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India Legal 11 March 2019

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NOW WHAT ?
INDO-PAK BRINKMANSHIP
Pakistan releasing the downed IAF pilot has clearly put the ball in India’s court. But Imran Khan, too, will have to de-escalate the
situation by dismantling terrorist camps

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India Legal 11 March 2019

  1. 1. Forest Rights: A burning issue Triple Talaq: Pakistan shows the way PakistanreleasingthedownedIAFpilothasclearlyputtheballin India’scourt.ButImranKhan,too,willhavetode-escalatethe situationbydismantlingterroristcamps NOW WHAT ?INDO-PAKBRINKMANSHIP NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com March11,2019
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  3. 3. ACEBOOK posts and strategy pundits have been obsessed with how best to pun- ish Pakistan for its support to terror attacks in India, the latest such horrific incident being the killing of Indian sol- diers in Pulwama by a suicide bomber. Following the mini-war, the release of an Indian pilot, strate- gists and an assortment of pundits are busy inventing long-term military and geopolitical solu- tions to bring nuclear-armed Pakistan to heel. One popular theme of the day is the exhortation by journalists and politicians to punish Pakistan by scrapping the Indus Water Treaty and forever parching its soil. Is this possible? Can we really turn off this tap? An old post by Shakti Sinha on the ABP website appears to argue very cogently for this viewpoint. He notes that geopolitical thinkers like Brahma Chellaney have argued that India should unilater- ally withdraw from the Indus Waters Treaty of 1960 between Pakistan President Gen Ayub Khan and Prime Minister Jawaharlal Nehru. It has been in operation notwithstanding the subsequent wars between India and Pakistan. There is no provision in that compact either for its dissolution or for unilateral withdrawal. Chellaney argues in favour of using Article 62 of the Vienna Convention of the Law of Treaties providing for dissolution based on fundamental changes of circumstance. Responding to this post, a top former civil servant-turned-lawyer raises two important questions: Do you really think it would be a good idea to repudiate a treaty, fair or unfair, that we signed and have adhered to for all these decades? Wouldn’t the cost to our credibility outweigh any gains? Wouldn’t it play into Pakistan’s hands polit- ically, much as it might harm them economically? The second point is, might not such a step make India vulnerable to bullying by China over the flow of river water to India? In fact, Sinha observes that Pakistan is too important a country for the US to allow it to go under, which would happen if its access to the Indus system was to be disrupted, turning it potentially into a desert. He adds: “China is also not likely to allow matters to precipitate beyond a certain point.” Experts say that Indian projects on the rivers flowing into Pakistan created stress as India could either reduce water flows there or cause floods. So what do the geopolitical thoughters in Pakistan—not the rabid war-mongers but the more analytical minds—have to say about this? One paper I dug out—prepared several years ago by Khalid Chandio, then a research officer at the prestigious Islamabad Policy Research Institute (IPRI)—is worth a read. Chandio is a journalist with a master’s in defence and strategic studies and people read what he writes. And IPRI is a well-respected institution which interacts freely in national and international forums. It is a Carne- gie-type think tank which does not necessarily take rabid ultra-nationalist, sabre-rattling positions. “Many of the wars of the 20th century were about oil, but wars of the 21st century will be over water,” said Dr Ismail Serageldin, former vice-pres- ident of the World Bank. Chandio noted that water is surpassing oil as the world’s scarcest critical resource as it has no substitute. “There’s an increasing feeling in the world that everyone has a basic right to a minimum 13 gallons of water a day for basic human health. Today, the world stands divided between water haves and have-nots and Pakistan is facing critical water issues. Water man- agement and distribution has always been an important but cumbersome process in Pakistan, being a semi-arid country and its economy based mainly on agriculture and related industry.” He notes that the “positive thing is that Pakistan has the largest contiguous supply-based canal irrigation system in the world. In Pakistan, the muddy plains of the Indus basin cover approxi- mately 25 percent of the land area. Whereas in India, the basin includes only 9.8 percent of the total geographical area of the country. On the neg- ative side, the aqua environment of Pakistan has been shrinking since the last two decades as the IS PARCHING PAKISTAN POSSIBLE? Inderjit Badhwar Letter from the Editor F 4 March 11, 2019 Pakistan’swater problemisnot new.Following Independence,a politicalboundary betweenPakistan andIndiawasdrawn rightacrossthe IndusBasin,making thecountrythe lowerriparianto India.Theheadwa- terswenttothe Indianside,leaving Pakistanvulnerable asIndiagotthe physicalcapacityto cutoffvital irrigationwater.
  4. 4. | INDIA LEGAL | March 11, 2019 5 World Bank had put the country in the category of ‘water-stressed’ in 2000. The availability of water in Pakistan has been declining over the past few decades from 5,000 cubic meters per capita 60 years ago to 1,200 cubic meters per capita in 2010.” Pakistan’s water problem is not new. Following Independence, a political boundary between Pakistan and India was drawn right across the Indus Basin, making the country the lower riparian to India. The headwaters went to the Indian side, leaving Pakistan vulnerable as India got the physi- cal capacity to cut off vital irrigation water. Here are excerpts from Chandio’s historical analysis of the situation: Negotiations commenced between Pakistan and India in 1951 under the World Bank and resultant- ly, the famous Indus Waters Treaty (IWT) was signed on September 19, 1960. It was the partition of waters like land in 1947. Pakistan got the rights of the waters of the three western rivers, i.e., Indus, Jhelum, and Chenab, while the three eastern rivers, i.e., Beas, Sutlej, and Ravi went in total jurisdiction of India. India was not allowed to build storages on the western rivers except to a very limited extent and also restrictions were imposed on the extension of irrigation development in India. The permanent Indus Commission was appointed for both states. International financial assistance was given to Pakistan for the development of irrigation works utilizing the waters of western rivers. There is no denying the fact that the IWT sur- vived in the midst of wars and border clashes between the two states but the Indian projects on Pakistani rivers created stress and strain as India could either reduce water flows to Pakistan or cause floods by releasing the stored-waters. There are numerous water disputes between the two, e.g., Wullar Barrage, Kishanganga Project, Baglihar Dam, etc. Salal Dam was started by India without informing Pakistan, in violation of the IWT. Though an agreement was reached between the two countries, yet there is no guarantee that India would not do the same in future. Now India has got the leverage to hold water for 25-26 days, which can cause acute shortage of water for winter crops in Pakistan. This, besides causing electricity short- age, can greatly affect wheat crop in the Punjab. According to Dr John Briscoe, Professor of the Environmental Engineering and Environmental Health at Harvard University and former senior water advisor to the World Bank on the Baglihar case, “in the case of Baglihar, Pakistan’s vulnerabili- ty was driven home when India chose to fill Baglihar exactly at the time when it would impose maximum harm on farmers in downstream Pakistan. Following Baglihar is a veritable caravan of Indian projects, i.e., Kishanganga, Sawalkot, Pakuldul, Bursar, Dal Huste, Gyspa… The cumula- tive live storage will be large, giving India an unquestioned capacity to have major impact on the timing of flows.” W ater flow in river Chenab declined to about 6,000 cusecs from a 10-year aver- age of 10,000 cusecs, mainly because of construction of over a dozen hydro-electric projects (HEPs) upstream by India. To fill Baglihar Dam, India had consistently obstructed Chenab’s flow. Resultantly, Pakistan received lesser water when it should have been receiving a minimum of 55,000 cusecs per day. In order to achieve the required growth targets in agriculture, Pakistan needs an estimated 277 MAF in 2025. Otherwise, the short- age of surface water will result in drought and more dependency on ground water for irrigation; hence the water table will go down, causing water con- straints to the population. Indian water regulation capability has increased, as with the completion of Salal Dam, India has enhanced its water regulation capability over river Chenab by 6-7 times. After completion of Baglihar Dam, India will be able to stop the flow of water in the river for 30-40 days as compared to previous capability of only 8-10 days. Kishanganga HEP will also enhance Indian storage capability over river Jhelum with a stoppage capa- bility of 14 days. Also, Wullar Barrage will further enhance Indian storage capability in river Jhelum for an additional 30 days. So, depending upon the degree of water regulation capability, India can cre- ate three types of effects: Since water security has become a principal con- cern for sustainable development, so availability of freshwater is one of the greatest challenges that the world is going to face in the near future. As water A DEAL UNDER SCRUTINY The Indus (on the left) meets with Zanskar river at Ladakh. The threat of going back on the Indus Water Treaty is no bogeyman for Pakistan Bernard Gagnon/commons.wikimedia.org
  5. 5. shortages are growing, the result could be a series of disasters and confrontations leading to regional crises. Nowhere else on earth are the prospects of water wars more serious than in South Asia, where two of the world’s greatest river systems crisscross the internation- al boundaries of the world’s largest and most densely- populated countries. They are Indus River System (IRS) and Ganges-Brahmaputra-Meghna (GBM). Water issues are likely to continue as a major source of conflict between India and Pakistan in the coming decades as forecasted by many analysts. As populations rise, levels of economic development increase and the adverse effects of climate change become more extreme, the South Asian region will struggle to meet its growing demand while managing dwindling water supplies and trans-boundary rivers, especially those in the IRS and GBM basins. These disputes could prove to be danger- ous for world security since war over water between two nuclear-armed states, i.e., Pakistan and India, would be dangerous. The possibility of such a war cannot be ruled out as water poses a survival issue; there is no substitute of this commodity. Indians consider IWT generous to Pakistan and Pakistan thinks it discriminatory right from its incep- tion. At official levels, there is no such demand by the government of India/Indus Water Commission India and so is the case with Pakistan as there is no such demand from the government of Pakistan/Indus Water Commission Pakistan. But at the non-governmental level, intellectuals/academia in India have started ask- ing for re-visiting/re-thinking the IWT and probably they are making a case for the future. Brahma Chellaney, a Professor of Strategic Studies at the New Delhi-based Centre for Policy Research, said that “Pakistan’s reopening of the water-sharing agreement could backfire, as it might prompt India to rethink a treaty that was extremely generous to Pakistan. There was no treaty in the world which had been so generous on the part of the upper riparian to the lower riparian state. India was starving its own northern regions and reserving four-fifths of the water for Pakistan. If Pakistan played this dangerous game, they would make India review its generosity.” C handio refers to a report published more than five years ago by India’s Institute for Defence Studies and Analyses (IDSA), “Water Security for India—The External Dynamics,” in which the Institute gives reasons and plans for re-visiting the IWT. According to the report: “…with Pakistan, given some stringent provisions in the IWT that thwart India’s plans of developing projects on the western rivers, a ‘modification’ of the provisions of the treaty should be called for. Whether it is done through re-negotiations or through establishing an Indus-II Treaty, modifications of the provisions are crucial in case of the western rivers. Under the draft provisions of the International Law Commission ‘Responsibility of States for Inter- nationally Wrongful Acts, 2001’, India can consider the abrogation of the treaty… Pakistan aids and abets ter- rorist actions from its soil. India should quantify the damage it has sustained over the decades because of Pakistani support to terrorism and seek as a first step suitable compensation. If Pakistan does not comply, India can possibly threaten to walk out of various bilat- eral agreements including the IWT.” Pakistan is using water propaganda to get international attention on Kashmir so India should “talk” to Pakistan but not “negotiate”. The talks should be about “water needs” and not “water rights”. According to the same IDSA report, quoted by Chandio, there are five constituencies that ask for revi- sion or a re-think: “The first constituency seeks to evolve an Indus-II under the provisions of Article VII and Article XII of the IWT for an integrated or joint development of the Indus water basin. Indus-II should be fed into the cur- rent peace process as a means both for defusing current political strains over Indus-I and managing adverse impact of climate change.” “The second constituency while understanding the merits of a new hydrologic relationship on the Indus does not see any viability of Indus-II and contends that a totally new treaty has to be negotiated. The IWT was a Letter from the Editor 6 March 11, 2019 SHARING WATERS The Indus Water Treaty was signed in 1960 between then prime minister Jawaharlal Nehru and Pakistan president General Ayub Khan
  6. 6. partitioning treaty, like the partitioning of the land. How can cooperation be built on that basis?” “The third constituency is the domestic pressure group in [Indian occupied] Jammu & Kashmir which feels that the IWT has restricted the state’s overall development by not allowing it the usage of ‘its’ rivers, i.e., Jhelum, Chenab and Indus. It has been calling for a complete review of the treaty. The [Indian occupied] Jammu & Kashmir government has been contending that in spite of having an untapped hydro-electric potential of 15,000 MW, the state continues to suffer from acute power shortage and related agro-economic underdevelopment.” “The fourth constituency springs into action when the political climate between India and Pakistan becomes acrimonious. While war over water is not an option, this group suggests strong-arm tactics in dealing with Pakistan and using water as a coercive tool and a bargaining instrument in the larger politico-strategic objectives of India.” “There is a fifth constituency that argues that any attempt to review the treaty, can be done only after India exploits the potential already permissible under the treaty. Only a crying child, it is argued, gets the mother’s milk. This constituency argues that first India should fully exploit the existing potential and then cry for more. Any attempt otherwise to review the treaty may not be seen as logical. The IWT is a product of its time and could be fruitfully modified and renegotiated to bring it more in line with contemporary international watercourse law, the Helsinki rules, and emerging con- cerns with water quality, environmental sustainability, climate change, and principles of equitable sharing.” C handio observes that Pakistan’s serious projected shortages, India’s trend of damming waters and global warming’s expected depletion of water in the IRS “are a source of increasing tensions between Pakistan and India. Based on supply and demand pro- jections, India faces its own water scarcity, which would provide India an excuse to store or divert river water that would otherwise reach Pakistan. Water shortages would pressure the Pakistani government to increase its share of water drawn from the Indus system under the treaty as Pakistan is heavily reliant on the Indus and has few alternative water supply sources unlike India. In this environment, renegotiation of the IWT may become an important diplomatic issue between India and Pakistan. With India, water issue will be far more politi- cal and strategic than just water. India has also started propagating that Tibet’s water is for humanity, not for China alone. But they (Indians) forget that the Indus- Ganges basins are also for humanity, not for India alone.” Chandio—from a purely Pakistani strategic perspec- tive which makes for interest- ing reading and certainly food for thought for India’s own defence and national security planners—suggests a way forward for Pakistan to get out of what could be a mess. He recommends that as far as the “existing treaty is concerned and keeping pros and cons in mind, there is no need to revisit/review/rethink the IWT. Pakistan would not be in a better position to have any revision in its favour. Instead, Pakistan should con- tinue lobbying that India has been violating the IWT and India should be compelled to abide by the IWT in its true letter and spirit. Also, Pakistan should engage with India within the context of the IWT in a comprehensive way. International lobbying should be intensified on the point, i.e., water being the ‘lifeline’ issue for Pakistan and this could trigger war’. He adds: “Pakistan should be calling for a sophisti- cated forecasting system, accurately estimating how much water flows into the IRS, as almost 90% of the water in the Upper Indus River Basin comes from remote glaciers of Himalaya and Karakorum mountain ranges, which border Pakistan, China and India. This region is so remote that the authorities in Pakistan do not know the exact weather conditions there. This sys- tem will also help in alleviating droughts in the country. The water forecasting system could ultimately help Pakistan in optimizing water allocation at the national level by working out how much water is used for irriga- tion, industry, and domestic purposes. “Internally, water management in Pakistan has been poor. So, keeping in view the dwindling water resources, water must be made part of new security agenda.” Clearly, the Indus river threat by India—whether kite-flying or not—is not a bogeyman for Pakistan. It is, as one of their top analysts argues in his paper, a matter of grave security concern for that country. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com | INDIA LEGAL | March 11, 2019 7 ONE SIDED VIEW? Geopolitical thinkers like Brahma Chellaney have argued that India should unilaterally withdraw from the Indus Water Treaty
  7. 7. ContentsVOLUME XII ISSUE17 MARCH11,2019 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 8 March 11, 2019 16What Next? Pakistan’s decision to release the downed IAF pilot has clearly put the ball in India’s court. But Imran Khan, too, will have to de-escalate the situation by dismantling terrorist camps LEAD 21Green Stays My Valley The Court has stayed the controversial PLPA amendment passed by the Haryana assembly, thus saving the Arvalis and the Shivalik ranges from impending destruction SUPREMECOURT COURTS 24Watch Out! A Madras HC judge has “recommended” installation of CCTV cameras in judges’ chambers and rooms of bureaucrats in an attempt to curb sexual harassment 22No End in Sight In a surprising twist to the Ayodhya land dispute, the Supreme Court has proposed that the parties attempt to settle it through mediation despite past efforts in this regard having failed
  8. 8. | INDIA LEGAL | March 11, 2019 9 Removing Deadwood REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design ANTHONY LAWRENCE Ringside .........................10 Courts.............................11 Is That Legal...................12 Durbar.............................14 Media Watch ..................49 44 STATES Easier Said Than Done No Room for Error The implementation of the Polluter Pays principle in Delhi has suffered as many administrative set-ups have not been sensitised and made aware of how it can be put into practice The National Green Tribunal has come down hard on Delhi schools and colleges for failing to comply with its order directing them to instal rainwater harvesting systems 38 ENVIRONMENT The Haryana government has framed new rules to prematurely retire inefficient employees and terminate those found corrupt, but with polls nearing, can they be implemented? Who Gets the Jackpot? Negotiations on GST rates for lottery tickets have hit a hurdle as Kerala, which earns a huge amount from their sales, does not want to raise taxes from the present 12 percent 34 COMMERCE SPOTLIGHT Governance by Surveillance Despite a judge advocating State surveillance through CCTV, such a move affects privacy and has a “chilling effect” on people, says former Army & IAS officer MG Devasahayam Setting an Example 42 By asking the Kerala Youth Congress chief to cough up the cost of the damage suffered by the public on account of a recent hartal, the Kerala HC has sent out a strong message Pension Politics It is fiscally imprudent to hike EPFO interest rates to 8.65 percent from 8.55 percent. This will force banks to raise rates to stay competitive. Do polls have anything to do with it? New Deal In a path-breaking move, Pakistan has proposed major amendments in the nikahnama. This will go a long way in empowering women to obtain divorce without going to court 36 46Failing Education The CBI has found that 1,800 students, acting in connivance with unscrupulous officials, passed the NIOS exam in Madhya Pradesh without appearing for it 26 28 Stopping by the Woods... The apex court has stayed its earlier order which directed the eviction of lakhs of forest dwellers across the country 31 GLOBALTRENDS OPINION ECONOMY 41
  9. 9. 10 March 11, 2019 “ RINGSIDE “If anything like that happens (tinkering with Article 35A)...it would be difficult for those who raise the flag of this country to even shoulder it. If it (Article 35A) is att- acked, I don’t know which flag the people of Jammu and Kashmir would raise after dropping the Tricolour.” —Former J&K CM and PDP President Mehbooba Mufti “Many times people ask me why we do politics with educa- tion. Why should we not? Some people do politics with temples and mosques....” —Delhi FM Manish Sisodia on education being a focus in the Delhi Budget “First, I need to be absolved of baseless accusa- tions and allega- tions. But yes, I will start working on it. There is no hurry. People need to feel that I can make a change... All in time.” —Robert Vadra on reports that he might enter politics soon “They (Sena and BJP) did not invite me when they addressed the media. They did not spare a single seat for RPI. This has insulted me and the Dalit community in India...” —Republican Party of India (A) chief and Union Minister Ramdas Athawale “Delhi is India’s national capital, so let the Centre keep the entire NDMC area under its complete control. How can the rest of Delhi, in which Delhiites elect their own govern- ment, be kept sub- servient to the Centre?...” —Delhi CM Arvind Kejriwal “So I do sincerely believe that Narasimha Raoji was a great son of our country. History will be much more kind to him than has been the case thus far. I am quite sure that the future will record his immense contribution to the building of modern India.” —Former Prime Minister Manmohan Singh while receiving an award on behalf of former PM Narasimha Rao “Will a ‘SHAHI’ dip in Sangam by... Modi be able to wash sins of reneg- ing poll promises, treachery and other state wrongs? Not possible for people to forgive BJP easily for...Notebandi... GST, Vengeance, Casteism, Commu- nal and Authori- tarian rule (sic).” —BSP chief Mayawati “Those who claim to be leader on their own are not leaders. A person who is respected, loved and appoint- ed as leader by oth- ers is the real leader.” —West Bengal CM Mamata Banerjee on the impression that the Opposition unity does not have a leader
  10. 10. Courts | INDIA LEGAL | March 11, 2019 11 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal Team SCBA e-committee takes major initiatives The chairman of the Amrapali group, Anil Sharma, and two directors were arrested by the Delhi police after a Supreme Court bench comprising Justices Arun Mishra and UU Lalit ordered their arrests in connection with a criminal complaint filed against them. The Court also ordered attachment of the personal properties of Sharma and directors Shiv Priya and Ajay Kumar. These directions were passed by the apex court while hearing a clutch of petitions filed by home buyers who have paid money but are yet to receive possession of around 42,000 flats booked in various projects of the Amrapali Group. Earlier, on February 14, the Court had sought an affidavit from the group for details on the amount invested and in which projects along with the names of the directors of various companies forming part of the group. The Court had also direct- ed the group to deposit `200 crore, which has been taken by it through loans and advances, by March 31. Amrapali head arrested post SC order The Supreme Court has agreed to hear pleas seeking review of its December 14, 2018, verdict on the controversial Rafale deal in open court. A bench of Chief Justice of India Ranjan Gogoi and Justices SK Kaul and KM Joseph agreed to the request of the peti- tioners to hear two review petitions, which challenge the December 14 verdict in which the Court had dismissed the demand for an SIT probe into the Rafale deal between India and France’s Dassault Aviation. The petition- ers have sought a review of the verdict, stating that the Court had relied on “patently incorrect” claims made by the government in its note submitted in a sealed cover to the bench which heard the original petition. Rafale review pleas to be heard in open court The e-committee of the Supreme Court Bar Association led by its chairman, Pradeep Rai (far left), has taken some major initiatives to resolve issues affecting the apex court in general. One of them is the poor connectivity of mobile phones in the court premises. The judges and lawyers were facing prob- lems daily and this was also affecting their work. The e-com- mittee got in touch with the tele- com ministry to apprise it of the problem which was then resolved immediately. Another issue relat- ed to the smooth movement of lawyers on a stretch of Bhagwan Das Road—from the Supreme Court red light to Pragati Mai- dan—in the New Delhi area. The lawyers’ movement was affected and their safety threatened due to heavy traffic congestion on this stretch. A delegation led by Rai met Home Minister Rajnath Singh (above) and took up the issue with him. Now, the traffic is being regulated smoothly by the police, and free passage has been allowed to lawyers in this area. ASupreme Court bench of Chief Justice Ranjan Gogoi and Justice Sanjiv Khanna asked the CBI director Rishi Kumar Shukla to file an affidavit within two weeks detailing the alleged contempt committed by West Bengal police and former Kolkata police commissioner Rajeev Kumar (left) in connec- tion with the Saradha chit fund scam probe. The CBI had alleged that Kumar and the West Bengal police had tampered with and destroyed call data records collected in the course of the investigation. Kumar, it may be recalled, was heading the West Bengal SIT which was investigating the Saradha and Rose Valley chit fund scams before the probes were handed over to the CBI as per the direc- tions of the Supreme Court. File affidavit to show contempt: SC in Saradha case
  11. 11. 12 March 11, 2019 ISTHAT What are the essentials of a valid contract? Section 10 of the Contract Act, 1872, sets out certain conditions which a contract must satisfy in order to be valid. They are: (a) Free consent: The parties must consent to the subject matter of the contract without any coercion, fraud, misrepresentation, etc., oth- erwise the contract will be deemed void; (b) Lawful consideration: Each party must get something in return from the other party. The consideration must not be unlawful, illegal, immoral, or opposed to public policy; (c) Lawful object: The object of the contract must be lawful; (d) Competent to contract: The parties must have attained majority, be of sound mind and must not be disqualified under any law; (e) Not expressly declared void: Agreements which are expressly declar- ed void under the Act, like betting contracts, will not be entertained; (f) Offer and accept- ance: There must be an offer made by one party and accepted by the other; (g) Certa- inty: A contract must be certain in nature; (h) Legal purpose and possibility of performance: Its object must be to create a legal obligation and it should be capable of performance. Is there legislation which protects our senior citizen parents from abuse by children? The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, deals with the welfare of senior citizens. According to this Act, parents who are unable to maintain themselves from their own earnings are enti- tled to receive maintenance from their chil- dren. They may also demand such mainte- nance from a relative where the relative shall inherit property from the senior citizen. The Act also provides that persons who abandon a senior citizen can be sentenced to impris- onment. Under Hindu and Muslim personal law too, there are provisions which protect the parents by making it a duty for the children to maintain their parents. Children Legally Bound to Maintain Parents —Compiled by Sankalan Pal A Valid Contract Must Meet Certain Conditions Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis Can a case pending in one high court be transferred to another high court? Yes, a case which is pending before one high court can be transferred to another high court. For this purpose, a transfer petition has to be filed before the Supreme Court, and if the Supreme Court finds that there is a valid reason for the transfer then the case is transferred to another high court, but if the Supreme Court is not satisfied then the case can- not be transferred. PossibletoTransferaCase fromOneHCtoAnother ? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com How are court marriages performed in India? Court marriages in India are performed under the Special Marriage Act, 1954. In this marriage, the religious and cultural cere- monies are not mandated to be performed. However, this Act does not recognise same- sex marriages. Further, it prescribes certain conditions: (a) the age of majority has to be attained in a court marriage; (b) the parties must not be of such unsound mind that they can't give valid consent for the marriage or are unfit for marriage and reproduction; (c) there must be no pre-existing marriage. Both the parties will have to file a notice of intended marriage with the marriage registrar of the district where one of them has lived for 30 days preceding the date of the notice. The notice is then published to invite objec- tions, if any. Then the marriage is conducted in the registrar’s office. The parties along with three witnesses must be present during the marriage, and have to make declarations on their marriage. A certificate issued and signed by the parties and the witnesses acts as conclusive evidence of the marriage. A court marriage can take place even between an Indian and a foreigner under the Act. Court Marriages Must Follow Legal Procedure
  12. 12. 14 March 11, 2019 That there has been a simmering rival- ry between Punjab Chief Minister Amarinder Singh and his much-junior but popular cabinet colleague, crick- eter-turned-politician Navjot Singh Sidhu, has been widely known ever since the latter walked away with kudos over the Kartarpur Corridor. Those close to Singh say the veteran of Punjab’s power politics had been waiting for a chance to gain the upper hand from Sidhu. And the chance came recently, in the wake of the Pulwama terror attack. The Maharaja of Patiala, who is also a former Armyman, earned applause from across party lines for his rivetting speech in support of the Indian Armed Forces and call for strikes against Pakistan. Singh backed this up with an interview to Barkha Dutt in which he unambiguously said that he was an At the height of the India-Pakistan war- like brinkmanship after the Pulwama sui- cide bombing and the air strikes which followed, Indian TV anchors were baying for blood and revenge as never seen before. While saner voices, in the minori- ty, were calling for calibration and de- escalation, an important voice which most people missed was that of General Pervez Musharraf, the former Pakistani dictator who is known as the architect of the Kargil war in which his country’s nose was bloodied by the Atal Bihari Vajpayee government. Musharraf, declared a fugitive in the Benazir Bhutto murder case, is now liv- ing in exile in Dubai but still hoping to make a comeback. At a recent press conference, his first public appearance in many years, he ruled out the use of nuclear weapons in case of any renewed armed conflict between India and Pakistan. “It is ridiculous even to say that there will be use of atom bomb in case of any war between the nuclear neighbours. If Pakistan uses one bomb, India will use 20 bombs so Pakistan may have to use 50—this is disastrous. People who are talking about such possibilities have no idea of warfare,” he said in reply to a question. He stressed that nuclear weapons at best are a deterrent and should not be used by anyone. Musharraf, the founder of the All Pakistan Muslim League (APML), add- ressed the press in the presence of sen- ior party members, newly elected APML Chairman Hidayatullah Kheshgi and Secretary General Mehreen Malik. MAHARAJA STUMPS CRICKETER An inside track of happenings on the national stage IS THAT YOU, MUSH? On February 27, as a worried India was coming to terms with news of escalation of tension with Pakistan and the possibility of another war between the coun- tries, Prime Minister Narendra Modi was busy address- ing the National Youth Parliament at Vigyan Bhavan. While Modi was engrossed in his favourite pastime of publicly bashing his opponents and predecessors, news had begun trickling in that Pakistan had shot down and captured one of India’s MiG fighter pilots, later identified as braveheart Wing Commander Abhinandan Varthaman. As reports of the pilot’s capture went viral, Indian officials in the external affairs and defence min- istries refused to confirm or deny the development while Modi carried on with some of his hottest political rhetoric at Vigyan Bhavan. Suddenly, an official walked up to Modi and handed him a chit. A visibly shaken Modi took three more questions from the audience before turning down the compere’s request to address the gathering again. He then left Vigyan Bhavan. A short while later, India confirmed the news of Varthaman being taken captive. No points for guessing what the chit said. INFORMING THE PM
  13. 13. | INDIA LEGAL | March 11, 2019 15 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com If Priyanka Gandhi Vadra is the brah- mastra of the Congress party for taking on Narendra Modi then her husband, the prodigal Robert Vadra, is perhaps the most potent weapon in the BJP’s armoury to launch a counter-offensive. Within Congress circles, there has always been an accepted belief that the Nehru-Gandhi family sees Vadra as the soft target that the BJP can bank on to launch its anti-Priyanka dia- tribe, whenever she becomes a politi- cal threat. What has, however, contin- ued to surprise the Congress ranks is why Vadra never misses a chance to play into the BJP’s hand. Already facing various investiga- tions by the CBI and ED over his allegedly shady land deals and ques- tionable business ventures, Vadra obviously knows he is the weakest link in the Congress first family. But this hasn’t stopped him from making off- the-cuff remarks indicating his willing- ness to join active politics. In 2012, while Priyanka was desper- ately campaigning for the party in Rae Bareli and Amethi during the UP assembly polls, Vadra decided to carry out a bike rally across the family pock- et boroughs, embarrassing his wife. The rally was abruptly aborted, report- edly on Priyanka's instructions. Now, with Priyanka taking a plunge into active politics, Vadra has again hinted at joining politics and posters have come up across his hometown of Moradabad, exhorting him to contest the upcoming Lok Sabha polls from there. Following Vadra’s latest utterances, the party’s leadership and spokesper- sons have been told to brusquely dis- miss any queries from journalists about the possibility of Vadra getting a Congress ticket. GAGGING VADRA? Durbar After Indian civil aviation authorities clo- sed eight airports—Jammu, Srinagar, Pathankot, Leh, Amritsar, Shimla, Gaggal, and Bhuntar—on February 27, owing to the Indo-Pakistani air battles, the US em- bassy in Delhi began advising all its citi- zens residing in India to exercise great caution. The embassy said that travel to areas within 10 kilometres of the border betwe- en India and Pakistan should be avoided. The only official India-Pakistan border crossing point for persons who are not citizens of India or Pakistan is in Punjab between Attari, India, and Wagah, Paki- stan. “You are strongly advised to confirm the current status of the border crossing prior to commencing travel,” an official circular said. “The Department of State reminds all US citizens in the India-Pak- istan border region to comply with Indian government directions, exercise caution, maintain a low profile, avoid all demonst- rations and monitor local media for secu- rity updates. The State Department fur- ther wishes to remind US citizens of its strong recommendation that you avoid travel to Jammu & Kashmir (with the exception of visits to the eastern Ladakh region and its capital, Leh) because of the potential for terrorist incidents, as well as violent public unrest.” US RED ALERT FROM DELHI Armyman first and a politician later, while delicately putting down Sidhu for being a sportsman- politician. The praise for Singh coincided with an uproar in the Punjab Assembly by the Akalis demanding Sidhu’s resigna- tion for his pitch for peace talks with Pakistan. Sidhu’s clarification later that he stood firmly behind the Indian Armed Forces failed miserably to absolve him of the ‘crime’ of being friends with Pakistan Prime Minister Imran Khan. Singh and his aides in the Punjab Congress have been smiling since. There is speculation that the wily Maharaja has also put in a quiet word with the party’s central leadership that Sidhu could become a liability for the party in the post-Pulwama scenario, especially since the BJP could project him as ‘Pakistan’s friend in the Congress’, and the party should not bank on him as a star campaigner for the upcoming Lok Sabha polls.
  14. 14. Lead/Indo-Pak Confrontation 16 March 11, 2019 ITH IAF pilot Wing Commander Abhinan- dan Varthaman back home from Pakistan and receiving a hero’s welcome, tempers have cooled down somewhat between India and its neighbour which were on the brink of a confrontation. These rela- tions entered a potential conflict zone after 12 IAF Mirage 2000s carried out a carefully crafted mission to destroy the largest Jaish-e-Mohammed (JeM) train- ing centre in Balakot in Khyber Pakhtunkhwa province in Pakistan. Apart from this, camps were destroyed in Muzaffarabad and Chakothi in Pakistan-occupied Kashmir (PoK) on February 26. India’s muscular response was to avenge JeM’s suicide bomb attack on a CRPF convoy in Pulwama in J&K, killing 40 jawans. Though India’s response came 12 days after the Pulwama attack, it was well-planned to cover political, diplo- matic and military aspects. This was evi- dent in the way the Air Force had metic- ulously planned to ensure total surprise. PakistanreleasingthedownedIAFpilothasclearlyputtheballinIndia’scourt.ButImranKhan, too,willhavetode-escalatethesituationbydismantlingterroristcamps By Col R Hariharan W Now What? THE HERO RETURNS Wing Commander Abhinandan Varthaman (right) at the Wagah border during a handover ceremony on March 1, 2019 UNI
  15. 15. | INDIA LEGAL | March 11, 2019 17 The IAF strike was supported by air- borne early warning and control radar systems designed to detect and track aircraft, missiles and ships, and air defence cover by Sukhoi 30MKI air- craft, while Heron drones conducted surveillance of the LoC. In order to achieve total surprise, the Mirages were inducted directly into operation from Gwalior with Ilyushin (Il-78) aircraft providing mid-air fuelling facility. It was a demonstration of the IAF’s capability to carry out a complex air operation. Both Pakistan and China would have taken note of this to factor it in their strategic matrix. India has made it clear that the oper- ation was not against the Pakistan mili- tary or its people. Foreign Secretary Vijay Gokhale, in an official statement, called the operation “an intelligence-led operation” carried out in the early hours of the day. He said: “India struck the biggest training camp of JeM in Balakot. In this operation, a very large number of JeM terrorists, trainers, senior com- manders and groups of jihadis who were being trained for fidayeen action were eliminated.” He added that Pakistan had taken no concrete action to dismantle the infra- structure of terrorism, though India had been repeatedly urging it to act against the JeM. Justifying the action, he said that “credible intelligence was received that JeM was attempting another sui- cide terror attack in various parts of the country”. He described the action as a “non-military pre-emptive action” and emphasised that “the selection of target was also conditioned by our desire to avoid civilian casualties. The facility is located in thick forest on a hilltop far away from any civilian presence”. Pakistan was in a tizzy after the Indian air strike. It closed its air space for civilian air traffic. Provincial govern- ments were put on security alert. According to an IAF spokesman, over the next two days, Pakistan aircraft had violated Indian air space in J&K 32 times. Pakistan’s retaliatory strike came a day after the Balakot attack when three PAF fighters, out of a formation of 10 PAF war planes including F-16s, JF-17s and Mirage 5s, crossed the LoC and intruded seven km into Indian airspace in Nowshera area to strike at three military targets. Accor- ding to media reports, Pakistan’s targets included a brigade headquarters in Krishna Ghati (Poonch), a bat- talion headquarters (near Nangi Tehri) and a supply dump and ammunition point in Nyari. However, two MiG- 21 interceptors scrambled to drive away the Pakistani aircraft, which dumped their bombs in open ground. I n the dogfight that followed, a MiG-21 (Bison) of ’80s vintage piloted by Wing Commander Varthaman fired a missile to bring down the F-16 plane in classic World War II style. It is learnt that the MiG-21 was hit by a splinter from the F-16 and not by air defence fire as reported in the media. Wing Commander Varthaman para- chuted to the ground in PoK and was taken prisoner. It is a tribute to the Indian officer’s skill that he came out on top using an obsolete fighter in combat with an F-16, a far superior jet. At the same time, it is also an example of the human cost the services have continued to pay for decades of indifference of suc- cessive governments who failed to equip the armed forces with modern weaponry though the security environment has become more dynamic. Pakistan prime minister Imran Khan initially put up a brave face when he addressed the joint session of his parlia- ment to discuss the increasing tension. He said that despite his multiple over- tures for peace, the response from MORAL SUPPORT Muslims in Mumbai celebrating India's air strike on Jaish-e- Mohammed camps across the border UNI ItisatributetotheIndianofficer’sskill thathecameoutontopusinganobso- letefighterincombatwithanF16.Itisan exampleofthehumancosttheservices payduetolackofmodernweaponry.
  16. 16. New Delhi was not encouraging. He said: “We realised that it was because of upcoming elections in India.” So the government decided to wait until the polls in India were over before making another offer for talks. However, he “feared they would do something”. He said he had a meeting with Army Chief General Qamar Javed Bajwa after the Indian aircraft violated Pakistani air space. At this meeting, it was decided that Pakistan would not respond straightaway. “We realised that Pakistani people might get upset that we did not respond, but we decided that since we did not know if there were any casual- ties, in case of an immediate response, there will be escalation.” His explanation that the only pur- pose of Pakistan’s strike was to demon- strate its capability, and not to inflict any casualty on India, is unbelievable. It is doubtful if any country would use its valuable air assets merely to demon- strate its capability, particularly in an operationally critical situation. H owever, the capture of its pilot skewed India’s priorities for a while as the air strike in Balakot and PoK was carried out to fulfil PM Narendra Modi’s promise to avenge the Pulwama killings and put a stop to JeM terrorist activity in J&K. However, after Pulwama, Imran Khan promised to take action if India produced evi- dence of the alleged involvement of Pakistan-based JeM terrorists. This has been Pakistan’s standard ploy to delay action on India’s complaints. After the dastardly 26/11 attack in Mumbai, India had produced dossiers of evidence, but there was no follow-up action. However, after the air strike on Balakot, India made available the dossier of the evidence to Pakistan. Earlier, India had given the dossier to the US, China and other powers too. Modi’s action was in tune with the pub- lic opinion in India, which applauded the IAF’s successful strike. But a day later, public opinion rallied to demand the release of the pilot, turning it into the first priority. The pilot’s capture gave a breather to Imran Khan as tremendous internation- al pressure was building up on Pakistan to take action to curb JeM terrorist activities. The US stand was unambigu- ously in favour of India, with US Secretary of State Michael Pompeo describing the Indian air strike as “counter terrorism actions”. After speak- ing to the foreign ministers of India and Pakistan, he asked both countries to “exercise restraint, and avoid escalation at any cost”. Almost all UNSC members also appealed to both countries to exer- cise restraint. No country condemned India’s air strike inside Pakistan. Hussain Haqqani, former Pakistan ambassador to Washington and current- ly with Hudson Institute, aptly summed up the situation in his tweet: “International community including China have advised both sides to ‘exer- 18 March 11, 2019 CONCRETE PROOF (Right) Officers showing the wreckage of the AMRAAM missile fired from a F16 plane by Pakistan; site of the Pulwama attack Lead/Indo-Pak Confrontation UNI twitter
  17. 17. | INDIA LEGAL | March 11, 2019 19 cise restraint.’ So far, no country has supported Pakistan against ‘violation of sovereignty’ or ‘Indian aggression’.” Well- known scholar Christian Fair was more forthright. She tweeted: “Pakistan attacks India incessantly using terror proxies which the army, ISI and navy arm, resource, train, and launch on mis- sions they design all over India outside Kashmir. So Pakistanis should literally shut up and take it as the punishment their state deserves.” P akistan must have been disap- pointed with China cautiously wording its comments after the situation worsened between India and Pakistan. China will be caught in an anomalous situation if confrontation breaks out into a full-fledged war. Though China and Pakistan enjoy a multifaceted relationship and have a strategic security agreement, the for- mer’s relations with India are also grow- ing, but on a different plane. China enjoys a trade surplus of over $73 bil- lion with India; India had been clocking over seven percent growth on an average for the last five years and presents a huge, attractive market for Chinese goods. Moreover, the China-Pakistan Economic Corridor, the infrastructure development project in which China is investing over $40 billion, passes thro- ugh PoK and any military confrontation will affect the progress of the project. In addition, India has become an essential partner in China-sponsored multilateral forums such as BRICS and the Shanghai Cooperation Organisation. China is also strengthening trilateral cooperation with India and Russia. Chinese state councillor and foreign minister Wang Yi said the three coun- tries had agreed to firmly uphold multi- lateralism and the international system with the UN as the core, as well as the basic norms of international relations, including the principle of non-interfer- ence in the domestic affairs of other countries. So it is not surprising to see Chinese foreign ministry spokesperson Lu Kang saying: “We are indeed worried about the current tension between Pakistan and India.” Wang Yi has repeatedly expressed China’s concerns in his talks with his counterparts in India and Pakistan. The spokesperson said: “We urge both Pakistan and India to exercise the utmost restraint and conduct dia- logue as soon as possible. Control the situation and jointly safeguard peace and stability.” According to Reuters, the US, UK and France have proposed that the UN Security Council blacklist Masood Azhar, the head of JeM. They asked the 15-member UN Security Council sanc- tions committee to subject him to an arms embargo, global travel ban and assets freeze. However, the proposal will only be finalised on March 13 after con- sensus. China as the lone supporter of Pakistan had delayed the action in the committee on “technical grounds”. Last, but not least, is Pakistan’s pre- carious economic situation which makes going to war the least favourable option. Pakistan is beholden to China and Saudi Arabia for financial support to tide through the crisis as its foreign reserves are in single-digit. Hemmed in by these constraints, Imran took everyone by surprise when he announced in parliament on February 28 that “in our desire for peace” and as a first step to open negoti- ations, Pakistan would be releasing the IAF officer. He added that Pakistan’s efforts for de-escalation should not be construed as “weakness”. Imran’s move to release the prisoner has clearly put the ball in Modi’s court. Though the Indian PM has said that India will pursue its objective to eradi- PakistanPMImranKhan’sgesturein releasingthepilotandinvitingNarendra Modifortalksmeetstheimmediate needsofinternationalpowers.Many wouldappreciatesuchagesture. ChinaisworriedaboutIndo-Paktension. IndiaisavitalpartnerofChinaand ChineseforeignministerWangYihas saidthatIndia,RussiaandChinahad agreedtofirmlyupholdmultilateralism. Indiahasmadeitclearthattheair strikeswerenotagainstthePakistan militaryoritspeople.Foreignsecretary VijayGokhalecalledtheoperationasa “non-militarypre-emptiveaction”.
  18. 18. 20 March 11, 2019 cate the terrorist threat, on the eve of elections, public opinion could be divid- ed over continuing with operations across the LoC, particularly after Imran’s goodwill gesture. This was evi- dent from the welcome his announce- ment received from many leaders in India and abroad. P unjab Chief Minister Captain Amarinder Singh said: “I’m very happy, I had demanded his (the pilot’s) release earlier too. This is going to be a step towards goodwill and I hope this will be lasting.” Former J&K Chief Minister Mehbooba Mufti, too, complimented Imran, saying he had “exhibited real statesmanship today”. She hoped that “our leadership will reciprocate and try to de-escalate the situation”. She also hoped that Imran would act upon the evidence provided to Pakistan “so that tension between the two countries ends”. Apparently, Imran has used his bowl- ing skills to bowl a googly to use the confrontation from the core issue of bleeding India using terrorists. In this mind-game, Imran has the advantage of not having the Damocles’ sword of elec- tions hanging over him like Modi. Moreover, Imran has Gen Bajwa behind him in decision-making as he himself has acknowledged. Imran’s dramatic and “generous” ges- ture in releasing the pilot and inviting Modi for talks meets the immediate needs of international powers. Some of them, friendly to both countries, would appreciate such a gesture as it saves them from an embarrassing situation. We can expect China to persuade India to reciprocate Pakistan’s gesture by de- escalating the military situation. But Imran would probably not bar- gain for Modi digging his heels in and fighting for his beliefs. So to lend credi- bility, it’s not only India, but Imran too who has to de-escalate the situation by taking substantive action by dismantling terrorist camps and deny the fidayeen the freedom to operate against India from Pakistan’s soil. Can he do it? Will the army allow it? Only time can tell. Modi faces a more complex task as he has to balance his strategic response to take it to the logical conclusion and at the same time, gain the approval of his people so that they will vote him back to power. We can expect him to continue with his holistic narrative internally in J&K and continue the pressure game on Pakistan. But it could be muted to accommodate international partners. India must factor in all these ques- tions before responding to Pakistan. —The writer is a military intelligence specialist on South Asia, associated with the Chennai Centre for China Studies and the International Law and Strategic Studies Institute PunjabCMAmarinderSinghsaidthathe wasveryhappywiththepilot’srelease. “Ihaddemandedhis releaseearliertoo. Thisisgoingtobeasteptowards goodwillandIhopethiswillbelasting.” FormerJ&KCMMehboobaMufticompli- mentedImran,sayinghehad“exhibited realstatesmanshiptoday”.Shehoped that“ourleadershipwillreciprocateand trytodeescalatethesituation.” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Lead/Indo-Pak Confrontation TAKEN ABACK Pakistani soldiers patrol in the area in Balakot, Pakistan, where Indian warplanes released payload UNI
  19. 19. N February 27, the Haryana assembly passed an amend- ment to the century-old Punjab Land Preservation Act, 1900 (PLPA), opening thousands of acres of land under the Aravalis and Shivalik ranges for con- struction and mining activities. On March 1, the Supreme Court, act- ing on a plea filed by noted environmen- tal lawyer MC Mehta, stayed the amend- ment while slamming the Manohar Lal Khattar-led Haryana government for acting in violation of the Court’s previ- ous orders. In a sternly worded judgment, a divi- sion bench of Justices Arun Mishra and Deepak Gupta warned the Haryana gov- ernment of contempt proceedings and | INDIA LEGAL | March 11, 2019 21 Supreme Court/ Punjab Land Preservation Act construction should be allowed in the Aravali zone. The PLPA is a significant piece of legislation as it bars non-forest activity in areas notified under it and covers nearly 20,200 hectares in south Haryana, of which around 7,000 hectares are in Gurugram and a little over 4,000 hectares in Faridabad. The Act also covers some portions of the Shivalik ranges in northern Haryana. Through the amendment, a new Section 3A was introduced which said that the provisions of the PLPA will not apply to certain areas which include final development plans of urban areas such as Gurugram Metropolitan Dev- elopment Authority Act, Faridabad Metropolitan Development Authority Act, 2018, Haryana Municipal Corpor- ation Act, 1994, among others. It’s widely believed that the amend- ment was brought under pressure from the real estate mafia which had been lobbying for a complete repeal or major amendment of the PLPA to exploit the land for commercial purposes. This isn’t the first time that the Supreme Court has intervened to save the depleting forest cover in Haryana, a state with the dubious distinction of having the second lowest forest cover in the country. In September 2018, the Court had ordered the demolition of the infamous Kant Enclave project near Faridabad and over 100 farmhouses and banquet halls built in areas recognised as “forests” under the PLPA. In October 2018, too, the Supreme Court had expressed shock over the “dis- appearance” of 31 hills in the Aravali range in Rajasthan and asked the state government to stop all illegal mining in the area. As of now, it seems that the top court’s timely intervention has foiled the Haryana government's well-laid plans to promote commercial activity at the cost of environmental protection. Green Stays My Valley TheCourthasstayedthecontroversialamendmentpassed bytheHaryanaassembly,thussavingtheArvalisandtheShivalik rangesfromimpendingdestruction By Vrinda Agarwal O Anil Shakya said: “We will not allow such kind of misadventure. You are not above the law. Legislature is not supreme. It is unfortunate that you are trying to destroy the forests.... No action to be taken by the Haryana government in furtherance of the PLPA amendment. The Court’s view must also prevail, you cannot get rid of a judicial order like this,” the bench said. It also directed the state government to submit the details of the amended law and ordered that no Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com “Wewillnotallowsuchkindof misadventure.Youarenotabovethelaw. Legislatureisnotsupreme.Itis unfortunatethatyouaretryingtodestroy theforests,”theSCbenchsaid.
  20. 20. Supreme Court/ Ayodhya Case 22 March 11, 2019 N February 26, the wait for a resolution of the conten- tious Babri Masjid-Ram Janmabhoomi land dispute got a new twist with the Supreme Court indicating its desire to resolve the title suit through mediation. If the Court invokes Section 89 of the Code of Civil Procedure (CPC) to order mediation between the three principal parties—Ram Lalla Virajman (the infant Lord Ram, who curiously is a petitioner in the case), the Sunni Waqf Board and the Nirmohi Akhara—the ongoing legal battle against the Allahabad High Court’s 2010 verdict could go into a tail- spin. A decision on a Court-monitored mediation in the legal battle over the ownership rights of 2.77 acres of disput- ed land in Ayodhya will be pronounced by the five-judge Constitution Bench headed by Chief Justice Ranjan Gogoi on March 5. The suggestion by the bench, despite past efforts for an out-of-court settle- ment failing, has come at a time when the Hindu right has been displaying a petulant aggression to bypass the legal process. They want the construction of a “bhavya (grand) Ram Mandir” at the site of the Babri Masjid, supposedly the exact spot where Lord Ram was born, to begin before the Lok Sabha polls, irre- spective of the outcome of the title suit before the Supreme Court. Ironically, for nearly an hour before the bench came up with this idea, the counsel for the warring petitioners could not even come to an agreement on whether they were willing to accept the translations of nearly 38,000 pages of documents related to the land that were provided by the UP government. Asked by Chief Justice Gogoi if they were willing to proceed with the case hearing on the basis of the translations —made into English and Hindi from original texts that were in Gurmukhi, Arabic, Persian and Urdu—senior coun- sel Rajeev Dhawan and Dushyant Dave, appearing for the Muslim parties, said they had not examined the “authenticity and truthfulness” of the voluminous records. Senior advocate CS Down the Beaten Road Inasurprisingtwisttothelong-drawncase,theCourthassuggestedmediationto settlethelanddisputedespitepasteffortsinthisregardfailing By Puneet Nicholas Yadav O Theresistancetogoingbackto negotiationswasalmostinstant.Nearly everycounselandpetitionerinthecourt- roomtoldthebenchthatconciliationhad beentriedinvainonearlieroccasions. WAITING FOR A SOLUTION A worker chiselling stones at a workshop for construction of the Ram Temple in Ayodhya UNI
  21. 21. | INDIA LEGAL | March 11, 2019 23 Vaidyanathan, with the onerous burden of being infant Lord Ram’s lawyer, ques- tioned the bona fides of Dhawan and Dave. Vaidyanathan claimed that Dhawan had agreed to the top court’s 2015 suggestion of accepting transla- tions done by the UP government and that he had been provided the translated documents way back in 2017 but hadn’t questioned their veracity until now. With the counsel wrangling over the translated works, Justice SA Bobde, who is part of the constitution bench that also comprises Justices DY Chandra- chud, Ashok Bhushan and S Abdul Nazeer, offered the possibility of resolv- ing the title suit by invoking Section 89, CPC. “We are seriously thinking over giving mediation a try since the dispute is not about anybody’s private property… Even if there is one percent chance of an amicable resolution, it should be given a try,” Justice Bobde said. The resistance to the idea of going back to the drawing board for negotia- tions was almost instant. Nearly every counsel and petitioner present in the courtroom, including the garrulous Subramanian Swamy, told the bench that conciliation had been tried in vain on umpteen earlier occasions and it was now incumbent upon the apex court to resolve the dispute through a judicial pronouncement. Justice Bobde, however, persisted with his idea, stating that “mediation will be concurrent to the suits pending before the court” and will be kept “confi- dential”. Chief Justice Gogoi too seemed to share his brother judge’s view and said: “We would like your views as to who could act as a mediator… it should be confidential, we don’t want any third parties to comment.” W ith counsel for the Hindu claimants visibly opposed to a renewed mediation effort, Justice Bobde remarked: “If it is just a property dispute we may decide it, but we are thinking more about healing rela- tionships.” Though reiterating that simi- lar negotiations in the past had failed, as was also recorded in the Allahabad High Court’s 2010 verdict, Dhawan noted that the suggestion by the bench was an “important one” and he would be willing to give mediation a try once more if the Supreme Court so ordered. Senior advo- cate SK Jain, appearing for the Nirmohi Akhara, submitted that he favoured a Court-monitored mediation. With the counsel divided over a Court-monitored mediation, Chief Justice Gogoi said that the court would “not do anything against your wishes”. In the hypothetical scenario of half the parties being willing for mediation and the others opposed to it, it would be interesting to see whether the Court tries to evolve a consensus on the issue of conciliation or invokes Section 89, CPC. The idea of renewing the negotia- tions is also intriguing because the 2010 verdict, challenged by all the parties in the case, was criticised on the ground that the Allahabad High Court had taken upon itself to act as a mediator. Although the prayer before the Allahabad High Court, as is now before the Supreme Court, was to decide on the title-ship of the 2.77 acres of disputed land, Justices Sudhir Agarwal, SU Khan and DV Sharma had in their September 30, 2010, judgment attempted a suo moto reconciliation by ordering award of three equal portions of the disputed land to the three principal claimants. The verdict had said: “It is declared that the portion below the central dome where at present the idol (of Ram Lalla) is kept in makeshift temple will be allot- ted to Hindus in final decree. It is fur- ther directed that Nirmohi Akhara will be allotted share including that part which is shown by the words Ram Chabutra and Sita Rasoi in the said map… It is, however, made clear that the share of Muslim parties shall not be less than one third (1/3) of the total area of the premises and if necessary it may be given some area of outer courtyard.” The unsolicited mediation effort by the Allahabad High Court, through its verdict, had been rejected by all the petitioners. Attempts at an out-of-court settlement made since, including the much-criticised and prematurely abort- ed one by Art of Living founder Sri Sri Ravi Shankar in 2017, have all failed. It is obvious that arbitration is not possible in this case. The Supreme Court has to now decide whether it wants to go down the beaten path once again. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com ChiefJusticeRanjanGogoisaid:“Wewouldlikeyourviewsastowhocouldactasa mediator…itshouldbeconfidential.”JusticeSABobde(right)toostatedthat “mediationwillbeconcurrenttothesuitspendingbeforethecourt”and“confidential”.
  22. 22. Courts/ CCTV Cameras 24 March 11, 2019 N a path-breaking order aimed at eradicating sexual harassment of women in workplaces, the Madras High Court has “strongly recom- mended” to the chief secretary to instal CCTV cameras inside the rooms of all bureaucrats in Tamil Nadu. As a first step, Justice SM Subramaniam issued a directive to the High Court administration to instal CCTV cameras in his official chambers within two weeks. He told the government lawyer: “You (police) are promoting CCTV cam- eras in public places as well as in private campuses to curb crimes. This being the preaching to the citizen at large of this great nation, what about the offenders and black sheep in the police offices, chambers and office rooms of the higher officials? What measures you had taken to nab such offenders inside the police department and other public offices and institutions?” He then quoted Mahatma Gandhi: “An ounce of practice is worth more than tons of preaching.” The issue cropped up during the hear- ing of a case related to sexual harass- ment of a superintendent of police (SP) attached to the Directorate of Vigilance and Anti-Corruption of the Tamil Nadu police. Her complaint was against the inspector general of police (IGP). Iron- ically, the SP was chairperson of the Internal Complaints Committee (ICC) when she lodged the complaint. Initially, a committee was formed by the government to probe the complaint. Then the Crime Branch Criminal Investigation Department (CBCID) of the Tamil Nadu police in a parallel exercise registered an FIR to investigate the matter. The ICC did not make any headway and later was reconstituted with a new team headed by a woman additional DGP and comprising two women police officers, a male police officer and a woman advocate of the Madras High Court. When the case came up before Justice Subramaniam, he expressed displeasure over the slow pace of investigation and said: “The insensi- tiveness shown by the authorities on receipt of a sexual harassment com- plaint from the woman SP against her superior, who is an IGP, cannot be appreciated by this court. The registra- tion of an FIR is not infirm and the same is in accordance with law and fur- ther investigations and prosecutions are certainly warranted in view of the fact that the allegations set out in the com- plaint are serious in nature.” Dismissing the arguments of the concerned IGP that the two parallel investigations (inquiry by the ICC and by the CBCID) cannot be done simulta- neously, the judge said: “The action under the Sexual Harassment Act by the employer is independent and complaint registered under the Indian Penal Code A Salve or a Nuisance? Inamovetocurbsexualharassment,ajudgeoftheMadrasHChas“recommended”CCTV camerasinjudges’chambersandroomsofbureaucratsinTN.Howwillthisbeimplemented? By R Ramasubramanian in Chennai Theissuecroppedupduringthe hearingofacaserelatedtosexual harassmentofasuperintendentof police.Hercomplaintwasagainst aninspectorgeneralofpolice(IGP). I SAFE WORKPLACES A CCTV camera helps to make working women feel secure bytebacklawredesign.lexblogplatform.com
  23. 23. | INDIA LEGAL | March 11, 2019 25 (IPC) and its subsequent inquiry by the CBCID is also independent. The twofold actions are permissible with reference to the sexual harassment complaint. The employer is empowered to constitute the ICC and proceed with the inquiry and based on the report, initiate all further actions under the provisions of the said Act as well as under the Service Rules which are in force. That apart, the FIR registered by the CBCID under the rele- vant IPC sections must be proceeded separately and criminal trial must be conducted in accordance with law. These two separate actions are inde- pendent, unconnected and permissible.” In what can be seen as mollifying words to the aggrieved police officer, the judge added: “As far as the person agai- nst whom the complaint was made, reg- istration of an FIR was also a ground to initiate departmental disciplinary pro- ceedings. Thus, if the investigation was commenced by the CBCID, then all appropriate actions were to be initiated under the relevant service rules, enabling the Investigating Officer (IO) as well as the ICC to proceed with the matter in an unbiased manner and fair- ly. All such required actions were to be initiated by the State as well as the Head of the Department to conduct free, fair and unbiased inquiry.” Regarding the nature of the com- plaint, he said: “When a woman police officer in the rank of SP, is making such a statement, this court was of the con- sidered opinion that such a statement requires a serious consideration war- ranting deeper inquiry and appropriate action against the person the allegation was made. On a plain reading of the complaint it is sufficient to note that the allegations raised are affecting the mod- esty of a woman and therefore, registra- tion of a criminal case under the IPC is just and necessary.” Justice Subramaniam concluded: “Thus, registering a criminal case is her [concerned SP] fundamental right ensured under the Constitution of India. Such a valuable right cannot be taken away interpreting the provisions of the Sexual Harassment Act, that it is a pre- condition to conduct an inquiry by the ICC. Accordingly there is no infirmity in respect of the registration of an FIR by the CBCID at the instance of the ICC, even before conducting an inquiry under the Act.” The judge posted the case for further hearing to March 6. C oming to the judge’s directive of installing CCTV cameras in the rooms of all bureaucrats, it’s not clear how the Tamil Nadu government will respond. The judge said he was “str- ongly recommending” this move to the chief secretary; it is not a directive. The response of bureaucrats to this judgment was mixed. K Balachandran, a retired IAS officer, told India Legal: “I welcome this move. The very fact that there are CCTV cameras will instil confi- dence in the minds of women employ- ees. But there are places, in the rooms of top police officers, especially those look- ing after intelligence, where you can’t fix CCTV cameras because visitors there include police informants. As the police has to protect their identity at all costs, CCTV cameras are not desirable there.” Even women officers, for whom this judgment should have been like music to the ears, were none too happy about it. Gokila (name changed), a middle- level officer of the state government, told India Legal: “There are over 12 lakh state government employees spread over 33 districts. Already, there are CCTV cameras in a few departments. But it is not hunky-dory for women employees. We cannot relax at times as our male superiors object to the manner in which we sit by observing us from CCTV footage. Those who are ill tend to stand or go to the rest room or walk in the corridors to relax. This leads to male superiors passing lurid comments about them. Fixing CCTV cameras may not eradicate sexual harassment of women staffers. It may bring it down, though. These cameras inside bureaucrats’ rooms also may not help much as a rogue officer can always play around with them.” Interestingly, after this judgment, not a single judge of the Madras High Court expressed willingness to instal a CCTV camera in his/her chamber. Another issue is that for any physical alteration of any part of the High Court, the per- mission of the chief justice is a must. It’s not clear whether the High Court administration has sought the approval of the chief justice to instal CCTV cam- eras in Justice Subramaniam’s chamber. Also, there is the question of allotting funds for this venture, which too can only be done by the chief justice. There are other issues too which would need to be sorted out. A senior lawyer who did not want to be named told India Legal: “Installing the CCTV cameras will require a nodal officer to manage the control room. Also, in judges’ chambers, judgments are dictat- ed by the judges to stenographers. If the camera zooms in, judgments can be read by outsiders, especially those sit- ting in the control rooms. Confiden- tiality will be compromised. To my knowledge, CCTV cameras are not installed in any high court of the coun- try. I am amused by this order.” Has a hornets’ nest been stirred? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com JusticeSMSubramaniamsaid:“You (police)arepromotingCCTVcamerasin publicplaces...whataboutoffendersand blacksheepinpoliceoffices,chambers andofficeroomsofthehigherofficials?”
  24. 24. Opinion/ CCTV Cameras MG Devasahayam 26 March 11, 2019 N November 2017, the Supreme Court ordered installation of CCTV cameras in all courtrooms. The apex court said that installation of CCTV cameras in courts would be in the larger public interest, disci- pline and security. Justices AK Goel and UU Lalit trashed the privacy argument, saying: “What privacy? This is not a case of privacy. We don’t need privacy here. Judges don't need privacy in court pro- ceedings. Nothing private is happening here. We all are sitting in front of you.” In September 2018, the Delhi High Court upheld the installation of CCTV cameras inside school classrooms and rubbished claims that children’s right to privacy would be affected. A bench of Chief Justice Rajendra Menon and Justice VK Rao said there was “no priva- cy issue” with regard to having CCTV cameras in classrooms as nothing pri- vate was being done there. Judges also observed that the concerns of privacy have to be balanced with the safety of the children, adding that often parents accuse teachers of not teaching and therefore, the cameras would show the correct picture. Now, the Madras High Court has “strongly recommended” to the chief secretary of Tamil Nadu to instal CCTV cameras inside the rooms of all bureau- crats in order to eliminate sexual harass- ment of women at workplaces. As a first step, Justice SM Subramaniam issued a directive to the High Court administra- tion to instal CCTV cameras in his offi- cial chamber within two weeks. However, the judge failed to address the privacy issue of installing CCTV cameras in a judge’s chamber. This or- der could open the door for State sur- veillance and there are many arguments against it. First and foremost is the argument of freedom over safety. As Benjamin Franklin said: “Those who would give up essential Liberty to pur- chase a little temporary Safety, deserve neither Liberty nor Safety.” State surveillance creates a society without privacy or freedom of thought. It creates a disturbing culture wherein those being observed may feel the need to alter their behaviour regardless of whether they have done anything wrong. There is a “chilling effect” on society, where people internalise the fact they are constantly being observed and judged by some hidden criteria. The “chilling effect” will be deadlier when judges of the higher judiciary are subject Governance by Surveillance? DespiteajudgeadvocatingStatesurveillance,itcreatesasocietywithoutprivacy orfreedomofthoughtandhasa“chillingeffect”onpeople I ENHANCING SECURITY A CCTV camera being installed at the UP assembly premises in Lucknow UNI
  25. 25. | INDIA LEGAL | March 11, 2019 27 to state surveillance in their own cham- bers where they deliberate and write judgments that have far-reaching implications. The same arguments apply mutatis mutandis to bureaucrats, often meaning senior civil servants and police officers. Their offices are not “public spaces” or open classrooms or courtrooms. Mee- ting the public is only one of their func- tions. Most of their time is spent on file- work, holding meetings and discussing issues, many of which would be confi- dential. Putting them on surveillance is inviting “Big Brother” to watch over them and control everything. The judiciary and bureaucracy are vital instruments of governance. The term governance refers to the decision- making and implementation processes in the administration of a country, state or organisation. At the country/state level, governance is the exercise of polit- ical, economic and administrative au- thority in the management of multifari- ous affairs. Governance comprises com- plex mechanisms, processes and institu- tions through which citizens and groups articulate their interests, mediate their differences and exercise their legal rights and obligations. Good governance is participatory, transparent and acc- ountable. It is effective in making the best use of resources and personnel and is equitable. Basically, it promotes jus- tice and the rule of law. In a democracy, as distinct from an autocracy, governance should be society- centric. Its dominant part will be the government, but it would also include the private sector and civil society. All three are critical for sustaining human, economic and social development. Governments create a conducive politi- cal, administrative, legal and living envi- ronment. The private sector represented by trade, commerce, agriculture and industry promotes enterprise and gener- ates jobs and income. Civil society, rep- resented by the voluntary sector, facili- tates interaction by mobilising groups to participate in economic, social and political activities. W e are a democracy and should adhere to democratic gover- nance. Such governance should adopt certain functional norms and principles such as the involvement of stakeholders in the decision-making process; transparency and accountabili- ty at all governmental and societal lev- els; citizens’ participation in the process of social and public welfare, economic growth and development. Importantly, there should be enough space for civil society to freely express its views and opinions on the agenda of the govern- ment without fear or favour. Surveillance, on the other hand, is keeping a close watch on targeted per- sons and their activities by the police and intelligence agencies. Doing it man- ually could interfere with the privacy and freedom of the individual. But doing it extensively, that too through advanced technologies, could severely compromise the fundamentals of a free society. Surveillance and its systems work on advanced video camera tech- nology. These cameras are generally connected with internal protocol net- works, which help to connect the net- work from the remote area to the assigned security area. Nowadays, there has been tremendous use of these sur- veillance cameras in many public and government sectors in order to keep their respective areas secured. There are many ways to monitor the working of judges and bureaucrats who are lax and need to be tightened. But CCTV surveillance is certainly not the way. If the State indulges in advanced technology-based surveillance of critical entities, there can be no democratic gov- ernance. Only governance by suspicion and fear. This is best avoided. —The writer is a former Army and IAS officer Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com InNovember2017,theSChadorderedinstallationofCCTVcamerasinallcourtrooms. JusticesAKGoel(left)andUULalithadtrashedtheprivacyargument,saying:“Thisis notacaseofprivacy...judgesdon’tneedprivacyincourtproceedings....” “Thosewhowouldgiveupessential Libertytopurchasealittletemporary Safety,deserveneitherLibertynorSafety.” —BenjaminFranklin,oneofthefounding fathersoftheUnitedStates
  26. 26. Economy/ Hike in EPFO Interest Rates 28 March 11, 2019 HERE are broadly two kinds of pension plans. In defined benefit plans, the employer guarantees a fixed (defined) pension benefit to the employee upon retirement. The risk associated with investing the pension corpus is borne by the employer. In defined con- tribution plans, the contributions made by the employee are defined but the retirement benefits are not fixed and, instead, depend on the return generated by investing the corpus. The investment risk is, therefore, borne by the employee. India’s two major pension plans— EPF (Employee Pension Fund) and NPS (National Pension Scheme)—are defined contribution plans. The return in the EPF plan is fixed annually by a board of trustees while the NPS return is driven by the market. Recently, the EPF board raised the annual return in the plan from 8.55 per- cent to 8.65 percent, a move that sur- prised many observers given that the returns offered in the EPF plan were already quite attractive compared to other alternatives. Since the pension benefits in EPF are not taxed, a return of 8.65 percent is equivalent to a taxable return of 10.9 percent for someone earning between `5 lakh and `10 lakh a year and 12.6 percent for those earning between `10 lakh and `50 lakh. In com- parison, a five-year deposit at SBI cur- rently fetches only 6.8 percent. Since the EPF is under the adminis- trative control of the government, the obvious question is whether this increase in returns is a reflection of bet- ter investment returns earned by the fund or a SOP for the salaried middle class before the elections. A Baffling Move ItisfiscallyimprudenttohikeEPFOinterestratesto8.65percentfrom8.55percent andtopayoutmorethanwhatisearned.Thiswillforcebankstoraiseratestostay competitive.Dopollshaveanythingtodowithit? By Sanjiv Bhatia T ASSURED AMOUNTS Union Home Minister Rajnath Singh with EPFO pensioners in Lucknow UNI
  27. 27. | INDIA LEGAL | March 11, 2019 29 EPF, with a subscriber base of six cr- ore people and a corpus of over `11 tril- lion, is mandated by the government to invest the money as follows: 45-50 per- cent in government bonds (read as a minimum of 45 percent and up to 50 percent), 20-45 percent in debt securi- ties like corporate bonds and bank term deposits, 5-15 percent in equity markets, up to 5 percent money market instru- ments (short-term liquid instruments like treasury bills and certificates of dep- osits) and up to 5 percent in asset-back- ed securities (home and auto loans). It is hard to see how the board of trustees came up with an investment return of 8.65 percent given that the vast majority of its investments are in government bonds, currently yielding around 7.4 percent, and non-banking financial companies like IL&FS which are underwater. Its equity component, which is invested in a broad-market index, is up only about 3 percent in 2018 and struggling this year. For a pension plan to pay out more than it earns is fiscally imprudent. In 2017-18, EPFO’s surplus was `586 crore, and this year after an 8.65 percent payout, its surplus will drop to `151 crore—far below the level maintained in earlier years. That EPFO raised its offered return (for the first time in four years) soon after the Reserve Bank of India lowered interest rates is indeed puzzling. Raising the offered rate on EPF will force banks to increase their rates which in turn will increase the cost of borrow- ing capital. Some of the trustees on the EPFO’s central board have complained that the board’s finance committee did not endorse the decision to raise rates and that detailed calculations on the derivation of 8.65 percent were kept hidden from all members. Elections in India do bring out confounding and often conflicting SOP’s—the not-too- independent RBI lowers rates, and the country’s largest pension plan raises returns. Go figure. T he other government pension scheme offered in India, the National Pension Scheme (NPS), was launched in 2004 primarily as a retirement scheme for new government employees, but was subsequently offered to the general public in 2009. While the EPF provides a guaranteed annual return, the NPS gives market-linked returns. The vast majority of the EPF corpus is invested in government bonds, and investment in the equity market is limited to a maximum of 15 percent. But NPS is allowed to invest up to 50 per- cent of its corpus in the equity markets, which, over the long term, has the potential to earn higher returns. There are some other differences between the two pension plans. Firstly, EPF is open only for salaried employees of private sector firms. It is compulsory in companies with ten employees or more. NPS, while mandatory for gov- ernment employees who joined after April 2004, is also open to the general public, including the self-employed and people in the unorganised sector. Secondly, in EPF, the employee’s con- tribution is fixed at 12 percent of his basic salary (with an equal amount added by the employer), but in NPS, the employee can put any amount over the minimum contribution of `6,000 per year—there is no upper limit. Thirdly, under NPS, the employee can choose how his money is invested between debt and equity. This flexibility is missing in the EPF scheme. Everyone gets the same return dictated not by the market but by the board of trustees (which is controlled by the Ministry of Labour). The higher allocation to equity could potentially offer NPS subscribers additional returns of 2 to 3 percent per year for long tenure plans. Fourthly, the entire accumulation in the EPF can be withdrawn at the time of retirement (age 60), while in the case of NPS, only 60 percent can be withdrawn as a lump sum and the remaining 40 percent must be compulsorily invested in an annuity that provides annual pen- sion payments every year. Finally, there are differences in how the pension benefits in the plans are taxed. While both plans allow the monthly contribution to be deducted from current income for tax purposes (up to a maximum of `1.5 lakh), MARKET-LINKED RETURNS Government employees, who joined after April 2004, have the option of the National Pension Scheme SometrusteesontheEPFO’scentral boardhavecomplainedthattheboard’s financecommitteedidnotendorsethe decisiontoraiseratesandthe calculationswerekepthidden. india.com
  28. 28. Economy/ Hike in EPFO Interest Rates 30 March 11, 2019 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com withdrawals at retirement in the EPF plan are completely tax-free while only 40 percent of the amount withdrawn under the NPS scheme is tax-free. Also, the annuity pension payments under the NPS scheme are taxable. The 7th Pay Commission recommended that with- drawals under NPS should also be tax- exempt to place it on a par with EPF. So which retirement system is bet- ter—NPS where the returns are market driven but withdrawals are not tax-free or EPF where the returns are dictated by a government-controlled board but the withdrawals are tax-free? NPS does offer the potential for higher returns over the long term and should be the preferred alternative for young sub- scribers under the age of 40. Since inception, the 50 percent equity option under NPS has given a return of 11.8 percent, but after taxes, the return falls to around 8.7 percent which is equiva- lent to the 8.65 percent offered by EPF. The tax exemption gives EPF a signifi- cant advantage over other plans. There are multiple other pension plans offered by private companies such as HDFC, Bajaj, Reliance, and govern- ment organisations like LIC, SBI, etc. Most are based on the notion of a fixed monthly premium paid during the working life of a person, which is invest- ed to provide a cumulative amount or annuity at retirement. Individuals who want greater control over their invest- ment can also construct their own retirement plan by investing a fixed amount in a portfolio of their choos- ing—systematic investment plans (SIPs) in mutual funds are an example. The significant disadvantage of self-designed pension plans is that the premiums are not tax-deductible. S aving for the day when one can’t generate regular income is a must for everyone. The government should make all plans, including private offerings, tax-neutral to provide individ- uals with a wide range of retirement options. Younger workers would have the flexibility to choose plans that have a higher equity component to deliver bet- ter returns, while older workers may prefer the guaranteed return of EPF. Retirement plans play an important role in economic growth because they help channel savings into capital mar- kets. Plans like EPF, which are forced to invest a majority of their corpus in gov- ernment bonds, crowd out capital avail- able for the private sector. This affects business productivity. The fact that EPF withdrawals are tax-free give it a significant advantage over others. The government can fix this anomaly by making all pension plans tax-neutral as suggested by the 7th Pay Commission. Providing the same tax treatment for all qualified retirement plans will force the plans to compete on the basis of returns. This will increase the retirement options available to citizens and provide the private sector with greater access to capital. —The writer is a financial economist and founder, contractwithindia.com Employeesofprivatecompaniescan choosebothEPFandNPS.Thelatter offersthepotentialforhigherreturnsover thelongtermandshouldbethepreferred alternativeforyoungsubscribers. Rajeev Tyagi ATTRACTIVE PLANS Young workers may choose plans with a high- er equity component; (above) private compa- nies, like HDFC, also offer pension plans HDFCBank.com
  29. 29. severely affected due to ineligible/bogus claimants under FRA. The vires of the FRA was also challenged. On February 13, 2019, a three-judge bench of the Supreme Court comprising Justices Arun Mishra, Navin Sinha and Indira Banerjee ordered that all the persons— non-tribals and tribals—whose claims | INDIA LEGAL | March 11, 2019 31 Spotlight/ Forest Rights HE Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, or FRA, as it is popularly known, is a law that was enacted in 2007. The FRA was meant to undo the “historic injustice to forest dwelling communities” and for recog- nising pre-existing forest rights only as on December 13, 2005. The Act covers not just tribal populations but also Stopping by the Woods... Inawelcomemove,theSupremeCourtstayedanearlierorderwhichcalledfortheevictionoflakhs offorestdwellersalloverIndia,givingthemsomereprieve By Debi Goenka T LIVELIHOOD AT STAKE Tribal women carrying firewood from the forest in Patratu area in Ranchi includes “other forest dwellers”. Only those in actual occupation of forest land are eligible to be granted rights as per this law. People belonging to Other Traditional Forest Dwellers category, i.e. non-tribals, who form the bulk of the claimants, have to establish continuous 75-year occupation for eligibility. A writ petition was filed in 2008 in the Supreme Court by a number of envi- ronmental and wildlife groups to ensure the protection of forests that were UNI
  30. 30. 32 March 11, 2019 ing the data regarding the number of claims rejected within the territory of that State and the extent of land over which such claims were made and rejected and the consequent action taken up by the State after the rejection of the claim, with all appropriate data in support of the above-mentioned infor- mation within a period of two weeks from today....” An order dated March 7, 2018, and delivered by a bench headed by Justice Madan B Lokur, said: “…Under the cir- cumstances, we issue a fresh direction to all the State Governments to file a tabu- lar statement in the form of an affidavit indicating the following:- “(i) The number of claims for the grant of land under the provisions of the Scheduled Tribes and Other Traditional have been rejected after following the due process laid down in the FRA— need to be evicted. The Order directed: “...The Chief Secretary shall ensure that where the rejection orders have been passed, evic- tion will be carried out on or before the next date of hearing. In case the evic- tion is not carried out, as aforesaid, the matter would be viewed seriously by this Court...” It further said: “...It is directed that where the verification/ reverification/review process is pending, the concerned State shall do the needful within four months from today and report be submitted to this Court....Let Forest Survey of India (FSI) make a satellite survey and place on record the encroachment positions and also state the positions after the eviction as far as possible....Let the requisite affidavits be filed on or before 12.07.2019.” The mat- ter was listed for July 24, 2019. H owever, on February 27, the government made an urgent application to the Supreme Court for a review of the order, stating for the first time that the Ministry of Tribal Affairs (MoTA) was not satisfied with the procedure followed by the state governments while rejecting these claims. The same bench heard MoTA’s application on February 28, and put its order of February 13 on hold. State gov- ernments have now been directed to file affidavits elaborating the procedure they followed pursuant to these claims being filed. The solicitor general, who appea- red for MoTA, had no reply when the judges asked—what was MoTA doing over the years when previous hearings were held and various orders were passed by this very Court? It would be interesting to note some of the orders passed previously in this regard. An order dated January 29, 2019, by a bench headed by Justice Jasti Chelameswar of the Supreme Court said: “…Obviously, a claim in the con- text of the above-mentioned Act is based on an assertion that a claimant has been in possession of a certain par- cel of land located in the forest areas. If the claim is found to be not tenable by the competent authority, the result would be that the claimant is not enti- tled for the grant of any Patta or any other right under the Act but such a claimant is also either required to be evicted from that parcel of land or some other action is to be taken in accordance with law. “Therefore, we deem it appropriate to find out as to what action was taken against the claimants whose claims have already been rejected. At this stage, we are informed by Mr. P.S. Narsimha, learned Additional Solicitor General that the action insofar as persons who are unauthorisedly in possession of for- est land, is required to be taken by the concerned State Governments and its authorities under the relevant laws in force in each one of the States. “In the circumstances, we are of the opinion that each one of the respon- dent-States should file an affidavit giv- TheSupremeCourtbenchcomprising JusticesArunMishra(above),Navin Sinha(right)andIndiraBanerjeeheard MoTA’sapplicationonFebruary28,and putitsorderofFebruary13onhold. Spotlight/ Forest Rights Photos: Anil Shakya

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