India Legal - 10 February, 2020

NDIA EGALL STORIES THAT COUNT
I
February10, 2020
HANGING
FIREThetrendamongdeathrow
convictstogettheirexecution
delayedthroughappealsand
curativepetitionsisamajor
talkingpointinlegalcircles
witheventheCJIsayingitis
extremelyimportantinsuch
casestohavesomefinality
Shiv Visvanathan
Profiles Pranab Mukherjee
Inderjit Badhwar:
Nationalism versus patriotism

| INDIA LEGAL | February 10, 2020 3
HE issue of hardcore, virulent national-
ism has jumped centre-stage once again
as the ruling BJP has elevated the coun-
trywide ongoing anti-Citizenship (Am-
endment) Act (CAA) protests as the
number one danger to India’s unity and integrity.
Party campaigners have made it their main elec-
tion plank in the Delhi assembly polls, even going
so far as to publicly berate political opponents as
terrorists; Shaheen Bagh, where thousands of
peaceful protesters have been reading the Pre-
amble to the Indian Constitution and waving the
Tricolour and singing the national anthem, has
been described as a mini-Pakistan; Arif Moha-
mmed Khan, governor of Kerala, has in an
unprecedented and brash political gesture, pub-
licly criticised the anti-CAA stance of the state
government. The state has warned it will brook
no opposition to its authority.
The intent of this essay is not to debate the
merits of the CAA-NRC-NPR initiative or its con-
stititutional propriety but rather to examine the
difference between the “patriotism” of the anti-
CAA flag-wavers and the “nationalism” of the rul-
ing party’s unabashed statist attitude which, acc-
ording to at least one BJP minister campaigning
for the party, would justify “shooting the bloody
anti-nationals”.
In November 2018, French President Emm-
anuel Macron, in what was widely recognised as a
jab at America First Trumpism, stated in Paris:
“Patriotism is the exact opposite of nationalism...
Nationalism is a betrayal of patriotism.” He add-
ed: “In saying, ‘Our interests first, whatever hap-
pens to the others’, you erase the most precious
thing a nation can have, that which makes it live,
that which causes it to be great, and that which is
most important: its moral values.”
Macron’s illustrious predecessor, Charles de
Gaulle, The New Yorker wrote, had drawn that
distinction, at the risk of his own life: “De Gaulle
knew that the patriot loves his place and its peo-
ple and its idiosyncrasies; while the nationalist, of
whom, for him, Adolf Hitler was the clearest and
worst example, has no particular sense of affec-
tion for the place he advocates for (he is often an
outsider to it, as Hitler, an Austrian, was to Ger-
many) but channels his obsessive grievances into
acts of ethnic vengeance.”
As India inches closer to the Delhi elections,
with others to follow in successive years, competi-
tive nationalism appears to be the emerging stage
on which political battles will be waged. The BJP,
positioning itself as India’s only “nationalist” party
(it does not differentiate between the term and its
version of “Hinduism”) has long been and contin-
ues to be the first responder. The latest weapon in
its inventive armamentarium of nationalist-Hin-
duist firepower is projecting the CAA as the
long-term aim of the Founding Fathers as well
as Gandhi.
The purpose is to block any history that does
not conform to the binary narrative of the ruling
dispensation. One of the most distressing exam-
ples of this ideological blitzkrieg was narrated in
an article by the famous scholar, Audrey Trusch-
ke, assistant professor of South Asian History at
Rutgers University. She is the author of two
books, Culture of Encounters: Sanskrit at the
Mughal Court (Columbia University Press, 2016)
and Aurangzeb: The Life and Legacy of India’s
Most Controversial King. Headlined “Hindu
PATRIOTISM VERSUS
NATIONALISM
Inderjit Badhwar
T
“Patriotismisthe
exactoppositeof
nationalism....Nation-
alismisabetrayalof
patriotism.Insaying,
‘Ourinterestsfirst,
whateverhappensto
theothers’,youerase
themostprecious
thinganationcan
have,thatwhich
makesitlive...”
—FrenchPresident
EmmanuelMacronin
November2018
Letter from the Editor
UNI

4 February 10, 2020
nationalists increasingly use anti-Semitic slurs to target
me,” she wrote: “I awoke to the following tweet, ‘I hope
another Hitler comes back and finishes off your people’,
accompanied by a picture from 1945 of the bodies of
dead Jews piled outside a liberated concentration camp.
Since then, I have been regularly attacked with anti-
Semitic language and tropes on social media, especially
on Twitter.”
The professor, even though her last name suggests it,
is not Jewish. But her works often run counter to the
new “nationalist” historical narratives. She wrote in
Scroll: “I have personally received dozens of anti-Semitic
messages over the last few years from Hindu nationalists
and those sympathetic to their cause. These ugly attacks
use vicious anti-Semitic slurs, frequently invoke the Ho-
locaust, and draw on crude anti-Semitic tropes such as
that I am somehow pursuing my academic research for
the money.”
Given the rapid rise of this toxic environment in
India, it is not hard to understand why the author of the
country’s national anthem, the prescient Nobel Laureate
Rabindranath Tagore, decried nationalism as a scourge
on humanity.
The philosopher-poet believed that India survived as
a country because it has never had a real sense of nation-
alism. He admits that even though from childhood he
had been “taught that the idolatry of Nation is almost
better than reverence for God and humanity”, he had
later outgrown that teaching, “and it is my conviction
that my countrymen will gain truly their India by fight-
ing against that education which teaches them that a
country is greater than the ideals of humanity”. He wrote
this in 1917.
“Europe has her past,” Tagore said. “Europe’s strength
therefore lies in her history. We, in India, must make up
our minds that we cannot borrow other people’s history,
and that if we stifle our own, we are committing suicide.
When you borrow things that do not belong to your life,
they only serve to crush your life.
“Nationalism is a great menace. It is the particular
thing which for years has been at the bottom of India’s
troubles. And inasmuch as we have been ruled and dom-
inated by a nation that is strictly political in its attitude,
we have tried to develop within ourselves, despite our
inheritance from the past, a belief in our eventual politi-
cal destiny.
“When our nationalists talk about ideals, they forget
that the basis of nationalism is wanting. The very people
who are upholding these ideals are themselves the most
conservative in their social practice....Our social restric-
tions are still tyrannical, so much so as to make men co-
wards. If a man tells me he has heterodox ideas, but that
he cannot follow them because he would be socially os-
tracized, I excuse him for having to live a life of untruth,
in order to live at all. The social habit of mind which im-
pels us to make the life of our fellow beings a burden to
them where they differ from us even in such a thing as
their choice of food is sure to persist in our political
organization and result in creating engines of coercion to
crush every rational difference which is the sign of life.
And tyranny will only add to the inevitable lies and hy-
pocrisy in our political life. Is the mere name of freedom
so valuable that we should be willing to sacrifice for its
sake our moral freedom?”
N
early a quarter of a century later, George Orwell,
the British essayist and author of 1984, decried
“nationalism” as, first of all, “the habit of assum-
ing that human beings can be classified like insects and
that whole blocks of millions or tens of millions of people
can be confidently labelled ‘good’ or ‘bad’. But secondly
—and this is much more important—I mean the habit of
identifying oneself with a single nation or other unit, pla-
cing it beyond good and evil and recognizing no other
duty than that of advancing its interests”.
He, too, stressed that nationalism must not be con-
fused with patriotism. Both words are normally used in
so vague a way, he observed, “that any definition is liable
to be challenged, but one must draw a distinction bet-
ween them, since two different and even opposing ideas
are involved. By ‘patriotism’ I mean devotion to a partic-
ular place and a particular way of life, which one believes
to be the best in the world but has no wish to force on
Letter from the Editor
THE MINI-PAKISTAN TAG
Peaceful protestors at Shaheen Bagh have been waiving
the Tricolour and singing the national anthem for days
picpanzee.com

other people. Patriotism is of its nature defensive, both
militarily and culturally. Nationalism, on the other hand,
is inseparable from the desire for power. The abiding
purpose of every nationalist is to secure more power and
more prestige, not for himself but for the nation or other
unit in which he has chosen to sink his own individuality.
“Every nationalist is haunted by the belief that the
past can be altered. He spends part of his time in a fanta-
sy world in which things happen as they should—in
which, for example, the Spanish Armada was a success
or the Russian Revolution was crushed in 1918—and he
will transfer fragments of this world to the history
books whenever possible. Much of the propagandist
writing of our time amounts to plain forgery. Material
facts are suppressed, dates altered, quotations removed
from their context and doctored so as to change their
meaning. Events which, it is felt, ought not to have hap-
pened are left unmentioned and ultimately denied.”
A
s Indians prepare for the political battles that
loom or are already upon them, they would be
wise to ponder, again, the thoughts of Tagore or
follow the principal characteristics of nationalist thought
as defined and written by Orwell which are summarised
below:
Obsession. As nearly as possible, no nationalist ever
thinks, talks, or writes about anything except the superi-
ority of his own power unit. It is difficult if not impossi-
ble for any nationalist to conceal his allegiance. The
smallest slur upon his own unit, or any implied praise of
a rival organisation, fills him with uneasiness which he
can only relieve by making some sharp retort.
Instability. The intensity with which they are held does
not prevent nationalist loyalties from being transferable.
To begin with, as I have pointed out already, they can be
and often are fastened upon some foreign country. One
quite commonly finds that great national leaders, or the
founders of nationalist movements, do not even belong
to the country they have glorified.
Indifference to Reality. All nationalists have the power
of not seeing resemblances between similar sets of facts.
A British Tory will defend self-determination in Europe
and oppose it in India with no feeling of inconsistency.
Actions are held to be good or bad, not on their own
merits, but according to who does them, and there is
almost no kind of outrage—torture, the use of hostages,
forced labour, mass deportations, imprisonment without
trial, forgery, assassination, the bombing of civilians—
which does not change its moral colour when it is com-
mitted by “our” side.
The government has of late been proselytising that
Gandhi would have supported the CAA and that its
enactment is a fulfilment of his vision. Would he? The
CAA is the invention of an all-powerful state and estab-
lishes an iron grip of ruler over subject. I quote from the
impartial eGyanKosh (a national digital repository of
IGNOU that stores, indexes, preserves, distributes and
shares digital learning resources developed by the Open
and Distance Learning Institutions in the country). Here
is a summary of Gandhi’s views on state and citizenship:
“The state for Gandhi represents violence in its con-
centrated form but is necessary since human beings are
social by nature. He desires a state that would employ lit-
tle violence and coercion and wanted individual actions
to be regulated by voluntary efforts as far as possible. He
advocates limited state sovereignty for there is an obliga-
tion higher than mere politics. His position is strength-
ened by his faith in individual personality. The ideal soci-
ety would be a decentralised one giving ample scope for
self-development. Gandhi uses the term swaraj to mean
positive freedom, to participate in the process of politics
in every way possible rather than conceive the state as a
negative institution that restricts activities to a bare min-
imum. Swaraj implied participatory democracy.
“The state is a ‘soulless machine’ and the individual is
endowed with dharma that encompasses both satya and
ahimsa. It is therefore the paramount duty of the indi-
vidual, endowed with moral authority, to challenge and
even disobey the state. Gandhi also spoke of ‘world citi-
zenship’, of ‘the essential unity of God and man for that
matter of all lives’ holding that ‘All mankind in essence
are alike’.”
Tagoresaidthatnationalismisa
greatmenaceandhasbeenat
thebottomofIndia’stroubles.
HebelievedthatIndiasurvived
asanationbecauseitneverhad
arealsenceofnationalism.
TheimpartialeGyanKosh sums
upGandhi’sviewsonstateand
citizenship:“Gandhidesiresa
statethatwouldemploylittle
violenceandcoercion....Headvo-
cateslimitedstatesovereignty.”
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

6 February 10, 2020
ContentsVOLUME XIII ISSUE13
FEBRUARY10,2020
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Senior Content Writer Punit Mishra
(Web)
There has been a trend
among death row convicts
to get their execution
delayed through appeals
and curative petitions.
What are the legal
loopholes that allow them
to prolong their sentences
despite the chief justice
saying it is extremely
important in such cases to
have finality?
Hanging Fire 14
LEAD
The apex court has
directed the HRD
Ministry to take a
decision on a petition
seeking that Kendriya
Vidyalayas be set up
in every tehsil of
the country
Education
For All 18
SUPREMECOURT

Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
REGULARS
Ringside............................8
Is That Legal.....................9
Courts.............................10
Law Campus News........12
International Briefs ........30
Media Watch ..................39
Satire ..............................46
Terror Run
The recent beheading of seven villagers in the
forests of Jharkhand has shown that there is
disagreement among the tribals over the
Pathalgadi movement and that Maoists may
be involved
COLUMN
To prevent Speakers dithering over
disqualification of legislator, the
Supreme Court has given a
time-frame and recommended the
setting up of a separate body to
decide such cases
Speaker,
Speed it Up 26
GLOBALTRENDS
43
With increasing technology and data
acquisition, their misuse should be dealt
with through legislation and enforcement
to protect the privacy of individuals
40
Big Brother
is Lurking
While the Union Law Ministry has okayed the linking of voter ID and
Aadhaar, questions are being asked about its legality and the
possibility of massive data leak, fraud and theft which can endanger
India’s democracy
Should the Twain Meet? 22
While the International
Court of Justice pulled up
Myanmar’s de facto head,
Aung San Suu Kyi, over the
genocide of Rohingyas, the
fact remains that she can’t
antagonise the army or the
conservative Buddhist
population
36
32
Caught in a Cleft Stick
OPINION
STATES
In saying that the recent protests will deepen India’s democratic
roots, former President Pranab Mukherjee has played the role of a
philosopher king brilliantly, combined with the shrewdness of a
drama critic
An Immaculate Performance
MYSPACE
The euphoria in Pakistan over being removed from the Financial Action Task
Force’s grey list was dampened by the US ruling out any major relief unless
it cracked down on terrorism
Treading Cautiously20
CYBERSECURITY

8 February 10, 2020
Anthony Lawrence
RINGSIDE
“anti-nationals”
“dogs”
Karo-na-virus
“traitors”
“rapists”

ISTHAT
—Compiled by Ishita Purkaystha
If the mercy plea of one of the co-
convicts sentenced to death is still
pending before the president, can
the rest be hanged without him?
The Delhi Prison Rules 2018 man-
date that the co-convicts in a crime
must be hanged together. Thus, if
an appeal, or application for spe-
cial leave to appeal to the Supreme
Court, is preferred by any of the
co-convicts, it will constitute a stay
on all the executions associated
with the primary case.
Similarly, when a mercy plea is
rejected by the president, the con-
cerned court issues a fresh date
for all the convicts to be hanged
together. The minimum period of
notice given to the applicant of the
rejected mercy plea is 14 days
from the date of such rejection.
?
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
When does a state file a writ
petition against the centre’s
actions? When is an original
suit filed by the state?
When one or more states in-
tend to challenge the centre’s
action on grounds of violation
of the fundamental rights of
individuals, a writ petition
is filed before the Supreme
Court.
However, when one or
more states intend to chal-
lenge the authority of the
centre on violation of other
legal rights—including
some fundamental rights—
thus triggering an inter-
governmental dispute,
which can be best solved
by the apex court, an original
suit is filed before the Sup-
reme Court.
Several writ petitions have
been filed before the apex
court challenging the Citizen-
ship (Amendment) Act, 2019,
on grounds of selective
discrimination against Mus-
lims. However, states could
file original suits under Article
131 of the Constitution dis-
puting contraventions of the
principles of secularism.
Original Suit vs
Writ Petition
Is free speech restricted for
military officers?
Article 33 of the Constitution
enables the Government of In-
dia to restrict or abrogate any
of the fundamental rights avai-
lable to the members of the
armed forces, to ensure prop-
er discharge of their duties
and maintenance of discipline
among them.
The Army Act, the Air
Force Act, and the Navy Act
have provisions restricting the
freedom of speech and expre-
ssion, freedom of assembly,
and freedom to form associa-
tions and unions contained in
Article 19 of the Constitution.
Execution of
Convicts
Enforcing Discipline
What is a curative petition?
A curative petition is the last
constitutional resort available
before the Supreme Court to
prevent miscarriage of justice
and abuse of the process of
law after a review petition has
been dismissed or exhausted
by the concerned petitioner/s.
It is also the last option for
the petitioner/s to seek jus-
tice. The whole idea is to
plead with the Court to
review its own decision.
The concept of curative
petition originated from a
landmark judgment in Rupa
Ashok Hurra vs Ashok Hurra
and Anr, where the Court,
under Article 137, read with
Article 142, chose to review
its order.
A petitioner filing a cura-
tive petition must establish
the violation of natural justice
principles or claim that cer-
tain material facts placed
before the Court were dis-
missed without arguments.
Curative petitions do not usu-
ally get an open court hearing
and the option cannot be
demanded as a matter
of right.
The Last
Legal Remedy

10 February 10, 2020
Courts
The Supreme Court said that ordi-
narily there should not be time
restrictions for anticipatory bail and
this could continue even till the end
of the trial.
A five-judge bench headed by
Justice Arun Mishra and comprising
Justices Indira Banerjee, Vineet
Saran, MR Shah and S Ravindra
Bhat said that “the life or duration of
an anticipatory bail order does not
end normally at the time and stage
when the accused is summoned by
the court, or when charges are
framed, but can continue till the end
of the trial”.
“Anticipatory bail granted can,
depending on the conduct and
behaviour of the accused, continue
after filing of the chargesheet till end
of trial,” the bench added.
The bench, however, clarified
that it will be open for the competent
court to impose conditions if it feels
the need for doing so and must be
done on a case-by-case basis. It
said: “If there are any special or
peculiar features necessitating the
Court to limit the tenure of anticipa-
tory bail, it is open for it to do so.”
The bench also laid down certain
factors that the court should keep in
mind while deciding an application
for anticipatory bail. The application,
it said, “should be based on con-
crete facts (and not vague or general
allegations) relatable to one or other
specific offence”.
Courts
Supreme Court judge Justice S Rav-
indra Bhat (right) recused himself
from hearing a curative petition filed by
the central government for direction to
the Union Carbide Corporation to pay
enhanced compensation of over `7,400
crore to the victims in the Bhopal gas
tragedy. A different bench with a new set
of judges will now hear the matter again
on February 11.
The petition filed by the centre in 2010
came up for hearing on January 28,
2020, and a five-judge bench of the
SC judge recuses
himself; new bench
to hear on Feb 11
The Supreme Court granted interim
bail to 14 men convicted in a
2002 Gujarat riots case and ordered
that they be relocated to MP. It also
ruled that they will do social, spiritual
and community work till a final deci-
sion is taken on their appeals against
conviction and till then, they will not
enter Gujarat either.
The bench hearing the case noted
that the convicts had completed se-
ven years in prison and a decision on
their appeals had been pending before
the Court. They ordered that the con-
victs be split into two groups and sent
to Jabalpur and Indore. The bench
asked the Madhya Pradesh State
Legal Services Authority to find
employment opportunities for them
and ensure that they do community
service six hours a week. The Court
also instructed that a status report be
filed every three months.
The case relates to the Ode mas-
sacre in Anand district of Gujarat, in
which eight children and six women
were among the 23 killed. It was one
of the nine most gruesome killings in
the post-Godhra riots probed by the
Supreme Court-appointed SIT.
Godhra riots convicts asked
to do community service
SC: Anticipatory bail can
continue until trial ends
Anil Shakya

The apex court issued notice to the centre
on a petition filed by Swati Bidhan Baru-
ah, Assam’s first transgender judge, chal-
lenging the Transgender (Protection of
Rights) Act, 2019. The petitioner claimed that
the Act was violative of the right to life, priva-
cy and equality of transpersons.
A bench headed by Chief Justice of India
SA Bobde issued the notice after Baruah
submitted that the right to self-identification
of gender identity is a fundamental right that
forms part of the right to life under Article 21
of the Constitution. While referring to the
judgment given by the top court in the
NALSA case that highlighted the plight of
transpersons and directed the Union and
state governments to take necessary remedi-
al steps to ensure that fundamental rights of
transpersons are not violated, the plea called
the provisions of the Act arbitrary and vague.
It further argued that as per the 2005 ver-
dict, the right to self-identification of gender
identity is a fundamental right.
SC issues notice on
Transgender Act, 2019
—Compiled by India Legal team
Airlines not bound to
escort passengers to
boarding gate: SC
The top court held that following
check-in at airports, flyers are on
their own and if a passenger encoun-
ters any difficulty in reporting at the
boarding gate, he/she should seek
assistance of the ground staff. It said
that airlines were under no obligation
to escort every passenger to the
boarding gate.
A bench comprising Justices AM
Khanwilkar and Dinesh Maheshwari
said: “After boarding pass is issued, the
passenger is expected to proceed to-
wards security channel area and head
towards specified boarding gate on his
own. There is no contractual obligation
on the airlines to escort every passen-
ger, after the boarding pass is issued to
him at the check-in counter, up to the
boarding gate.”
The judgment came on an appeal
challenging an order of the National
Consumer Disputes Redressal Comm-
ission which, on a review plea by In-
digo airlines against an order of the
Tripura State Commission, had asked
Indigo to pay `20,000 to Kalpana Rani
Debbarma and her family. It was her
contention that she along with her hus-
band and two minor sons were put to
great distress because of the attitude
of the airline staff and they eventually
missed their flight.
Court headed by Justice Arun Mishra ad-
journed the hearing and said that Chief
Justice of India SA Bobde would take a
call on the composition of the bench to
hear the matter.
Justice Bhat was a counsel for the gov-
ernment in settling the compensation
amount in 1989. While recusing, he said:
“I had appeared for the Union of India in
the matter when Union had sought
review.” The Union Carbide Corporation
(UCC), now owned by Dow Chemicals,
gave a compensation of $470 million
(`715 crore at the time of settlement)
after the toxic gas leak from its factory in
Bhopal on the intervening night of Dec-
ember 2 and 3, 1984, killed over 3,000
people and affected 1.02 lakh.
The Supreme Court
cleared a pilot project
to introduce the African
cheetah from Namibia into
India and appointed a
three-member committee
to oversee it.
A bench of Chief
Justice of India SA Bobde
and Justices BR Gavai and
Surya Kant allowed the
plea by the National Tiger
Conservation Authority
(NTCA) and said that the
animal will be introduced
at a site identified after
due survey.
NTCA had approached
the top court for permis-
sion, saying the Indian
cheetah was almost extinct
in India. Before Namibia,
India had approached Iran
for Asiatic cheetahs, but
had been refused.
The Asiatic cheetah is
classified as a “critically
endangered” species by
the International Union for
Conservation of Nature’s
(IUCN) Red List and is
believed to survive only in
Iran. From 400 in the
1990s, their numbers are
estimated to have plum-
metted to 50-70 today,
because of poaching, hunt-
ing of their main prey
(gazelles) and encroach-
ment on their habitat.
In 2013, the Supreme
Court had rejected the
government’s plans to
introduce the animal in the
Kuno National Park in
Madhya Pradesh.
Bring African
cheetah to
India: SC

LAW
CAMPUSES / UPDATES
NLU Delhi students write
open letter to High Court
Alumni meet at
NLIU Bhopal
The National Law Institute University,
Bhopal (NLIU) Alumni Cell and
Alumni Association will host the fifth
alumni meet over February 14-16,
2020. The three-day event will witness
various fun-filled activities, as the
alumni take a trip down memory lane.
The Vice-Chancellor, Prof V Vijaya-
kumar, will open the meet by giving an
Over 145 past and present stu-
dents from the National Law
University, Delhi (NLUD) have
addressed an open letter to the
Delhi High Court, urging the chief
justice and the High Court judges
to intervene against the proposed
50 percent reservation for appli-
cants who are residents of Delhi. In
the letter students have raised their
concern regarding the adverse
effects of the January 14 notifica-
tion on the “National character
of NLUD”.
The letter reads: “We fear that
instead of remaining an ‘elite’ insti-
tution of learning, the effect of the
notification would be to make it an
‘elitist’ one. You will no doubt for-
give us for the impertinence of
writing an open letter to you, but we beg to take the lib-
erty to insist that what is at stake is not only the future
of our institution, but also of the ‘NLU Model’ itself,
which has for long been considered as a means to
bring legal education at par with other streams of
technical education, both in terms of quality and
public perception….”
The letter adds that the notification can raise safety
issues for women applicants and disproportionately
impact the number of female applicants, and worsen the
already skewed sex ratio prevailing within the university.
The letter also points to the lack of infrastructure and
faculty strength at NLU Delhi to cater to an increased
student population of 123.
“An increase from the present strength of 83 will
severely impact the quality of learning within the institu-
tion, thus defeating the purpose behind the establish-
ment of our university,” the letter read.

—Compiled by Nupur Dogra
Kartavya—first
NLUO-SMC state-
level video making
competitionPrachi Chowdhary, a first-year student
of National Law University, Odisha,
has won two bronze medals in Lawn
Bowls Women's Fours and Triples at the
National Khelo India Youth Games hosted
in Assam over January 10-22, 2020.
Lawn bowls is a unique sport intro-
duced in the Khelo India Games for the
first time. It is usually played on a large,
rectangular, precisely levelled and mani-
cured grass or synthetic surface known
as a bowling green which is divided into
parallel playing strips called rinks.
Chowdhary says: “The experience of
representing not just her state but the
University and family was truly exhilarat-
ing.” She further adds that the game
helped her to increase her focus
and concentration.
Chaudhary represented West Bengal
at the games.
address to welcome the alumni. In the
evening, the alumni and faculty will
reconnect and reminisce over dinner,
and enjoy an evening of social and
intellectual engagement.
Day two will start with a panel dis-
cussion, where a diverse line up will
seek to inspire and empower students
on their journey to success.
At the end of the day, the alumni can
sit back and enjoy a cultural evening
when the students will showcase their
talents in dance, music, comedy
and poetry.
On the last day, the Alumni Cell will
conduct Alumni Association elections.
The alumni present will cast their votes
to determine the new president, vice-
president, treasurer and secretary. Post-
elections, the cell will organise sporting
events to foster connection between the
students and alumni and encourage a
healthy competitive spirit.
The three-day affair will conclude
with valedictory ceremony and vote
of thanks.
The Social Me-
dia Committee
(SMC) of the Na-
tional Law Uni-
versity, Odisha
(NLUO) has an-
nounced its first
ever state-level
video making
competition,
“Kartavya”.
NLUO, being
the coordinating
university for Od-
isha for the 70th
Constitution Day
year-long celebra-
tion, is organising
the competition.
NLUO aims to
sensitise, cherish
and abide by the
noble ideas en-
shrined in the In-
dian Constitution
with this competi-
tion. The theme
for the competi-
tion is fundamen-
tal duties.
The comp-
etition is open for
all undergraduates
and postgraduate
students from any
recognised uni-
versity/college
across the state
of Odisha (except
National Law Uni-
versity, Odisha).
Students can
win cash prizes
worth `14,000
and certificates
of excellence
and merit.
The last date
for submission
of videos is
April 4, 2020.
Interested stu-
dents can fill in
the registration
form on the uni-
versity website.
Two Bronzes for
NLU Odisha student
In its flagship project,
the Confederation of
Alumni for National Law
Universities (CAN) Found-
ation is launching Project
Dhananjay to aid new
entrants from economical-
ly weaker backgrounds in
a career of litigation.
The project aims to
provide an incubatory
period to budding, merito-
rious law graduates (from
economically weaker sec-
tions of society), who
have the potential to raise
the standards of the Bar in
multiple ways. Under this
project, a monthly stipend
will be provided to the
scholars who are selected
by a high-powered expert
panel after a month-long
two-tier selection process.
This monthly stipend
will be provided as a
“sustenance allowance”
for the initial one year (or
two years) of their prac-
tice in courts of law.
CAN Foundation announces
Project Dhananjay

Lead/ Delay in Executions
OURT verdicts, technically,
settle the rights and liabili-
ties of all parties in a case.
Of late, however, courts are
witnessing multiple chal-
lenges to all kinds of ver-
dicts. Even death row convicts, believing
their sentence to be open-ended, contin-
ue to file a variety of pleas in an attempt
to escape the gallows.
A rather piquant situation was seen
recently when the Supreme Court dis-
missed the plea of Nirbhaya death row
convict Mukesh Kumar who challenged
the rejection of his mercy petition by
President Ram Nath Kovind. The Court
said there was no merit in the con-
tention. “Alleged sufferings in jail can’t
be grounds to challenge the rejection of
mercy plea by President,” the Court said.
Expeditious disposal of the mercy
plea doesn’t mean non-application of
mind by the president, said the three-
judge bench headed by Justice R Banu-
mathi. The four death row convicts in
the case were slated to be hanged on
February 1, but the order was stayed by
a Delhi court on January 31. Judge
Therehasbeenatrendamongdeathrowconvictstogettheirexecutiondelayedthroughappeals
andcurativepetitions.Whatarethelegalloopholesthatallowthemtoprolongtheirsentences
despitethechiefjusticesayingitisextremelyimportantinsuchcasestohavefinality?
By India Legal Bureau
C
Hanging
ON DEATH ROW
The four convicts in
the Nirbhaya case

Dharmender Rana did not issue a
fresh warrant for their execution. In
his order, he said: “Seeing redressal
of one’s grievances through proce-
dure established by law is the hall-
mark of any civilised society. The
courts of this country cannot afford
to adversely discriminate any convict,
including death row convict, in pur-
suit of his legal remedies, by turning
a Nelson’s eye towards him.”
Nirbhaya’s mother, Asha Devi,
broke down outside the courtroom
and said the courts were destroying
the trust that she had reposed in
them. “The convicts are taking
advantage of the law and delaying
their execution.” Incidentally,
February 1 was the second date fixed
for carrying out the executions. The
previous date was January 22.
M
eanwhile, another death
row convict in the Nirb-
haya case approached the
Supreme Court with a curative peti-
tion. This cycle of verdict, appeal,
review, curative petition, mercy peti-
tion and appeal is a new phenome-
non as prisoners attempt to ward off the
inevitable execution. This was men-
tioned even by Chief Justice of India
(CJI) SA Bobde recently while dismiss-
ing a plea filed by a couple, Shabnam
and Saleem, from Amroha district in
UP, who are on death row for sedating
and hacking to death the woman’s fami-
ly in April 2008. However in 2015, the
Court cancelled their execution, saying
the magistrate had acted in haste and
the convicts were yet to exhaust their
legal options.
The CJI said it was extremely impor-
tant for the death sentence to have some
finality. He said a death row convict sho-
uld not feel that the sentence can be
questioned all the time, adding that
“one cannot go on fighting endlessly”.
“We don’t want to focus or emphasise
only on rights of accused in a case in
which seven people, including a 10-
month-old baby, have been murdered,”
he said. The CJI said it was difficult to
accept if the degree of reform under-
gone by a convict should be a mitigating
factor. “This argument will have conse-
quences beyond this case,” he said. “We
are doing justice on behalf of the soci-
Nirbhaya’smother,
AshaDevi,brokedown
outsidethecourtroom
andsaidthecourts
weredestroyingthe
trustthatshehad
reposedinthem.
“Theconvictsare
takingadvantageof
thelawanddelaying
theirexecution,”
shesaid.
Fire
UNI

ety and the victims. We cannot forgive a
convict who has been convicted because
there is a law, which deals with a crimi-
nal.” The Court said if convicts start
claiming they had reformed, death
penalties will not be carried out. The
convicts will say we have reformed and
we can come out, the judges added.
E
ven in the case of Mukesh
Kumar, senior advocate Anjana
Prakash, who appeared for him,
claimed that he was sexually abused in
Tihar Jail and pressed ahead with chal-
lenging the president’s rejection of his
mercy plea. The Supreme Court enjoys
the power of judicial review of executive
actions, so challenging the rejection
order of the mercy plea was technically
possible. The bench hearing the matter
was not initially piqued until Prakash
mentioned that not all documents were
presented before the president. Solicitor
General Tushar Mehta, however, con-
firmed that all relevant materials as laid
down in the 2014 guidelines of the
Supreme Court were placed before the
president. Prakash argued that the pres-
ident should have known that Kumar
was sexually abused in Tihar Jail where
he has been an inmate since 2013. She
claimed that all records were not sent to
Kovind, so his decision to reject the me-
rcy plea was “arbitrary and mala fide”.
However, Mehta told the three-judge
bench headed by Justice Banumathi
that Kumar was not kept in solitary con-
finement and no ground of commuta-
tion has been made out. The bench held
that “the alleged suffering” in prison
cannot be a ground for judicial review of
rejection of mercy plea under Article 72.
Meanwhile, on January 30, a Delhi
court issued a notice to the Tihar Jail
authorities and sought a report on an
application filed by Vinay Sharma,
another convict in the Nirbhaya case.
He sought a stay on his execution on
February 1 and wanted a fresh date for
it. This application was moved before
Special Judge Ajay Kumar Jain on the
ground that Sharma has filed a mercy
petition before the president. In fact,
Sharma’s counsel, AP Singh, had urged
the Court to adjourn the executions sine
die. Taking note of this, the judge direct-
ed the Tihar Jail superintendent to file a
reply on Sharma’s plea. But his stay
demand was opposed by the special
public prosecutor and another prosecu-
tor on the grounds that in December, a
seven-day notice was given to the con-
victs to avail of legal remedies.
In fact, Singh had earlier alleged in
the Patiala House Court that Sharma
was being slow poisoned and had even
been hospitalised and that his medical
reports were not being provided. The
prosecution, however, told the court that
the convicts were using delaying tactics
and that Tihar Jail authorities had given
Lead/ Delay in Executions
Latest data indicates that in India, trial
delays make the death sentence inef-
fective and result in protracted waits for
the accused and their families. There
were 371 prisoners on death row in India
by the end of December 2017, with the
oldest case being from 1991, 27 years
ago, according to the Death Penalty in
India report published in January 2018.
The number of death sentences also
fell. In 2017, 109 were sentenced to death
by sessions courts across states, down
Longwaitfor
justice…
InthecaseofAfzalGuru,theParliament
attackhewasaccusedofmasterminding
tookplacein2001.TheSupremeCourt
confirmedthedeathpenaltyin2005,
butitwasnottill2013that
Guru’sexecutionwasfinallycarriedout.
Anil Shakya

all relevant documents. Singh said that a
170-page diary titled “Darinda” written
by Vinay had not been received. He said
the diary was essential for filing a mercy
petition. The president rejected his plea.
A
nother convict in the same case,
Akshay Kumar Singh, had filed a
curative petition against his dea-
th sentence in the Supreme Court, whi-
ch was dismissed. A five-judge bench
said: “We have gone through the curati-
ve petition, and the relevant documents”
and that “in our opinion, no case is ma-
de out…” On February 1, however, he fil-
ed a mercy petition before the president.
Even Pawan Gupta, the fourth con-
vict in the case, had submitted an appli-
cation before the apex court to review its
earlier order dismissing his claim of
juvenility. The Court rejected his appli-
cation. Pawan was 19 as per the Court’s
records. He had wanted medical tests
done to prove he was under 18.
When deciding such cases of con-
victs, courts must also take cognisance
of the suffering of victims, be it Nirbh-
aya, the Hyderabad girl who was gan-
graped and burnt, or numerous other
victims of such bestiality. Despite pen-
dency plaguing courts, in this particular
case the President acted swiftly in rejec-
ting the mercy plea. But this was not
appreciated by Kumar’s counsel as she
unsuccessfully argued that the mercy
petition was dealt at all levels with a
predetermined mind.
The problem in the Nirbhaya case is
that there are four convicts who have to
be hanged at the same time. Each can file
all sorts of petitions which are basically
stalling the inevitable, unlike say, an Afzal
Guru, who was allowed to file one mercy
petition which was rejected by the presi-
dent. Even in his case, the Parliament
attack he was accused of masterminding,
took place in 2001. The Supreme Court
confirmed the death penalty in 2005 but
it was not till 2013 that Guru’s execution
was finally carried out.
For judges, too, such cases have to be
handled with care. As CJI Bobde said in
the seven-murder case: “It is not the
judge but the law that deals with a crim-
inal. A judge, being a human being, can-
not forgive a murderer. The law and the
judge act for the society. Imagine a situ-
ation when a judge tells a murderer ‘oh
yes, I forgive you!’ Imagine the impact.”
27 percent from 149 in 2016, said the
report, published by the Centre on the
Death Penalty (CDP), an advocacy.
However, only four death row prisoners
were executed in the last 13 years. One
had raped a minor and three were con-
victed of terrorism.
Further, the Law Commission of
India 2015 report said: “Death row
prisoners continue to face long delays in
trials, appeals and thereafter in execu-
tive clemency. During this time, the pris-
oner on death row suffers from extreme
agony, anxiety and debilitating fear aris-
ing out of an imminent yet uncertain
execution.”
The average time for trial of the 373
prisoners facing execution was five
years, as per an earlier study carried out
between July 2013 and January 2015
and published in February 2016 by CDP.
The trial of 127 prisoners lasted more
than five years and of 54 prisoners con-
tinued for over 10 years.
Among the prisoners whose mercy
petitions were rejected by the president,
the median time spent in prison under
trial was 16 years nine months, and the
median time under sentence of death
was 10 years five months. The longest
time spent by a prisoner in jail in such
cases was 25 years, and the longest
time spent on death row was 21 years
one month.
ChiefJusticeofIndiaSABobde
saiditwasimportantforthe
deathsentencetohavesome
finality.Hesaidadeathrow
convictshouldnotfeelthatthe
sentencecanbequestionedall
thetime,addingthat“onecan-
notgoonfightingendless-
ly....Wearedoingjusticeon
behalfofthesocietyandthe
victims.Wecannotforgivea
convictwhohasbeenconvict-
edbecausethereisalaw,
whichdealswithacriminal.”
SenioradvocateAnjanaPrakash,who
appearedforconvictMukeshKumar,
claimedthathewassexuallyabused
inTiharJailandchallengedthe
president’srejectionofhismercyplea.

Supreme Court/ Kendriya Vidyalayas
HE Supreme Court has
directed the Ministry of
Human Resource Develop-
ment (HRD) to decide on a
plea with regard to the set-
ting up of Kendriya Vidya-
layas (KVs) in all tehsils of the country.
A bench headed by Justice NV
Ramana took up the plea of Ashwini
Kumar Upadhyay, a BJP leader and an
advocate, and said that the courts can-
not decide what school should be
opened and where. Instead, it directed
the HRD Ministry to take a decision in
the case within three months.
It all started when Upadhyay submit-
ted a representation to the HRD minis-
ter to set up a KV in every tehsil/taluka.
On not getting any response, he filed a
writ petition in the Delhi High Court.
However, on October 1, 2019, a High
Court bench of Chief Justice DN Patel
and Justice C Hari Shankar said that
setting up KVs in every tehsil across the
country or making it mandatory to
study the “aims, objects and basic struc-
ture of the constitution” are policy deci-
sions best left to the central government
and disposed of the matter. Aggrieved
by this, Upadhyay filed a Special Leave
Petition (SLP) in the Supreme Court.
In the apex court, he contended that
“a Kendriya Vidyalaya in every tehsil
would achieve the code of a common
culture, removal of disparity and dis-
criminatory values in human relations.
It would enhance virtues and improve
life quality, elevate thoughts, which
advance the constitutional philosophy of
equal society”.
Many countries follow a uniform ed-
ucation system, which is a vital element
for unity, he said. Establishing central
schools will bring such unity as there are
around 1,209 central schools in India
established under the HRD Ministry
and they, apart from being affiliated to
the CBSE, have a common syllabus, cur-
riculum and school uniform, he said.
Further, by providing a common cur-
riculum, KVs ensure that children do
not face educational disadvantages
when their parents are transferred from
one place to another.
He contended: “The great golden
goals set out in the Preamble of the
Constitution—‘sovereign, socialist
secular democratic republic’ and ‘unity
and integrity of the nation’ cannot be
achieved without providing a common
education to all students of I-VIII
standard.”
He held that the “High Court had
failed to appreciate that after detailed
debate and feedback, Article 21A was
inserted in the Constitution. Thus, the
medium of instruction may be different
but there must be no discrimination in
the quality of education. The right of a
child, aged 6-14 years, should not be
restricted only to free education, but
must be extended to equal quality
education without discrimination on
the ground of the child’s social, econom-
ic and cultural background, thus a
common syllabus and common curricu-
lum is required for students of I-VIII
standard”.
Upadhyay further said that “we have
resolved to constitute India into a
Socialist, Secular, Democratic Republic.
Justice, Liberty, Equality and Fraternity
are cornerstones of our democracy.
Justice is the genus, of which socio-eco-
TheCourthasdirectedthe
HRDMinistrytotakea
decisiononapetition
seekingKVsbesetupin
everytehsilofthecountry
By Ananthu Suresh
T
Education
for All

nomic justice is one of its species. To
achieve real equality and elevate poor,
weak, Dalits, tribals and the deprived
sections of society, the state must pro-
vide uniform education having common
syllabus and common curriculum to all
students of I-VIII standards in the spirit
of Articles 14, 15, 16, 21A and Preamble
of the Constitution”.
Y
et another argument placed by
Upadhyay with respect to unity
and integrity was that KVs have
students from various parts of the state.
Due to this, equal opportunities are
given to them despite their language
and territorial differences. Every festival
is celebrated irrespective of religion
and region.
Further, the low fee structure in KVs
will benefit poor students in getting qu-
ality education. According to the peti-
tioner, this will encourage other schools
to provide better education as they will
face competition.
With respect to the quality of educa-
tion in KVs, he contended that teachers
appointed are qualified in teaching
their particular subject and are regularly
trained to enhance their skills and to
follow new techniques for effective lear-
ning of students.
He said that currently, there are
more than 5,000 tehsils in the country
and government officers who get posted
there for implementing various Union
development schemes prefer not to stay
there but go to some district headquar-
ters or state capital due to the poor
infrastructure or non-availability of
good schools. A tehsil being an adminis-
trative unit, government officers such as
the tehsildar, engineers, doctors, lectur-
ers and so on work there, but due to the
non-availability of good schools, they
keep families away.
According to Upadhyay: “This dis-
tance not only weakens them emotional-
ly but also takes a toll on their health
due to travel. It reduces efficiency, mak-
ing public functions lag and sometimes
this even hampers work. The establish-
ment of a Central School in every tehsil
will help the employees reduce their
burden as they will be able to keep their
families with them.”
He suggested that the “best thing the
State can do for society, is not to fetter it
with laws but straighten the lives with
honesty and modesty. The best function
of the State is not to legislate but edu-
cate, to make not laws but schools”.
Statesmen, like the subtlest teachers,
should suggest through information,
rather than invite “pugnacity with prohi-
bition; motto should be millions for
education, not one cent for compulsion.
Citizens ask not for lawmakers but cre-
ative teachers; submit not to regimenta-
tion but to knowledge; achieve peace
and order not through violence but
through spread and organisation of
intelligence”, he pleaded.
RIGHT TO LITERACY
Flag hoisting at a KV in Thiruvananthapuram;
(above) students showcase their projects
ThelowfeestructureinKVswillbenefit
poorstudentsingettingquality
education.Thepetitionerfeltitwill
encourageotherschoolstoprovidebet-
tereducationastheyfacecompetition.
Photos:facebook.com

RANAB MUKHERJEE
was not a great president
but he was a shrewd and
pragmatic one, balancing
the statesman and the
politician in him. He knew
how to avoid controversy and yet he
conveyed a sense of competence as fin-
ance minister and as president. There
was a sense of compact theatre in the
way he constructed himself, adept that
he was at role playing. As a master of
the balancing act, he could harmonise
pragmatism and idealism. He presented
himself as a competent working hypoth-
esis and in terms of survival, it worked.
His sense of timing made him rise to the
occasion. In fact, he is still in the news
often after his retirement. His successor
is a colourless figure, a party creation, a
modest man with a lot to be modest ab-
out. Come Republic Day and Ram Nath
Kovind spouts ahimsa, which sounds
odd as a message. It is too abstract to
capture the drama of Republic Day as
an occasion. It is almost as if he conced-
ed the occasion to Pranabda and the lat-
ter seized it.
As a statement’s comment, Mukher-
jee was occasion-perfect. He transcend-
ed the divide of parties and isms and
could not be accused of being partisan.
He did not seem nostalgic for power. He
played the philosopher king brilliantly
after his retirement, almost as if it was a
pedagogical lesson to the current in-
cumbent. India as a concerned audience
was waiting for such an enlightened
script. The Opposition must be kicking
itself for an opportunity lost and the
BJP was stuck speechless at the immac-
ulateness of his master’s voice. Strictly
speaking, Mukherjee’s comment was not
a call for intervention. It was a state-
ment of concern, care and a sense of the
drama unfolding, combining the shre-
wdness of a drama critic with sociologi-
cal insights. It was a lesson to our edito-
rial writers on how a discourse on ideals
can be good copy.
Mukherjee begins with a sense of
avunculate care, taking note of the wide
sweep of protests and emphasising their
generally nonviolent character. He sens-
es a manthan, a political and intellectu-
al churning, and marks it as something
new. This is not a replay of old politics.
The actors are new, the script is new, it
An Immaculate
Performance
InsayingthattherecentprotestswilldeepenIndia’sdemocraticroots,theformerpresidenthas
playedtheroleofaphilosopherkingbrilliantly,combinedwiththeshrewdnessofadramacritic
My Space/ Pranab Mukherjee Shiv Visvanathan
P
OUTSTANDING STATESMAN
Former President Pranab Mukherjee
receiving the Bharat Ratna from his
successor, Ram Nath Kovind
PIB

is youth on the streets and such digni-
fied street theatre is good for democratic
politics. The freshness, the nonviolence
gives a new sense of politics. The young
are challenging the old to rethink and
revitalise the two value frames that
make India so wonderfully liveable—the
Constitution as a lived text and democ-
racy as a life world.
Mukherjee’s sense of democracy is
immaculate. He does not pontificate
about Plato and Rousseau. In fact, he
quotes no authority. He merely suggests
that democracy is the art of listening,
deliberating, discussing, arguing and
that dissent is a critical part of such a
glossary. Mukherjee’s thesaurus of de-
mocracy is clear. It is an appeal to rea-
son, to conversation, not to electoralism
and political struggle.
Mukherjee literally clears the decks
of suspicion with his certificate. Unlike
Prime Minister Narendra Modi or Ho-
me Minister Amit Shah, he sees nothing
divisive or pro-Pakistani in the message.
He is clear it is a statement of good citi-
zenship, not a tom-tomming of patriot-
ism and he insists that this is good for
the country. He is echoing another fa-
mous speech by literally saying, come let
us reason together.
As a message, it is clear. As a perfor-
mance, it is immaculate. The rhetoric is
transparent, the message as obvious as
the cow has four legs and that democra-
cy needs dissent and conversation.
These are habits that keep its roots alive.
The former president is clear that the
message of the recent protests is not
ephemeral. It is more that the drama
goes to the roots of the question. In fact,
it is in a statesman-like sense, an act of
pedagogy. Mukherjee reminds us that to
be statesman-like, one needs the drama
of pedagogy where a society’s values are
restated and revitalised through a sim-
ple ritual of civics. Protest becomes a
simple act of citizenship and should not
create a panic of governance.
M
ukherjee’s message, as he
himself tacitly hints, embod-
ies two kinds of time—the im-
mediate and the long run. In its imme-
diate sense, Mukherjee offers a lesson to
two kinds of politicians. Firstly, to the
unemployed vanguard of the Congress
ready with quips and quotes and per-
sonal comments but rarely with a sense
of the stakes involved or the drama
being played out. A Shashi Tharoor, a
Jairam Ramesh, a Rahul Gandhi should
learn how to take themselves and de-
mocracy seriously. The facetious does
not quite add to the party struggling in
a political wilderness.
Mukherjee’s message is as astute and
even more pointed to the regime in po-
wer. He shows Modi that being a states-
man means you read threats but do not
threaten people, that you must never
confuse levels of analysis. Modi and
Shah often confuse a threat to the re-
gime as a threat to democracy or the
nation. It is this repeated misreading
of protest which has created the
current imbroglio.
But beyond his short-run insights,
Mukherjee hints that democracy as dra-
ma and the Constitution as text must
resonate with each other. India works
best when these two institutions work in
tandem. Mukherjee is astute enough to
point out that the young understand
this today and that their celebration of
the Constitution is sustained by a heal-
thy sense of politics.
This Mukherjee as a politician un-
derstands. He never undermines the po-
ssibilities of politics. As a politician, he
senses his limits and therefore has a tre-
mendous sense of possibilities, opportu-
nities and timing. Retired presidents are
rarely lethal and are cited more out of
nostalgia and habit. But Mukherjee
senses the need and dangers of the hour.
Distorting or misreading politics emas-
culates democracy. What one needs is
transparency and timing to send the ri-
ght balance. It is an art form and a re-
tired president shows the current politi-
cian that it is still achievable. In that
sense, the ex-president’s message was an
immaculate performance, converging an
ideal polity and the necessity for the
craft of politics. One is grateful for it.
—The writer is a member of the Compost
Heap, a commons of ideas exploring
alternative imaginations
Pranabda’ssenseofdemocracyis
immaculate.Hesuggeststhatdemocracy
istheartoflistening,deliberating,
discussing,arguingandthatdissentisa
criticalpartofsuchaglossary.
POLITICAL CHURNING
Mukherjee took note of the wide sweep of
protests, including the one in Shaheen Bagh
twitter.com

Opinion/ Linking Voter ID & Aadhaar MG Devasahayam
HE Union Law Ministry
is stated to have given the
green signal to the Ele-
ction Commission (EC) to
resume linking of Voter ID
with Aadhaar. Last
August, in a letter addressed to the law
secretary, the EC had proposed amend-
ments to the Representation of the
People Act, 1950, and the Aadhaar Act,
2016, and powers to collect and use
Aadhaar data for “cleaning” the voters’
list as a “back-end exercise”. Linking
voter ID with Aadhaar would certainly
cleanse the voters’ list but the question
is—list of which voters?
Let us look at the background briefly.
On September 1, 2019, the EC launched
a nationwide electoral verification pro-
gramme. People were asked to get their
voter IDs verified by local EC represen-
tatives to avoid invalidation of the cards,
either through an online process or
offline by submitting their Aadhaar
details. The message given out was: “If
you fail to get your voter ID card veri-
fied with the Aadhaar number during
this period, it will become invalidated.”
This was intriguing because a similar
exercise undertaken in 2015 had to be
dropped when a Constitution bench of
the Supreme Court ruled that Aadhaar
numbers could only be used for access-
ing welfare services such as subsidised
rations from the public distribution sys-
tem, kerosene and LPG.
In March 2015, the EC had launched
the National Electoral Roll Purification
and Authentication Program (NER-
PAP). As the name suggests, its aim was
to “clean up” India’s electoral rolls using
Aadhaar authentication. Or, in other
words, to eliminate potential voter fraud
by deleting ghosts or people who had
somehow got more than one voter ID
from the system. The programme’s goals
and deadlines were ambitious: internal
EC documents show that it wanted to
achieve draft electoral rolls that were
“100% error-free” and “100% multiple-
entry free”. The extensive coverage of the
scheme before it was shut down by the
Supreme Court in August 2015 is sur-
prising. By the time the initiative was
forcibly shut down, it had collected the
Aadhaar numbers of over 300 million
voters. The EC publicly claimed that
320 million voter IDs were linked to
Aadhaar during NERPAP in the span of
just three months and that another 545
million Aadhaar numbers would be
linked to the remaining voter IDs in six
months once the Supreme Court
allowed it.
Should the Twain Meet?
Whilethelawministryokayed
thelinking,questionsarebeing
askedaboutitslegalityandthe
possibilityofmassivedata
leak,fraudandtheftwhichcan
endangerIndia’sdemocracy
T

In the ensuing confusion, the names
of 2.8 million voters in Telangana alone
got deleted, which only came to light
when the state went to the polls in 2018.
This was grudgingly admitted by the EC
in an RTI reply. EC officials claim that
the exercise is meant to weed out
bogus/fake voters. But the security of
citizens’ data and privacy issues are a
matter of great concern. Not a single
agency in India has yet done any study
on how safe data is, once linked to the
Aadhaar number. Neither the govern-
ment nor the Unique Identification
Authority of India would have any con-
trol over the usage of this data, which
remains strictly under the jurisdiction of
the foreign agency that collects it.
H
ow did the EC manage to link
voter IDs of over 300 million
people with their respective
Aadhaar numbers in just three months?
Was the consent of voters taken for this
exercise? If voters were in the loop, as
the EC has consistently maintained, was
informed consent taken with citizens
clear on how their data could be used?
Individual states offer a few clues with
regard to the bulk seeding of Aadhaar
numbers. For instance, in Maharashtra,
only 3,01,000 voters had registered
themselves for the voter ID-Aadhaar
linking programme by the beginning of
May 2015, but when the programme
ended three months later, the chief elec-
toral officer of the state claimed that 1.8
million voters had provided their
Aadhaar numbers. On a national scale,
the numbers look even more stark. A
report published in DNA newspaper
noted that by May 2015, 130 million
voters had applied for linking. Given
these numbers, how did the EC link 320
million voters in just three months and
what means did it employ?
There are multiple ways to seed
Aadhaar to new databases. The first is
“organic seeding” where an individual
provides the data himself. In this “man-
ual” mode, a citizen links his voter ID to
his Aadhaar himself. To help out with
this, the EC used the National Voters’
Service Portal (NVSP). All people had to
do was enter their voter ID number, a
few demographic details and their
Aadhaar number. A person could then
verify their Aadhaar number through a
one time password (OTP) sent to his
smartphone, after which the voter ID
would be linked. However, this
approach is slower as it involves a citi-
zen’s willingness: they have to come for-
ward on their own and sign up to link
their voter ID and Aadhaar.
The other method is inorganic seed-
ing, where details of the elector are
ENROLMENT DRIVE
People queue to get their Aadhaar cards in
New Delhi; (right) CEC Sunil Arora (right)
launching the Electoral Roll Verification
Program in New Delhi
Asimilarexerciseundertakenin2015
hadtobedroppedwhenaConstitution
benchoftheSupremeCourtruledthat
Aadhaarnumberscouldonlybeusedfor
accessingwelfareservices.
Anil Shakya
PIB

collected and seeded automatically with
Aadhaar with the help of an algorithm.
No one knows what this algorithm is
and even RTI queries have not been able
to get it out of the EC.
The EC seems to have adopted a host
of tactics to rapidly link hundreds of
millions of voter IDs to Aadhaar num-
bers in 2015, some of which may have
skirted the boundary between responsi-
ble data-sharing practices and outright
violations of privacy and user consent.
According to the Commission’s internal
documentation, obtained through multi-
ple RTI requests, in at least four major
states, local EC offices had access to
parts of the National Population
Register (NPR) database, which helped
hasten the Aadhaar seeding process.
L
inking of voter ID cards with
Aadhaar raises a number of
doubts. In a meeting in May
2015, the CEC himself raised concerns
regarding complaints they had received,
stating that the names of a number of
voters were deleted from the electoral
rolls for not furnishing Aadhaar.
Prasanna S, a lawyer involved in the
Aadhaar litigation, said: “The whole
that manipulation of data is a strong
possibility, and this might expose the
country’s electoral system to outside
fraud.
The EC is probably going in for this
drastic move under the cover of fulfilling
“legitimate state interest” as one of the
criteria laid down by the Supreme Court
in the Puttasamy case, while judging the
permissible limit for invasion of privacy
when testing the validity of any legisla-
tion. But the question is whether the
EC’s task is to take care of state interest
or safeguard a citizen’s interest. Is the
EC an instrumentality of the state or a
constitutionally mandated institution
for a citizen’s right to free and fair elec-
tions? The EC seems to be content with
being a mere extension of the state.
Justice BN Srikrishna, a former
judge of the Supreme Court, categorical-
ly condemned the EC’s efforts to link
voter ID with Aadhaar as “the most dan-
gerous situation”. He compared the con-
sequences to the Cambridge Analytica
scandal, which was found to have ille-
gally mined, harvested and shared per-
sonal information of over 87 million
Facebook users to the Trump presiden-
tial campaign in 2016. The UK-based
political consulting firm was also report-
ed to have shared the data of citizens
with political parties in India. “Are we
now happy with what Cambridge
Analytica did,” he asked and went on to
say: “We made so much noise about it.
We called them all kinds of bad names.
Now you’ll have this in the country in
our backyard. In the event, instead of
having a Cambridge Analytica, you’ll
have a Delhi Analytica, a Mumbai
Analytica, a Calcutta Analytica....”
Incidentally, Justice Srikrishna chaired
the expert committee that drafted
India’s Personal Data Protection Bill.
Even a distinct possibility of such a
massive data leak, fraud and theft can
severely endanger India’s democracy.
The twain of Voter ID and Aadhaar
should, therefore, never meet.
—The writer is a former
Army & IAS officer
PrasannaS,alawyerinvolvedin
theAadhaarlitigation,said:“The
wholeprocessoflinkingVoterID
withAadhaarisillegal.”
JusticeBNSrikrishna,aformerjudgeof
theSupremeCourt,condemnedtheEC’s
effortstolinkVoterIDwithAadhaaras
“themostdangeroussituation”.
Opinion/ Linking Voter ID & Aadhaar / MG Devasahayam
process of linking voter ID with
Aadhaar is illegal. There is no legal
mention of that exercise. The EC cannot
choose a process to eliminate voters
without any constitutional backing of
a law.”
Even otherwise, Aadhaar is known
more for exclusion than inclusion as
shown up in many states. In fact, getting
Aadhaar itself is a herculean task for the
poor. Often, they have to pay at least
`500 to get their Aadhaar cards made,
or even to update their addresses, so
most poor people just skip it. So if
Aadhaar and voter IDs are linked, the
poor and disadvantaged would not
merely lose access to welfare and sub-
sidised goods and services, but would
get disenfranchised as well.
The rush to link all data with
Aadhaar is bizarre, especially in the light
of the 2017 Supreme Court ruling
(Puttasamy) that privacy is a citizen’s
fundamental right as it is inherent to
the right to life and liberty. Linking
voter IDs with Aadhaar is fraught with
serious dangers. RTI replies have
revealed that 80 million fake or fraudu-
lent Aadhaar numbers were detected in
2014-15. RTI queries have also shown

Column/ Disqualification of Legislators Vivek K Agnihotri
HE role of the Speaker in
Manipur came under scru-
tiny recently. The Supreme
Court in its judgment in
Keisham Meghachandra
Singh vs The Hon’ble
Speaker Manipur Legislative Assembly
& Ors, delivered on January 21, 2020,
ruled that no decision was taken by the
Speaker on several applications filed
between April and July 2017 under the
Tenth Schedule for disqualification of
Th Shyamkumar, MLA, who, after con-
testing on a Congress ticket, switched
sides to support the BJP.
The Court directed the Speaker to
decide the disqualification petition pen-
ding before him within four weeks. It
further stated that if no decision was
forthcoming within that time limit, it
would be open to any party to apply to
the Supreme Court for further direc-
tions/relief in the matter.
The Court intervened after two
writ petitions in the matter filed before
the High Court of Manipur at Imphal
could not be decided as the issue of
whether a High Court can direct a
Speaker to decide a disqualification
petition within a certain time-frame was
Speaker, Speed It Up
TopreventSpeakersditheringoverdisqualificationcases,theapexcourthasgivena
time-frameandrecommendedthesettingupofaseparatebodytodecidesuchcases
T
UNDER THE SCANNER
Y Khemchand Singh, the
Speaker in the Manipur
assembly (above right), and
Th Shyamkumar, the MLA
who defected to the BJP

pending before a five-judge bench of the
Supreme Court (SA Sampath Kumar vs
Kale Yadaiah & Ors.)
Incidentally, the Court observed that
it was time Parliament did a rethink on
whether disqualification petitions ought
to be entrusted to a Speaker as a quasi-
judicial authority when he continues to
belong to a particular political party
either de jure or de facto. The Court felt
that a permanent tribunal headed by a
retired Supreme Court judge, a retired
chief justice of a High Court or some
other outside independent mechanism
should ensure that such disputes are
decided both swiftly and impartially.
T
o buttress this suggestion, the
Court stated that fears of the
minority judgment in Kihoto
Hollohan vs Zachillhu & Ors had actu-
ally come home to roost. Justice JS
Verma, in his separate judgment, had
held that rule against bias is a necessary
concomitant of the principle of natural
justice. One of the basic postulates of
the rule against bias is that no person
can judge a case in which he has an in-
terest. Justice should not only be done,
but seen to be done. This is the underly-
ing principle adopted by the framers of
the Constitution in not designating the
Speaker as the authority to decide elec-
tion disputes and questions regarding
disqualification of members under
Articles 103, 192 and 329 and opting
for an independent authority outside
the House.
There is nothing unusual in this
scheme if we bear in mind that the final
authority for removal of a judge of the
Supreme Court and a High Court is out-
side the judiciary and vested in Parlia-
ment under Article 124(4).
The Supreme Court ruling in
Keisham Meghachandra Singh (supra)
highlights two related concerns of delay
in decision-making and bias, consequ-
ent to the present dispensation under
the Tenth Schedule.
The problem of Speakers dithering
over cases of disqualification, however,
is not of recent origin. It has been add-
ressed in the past in various judgments
of the Supreme Court. As far as delays
in decision-making by the Speaker are
concerned, the Court has made several
pertinent observations.
In Kihoto Hollohan (supra), clarify-
ing the role of the Speaker as a tribunal
under the Tenth Schedule, the Court ob-
served that all tribunals are not courts,
though all courts are tribunals. Court
means a court of civil judicature and a
tribunal is a body which is supposed to
decide controversies arising under cer-
tain special laws. A tribunal, per se, does
not have all the trappings of a court and
hence is not expected to observe a strict
legal regimen.
Similarly, in Jagjit Singh vs State of
Haryana & Ors, the Supreme Court
held that the proceedings under the
Tenth Schedule are not comparable to
either a trial in a court of law or depart-
mental proceedings for disciplinary
action against an employee. The stan-
dard of “reasonable opportunity” is,
therefore, not that rigorous. Further, if
the view taken by the tribunal is a rea-
sonable one, the Court would decline to
strike down an order on the ground that
another view is more reasonable. Thus,
a proceeding in a case of disqualification
under the Tenth Schedule is more in the
nature of a summary inquiry and needs
to be disposed of expeditiously.
In Dr Mahachandra Prasad Singh vs
Chairman, Bihar Legislative Council &
Ors, the Supreme Court observed that
the Tenth Schedule does not confer any
discretion on the Chairman or Speaker
AnSCbenchof(fromleft)JusticesRFNariman,AniruddhaBoseandVRamasubra-
manianobserveditwastimeParliamentponderedwhetherdisqualificationpetitions
beentrustedtoaSpeakerwhenhecontinuestobelongtoapoliticalparty.

of the House. Their role is only in the
domain of ascertaining the relevant
facts. Once the facts gathered or placed
show that a member of the House has
done any such act which comes within
the purview of subparagraph (1), (2) or
(3) of paragraph 2 of the Tenth Sche-
dule, the disqualification will apply and
the Chairman or the Speaker of the
House will have to make a decision to
that effect.
In the context of the parameters of
the inquiry to be conducted under the
Tenth Schedule, the Supreme Court has,
time and again, expressed its concern
about the unnecessary delay in deciding
these petitions by the presiding officers
of the legislatures.
In the case of Speaker, Haryana
Vidhan Sabha vs Kuldeep Bishnoi &
Ors, the Speaker took about four years
to decide a petition of disqualification. A
single bench and a division bench of the
Punjab and Haryana High Court and
ultimately the Supreme Court through
its order dated September 28, 2012, had
to give a direction to the Speaker to
decide the petition within three months.
In another case in the Uttar Pradesh
Legislative Assembly, a similar delay
was caused by the Speaker in deciding
the disqualification petition and ulti-
mately the matter went to the Supreme
Court (Mayawati vs Markandeya
Chand & Ors). The top court, instead of
remanding the case to the Speaker, dis-
qualified the MLAs itself.
In Rajendra Singh Rana vs Swami
Prasad Maurya (2007) too, the Sup-
reme Court, using its powers under Ar-
ticle 142 of the Constitution in an extra-
ordinary situation, decided the petition
for disqualification itself.
M Venkaiah Naidu, Chairman, Rajya
Sabha, in his order on December 4,
2017, in the case of disqualification of
Sharad Yadav and another MP under
the Tenth Schedule (decided in about
three months’ time), observed that all
petitions of disqualification on the
ground of defection should be decided
within three months, after giving an
opportunity, as per law, to the concerned
member(s).
But the malaise continues. Chronic
ailments call for desperate remedies.
Hence, the Supreme Court has in the
present case recommended to Parlia-
ment to consider setting up a separate
body to decide the cases impartially and
expeditiously. This may ensure elimina-
tion of bias to some extent, but expedi-
tious adjudication cannot be guaranteed
in view of the experience with various
tribunals that have been established in
the past.
I
n any case, as the doctrine of sepa-
ration of powers is part of the basic
structure of the Constitution, the
principle of checks and balances has its
limitations in its application to the func-
tioning of Parliament.
Other options are available within
the framework of our parliamentary
democracy. To begin with, Paragraph 5
(Exemption) of the Tenth Schedule
implies that the Speaker, in order to be
able to deal fairly with matters under his
jurisdiction, may resign from his party.
That will not be treated as a ground for
defection. Constitutional authorities
should be able to switch hats smoothly
and take decisions without prejudice.
Further, the rules framed by Parlia-
ment to give effect to the provisions of
the Tenth Schedule by virtue of Para-
graph 8 provide an option to the Spea-
ker to refer the petition to the Com-
mittee of Privileges for preliminary
inquiry. The rule could be modified to
make such a reference mandatory.
Alternatively, the Speaker may be
required to consult the Election Comm-
ission before taking a decision, by am-
ending the Tenth Schedule itself. This
may take care of individual bias, but
may still not ensure speedy justice.
If, at all, the Tenth Schedule has to
be amended, it may prescribe a time li-
mit for the presiding officer to take a
decision, failing which the application
for disqualification would be deemed to
have been allowed. The judicial review,
which may follow, could then go by the
rationale for the decision in Rajendra
Singh Rana that failure to exercise juris-
diction is a stage at which the court
can intervene.
—The writer is a former
Secretary-General, Rajya Sabha
Column/ Disqualification of Legislators/Vivek K Agnihotri
MVenkaiahNaidu,Chairman,Rajya
Sabha,hadobservedthatallpetitionsof
disqualificationondefectionsshouldbe
decidedwithinthreemonthsaftergiving
achancetotheconcernedmember(s).
UNI

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Ways to fast-track justice

30February 10, 2020
The tragic death of basketball star and
global icon Kobe Bryant, and his tee-
nage daughter, in a helicopter crash has
raised some hard questions about the me-
dia and its current obsession with break-
ing the news first. The question of decid-
ing between a major scoop and what it can
do to victims and affected families has be-
come a major talking point in media hous-
es across the world.
In America, TMZ, the gossip and cele-
brity news website, reported the crash and
Bryant’s death less than an hour after the
incident took place, well before the victims
were identified and, more importantly, be-
fore their families could be informed.
Bryant’s wife heard her husband was dead
from TMZ. This has triggered a huge
debate about journalists and the choice
between the urge to be the first and sensi-
tivity towards victims and families.
The Los Angeles county sheriff said at
a news conference that they were still to
contact families of the crash victims when
TMZ published its report, adding: “It
would be extremely disrespectful to under-
stand that your loved one has perished
and to learn about it from TMZ. That is
just wholly inappropriate.”
In contrast, the Los Angeles Times
used its Twitter account to tell readers that
it would not publish the news before veri-
fying it. The controversy is a window into
the breakneck speed at which news is
reported these days.
Breaking Bad
News
International Briefs
Beyond efforts to isolate China’s Coronavirus is the
massive impact it will have on global tourism,
especially in Asia. China’s boom in outbound tourism is
unprecedented in human history and has driven the
growth of businesses to serve Chinese travellers around
the world. China’s outbound tourists numbered 160
million in 2019 and spent around US$300 billion, mak-
ing them number one in tourism spend rankings by
any country.
Thanks to the virus outbreak, Chinese tourists are the
new pariahs, being screened and quarantined and shun-
ned by hotels and shops, apart from China banning trav-
el from areas around Wuhan. The hardest hit by all this
will be the Asia-Pacific region. Top destinations for
Global Tourism Takes a Hit
nba.com

For some it is literally a matter of life and
death. In 2003, famed chef Bernard Loi-
seau shot himself after he heard that his res-
taurant in Burgundy, France, was about to lose
one of its three Michelin stars. Last week, the
new Michelin Guide was launched in Paris
amid great suspense and anticipation. It has
become the gastronomic bible of the world and
reputations and bookings can rise or fall on the
verdicts of its secret diners. The three-star
ranking, the highest accolade, was awarded to
11 new restaurants, most notably Japanese chef
Kei Kobayashi (above), and his Kei restaurant
in Paris. The star ranking for restaurants was
introduced in 1931. One for “high quality”
cooking, two for “excellent”, and three for
“exceptional cuisine”.
The guide was started 120 years ago by the
tyre manufacturer as a travel book for moto-
rists. Today, it has 30,000 restaurants listed in
23 countries (alas, not India), and a mere 130
have got the highest three-star ranking. So
authoritative and prestigious is the ranking
that many chefs have given up their stars, say-
ing the cost of maintaining top-level kitchens is
too stressful.
Gastronomic Guide
What technology will
drive your car in the
next five years? Forbes has
listed those that could be
here shortly and they
include Driver Override
Systems where the vehicle
will take its own decisions
and apply the brakes even
if the driver’s foot is on the
accelerator, thanks to sen-
sor technology that can
predict a collision.
Cars come with Head-
Up Displays (below)
already but new technolo-
gy will see special glass on
windscreens which display
images that highlight the
next turn as you approach
it, much like Google maps.
Vehicle access will add
a security layer thanks to
Biometric Vehicle Access,
by which you unlock and
start your car with your
fingerprint, like many
mobile phones, or, for the
more paranoid, even a
retina scan.
Finally, Ford is testing
something called Active
Health Monitoring, which
is a seatbelt that tracks
vital statistics of the driver
and alerts all emergency
services via a connected
device in case the driver
has a sudden heart
attack.
Future Cars
Chinese travellers are Thailand, Japan, Vietnam, South
Korea, Singapore and Bali in Indonesia—a big draw for
Chinese holidaymakers.
Bali’s economy is tourism-based and many worry that
businesses will collapse. Bali has already seen nearly
10,000 tourist cancellations. Other countries popular
with Chinese tourists include Japan, with nearly 10 mil-
lion visitors, and Vietnam with around 5 million. Thai-
land, the top destination for China’s holidaymakers, fore-
casts that Chinese tourist numbers will fall by as much as
two million this year from 11 million in 2019. Bangkok is
the world’s most visited city mainly because of Chinese
tourist numbers. Thailand earned an estimated $18 bil-
lion from Chinese tourists in 2019. Thailand is also con-
tending with having more Coronavirus infections than
anywhere outside China—14 till last week.

Global Trends/ Pakistan/ Financial Action Task Force
HE news of Pakistan being
removed from the Finan-
cial Action Task Force
(FATF) grey list is greatly
exaggerated. It was the In-
dian media that triggered
this speculation, attributing it to the
positive role played by the US and other
western countries. But the Pakistan visit
of Alice Wells, the Principal Deputy
Assistant Secretary of State for South
and Central Asia, and her subsequent
press conference in Washington have
dampened the initial euphoria in the
capital city of Islamabad.
When Wells was in Pakistan, its for-
eign minister, Shah Mahmood Qureshi,
had requested the US to help Pakistan
in getting off the grey list. Briefing the
media in Washington about her recent
trip to Pakistan, India and Sri Lanka,
Wells had acknowledged Islamabad’s
efforts in fulfilling the obligations of
FATF and said Washington stood ready
to assist it in implementing it.
However, she emphatically ruled out
major relief, saying: “It’s a question of
fulfilling the requirements that have
been spelt out and that are asked of all
countries in the international system.
So it’s not a political process, but we
certainly support and stand ready to
assist Pakistan as it implements these
obligations.”
The American diplomat also made it
clear that the completion of the FATF
T
linkedin.com
Treading Cautiously
Theeuphoriainthecountryoverbeingremovedfromtheanti-terrorismfinancingwatchdog’s
greylistwasdampenedbytheUSrulingoutanymajorreliefunlessitcrackeddownonterrorism
By Asif Ullah Khan

action plan is critical to Pakistan’s eco-
nomic reform efforts, including its IMF
programme, as well as for demonstrat-
ing sustained and irreversible action
against all terror groups based there.
This has led to guarded optimism in
Islamabad. Minister for Economic Aff-
airs Hammad Azhar, who led the Pakis-
tani delegation during the three-day
talks with the FATF Joint Group in
Beijing, tweeted: “It is premature to co-
mment/speculate on the decision that
the FATF members shall take in the ple-
nary in February.”
T
wo years ago, when Nawaz Sharif
was in power, his foreign minis-
ter, Khawaja Asif, had prema-
turely tweeted about Pakistan’s position
in the FATF. Asif had shared “good
news” on Twitter, saying that Pakistan
narrowly escaped being placed on the
global terror-financing watch list,
thanks to its “friends”, meaning China,
Turkey and Saudi Arabia who resisted
the US-sponsored motion against the
country at the FATF meeting in Paris.
However, the “good news” turned out
to be bad news, as in February 2018,
FATF decided to put Pakistan on the list
of countries that finance terrorism or do
little to curb it.
Another reason for Pakistan’s dis-
comfiture is the growing rivalry between
China and the US and their vested in-
terests in the region, especially Pakistan.
China’s footprints are increasing in Pak-
istan through the China-Pakistan Eco-
nomic Corridor (CPEC), while the US
also has stakes there as it wants the
country to play a positive role in the Af-
ghan peace process by bringing the Tali-
ban to the negotiating table.
Although the US had earlier ex-
pressed displeasure over CPEC, Wells
was the first US official to take such a
hardline stance and that too on Pakis-
tani soil. In strongly worded criticism,
Wells said there was no transparency
and alleged that many companies black-
listed by the World Bank had got con-
tracts in CPEC projects.
She even warned that the CPEC
projects would push Pakistan deeper
into an already stifling debt burden as
China was providing loans, not grants,
like the US. She said that while CPEC
would only benefit China, the US off-
ered a better model. She urged Islama-
bad to introduce economic reforms that
would encourage US investors to invest
in Pakistan.
Former Pakistani High Commi-
ssioner to India Abdul Basit reportedly
said that Wells, at a private dinner held
in her honour, told him that the US will
keep the pressure on Pakistan to fulfil
the FATF requirements. He said Wells
clearly ruled out helping Pakistan in get-
ting off the grey list because she said: “If
we don’t put pressure, then Pakistan
HOPE AGAINST HOPE
(Left) A FATF meeting in China. The plenary
session in February will decide Pakistan’s fate
vis-a-vis the grey list; top US official Alice
Wells has already ruled out any major relief
ChinaisasupporterofPakistanonget-
tingthecountryoutoftheFATFgreylist.
Itisalsooneofitsbiggestfinanciers,
alongwithsomeGulfnations.But,its
cloutinPakistanisaconcernfortheUS.
UNI

Global Trends/ Pakistan/ Financial Action Task Force
will not take these measures.” He said
that it clearly showed that the US had
serious concerns over the growing clout
of China in Pakistan.
Mohammed Rizwan, Toronto-based
journalist of Pakistani origin, and a fel-
low at Pragmora Institute, Canada, also
concurs with this view. He told India
Legal that Pakistan’s problems had
grown for reasons such as the serious
financial crisis and the rise of China as
an economic power. Earlier, it was easy
for Pakistan to be in the US camp and at
the same time remain a strategic ally
of China.
“Now, things have changed. Today,
the US and China are directly compet-
ing with each other on three fronts—
technology, economic and military side.
The friction between Washington and
Beijing is now very clear and with CPEC
coming up and Pakistan agreeing to
hand over Gwadar Port in Balochistan
to China, Pakistan has become a territo-
rial ally of China,” said Rizwan.
Today, apart from Gulf countries like
Saudi Arabia and the UAE, China has
become Pakistan’s biggest financier. It
has given about $3.5 billion to help bol-
ster its dwindling foreign cash reserves
and pay for socio-economic develop-
ment plans undertaken by the Imran
Khan government. Before coming to
power, Khan had said that his govern-
ment would review CPEC projects, but
with US President Donald Trump sus-
pending security aid to Pakistan, China
was the only country which was willing
to invest in Pakistan. His government
may not like the terms on which the
Chinese investment is coming but he
has no choice because of the state of the
economy, which is in a shambles.
O
n the other hand, the US has its
own interests in the region.
Wells, during her trip, made it
abundantly clear that the US wants
Pakistan to give further impetus to the
Afghan peace process by initiating intra-
Afghan dialogue, leading to a ceasefire.
She also pushed Pakistan to begin some
sort of engagement with India to cool
tense ties.
Like the World Bank and the IMF,
the US can use FATF as a tool for politi-
cal leveraging and is using it to counter
China’s influence, which is evident
from the IMF bailout package. Pakistan,
after much difficulty, sealed the $6-bil-
lion deal but it came with FATF
strings attached.
With CPEC becoming a new battle-
ground between the US and China,
Pakistan cannot afford to be seen too
tilted in favour of either country. Being
caught between two political and eco-
nomic heavyweights, Pakistan has to do
delicate tightrope walking.
Rizwan told India Legal: “After a
long time, the signals emanating from
Washington and consequently other
western capitals look positive for
Pakistan for mainly two reasons. The
emerging geopolitical arrangement in
the region perhaps warrants for a stable
Pakistan. This new equation has India
as a key holder of balance. Combined
with Pakistan and Afghanistan, this new
equation is vital for the US-led regional
interest. Pushing Pakistan into the
blacklist would weaken it beyond repair
and it would be unable to play any part
in regional game-play.”
Second, though there are no tangible
signs that the Pakistan military has dis-
mantled the jihadi network operating in
Afghanistan and Kashmir, it seems that
it has managed to win the trust of Wa-
shington and other European partners
on this particular issue, Rizwan said.
Dr Adil Rasheed, Research Fellow at
the Institute for Defence Studies &
Analyses (IDSA), Delhi, is also of the
view that as far as terror financing, one
of the main requirements of the FATF,
“ThefrictionbetweentheUS
andChinaisnowveryclear
andPakistanhasbecomea
territorialallyofChina.”
—MohammedRizwan,a
Pakistan-originjournalist
“Pakistan’sproxymilitias,
terrorinfrastructure,itsfund-
ingandrecruitingareintact
despiteglobalpressure.”
—DrAdilRasheed,research
fellowatIDSA,Delhi
FormerPakistanHighCommi-
ssionertoIndiaAbdulBasit
reportedlysaidthatWellstold
himthattheUSwillkeepthe
pressureonPakistantofulfil
theFATFrequirements.
ForeignministerKhawajaAsif
intheNawazSharifgovern-
menthadsaidthatPakistan
escapedbeingplacedon
FATF’swatchlist.ButFATF
laterputPakistanonthelist.

T
he Financial Action Task Force
(FATF) is an inter-governmental,
decision-making body established
in 1989 during the G-7 Summit in Paris.
It seeks to combat money laundering,
terrorist financing and other threats to
the international financial system. It is
both a policy-making and enforcement
body. FATF was initially set up to tackle
drug smuggling and money laundering
and misuse of financial institutions resul-
ting thereof. After the September 11 ter-
ror attack in the US, FATF’s mandate
was enlarged to include the fight against
terrorist financing.
FATF recommendations mandate that
states, in order to maintain the integrity
of their financial systems, should:
(1) Identify the risks and develop policies
and domestic coordination,
(2) Pursue money laundering, terrorist
financing and the financing of
proliferation,
(3) Apply preventive measures for the
financial sector and other designated
sectors,
(4) Establish powers and responsibilities
for the competent authorities (e.g., inves-
tigative, law enforcement and superviso-
ry authorities) and other institutional
measures,
(5) Enhance the transparency and avail-
ability of beneficial ownership informa-
tion of legal persons and arrangements.
As of 2019, FATF consists of 37
member jurisdictions. India became an
observer at FATF in 2006 and on June
25, 2010, became its 34th member.
More than 20 bodies have observer sta-
tus, which include the IMF, World Bank,
OECD and various UN law enforcement
bodies.
FATF has two types of lists:
Black List: Countries known as non-
cooperative countries or territories
(NCCTs) are put on the Black List. They
support terror funding and money laun-
dering activities. FATF revises the black-
list regularly.
Grey List: Countries that are considered
safe havens for supporting terror funding
and money laundering are put on this
list. This serves as a warning to the
country that it may enter the blacklist.
WhatisFATF?
is concerned, nothing concrete has been
done by Pakistan. He told India Legal:
“We still find Masood Azhar’s recently
released incendiary videos on YouTube
for waging war in Kashmir, as late as on
India’s Republic Day, and his call to
Muslims around the world to wage his
distorted version of jihad extremely dis-
concerting. Clearly, the Pakistan state’s
proxy militias, the terror infrastructure,
its funding and recruiting are still intact
and gearing up for major instability in
the region, irrespective of the pressures
exerted by the international community,
particularly by the FATF.”
On the issue of Pakistan getting
major relief at the February meeting,
Rasheed said: “Frankly speaking, we
are not privy to all the information avai-
lable to the FATF regarding Pakistan’s
recent efforts towards reversing its long-
standing policy of terror funding, but we
can only hope that the UN monitoring
agency does not take any hasty decisions
regarding a country that has always
used terrorism as part of its state policy.”
I
n February 2018, FATF decided to
place Pakistan on the list of coun-
tries whose laws on curbing money
laundering and combating the financing
of terrorism had serious deficiencies. It
gave a 27-point action plan with a dead-
line to implement it by September 2019.
However, Pakistan did not show any sig-
nificant progress and in October 2019,
the FATF plenary extended the “grey
list” period to February 2020 with a
warning to show full compliance.
On the likely outcome of the Febru-
ary meeting, Rizwan said: “This is an
ongoing situation and we are far from
a definitive conclusion on the issue.”
This is the reason why the Pakistanis
are guardedly optimistic and are not
declaring victory ahead of the February
meeting.
That meeting will determine the
future of Pakistan vis-a-vis the FATF.
INTERNATIONAL PRESSURE
Mumbai attack mastermind Hafiz Saeed and
his close aides are being tried in Pakistan in
terror financing cases
UNI

Global Trends/ ICJ Order on Rohingyas
YANMAR’S de facto
head of state and State
Counsellor Aung San
Suu Kyi is facing yet
another challenge.
Already grappling with
the complexities of constitutional demo-
cracy designed by the Tatmadaw (army),
she now has to confront a recent order
of the International Court of Justice on
the Rohingya genocide issue.
On January 20, the 17-member ICJ
panel imposed “provisional measures”
on Myanmar, ordering it “to take all
measures within its power” to prevent
the killing of Rohingya Muslims re-
maining in Rakhine state under the
1948 Genocide Convention. The Court
also asked Myanmar to preserve evi-
dence of Rohingya persecution. It also
ordered it to submit a report to the ICJ
within four months, with additional
reports every six months “until a final
decision on the case is rendered by
the Court”.
The ICJ’s order is an interim one to
meet Gambia’s request for provisional
measures “to stop genocidal conduct im-
mediately” against about 6,00,000 Ro-
hingyas remaining in Myanmar.
Myanmar is one of the 150 countries
which ratified the Convention on the
Prevention and Punishment of the
Crime of Genocide which came into
force on January 12, 1951. As a signatory
to the Convention, it is obligatory for
Myanmar to take action, in letter and
spirit, against genocide both in times of
war and peace.
Article II of the Genocide
Convention lists killing, causing serious
bodily or mental harm or deliberately
inflicting conditions of life calculated to
bring serious bodily or mental harm by
the military or “any irregular armed
units” as falling within the scope
of the Convention.
Gambia’s case before the ICJ per-
tains to the military excesses committed
during military operations launched in
the wake of Arakan Rohingya Salvation
Army (ARSA) insurgents’ attacks on
police posts in 2017. The army’s savage
reprisals unleashed on the Rohingya
Caught in a Cleft Stick
WhiletheICJrulingpulledupMyanmar’sdefactohead,AungSanSuuKyi,overthegenocideof
Rohingyas,thefactisthatshecan’tantagonisethearmyortheconservativeBuddhistpopulation
By Col R Hariharan
M
ICJ

India Legal - 10 February, 2020

India Legal - 10 February, 2020

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