-
ed to get louder in the coming days.
Justice Goel, along with Justice UU
Lalit, had authored the Supreme Court
verdict that drastically watered down the
SC/ST (Prevention of Atrocities) Act ear-
lier this year.
Now, LJP chief Ram Vilas Paswan
and RPI (A) chief Ramdas Athawale—
both Union ministers with Dalit vote-
banks—and BJP MP Udit Raj, who had
earlier urged the Modi government to
challenge the dilution of the Act through
a review petition, have demanded that
the centre remove Justice Goel from his
new role.
Sources say that Paswan and
Athawale’s protest against Justice Goel
by raising the bogey of unrest among
Dalits is an excuse by the two political
weather vanes to quit the NDA before
the general election next year. Athawale,
it is learnt, has been in talks with a for-
mer Union minister from Maharashtra to
negotiate his party’s inclusion in the
coalition that the Congress is trying to
cobble together. Paswan, too, is eyeing
a return to the UPA.
Sources say the dilution of the Act is
likely to be cited by at least a dozen
Dalit MPs of the BJP, like Udit Raj, to
quit the party before the Lok Sabha
polls and join Mayawati’s BSP, the
Congress and Akhilesh
Yadav’s SP. A country-
wide protest against the
Act’s dilution is being
planned for August 9
and could give an
indication of how many
Dalit MPs will jump
the saffron
bandwagon.

While noting that environ-
ment concerns can’t be set
aside whatever the reasons, the
Delhi High Court extended its
order that had put a ban on the
felling of 16,500 trees for the
proposed redevelopment of the
seven housing projects in south
Delhi. However, it made some
relaxation in its earlier order,
allowing the cutting of trees
where it is absolutely essential— in
case of a dead tree or a tree which
posed a danger to life or property.
The National Building Construction
Corporation Limited—which is redevel-
oping the project along with Central
Public works Department—argued that
the centre had given the go-ahead for
the project after considering the Master
Plan. But the Court did not accept the
contention and said that the authorities
should instead come up with a green
master plan for Delhi.
The Court also insisted that the env-
ironment ministry must deliberate ext-
ensively on the project. This was after
the court was informed that the clear-
ance was granted only in one sitting.
Courts
12August 6, 2018
—Compiled by India Legal Team
SC seeks status report
on Kerala priests case
The four priests of the Malankara Ortho-
dox Syrian Church in Kerala who have
been accused of sexual abuse got relief as
they will not be arrested till August 6 when
the matter will again be taken up by the
apex court.
However, the Court asked the Kerala
Police to submit a status report on the
progress of the probe against them.
Earlier, the Kerala High Court had struck
down their plea for anticipatory bail and
later the Supreme Court had reserved its
order on the same.
The Kerala Police report says that there
was an offence and a crime should be reg-
istered, but the accused have said that there
was no rape.
Patidar Anamat Andolan Samiti (PAAS)
convener Hardik Patel and two others
were held guilty in a rioting case, dating
back to 2015, by a sessions court in
Gujarat. The Court sentenced them to two
years in jail for rioting, damaging property
and leading an unlawful assembly of protes-
tors. The Court also slapped a fine of
`50,000 on each. However, they were later
granted bail and asked to challenge the con-
viction and sentence in the Gujarat High
Court within a month.
The rioting took place when Gujarat was
hit by violent quota stir by the Patel commu-
nity in 2015. Hardik was a leader of a rally
that had gone on the rampage and had
attacked a BJP legislator. He was named as
a prime accused in the complaint lodged.
Hardik Patel sentenced
in rioting case
The Supreme Court pulled up the UP
government for submitting a draft
vision document of plans to protect and
conserve the Taj without taking the
Archaeological Survey of India (ASI) on
board. Questioning the intention of the
state government, the Court sought to
know if it was being asked to vet the
report. ASI is responsible for the overall
upkeep of the World Heritage monum-
ent. The draft document was prepared
by the School of Planning and Architec-
ture (SPA) for the state government.
The Court asked
the state government
to share the docu-
ment with INTACH,
ASI and Agha Khan
Trust and other con-
servation experts. It
took a serious note of
separate responses
filed by the environ-
ment ministry, ASI
and the UP govern-
ment in the Court on
the matter and want-
ed to know if anyone was willing to
take responsibility for protecting the Taj.
The Court also expressed concern over
polluting industries being allowed within
the Taj Trapezium Zone (TTZ) by flout-
ing its orders. It asked the centre and
the UP government to find out depart-
ments supposed to maintain the TTZ
and keep a tab on the developments in
the zone. It pointed out to the centre the
loss of face in case UNESCO took
away the World Heritage tag from Taj
due to poor conservation.
SC slams UP govt over Taj plans
Delhi needs green master plan: HC

Lead/ GST
T the 28th meeting of the
GST Council last week,
tax rates on 88 items
were cut. Rates on
ethanol were reduced
from 18 percent to five
percent in an apparent bid to help the
sugar industry; tax on lithium-ion bat-
teries was cut from 28 percent to 18 per-
cent to promote the electronic vehicle
industry; taxes on rakhis and marble
idols were cut to zero in anticipation of
the upcoming holiday season.
This follows a pattern of over 600
changes that have now been made to
rates, structure, frequency of filing, list of
exempt products, and so on, since the
Goods and Services Tax (GST) was im-
plemented in July 2017. It’s hard to ima-
gine how any tax policy can be useful with
these frequent and capricious changes.
Businesses want consistency, espe-
cially in government policy. Unpredicta-
bility adds to the risk and the cost of
doing business. The virtually daily
changes to GST have added uncertainty
and made it difficult for companies to
focus on investment and expansion. It is
14 August 6, 2018
A
AtthelaunchofGST,PrimeMinisterModistatedthatit
wouldbringeconomicunificationthrougheasierinterstate
movementofgoods,simpleradministrationandlowertax
rates.Ayearlater,itisthemostreviledtaxinthecountry
By Sanjiv Bhatia
A Good Idea
Gone Bad

voluted implementation of GST. Clearly,
a combination of ignorance, hubris and
politics was at play.
All taxes affect economic growth
because they distort the efficient allo-
cation of resources. The objective of a
good tax policy is to minimise these
distortions and maximise overall pro-
duction in the economy. The least effi-
cient form of taxation is one where the
government subjectively alters con-
sumer behaviour by favouring one sec-
tor or product over another through
differential taxation. That is precisely
what the government has done by
choosing multiple tax slabs in GST and
subjectively taxing products and servic-
es at different rates.
There are about 1,800 goods and
services (1,300 goods and 500 services)
under the ambit of GST. Each of these
products has been slotted into one of
five tax slabs—0%, 5%, 12%, 18% and
28%. The consequences of being taxed
at 18% versus 5% can be enormous for
the sale of a product. Entire industries
can potentially be ruined through
such capricious taxation. When frozen
fish is exempt from taxation and
frozen chicken gets taxed at 5%, it is
clear that political discretion, and not
no wonder that GST, which was intend-
ed to simplify indirect taxation and
make it easier to do business, is so
loathed by the very people it was
designed to help.
GST, if implemented prudently, is a
useful tax instrument. More than 160
countries use it, or its variant, the Value
Added Tax (VAT), and so the principles
that make it effective have already been
laid out. There is a well-established
body of evidence on how best to imple-
ment it, yet the Indian government
decided to ignore that in favour of con-
GST: CURIOUSER AND CURIOUSER
Union Minister for Railways, Coal, Finance and
Corporate Affairs Piyush Goyal chairs the 28th
GST Council meet in New Delhi; (below) over
600 changes have now been made to tax
rates of 1,300 goods and 500 services
PIB

plicated system. Multiple tax rates
guarantee poor administration.
Ghana introduced GST in 1995 with
three different rates but soon aban-
doned it since it became too complicat-
ed to implement. China had a similar
experience, and it also eventually
rejected multiple rates in favour of a
simple policy with one single rate
across all industries.
S
tudies conducted by the Inter-
national Monetary Fund (IMF)
and the World Bank found that
the most effective way to structure a
GST/VAT tax is to have a single rate
across all products with zero rate
(exemption) granted only to exports.
This ensures simplicity and prevents
one group from having an unfair advan-
tage over another.
In fact, on June 30, 2017, Prime
Minister Narendra Modi had himself
said during the launch of GST in
Parliament: “Just as Sardar Vallabhbhai
Patel unified India by helping several
princely states subsume into a common
entity, the GST will bring economic
unification. If we take into considera-
tion the 29 states, the seven Union
Territories, the seven taxes of the
Centre and the eight taxes of the states,
and several different taxes for different
commodities, the number of taxes sum
up to a figure of 500! Today all those
taxes will be shred off to have ONE
NATION, ONE TAX right from
Ganganagar to Itanagar and from Leh
to Lakshadweep.” However, these
promises seem to be water down the
drain now.
The majority of countries (82 per-
cent) who have introduced the GST/-
VAT-type tax apply a single rate struc-
ture, mainly because it is fair and easy to
administer. The GST in New Zealand,
widely regarded as the most efficient in
the world, has a single standard rate of
12.5 percent across all industry groups.
None of the 160 or so countries that use
a GST-type tax has five different rate
structures: India is the first.
Under the current GST, almost half
the base is exempt from taxes. What
was originally intended only for
absolute necessities like food grains
now includes an eclectic group like
handicrafts, cotton for a Gandhi topi
(but not all cotton), spacecraft, hearing
16 August 6, 2018
economic logic, was used to rate these
1,800 items.
After a year, and 28 meetings of the
GST Council, it appears that the imple-
mentation of GST is being driven pri-
marily by political considerations and
not tax efficiency or revenue maximisa-
tion. As an example, the original list of
226 items in the 28% tax slab has, over
time, been whittled down to 35, prima-
rily as a result of political interference
and lobbying by special interest groups.
The present GST structure, with dif-
ferential taxation, allows the govern-
ment to control the final price of all
goods and services in India. The con-
sumption of products and the alloca-
tion of economic resources will
inevitably shift towards industries with
lower GST rates. Instead of the free
market determining consumption and
production decisions, the government
and its bureaucracy now control the
allocation of resources. This is a fright-
ening thought.
Differential tax slabs enhance the
government’s ability to choose which
industries to favour through lower rates.
Politics and vote-bank considerations
determine which products get reduced
GST rates. Instead of making progress
towards less government, economic
freedom and free-market policies, the
country took a huge step back to the
days of the Licence Raj when the gov-
ernment picked winners and losers.
Additionally, differential tax rates
across products give extraordinary arbi-
tration powers to the government’s
Revenue Service. The same tax officials
who have for years terrorised businesses
with arbitrary tax demands are now in
charge of deciding whether a rubber ball
is a rubber product taxed at 5% or a
sporting good taxed at 18%.
If all products and services were
taxed at the same rate, there would be
no room for ambiguity and political
meddling. We know from the experi-
ence of other countries that the single
biggest reason for a GST tax structure
to fail is poor administration which
invariably results from an overly com-
OnJune30,2017,PrimeMinisterModi
saidduringthelaunchofGST:“Todayall
thosetaxeswillbeshredofftohaveone
nation,onetaxrightfromGanganagarto
ItanagarandfromLehtoLakshadweep.”
Lead/ GST
UNI

plicated to the point that its adminis-
tration and compliance have created
chaos and resentment. When the costs
to administer and comply far exceed the
benefits from GST, it will create doubts
regarding its value.
I
n the World Bank ranking on ease-
of-paying taxes, India ranks near
the bottom—172 among 190 coun-
tries. India also ranks at the very bot-
tom in the percentage of voters who pay
taxes—less than 7%—lowest among
major economies. This suggests a direct
correlation between simplicity and tax
compliance that our policymakers are
missing. The simpler the tax policy, the
higher the compliance. When people
find it easier to follow tax regulations,
they are more likely to comply with
them. Instead of cockamamie schemes
like demonetisation, the government
should consider tax simplification to
reduce tax evasion and black money.
Famous painter Hans Hofmann once
said: “The ability to simplify means to
eliminate the unnecessary so that the
necessary may speak.” This applies
equally to effective tax policy as to good
art. Good tax policy has the following
ingredients: it is (a) broad-based (b)
proportional (c) simple and predictable
(d) easy to monitor to minimise cheat-
ing (e) neutral in that it does not unfair-
ly advantage one sector or group over
another and (f) easy to implement.
A single rate across all industries,
with no exemptions, and a single source
for administration, collection and
refunds will go a long way in making
the GST the “game-changer” it was
intended to be. Otherwise, it could well
turn out to be another tax boondoggle
that increases tax terrorism, hikes
administration and compliance costs,
and hampers investment and growth.
—The writer is a financial economist
and founder of contractwithindia.com
aids, silkworms, and so on. While GST
exemption may appear to be a well-
intentioned attempt to provide tax relief
to the poor, it needlessly complicates the
administration of GST and adds materi-
ally to its costs. Over time, politics and
lobbying by special interest groups will
move more goods and services into the
exempt category, resulting in lower rev-
enues and further distortions in rates
across industries.
Exemptions violate the very intent of
an indirect tax like GST which is
designed to broaden the tax base and get
into the tax net people who work in
India’s informal sector where direct taxa-
tion is difficult. Instead of exemptions,
the government should provide a direct
payment to each low-income family as
relief from the GST tax. So, for example,
if the uniform GST rate on all products
and services is 10%, then each family
making below a threshold amount of
`10,000 per month would get a direct
payment of Rs 1,000 to compensate for
their tax expenditure. This would be a
more neutral and less distortive way of
providing tax relief to the poor than arbi-
trarily exempting entire categories from
tax. GST can be made significantly sim-
pler by applying it equally to all goods
and services, without any exemptions.
It is perplexing why the Indian gov-
ernment chose to start with such a com-
plex GST structure. It would have made
more sense to start simple, and then add
bells and whistles once the policy and
technology bugs got ironed out. But
GST, in its current form, has been com-
StudiesconductedbytheIMFandWorld
Bankfoundthatthemosteffectiveway
tostructureaGST/VATtaxistohavea
singlerateacrossallproductswithzero
rate(exemption)grantedonlytoexports.
28% to 18%
Paint/varnish, refrigerator, washing
machine, lithium-ion battery, vacuum
cleaner, food grinder-mixer, water
heater, hair dryer, TV up to 68 cm,
perfume, cosmetics, toiletries, shaver
28% to 12%
Fuel cell vehicle (compensation cess to
be removed too)
18% to 12%
Handbag/pouch/purse, wooden paint-
ing/photo frame, zip and slide fastener,
footwear costing up to `1,000
18% to 5%
Ethanol
12% to 5%
Handloom dari, knitted topi up to
`1,000, handmade carpet
Cut to zero
Sanitary napkin, sal leaf, phooljhadu,
rakhi, marble idols
The lowdown on the changes
brought in at the last GST Council
meeting held on July 21
Reduced:Taxrateson88items
Anthony Lawrence

Supreme Court/ Jantar Mantar Protests
18 August 6, 2018
HE Mazdoor Kisan Shakti
Sangathan (MKSS) is a
grassroots, unregistered peo-
ple’s organisation formed in
1990 with its headquarters
in Dev- dungri, Rajasthan. It
was a crucial part of the movement that
led to the passage of the Right to
Information Act in 2005.
P Ayyakannu, a resident of Tiruchi-
rappalli, Tamil Nadu, led a month-long
protest in Delhi by Tamil Nadu farmers,
demanding better living conditions in
drought-prone areas.
Savita (name changed), who claims
she is a human rights activist from Lu-
dhiana, had been sitting at Jantar Man-
tar since January 2013, demanding
action against a police officer who alle-
gedly raped her in 2010.
The Indian Ex-Servicemen Move-
ment (IESM), Gurugram, established in
August 2008, has been agitating over
issues affecting the implementation of
One Rank One Pension for the armed
forces, and for other issues relating to
the honour of defence personnel.
The MKSS, Ayyakannu, Savita
and IESM have nothing in common,
except that they are joint petitioners in
the Supreme Court demanding safe-
guarding of their right to protest
peacefully in the Capital at a place
which is likely to grab the attention of
those holding power and influence.
A Supreme Court bench of Justices
AK Sikri and Ashok Bhushan on July 23
decided the petitions in their favour by
directing the commissioner of police,
Delhi, to formulate proper and
requisite guidelines within two months
to effectively regulate protests and
demonstrations instead of banning
them altogether.
The proposed guidelines, the bench
suggested, may include provisions for
regulating the number of persons inten-
ding to participate in such demonstra-
tions and specifying the distance from
A Fine Balance
Theapexcourthastakenthemiddlepathinallowingtherighttoprotestpeacefullyalongwith
therighttolivewithoutnoisepollution
By Venkatasubramanian
DISCERNING VERDICT: A Supreme Court
bench of Justices AK Sikri (top) and Ashok
Bhushan insisted on guidelines to regulate
protests instead of banning them altogether
T

Parliament House, North and South
Blocks, Supreme Court, residences of
dignitaries, and so on, within which no
such demonstrations would be allowed.
The guidelines may also involve restric-
tions on certain routes through which
normally the prime minister, central
ministers, judges and the like pass; not
permitting any demonstrations when
foreign dignitaries are visiting a particu-
lar place or passing through a particular
route; not allowing firearms, lathis,
spears, swords, and so on to be carried
by demonstrators; not allowing them to
bring animals or pitch tents or stay
overnight; prescribing time limits for
such demonstrations; and placing
restrictions on such demonstrations, et
al, during peak traffic hours.
Article 19(1)(b) guarantees to all citi-
zens the right to assemble peaceably and
without arms. However, the apex court
noted that the ground reality is entirely
different in the capital. Orders passed
under Section 144, CrPC, do not appear
to incorporate any illegality as they pro-
hibit public meetings, assembly of five
or more persons, processions, demon-
strations, dharnas, and so on. “without
written permission”. Further, such or-
ders are passed on the basis of intelli-
gence reports which indicate that “unre-
stricted holding of public meetings”, etc.,
in the area is likely to cause obstruction
to traffic, danger to human safety and
disturbance of public tranquility.
An order passed under Section 144
remains valid for 60 days, which is the
limit prescribed in that provision.
However, just before the expiry of one
order, another identical order is passed.
Such repeated orders, in continuum,
have created a situation of perpetuity.
The Delhi Police and the centre argued
before the Court that as there is no
change in the situation, which remains
the same insofar as sensitivity of the
area and specific/peculiar conditions
prevailing, such orders in repetitive
form are necessitated.
The bench held: “Even if we accept
this position and proceed on that basis,
this would only mean continuous regu-
lation of the proposed public meetings,
processions, demonstrations, etc. by not
allowing the same in ‘unrestricted’ man-
ner. However, in reality, no such activi-
ties are allowed at all and, therefore, the
situation which is created amounts to
‘banning’ these public meetings, demon-
strations, dharnas, etc. altogether rather
than ‘regulating’ the same.”
T
he MKSS wanted the Boat Club
area in New Delhi to be available
for demonstrations. The centre
argued that mere apprehension of
breach of peace was sufficient to prohib-
it any demonstration or dharna. Section
144 permitted anticipatory action and,
thus, even on anticipation that a partic-
ular demonstration may lead to breach
of peace, was sufficient to invoke the
provision, and prohibitory orders could
be passed, the centre submitted. Likely
obstruction to traffic, danger to human
safety and disturbance of public tran-
quility were cited as reasons.
The bench agreed with the respon-
dents that the Supreme Court has not
adopted “clear and present danger test”
as applied by US courts, and instead it is
the “apprehension of breach of peace
test” which is to be used in order to
RIGHT TO PROTEST: (Left) Police using
water cannon to disperse a crowd at Jantar
Mantar; (below left) loudspeakers being used
by ex-servicemen demanding OROP
UNI
UNI

Supreme Court/ Jantar Mantar Protests
20 August 6, 2018
decide whether a particular demonstra-
tion or dharna is to be allowed or not.
The bench clarified that a provision can
be made for taking prior permission from
the police commissioner (or his designat-
ed authority) for holding a demonstration
by a particular group. And while examin-
ing such proposals, the parameters can
be laid down which shall be looked into
in order to decide whether the permis-
sion is to be granted or not.
The National Green Tribunal (NGT)
had held on October 5, 2017 that loud
demonstrations were increasing by the
day in the Jantar Mantar area and were
causing hearing problems, blood pres-
sure, hypertension and other serious
diseases relating to the heart. The envi-
ronmental conditions at Jantar Mantar
Road in relation to noise pollution,
cleanliness, management of waste and
public health had grossly deteriorated.
The NGT, therefore, found merit in
the original application filed by the resi-
dents of the Jantar Mantar area and
directed authorities not to permit
demonstrations there. It had directed
authorities to make available the Ramlila
Maidan in the capital as an alternative to
Jantar Mantar for the purpose of holding
protests and demonstrations.
The petitioners stressed before the
Supreme Court that the purpose of
holding such demonstrations and rais-
ing slogans is that they reach the con-
cerned persons for whom they are
meant. The bench answered their con-
cern by saying that technology would
help them, especially electronic and
print media, including social media
applications such as WhatsApp, Twitter,
Instagram, and so on.
I
t added that nobody can claim that
he or she has a right to hold a
demonstration in one particular area
only. “While regulating such demonstra-
tions in public interest, particular areas
can be earmarked. On the other hand,
it is also to be acknowledged that
Ramlila Maidan may not be sufficient to
cater to this requirement. Again, this
place in old Delhi is a part of a very con-
gested area and it has its own limitations
when it comes to using this area for
such purposes.
“Therefore, some other area is req-
uired. Since, Jantar Mantar was the area
chosen by authorities and has been in
use for quite some time, balancing can
be done by permitting a limited part of
this area for holding peaceful public
meetings, processions etc. at least to
small groups, and in such a manner, that
there is no disturbance or inconvenience
of any nature whatsoever, insofar as resi-
dents are concerned,” the bench held.
On Jantar Mantar as the site of
protests for many decades, the bench
observed: “The dharnas and protests
were allowed to be stretched almost on
the entire Jantar Mantar road, on both
sides, and even across the width of the
road. Instead, a particular area could
have been earmarked for this purpose,
sufficiently away from the houses etc. so
that there is no unnecessary blockage of
roads and pathways. Likewise, the
demonstrators were allowed to go on
with non-stop slogans, even at odd
hours, at night, and that too with the
use of loudspeakers, etc. the authorities
could have ensured that such slogans
are within the parameters of noise pol-
lution norms and there are no shoutings
or slogans at night hours or early morn-
ing hours.”
The bench indicated that dharnas,
agitations and processions could be pro-
hibited on certain occasions, whenever
some foreign dignitaries visit and pass
through the area or at other sensitive
times. The authorities could also ensure
that the protesters do not bring their
trucks/buses and park those vehicles in
and around the residential buildings;
the protesters are not allowed to pitch
their tents and stay for days together;
they are not allowed to bathe or wash
their clothes using Delhi Jal Board
tankers or defecate in the open, and
create any unhygienic situations.
The authorities, the bench said,
could refuse permission for any such
demonstration when the number of pro-
testers who are likely to participate is
going to be abnormally large, which, if
allowed, would per se create hardships
for the residents.
The Supreme Court’s balancing of
the two fundamental rights through
reasonable restrictions on the right to
assemble peaceably will hopefully make
available public spaces for legitimate
purposes, including the exercise of
citizens’ right to mobilise opinion on
issues of concern.
A PROBLEM OF SPACE:
Women on dharna at Jantar Mantar use the
place to wash and dry their clothes
UNI

Courts/ Environment
HE National Green
Tribunal has passed an
order that has the poten-
tial to put complainants at
risk and even at the mercy
of authorities who have
the muscle to pressure them. It has
observed that before approaching the
Tribunal for any kind of relief against
government authorities the complainant
or aggrieved party must first put up
their case before the concerned authori-
ties who should be given at least 15 days
to explain their stand. Only if this peri-
od lapses without any response from the
authority can the aggrieved party appr-
oach the Tribunal. The said response or
lack of it need to be annexed with the
application filed before the Tribunal.
The green court was hearing a mat-
ter related to major water and soil pollu-
tion in Raigarh district of Chhattisgarh
caused by emissions from power plants
and industries. The Tribunal directed
that the response of the government
authorities can be directly given to the
individual or can be uploaded on the
official website.
The objective of the new order, the
Tribunal said, was to “provide quicker
remedy to the individuals and also
enable the Authorities to indicate their
stand”. The bench headed by chairper-
son Justice Adarsh Kumar Goel, who
took charge on July 8, passed this order
and ruled that this procedure will be
followed in all cases filed from August 1,
2018 unless an exception is made.
The bench also directed: “A copy of
this order may be sent to Ministry of
Environment, Forest and Climate
Change for being conveyed to all the
statutory Authorities in the country by
e-mail. The registry of the Tribunal may
send, as far as possible, all communica-
tions by SMS/E-mail and for this pur-
pose require furnishing of these particu-
lars by all concerned.”
The NGT’s move will surely reduce
its workload but the major issue arising
out of it is the consequence of the 15-day
notice. At present, if there is any viola-
tion, a person can approach the Tribunal
directly and can easily get a stay on the
violation, but if the said 15-day notice is
given, there might be chances that the
authority can keep on violating laws for
the next 15 days. For example, thou-
sands of trees could be cut without
obtaining any clearances to make way
for a new highway within those 15 days
before a formal order came from the
panel to halt the construction.
Further, the National Green Tribunal
Act, 2010 nowhere talks about the said
15-day representation to the authorities.
A person can challenge the grant of
environmental clearances without giving
any representation. Section 14 of the Act
states that the aggrieved can approach
the Tribunal within six months of the
cause of action, but there is no mention
of any representation.
While the Tribunal has no doubt
passed the order keeping some wider
perspective in mind, it is completely
silent on a scenario where the compla-
int is against a private party. The order
puts the complainant at higher risk. He
might be pressured by the authority not
to file the case and it is unclear where he
can go to, to get succour. Besides, there
are cases when RTI activists and com-
plainants have been attacked by viola-
tors. With the order now becoming
binding, it won’t be a long wait before
the repercussions begin.
—The writer is an advocate
Green Panel Shows Red Flag
T
TheNationalGreenTribunalsetsa15-daywindowforgovernmentauthoritiestorespond
topetitionersbeforetheyapproachthecourt,butissilentonthepotentialrisksinvolved
By Vinay Vats
MISCALCULATED MOVE: The new NGT
order is likely to put the complainant at risk
Anil Shakya

22 August 6, 2018
Courts/ VVIPs
HE Delhi High Court said
in a recent judgment that
every vehicle in the coun-
try, including those of top
dignitaries like the presi-
dent, vice-president, gov-
ernors and lieutenant-governors, should
be registered and have a number plate.
A bench of Acting Chief Justice Gita
Mittal and Justice C Hari Shankar said
that everyone has to comply with the
Motor Vehicles Act, 1988, while dispos-
ing of a petition which had sought the
seizure of cars used by Rashtrapati
Bhavan, the vice-president, Raj Niwas
and the protocol division of the ministry
of external affairs (MEA) on the
grounds that they were not registered.
The Court said: “There can be no
manner of doubt that every vehicle has
to comport to the Motor Vehicles Act
and has to be registered with a register-
ing authority and must display the regis-
tration number.” It also directed the cen-
tre and the Delhi government to ensure
that all vehicles should be registered
under the Motor Vehicles Act and clear-
ly display the number plate.
In the public interest litigation filed
by Nyayabhoomi, a non-governmental
organisation, it was contended that dis-
playing the national emblem on cars
instead of number plates makes them
conspicuous, rendering dignitaries easy
targets for terrorists and anyone with
malicious intention.
The central government’s standing
counsel, Rajesh Gogna, submitted a sta-
tus report in the Court on behalf of the
ministry of road transport and highways
stating that the offices of the top digni-
taries had been told to register their
cars. The report said: “That the offices
of President of India, Vice President,
Governors and Lt Governors in the
country and Secretary (Ministry of
External Affairs) have been asked vide
letter dated January 2 to ensure that all
the vehicles used by the (a) President/
President’s Secretariat, Vice
President/Vice President’s Secretariat,
(c) Governor/ Lt. Governors/ or their
Officers/Secretariat, (d) Ministry of
External Affairs be registered, if not
done, and that they display registration
mark as per the rules.”
Following this, replies were received
from the vice-president’s secretariat
stating that all its vehicles displayed reg-
istration numbers, including those being
used by the vice-president and his
spouse. The report added that the vehi-
cle of the governor of Kerala and those
being used by officers and the governor’s
secretariat were registered with the
Regional Transport Office and displayed
the registration mark as per rules of the
MV Act. With respect to 14 vehicles of
the MEA, it stated that the process for
registration had been initiated and
would be complete soon.
The Court directed that an action
taken report (ATR) be given to the peti-
tioner and if he found that the vehicles
were still not registered, then he could
approach the court.
The NGO said that several letters
were written to the commissioner, trans-
port, the traffic police and the president
of India, but no response was received.
Information was also sought under the
Right to Information Act, but still no
action was taken.
The petition claimed that non-regis-
tration of a car meant that it was not
insured and hence, in case of an acci-
dent, no claim could be brought against
it as its ownership would be unknown.
It added that citizens would get a mes-
sage that if a dignitary could get away
with disobeying the law, so could they.
This decision of the High Court has,
to some extent, brought an end to VVIP
culture in the country.
No
Special
Status
Here!
T
TheDelhiHighCourthassaidthatallvehicles,evenVVIP
ones,shouldberegisteredandhaveanumberplate,
therebymakingallcitizensequal
By Kunal Rao
SOME CARS MORE EQUAL THAN OTHERS
Vehicles of most VVIPS do not bear number plates
rajbhavan.gujarat.gov.in

24 August 6, 2018
HE recent decisions of the
Collegium (July 6, 2018)
reiterating the elevation to
the Supreme Court of
Chief Justice KM Joseph
(of the Uttarakhand High
Court) and further recommendations
regarding other justices has all over
again revived, at least in the media and
the constitutional elites, the debate on
appointment and transfer of justices.
The reiteration decision seems judicious-
ly enunciated because it says that the
Collegium has carefully considered two
letters of the law minister (dated April
26 and April 30, 2018) and “resolves to
reiterate the recommendation since
nothing adverse has been said regarding
the suitability of KM Joseph…”.
To be sure, these letters raised issues
of general consideration about seniority-
cum-merit, over-representation of jus-
tices from a few High Courts, and a pol-
icy of elevation which was more sensi-
tive to the problems of marginalised sec-
tions of Indian society. These issues
were probably extensively considered by
their lordships. But the decision may be
read as raising the sceptre of the condi-
tional reiteration: is there an invitation
to the law minister now to say some-
thing adverse against the reiterated
Justice? Personally, I do not think so,
ItistheconstitutionalobligationoftheExecutivetotakeimmediateactiononareiterated
recommendationoftheCollegium.Tonotdosoistodisrespecttheaugustofficeofthechief
justiceandleadstodistrust
My Space/ Judges and Political Office Upendra Baxi
T
Delayed Decision
Disrespectful
RE-ENDORSED
The Collegium returned the name of Chief
Justice KM Joseph to the Centre on July 6
rediff.com

but I wish that the collegium had more
conclusively stated its reiteration, plac-
ing it beyond all further interpretation.
Any suspicion of prolonged rift
between the apex court and the ruling
executive detracts from good constitu-
tional governance, very recently pro-
nounced in the elaboration of the new
notion of “constitutional renaissance” in
the lt-governor-Delhi government case.
Such a distrust stands further aggravated
when the Union takes its own time in
actualising the elevation; a warrant of
appointment must follow expeditiously
and the seniority of the reiterated Justice
be determined from the date of original
nomination and not from the date of
joining. This inescapably follows from
the logic of reiteration.
All citizens have a stake, or interest,
in all this because their basic rights to
be and to remain human depend on the
Judiciary, which usually protects and
promotes all human rights in distress.
In fact, the Supreme Court and the High
Courts have increasingly justified judi-
cial review powers by an appeal to the
people’s trust and confidence in an inde-
pendent Judiciary. Indeed, the four
seniormost justices (on January 12,
2018) addressed a press conference
when they asked the “nation” to ponder
how benches in the Supreme Court may
be constituted and how the Memo-
randum of Procedue (MoP) should now
be finalised by the apex court given the
inexplicable and unjustified delay in the
Executive response to this task. It,
therefore, sounds strange to hear that
“ordinary” citizens should have no con-
cern at all on how our Justices are ele-
vated and that they must always trust
the rule by the experts.
T
he people in whose name all
power is legitimated may not have
the expert knowledge; the infor-
mational flow among the citizens who
rule is massive and very few ruled citi-
zens can make an informed choice about
who should be their Justices. But they
have qualities that the elites do not nec-
essarily have, and that makes all the dif-
ference. I still recall how scandalous I
sounded to some finest ultra-activist jus-
tices (O Chinnappa Reddy, DA Desai,
and Krishna Iyer) when during a discus-
sion on an alternate system of appoint-
ing justices, I suggested a committee
which would include persons like Baba
Amte and Mother Teresa! They were
astonished and asked me: “Baxi, do they
know anything about law?” and I said
next to nothing, but added that they
knew a lot about justice, sacrifice, dedi-
cation and integrity. Surely, for appoint-
ment to all constitutional offices, domain
knowledge is necessary, but so are other
constitutional and social virtues.
As now happens, the Collegium has
developed a rule and a convention that
its recommendations, when reiterated,
are binding on the supreme Executive.
Immediate action on reiterated recom-
mendation is a constitutional obligation.
We must presume that the Collegium
applies its full mind to the objections
and difficulties voiced by the Union law
minister on behalf of the Government of
India (it has quite often refused to reiter-
ate and proposes new names), but to dis-
regard a reiterated name is to disrespect
the august office of the chief justice of
India and the Collegium and strikes at
the very roots of judicial review powers.
The Collegium, however, has also
recognised that the Executive may con-
vey its reservations on names proposed,
and may present other principled diffi-
culties with its proposals. In rare situa-
TheCollegiumhasdevelopedaruleanda
conventionthatitsrecommendations,whenreiterated,
arebindingonthesupremeExecutive.Immediate
actiononreiteratedrecommendationisaconstitutional
obligation.WemustpresumethattheCollegium
appliesitsfullmindtotheobjectionsanddifficulties
voicedbytheUnionlawminister(left),butto
disregardareiteratednameistodisrespectthe
augustofficeofthechiefjusticeofIndia(right)
andtheCollegium.

26 August 6, 2018
tions of national security, it may even
renegotiate the proposal. What have been
called Judges IV decisions (I remain
grateful to Additional Solicitor General
Pinky Anand for drawing attention to
this naming) stipulate two things: one, a
new MoP shall be presented by the
Union Executive and two, the Collegium
shall, as far as possible, function in a
transparent manner and post its deci-
sions on the Supreme Court website.
The Court has performed its part of
the bargain, though the website does not
provide full reasons for decisions except
to say that the proposed name is the
“best” or most “appropriate”. Of course,
full transparency and eradication of dis-
cretion in appointments is impossible
because all aspirants are equally eligible.
But still some more light must be shed
to illuminate the norms for constitution-
al conventions already followed or in the
process of development (such as region-
al representation, participation in the
apex court by the excluded and discrimi-
nated sections of society and seniority-
cum-merit principle).
The supreme Executive has yet to
play its own part and submit a final
MoP; it has so far not shown any
urgency in doing so despite the press
conference (on January 12, 2018) by
four seniormost justices, who had earlier
written a letter to the CJI suggesting the
urgency of finalisation of the MoP and
the imperative of judicial finalisation of
the matter, if need be. No reasons for
the lack of MoP is forthcoming, and the
de facto diarchy in judicial elevations
and transfers remains constitutionally
deeply suspect, given the NJAC and ear-
lier decisions concerning the elevation
and transfer of justices.
T
he view that judicial elevation and
transfers are best left to the
Collegium and the Union of India,
and that ordinary citizens should not take
any interest in it is based on several
implicit, and allied, foundational premis-
es. First is the “democratic” argument
that governors should take decisions for
which power has been entrusted to them
by the governed at the hustings. Second
is the epistemic argument which says, in
effect, that ordinary people do not have
the deep knowledge of law (the legal and
adjudicative professions) requisite for
choices of judicial elevations and trans-
fers. The third refers to inherent tension
between governance and participation: in
a complex society, surely, it is argued that
governance will become impossible if all
the major decisions had to be directly
based on citizen’s consent or legitimation.
constitutional elites, rather than laity,
should, therefore, decide.
The privilege to take necessary deci-
sions lies with the Collegium and ulti-
mately, the president of India, but the
above arguments (frequently made) are
not convincing. Most worrisome is the
distinction between “ordinary” people
and “experts/rulers”. In a constitutional
democracy, which is also a republic,
there are no ordinary citizens different
from governors; surely, the very mean-
ing of a republic is that everyone has
equal dignity and rights as co-citizens.
Besides, in democratic constitutional
governance, the State (courts have held)
is a legal sovereign, but power comes
from the consent of the governed. Power
is a form of public trust. If there are any
ordinary citizens, all are so in a demo-
cratic republic. Some govern and most
are governed, but a citizen is a being (as
Aristotle reminded us a very long time
ago) who knows the art of ruling as well
as the art of being ruled.
The mandate to rule co-citizens is not
a permanent mandate in a system that
ordains the circulation of competing
elites. Upon retirement from political or
bureaucratic vocation, the previous
incumbent citizens enjoy all the rights of
co-citizens. Neither the Constitution nor
courts recognize any “super-citizen”.
The judicial doctrine that all power is
held in public trust makes the most
complete sense when all citizens are
regarded as equal. It then surely follows
that citizens have a stake in whom,
when and why some types of citizens
become anointed as Justices to the
exclusion of others. Political and adjudi-
catory powers owe a human rights duty
to justify particular appointments or
transfer. The right to justification for
any exercise of public power to decide
(which is still poorly called “accountabil-
ity”) is a core human right attached to
all forms of governance
.
—The author is an international law
scholar, an acclaimed teacher and a
well-known writer
My Space/ Judges and Political Office/ Upendra Baxi
AnysuspicionofprolongedriftbetweentheapexcourtandtherulingExecutivedetracts
fromgoodconstitutionalgovernance,veryrecentlypronouncedintheelaborationofthe
newnotionof“constitutionalrenaissance”inthelt-governor-Delhigovernmentcase.

Column/ Trafficking of Persons Bill, 2018 Amod Kanth
28 August 6, 2018
AVING been deeply in-
volved in the making of
the Trafficking of Persons
(Prevention, Protection
and Rehabilitation) Bill
for almost 20 years, I can
say that its introduction in Parliament
presents a historic opportunity to get rid
of this scourge that has put India on top
of the “modern slavery” list.
This Bill promises to make our con-
stitutional mandate, which had declared
all forms of human trafficking and beg-
gary (forced labour) crimes, a reality.
After 63 years of the Constitution, this
horrendous organised crime was de-
fined under the Criminal Law Amend-
ments Act.
Trafficking of persons is the third
largest crime after drugs and arms and
is worth $15 billion. It includes com-
mercial sex, child/forced labour, beg-
ging, child marriage, organ trade, admi-
nistering hormones to mature children
for sex, surrogacy rackets exploiting
women, etc.
It is no coincidence that spontaneous
signature campaigns have been laun-
ched by people to urge Parliament to get
this Bill passed in the monsoon session.
The campaign is visible, especially in
Delhi, Samastipur and Raxaul (particu-
larly notorious for trafficking).
The trigger for this movement was a
consultation at which prominent MPs of
the Lok Sabha—Geetha Kothapalli,
Manoj Tiwari and Shatrughan Sinha—
came face to face with 11 victims of vari-
ous types of trafficking from nine states.
Sinha, popular actor-cum-politician,
said: “The more I listen to these stories,
the more my determination to support
the Bill whenever it is introduced.”
Tiwari, MP from Delhi, admitted that
most MPs did not have sufficient knowl-
edge of the Bills that came before them.
“But this session has enriched my know-
ledge and I will see that it gets passed.”
The stories of survivors were heart-
wrenching, to say the least. There was
Ram Avtar (name changed), an agricul-
tural labourer, who said he had received
only `20,000 as compensation after
being released whereas as per law, he
was entitled to a minimum compensa-
tion of `2 lakh. “I was released from
bonded agricultural labour on October
14, 2014. We have been victims for gen-
erations. We had 10 katthas (one kattha
is 720 square feet) of land which is in
possession of human traffickers. I want
this land back and the house built on it
transferred to my name. There is no
employment under MGNREGA (Mahat-
ma Gandhi National Rural Employment
Guarantee Act, 2005), that guarantees
the right to work for at least 100 days,”
he said.
Uma Devi, a mother of six girls and
five boys and the pradhan of her village
in UP, still has horrific memories of the
bondage she endured until 2009 in the
mining belt of the area. She said: “Now I
run a grocery store in my village.
Eighty-seven of us were rescued from
bonded labour in 2009, out of whom 64
got a fixed compensation of `20,000
from the sub-divisional magistrate on
the orders of the ministry of labour.”
The case of Chaya, an aspiring girl
forced into the commercial sex trade at
Hope
for the
Hapless!
H
TheintroductionofthisBillin
Parliamentisexpectedtohelpin
prevention,andtherescueand
rehabilitationofthosetrafficked

12 years, is no different. “The law on
trafficking is not tough. Enforcers of
these crimes are allowed to escape and
continue to enjoy their lives. There is
always a delay in the delivery of justice.
Such activities only stop when there is a
police raid. But these take place infre-
quently. So there is no hope. I am now
living in a juvenile home, making jute-
based products. I am yet to receive com-
pensation,” she told the audience.
T
hen there is Devesh of Tamil
Nadu, now a second-year engi-
neering student. Shockingly, he
was trafficked to a textile mill owner in
Tirupur at 14 years. Haseena of North
24 Parganas, West Bengal, is among 70
of the 121 survivors of human trafficking
who have formed an anti-trafficking
body called Utthan.
She said: “A major problem is that
most of us are trafficked to other states
from our home state. In my case, I was
trafficked from Kolkata and sent to
Mumbai. After being rescued and
returning home, I experienced the hor-
ror of stigmatisation by neighbours.
The government should also have a
provision for video-conferencing of dep-
ositions between states so that victims
are not made to run from pillar to
post. Compensation should also be pro-
vided immediately.”
There are other cases such as Vinita’s
of Chhattisgarh. She was trafficked to a
brick kiln owner in Odisha’s Bhadrak
district and was eventually rescued by
Jan Jagriti, an NGO. Surya of Tamil
Nadu was trafficked for `5,000 at 14.
Kamya was trafficked for a paltry
`25,000 from Sajjapur in Madhya Pra-
desh to Pune. A power loom worker
from Tamil Nadu said he was deprived
of a kidney in Sri Lanka on the promise
of receiving `7.5 lakh. He said he rece-
ived only `2 lakh and claimed he was
threatened by the district collector of
Namakkal district for not withdrawing
his case.
Prior to Nirbhaya, the term “human
trafficking” was not even defined and
the existing law—the Immoral Traffic
(Prevention) Act,1986—had been limit-
ed to “prostitution”-related commercial
sex, wherein the majority of cases ended
up in re-victimising the women The
Supreme Court and civil society organi-
sations had been asking the ministry of
women and child development to pre-
pare comprehensive legislation on traf-
ficking. The ministry after consultations
with domain experts, civil society and
survivors started drafting the Bill. The
Bill was discussed in the Group of
Ministers before being approved by the
cabinet in February 2018.
As I was part of the consultation
process, I can say with authority that the
Bill incorporates prevention and rescue
and rehabilitation of those trafficked, be
it child labour, forced marriage, sexual
exploitation, organ trade, forced surro-
gacy, etc.
ThisBillpromisestomakeour
constitutionalmandate—declaring
humantraffickingandbeggaryas
crimes—areality.Thecrimewasdefined
undertheCriminalLawAmendmentsAct.
TRADING HUMAN LIVES Trafficking of persons is the third largest crime after drugs and arms
and includes commercial sex (facing page), child labour (left) and begging (above)
Anil Shakya

Some of the salient features of the
Bill introduced in Parliament are:
Timely Justice: The Bill provides a
90-day timeframe for completion of
investigation and strong mechanisms
for rehabilitation of victims.
Voluntary Rehabilitation and
Repatriation: The Bill has provisions
for constitution of a rehabilitation fund
which would be maintained and moni-
tored by a high-level National Anti-
Trafficking Relief and Rehabilitation
Committee. De-linking rehabilitation
from criminal proceedings, enabling
extension of rehabilitation services to
survivors whose criminal proceedings
fail through no fault of theirs or who
may not wish to participate in criminal
proceedings at all.
If the victim or any person rescued is
an adult and voluntarily makes an appli-
cation supported by an affidavit for
release to the magistrate within the local
limits of whose jurisdiction the victim or
such other person is trafficked or sus-
pected to be trafficked, the magistrate
may order the release.
Protection of Victims and Witness:
The Bill, in every procedure, maintains
the confidentiality of the victim. For
instance, it provides that the designated
court may record the statement of any
victim through video-conferencing in
cases where she/he is unable to appear
before the court for reasons of safety or
confidentiality. This includes cases
where the victim has been repatriated to
any other state or country. Notwith-
standing anything in this Act, the in-
quiry into and trial of offences under
this Act may be conducted in camera if
an application is made in this regard by
the victim.
Focuses on trafficking for any pur-
pose: The Bill defines trafficking as per
Section 370 of the IPC and avoids the
Immoral Traffic Prevention Act’s merger
between trafficking and sex work. By
setting a higher bar for rescues and
clearly defining the term “victim”, it
wholly focuses on trafficking, thereby
reducing the potential of misuse against
sex workers.
• Sensitivity in search, rescue and
post-rescue activities: It mentions that
the Code of Criminal Procedure, 1973,
shall mutatis mutandis apply in relation
to a search and seizure in respect of an
offence under this Act. When a police
officer, anti-trafficking police officer or
anti-trafficking unit has reason to be-
lieve that it is necessary to rescue a per-
son without undue delay due to immi-
nent danger that may cause to his life
and person, he may remove such a per-
son from any place or premises and pro-
duce him before the magistrate or child
welfare committee.
• Provision for inter-state investiga-
tion: The provision for the National
Anti-Trafficking Bureau to take over
investigation of any offence under this
Act applies when two or more states
refer the case to it for investigation.
In such a case, the state government
shall not proceed with the investigation
of the offence and shall transmit the
relevant documents and records to
the Bureau.
• The advocates of legalising sex work
interpret sex work as “work” and its
criminalisation as an infringement of
rights. However, even the International
Labour Organisation’s definition of work
does not support prostitution as it caus-
es bodily harm and is usually undertak-
en only under financial or some other
form of distress.
—The writer is general
secretary, Prayas Juvenile Aid Centre
Society, and a member, NITI-CSO
Standing Committee, NITI Aayog
30 August 6, 2018
INITIATIVE TAKEN The draft of the Bill was
released by Union Minister Maneka Gandhi
(fourth from left) in 2016
“Thismonsoonsessionof
Parliamenthasenrichedmy
knowledgeandIwillseethat
theBillgetspassed.”
—ManojTiwari,LokSabhaMP,
whileadmittingthatmostMPs
lackknowledgeaboutBills
“ThemoreIlistentothesestories
abouttrafficking,themoremy
determinationtosupporttheBill
wheneveritisintroduced.”
—ShatrughanSinha,popularactorand
LokSabhaMP,whometvictimsof
traffickingfromninestates
Column/ Trafficking of Persons Bill, 2018/ Amod Kanth

Acts & Bills/ Amendments to Prevention of Corruption Act, 1988
HEN the Rajya
Sabha recently passed
the Bill to amend the
Prevention of
Corruption Act, 1988,
the NDA’s spokesper-
son triumphantly announced: “It is a
historic anti-corruption legislation to
check graft in the country.” Close on the
heels of demonetisation of large curren-
cy notes, the NDA considered this a
game-changer in its ostensible cam-
paign against corruption.
After the UPA government intro-
duced the Bill in 2013, two parliamen-
tary committees examined the Bill thor-
oughly, having the benefit of the Law
Commission’s considered advice. The Bill
in its present form will now go to the
Lok Sabha before it can become law.
Is This Hogwash?
W
Questionsarenowbeingraisedabouthowseriousthegovernmentactuallyisabouttackling
corruptionasithasnotaddressedelectoralgraftthatsetsthetoneofgovernanceinanycountry
By EAS Sarma
ANNA’S DREAM
Despite the India Against Corruption
movement at Delhi’s Ramlila Maidan
(above) in August 2011, the Lokpal and
Lokayuktas Act, 2013, was further diluted
in 2016 and a Lokpal is yet to be created
Anil Shakya

32 August 6, 2018
Acts & Bills/ Amendments to Prevention of Corruption Act, 1988
There are several positive features of
the Bill that need to be highlighted. In
the original Act, a bribe giver could be
prosecuted only as an abettor of the
offence. Present amendments treat the
“bribe giver” also as an offender. The Bill
also recognises public servants coercing
helpless persons into bribing. It provides
relief to the bribe givers in such cases.
The original Act treated even a non-
pecuniary benefit unduly acquired as
illegal gratification. The latest Bill clari-
fies this, so as to remove the ambiguities
that could hinder prosecution. The orig-
inal Act had no provision for prosecut-
ing bribe-giving private companies,
except as abettors. The present Bill fills
that gap eminently.
The term “criminal misconduct”,
defined in a convoluted manner in the
original Act, finds a more succinct, accu-
rate definition in the present Bill. It pro-
vides for setting up special courts and a
time limit for trials. It also provides for
more deterrent penalties against bribery.
Unlike the original Act, the present Bill
provides for confiscating illegally
acquired properties of the offenders.
In both the original Act and the pres-
ent Bill, there are provisions to protect
public servants at decision-making lev-
els from undue harassment. Section 19
of the original Act stipulates that no
court shall take cognisance of an offence
punishable under the Act, except with
the prior sanction of the appropriate
government. In 1969, the then govern-
ment issued an executive directive that,
even for initiating an investigation
against a public servant at the level of
joint secretary and above, prior sanction
from the competent authority would be
necessary. In Vineet Narain & Others vs
Union Of India, the apex court, on
December 18, 1997, struck down this
directive on the ground that it was dis-
criminatory. Therefore, as far as the
original Act is concerned, there is no
need for prior sanction for investigation.
The present Bill has not only retained
the requirement of prior sanction for
prosecution but has introduced a new
requirement (Section 17A) that an inves-
tigating agency should obtain prior sanc-
tion even for investigation, provided that
such sanction, if not given within three
months, will be deemed to have been
given. Only in cases of outright detection
of bribe-taking, such prior sanction for
investigation is not required.
While it is desirable to protect honest
public servants from undue harassment,
it is public knowledge how dishonest
officers, in collusion with both the polit-
ical executive and senior bureaucracy,
have often exploited the safeguard pro-
vided in Section 19 of the original Act to
delay and escape prosecution. The pres-
ent Bill, no doubt, sets a time limit for
sanction and for prosecuting the offend-
ers in special courts. However, the stipu-
lation that prior sanction is required
even for investigation is worrisome. In
most cases involving large-scale eco-
nomic offences, while there may be no
IntheabsenceofaLokpal,investigating
agenciesofthecentralgovernment
continuetobesubservienttothepolitical
executive.Theywillhardly,ifever,be
allowedtobringtheguiltytobook.
QUEERLY DRAFTED: The requirement in the
new Bill of prior sanction even for investigation
of a graft allegation against bureaucrats has
the potential of defeating its purpose
Rajeev Tyagi

explicit bribe giving as such, a compre-
hensive investigation alone can reveal
illegal benefits of a large magnitude,
both tangible and intangible, accruing
to public functionaries. An unethical
political executive or an equally unethi-
cal senior civil servant can misuse this
provision to thwart the investigation in
its initial stages and cover up the scam.
Through Section 17A in the Bill, the
government has perhaps undone what-
ever it has ostensibly been seeking to
achieve in the name of campaigning
against large-scale corruption.
T
he present Bill needs to be
viewed in the overall context of
what the NDA government has
so far done in terms of its anti-corrup-
tion campaign. It touted demonetisa-
tion as its flagship measure against cor-
ruption and black money but the out-
comes do not justify this.
The Lokpal and Lokayuktas Act,
2013, enacted during UPA rule, was in
itself a far cry from what Anna Hazare
and his associates in India Against
Corruption sought in the form of a “Jan
Lokpal Bill”. This Act, which required
public servants to declare their assets as
well as those of their families, was fur-
ther diluted by the NDA government in
2016 to grant exemption to the families
of public servants. The Lokpal is yet to
be appointed.
In the absence of it, investigating
agencies of the central government con-
tinue to be subservient to the political
executive. Even if the amended
Prevention of Corruption Act was to
provide deterrent penalties to be
imposed on the offenders, it is doubtful
whether pliant investigating agencies
would be allowed to carry out their
investigations objectively and bring the
real culprits to book.
In the fight against corruption,
whistleblowers can play a crucial role.
The Whistleblowers Protection Act,
2014, provided for disclosure of infor-
mation by whistleblowers, except in the
case of certain categories of information
relating to national security, intellectual
property and information received in a
fiduciary capacity. It permitted disclo-
sure of information even if it was pro-
hibited under the Official Secrets Act
(OSA), 1923. The NDA has amended
this Act to prohibit disclosure of infor-
mation covered by the OSA. Consider-
ing the open-ended nature of the OSA,
this amendment has literally undone
what the original Act of 2014 sought
to achieve.
A genuine campaign against corrup-
tion should primarily address electoral
corruption that sets the tone of gover-
nance in any country. Corporate dona-
tions to political parties are a euphe-
mism for political corruption as they
invariably involve quid pro quos.
Instead of addressing it in a forthright
manner, the NDA has gone several
steps backwards by amending the
Companies Act to lift the ceiling on
company donations and introducing a
highly non-transparent system of elec-
toral bonds to provide anonymity to the
donors and donees. It has further
amended the Foreign Contributions
Regulation Act (FCRA) retrospectively
to permit larger inflows of foreign funds
into political parties’ coffers. Most polit-
ical parties, including the BJP and its
allies in the NDA, have so far not sub-
mitted themselves to the stringent
requirements of the RTI Act. The NDA,
on the other hand, is now trying to
dilute the provisions of that Act.
While pushing forward the latest
amendments to the Prevention of
Corruption Act, the government has
occasionally drawn strength from the
requirements of the UN Convention
Against Corruption. A glance at that
Convention shows how it also requires
several parallel measures to contain
corruption such as upholding the inde-
pendence of the judiciary, enhancing
transparency in decision-making by
promoting civil society participation in
it at different levels and so on. Recent
developments in India show how eva-
sive successive governments have been
in complying with such primary
requirements.
Any campaign against corruption
can succeed only when those in the gov-
ernment modify their mindset, uphold
democratic processes, enhance trans-
parency in governance, devolve authori-
ty and decentralise decision-making.
Legislative measures in incoherent bits
and pieces will not do.
—The writer is a former secretary to
the Government of India
Inthefightagainstcorruption,whistleblowerslikeManjunathShanmugham(left)and
SatyendraDubeycanplayacrucialrole.Butthegovernmenthasamendedthe
WhistleblowersProtectionAct,2014,toprohibitdisclosureofinformationcoveredby
theOfficialSecretsAct,therebyundoingwhatthelawhad soughttoachieve.

Defence/ Rafale Deal
34 August 6, 2018
NYBODY with a bit of
military knowhow will
easily accept that noth-
ing is truly secret and
when it comes to global
weaponry even less so.
The international military shopping
arcade is a patently commercial exercise.
Between trials and pre- and post-pur-
chase training and real-time demonstra-
tions at fairs and shows, the cat scarcely
stays in the bag. Putting aside the Rahul
Gandhi gauntlet thrown in terms of the
scarcely veiled accusation of hanky-
panky in the Rafale fourth generation
fighter deal and the defence by Prime
Minister Narendra Modi, there are
other angles to look at. Security is a per-
fect vehicle to shut everyone up; to
question it is anti-national.
The fighters are nowhere in sight as
yet and will not be for some time so how
much of security is jeopardised by what
is known about the Rafale besides the
obvious that it is a twin-engine, canard
delta wing, multirole fighter aircraft
designed and built by Dassault Aviation
of France? India will get latest weapons
like the Meteor and Scalp missiles as
part of the contract, besides a five-year
support package that assures high avail-
ability of the fighter. The first is a preci-
sion long-range ground attack missile
that can take out targets with extreme
accuracy. The second is a beyond visual
range air-to-air missile that is arguably
the best in its class and can blast enemy
aircraft at a range of over 100 km.
The Rafale has been performing in
public at the Farnborough, Le Bourget,
Dubai and Singapore air exhibitions
with all details of its performance enve-
lope, armament and avionics known to
the public. It has demonstrated its flexi-
ble capabilities. For example, on offer is
the top-of-the-range Israeli-built heads-
up helmet-mounted display systems.
Named Targo 2, the system allows pilots
to plan, rehearse, fly and debrief using
their personal helmets, providing them
with increased situational awareness,
safety levels and operational abilities.
First flown in 1986 and now hitting
around 165 to 170 aircraft at the start of
this year, the Rafale F1 is redundant and
the F2 has been upgraded to F3. These
changes have added the ability to carry
French ASMP-A air-launched nuclear
missiles, allowing Rafale to replace the
Mirage 2000N in that nuclear strike
role. Those interested can look for other
modifications. The Rafale, which in
French means “burst of wind”, can also
be configured for full integration with
the Thales’ surveillance and laser tar-
geting pod. It also makes sense that
India looks at the maritime Rafale M
for its placement on aircraft carriers.
The self-sell underscores a specific capa-
bility. “Catapulted from a carrier deck in
less than 75 meters, the Navy Rafale
instantly and automatically rotates to
the correct angle of attack. This critical
operation is made possible by the air-
craft’s innovative ‘jump strut’ nose land-
ing gear.”
So if this batch of 36 fighters is des-
tined for the flight deck and is the only
Damage of Secrecy
ItisnaïvetoimagineanythingsecretiveaboutthisaircraftwhenDassaulthasbeendesperately
seekinginternationalmarkets.Andifthereissomuchsecrecy,thedealissurelynotkosher
By Bikram Vohra
A
A DEAL ON DEFENCE: Then Defence
Minister Manohar Parrikar receives French
counterpart Jean-Yves Le Drian for signing
the Rafale contract in September 2016
Photos: UNI

delta winged carrier fighter in the world,
then maybe we have a leading edge in
this deal. In January 2018, this version
took part in a naval exercise aboard the
USS George W. Bush. At that joint show
of force, the French attache was widely
quoted as saying: “We want to demon-
strate our ability to integrate with U.S.
military services... We want to show we
do maintenance, demonstrate we can
load weapons.” Suffice it to conclude
that anything the French had on offer
for the Rafale is common knowledge in
the US. In February this year, The
Economic Times added its little bit: the
Rafale has an on-board oxygen genera-
tion system which suppresses the need
for liquid oxygen re-filling or ground
support for oxygen production.
It can carry out a wide range of mis-
sions: air-defence/air-superiority, recon-
naissance, close air support dynamic
targeting, air-to-ground precision
strike/interdiction, anti-ship attacks,
nuclear deterrence, buddy-buddy refu-
elling....It is naïve to imagine there is
anything secretive about a commercial
aircraft like the Rafale which has been
desperately seeking international mar-
kets since 2001. And if the purchaser is
going to go all hush-hush, it is certainly
going to power the suspicion that every-
thing is not kosher about the deal and a
whiff of scandal is then driven to a full-
blown stench because there are other
aircraft that haven’t even got a look-in.
The future batches of what could be
126 Rafales will be assembled in India
in a deal with Reliance Defence Limited.
This nexus has caused its own contro-
versy because it is based on an assump-
tion that the Ambanis have never
entered the military hardware market.
This conjures up images of the top brass
in Reliance wearing dungarees and car-
rying pliers and screwdrivers and mess-
ing about clumsily with these aircraft in
a pool of oil and ignorance. Since the
massively technical and sophisticated
expertise and acumen will be totally
French and the seller is happy to share
that knowhow with Reliance, the beef is
bed-rocked in personal prejudice.
Again, there is no outstanding option
in India whose manufacture of military
equipment has a record that has scarcely
been sterling. Recall the 1,430 bullet-
proof vests from a total order of 4,600
made by the Maharashtra police from a
Kanpur-based manufacturer being easi-
ly penetrated by AK-47 bullets? In this
lies the test of our mediocrity. If we
decide to make at home, not only do we
often get it wrong (remember the Kirkee
factory .12 gauge shells as compared to
the Eleys of the UK), but ironically,
there are not many contenders in the
military shopping arcade in India.
Suffice it to say that the technical
and sophisticated expertise and acumen
will be totally French and if the seller is
happy to share that knowhow with
Reliance, the option becomes easier to
accept. Contrary to popular opinion, the
seller has more than a vested interest in
how these planes are assembled.
Tomorrow, if one of them falls out of the
sky, it is their reputation at stake. If they
are comfortable with Reliance, they
must have done their due diligence.
The problem then is quality control
of the “Make in India” endorsement.
Having lagged behind for 70 years, the
public sector military complex has now
become a mindset. Tejas LCA is a super-
sonic, single-seat, single-engine multi-
role light fighter aircraft that has been
under development over 35 years by
India’s Aeronautical Development
Agency in cooperation with HAL.
Tomorrow,ifoneoftheseplanesfallsout
ofthesky,thereputationoftheseller
wouldbeatstake.IftheFrenchare
comfortablewithAnilAmbani(left),they
musthavedonetheirduediligence.

India Legal 06 August 2018

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India Legal 06 August 2018