Parallel Power Centres? Kerala Governor's Support of CAA Sparks Debate

NDIA EGALL STORIES THAT COUNT
I
January13, 2020
ParallelPowerCentres?TheKeralagovernor’ssupportoftheCAAandsimilarstatementsbyBJP-appointed
governorsisaworryingsign.HasthetimecometoimplementtheSarkaria
Commission’srecommendations?
Lawless in
UP
Book Extract:
The Cases India Forgot
Arif Mohammed Khan,
Kerala
Bhagat Singh Koshyari,
Maharashtra
Jagdeep Dhankhar,
West Bengal

HE ugly tug-of-war between the “state”
of Delhi and the lieutenant governor
(LG) that surfaced several years ago as
Najeeb Jung tried to thwart the adminis-
trative initiatives of Prime Minister Na-
rendra Modi’s arch political foe Arvind Kejriwal
seems finally to be coming to a head. But not in the
nation’s capital where Article 239AA (of the Cons-
titution), unique to Delhi, prima facie appears to
give more power to the lieutenant governor unlike
other Union Territories. This time, the controversy
is threatening to snowball into a national constitu-
tional crisis with states threatening not only to
refuse to implement a law passed by Parliament
but also the primacy of the central government to
implement legislation.
The fire has been lit by several states whose
chief ministers, heeding unprecedented nationwide
protests, have proclaimed that they would refuse to
implement the Citizenship (Amendment) Act
(CAA), National Register of Citizens (NRC) and
the National Population Register (NPR) on the
ground that these measures violate the basic struc-
ture of the Constitution. In fact, the Kerala state
legislature, in a rare display of bipartisan unity,
threw the gauntlet, passing a resolution to this
effect in the legislative assembly. Kerala Governor
Arif Mohammed Khan, in what appeared to be a
blatant political statement, slammed the assembly
resolution as illegal and unconstitutional, asserting
citizenship was governed exclusively by the centre.
This appears to be the newest match in the tin-
derbox which has ignited a fierce debate on the
very nature and idea of India: Is this a union of
states which came into being under special treaties
with over 560 small and large independent king-
doms after India gained freedom from the British,
with varying degrees of autonomy carved out
under central, concurrent and state laws? Or is this
autonomy subject to the goodwill and constitution-
al morality exercised by the centre and can be
snatched away at a whim by a majoritarian govern-
ment by simply declaring President’s Rule under
Article 356 or, heaven forbid, stripping the state of
its statehood and converting it into a Union
Territory as in the case of Jammu & Kashmir?
Could the central government exercise this
power—invoked under the provision of a break-
down of the constitutional order—against a state
refusing to implement CAA-NRC-NPR?
The matter seems headed for the courts which
must, perforce, draw a fair and workable line bet-
ween the constitutional powers and their perfunc-
tory misuse by a governor and the legitimately con-
stituted authority of a chief minister who draws his
authority to govern from (WE) the people. The
question arises of where true sovereignty resides.
Agreed, Delhi is a special case: it is the seat of
India’s central governance, with its own set of law
and order compulsions arising from the presence
of international embassies, the residence of the
President of India as well as Members of Parlia-
ment and an assortment of VIPs. It possibly needs
a stronger central role in managing its affairs than
other states.
The “balance” is ultimately what the court will
look for. On a wider constitutional canvas, the iss-
ue is really about cooperative federalism on which
the Indian nation was glued together. Founding
Fathers Jawaharlal Nehru and BR Ambedkar were
extremely wary that governors’ powers to dismiss
popular state governments under Article 356
would be misused and politicised. They insisted
these powers be curtailed or used only in the rarest
of rare cases like a total constitutional meltdown.
The Founding Fathers envisaged governors to
be the agents of the constitutional central polity
and not the handmaidens of any political party.
This precept has been abused ad infinitum, ad
nauseam by all political parties. It is indeed
encouraging to see that the Supreme Court has
not shied away from attempting to grapple with
an issue that goes to the very root of Indian
federalism.
THE TINDERBOX
Inderjit Badhwar
T
Afirehasbeenlit
byseveralstates
whoseCMshave
proclaimedthey
wouldnotimple-
mentCAA,NRCand
NPR.Thematter
seemsheadedfor
thecourtswhich
mustdrawafair
linebetweenthe
constitutional
powersandtheir
misusebya
governorandthe
legitimately
constitutedauthor-
ityofaCM.
Letter from the Editor
4 January 13, 2020
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

Sabka Saath-Sabka Vikas-Sabka Vishwas
Social Audit
Rising Steps
Important steps taken by the Government of Uttar Pradesh to
ensure transparency, public participation and accountability
in the implementation of Government of India/State
Government schemes to all sections of society
To ensure transparency, public
participation and accountability in the
work of Gram Panchayats and other
executing organizations.
Monitoring of accounts with physical
verification of works, participation and
monitoring of society
To ensure the benefit of schemes
reaches all sections of society
To make aware public of their rights,
duties in the schemes
Social audits of 20,887 gram panchay-
ats were conducted in the year 2018-19.
In the year 2019-20, social audit was
conducted in more than 16 thousand
gram panchayats till September, 2019.
The target is to conduct social audit in
all gram panchayats of the state by
March 31, 2020.
Through public awareness rallies, placing
hoardings on all development buildings,
involving schoolchildren in awareness ral-
lies, scooter motorcycle rallies, sharing
information through folk songs, pamphlets
and loudspeakers before the social audit
meetings, the common people were con-
nected to a transparent process like social
audit leading to increased public participa-
tion
Through social audits, people succeeded
in raising their voice by coining the slogans
like “Mera Kam Mera Daam” “Mera Paisa
Mera Hisab”. Schemes like MNREGA-
Pradhan Mantri Awas Yojana brought qual-
itative changes in the standard of living of
the villagers and they managed to air their
views through a democratic platform.
Social audit is a continuous process. According to the calendar available on the website of
the Directorate, http://socialauditup.in, contribute to ensure accountability by making active
participation in the meeting of the Social Audit Gram Sabha of the respective Gram Panchayats
and make the social audit more public utility.
Why social audit?
Progress so far
Appeal to public
Efforts made for public
awareness
TEST AUDIT
The test audit is conducted by the directorate to maintain the quality of social audit.
RAJENDRA PRATAP SINGH (MOTI SINGH)
Minister, Rural Development Department, Uttar Pradesh
What we achieved
RAJENDRA PRATAP SINGH (MOTI SINGH)
Minister, Rural Development Department, Uttar Pradesh
Issued in the public interest by the Directorate of Social Audit, Uttar Pradesh-Rural Development Department, Uttar Pradesh.

ContentsVOLUME XIII ISSUE9
JANUARY13,2020
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Senior Content Writer Punit Mishra
(Web)
6 January 13, 2020
India’s economic environment
has uncanny similarities with the
Asian crisis which impacted
stock markets and currencies
across the region. Without bold
action, we face a similar situation
Is a 1997 Asian
Crisis Looming?
ECONOMY
Kerala Governor Arif Mohammed Khan’s public support for the Citizenship (Amendment)
Act and similar actions by BJP-appointed governors is a worrying sign. Has the time
come to implement the Sarkaria Commission’s recommendations?
Parallel Power Centres? 12
16
LEAD

Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
| INDIA LEGAL | January 13, 2020 7
REGULARS
Ringside............................8
Is That Legal...................10
International Briefs..........36
Media Watch ..................50
Scandalous
Cover-up
The lack of big names in the charge sheet
filed in the honey-trap case in MP fuels specu-
lation whether the Kamal Nath government
has the courage to act against the rich and
influential
MYSPACE
GLOBALTRENDS
In tune with a Supreme Court judg-
ment, the prosecution wing of J&K
has been separated from the state
police and made an independent
entity so that it can work objectively
Cut to Size
The attacks by Pakistan’s law minister and other officials against Justice
Waqar Seth, who sentenced Gen Musharraf to death, may have handed India
a new opening in the Jadhav case
STATES
22
An extract from The Cases That India Forgot, a book by constitutional
expert Chintan Chandrachud. It chronicles 10 dramatic legal cases
that have faded from public memory
History in the Making
BOOKS
The UP police has cracked down on CAA protesters and mind-
lessly arrested many with no proof of illegality. Some have been
charged with IPC sections and asked to pay hefty penalties
Lawless in UP 28
38
42
SPOTLIGHT
The National Pharmaceutical Pricing Authority has hiked the prices of
12 life-saving essential drugs to ensure their availability as manufactur-
ers were unable to sustain productivity
The Price of Health 32
FOCUS
Three cases have been lodged against Bollywood personalities
Raveena Tandon, Farah Khan and Bharti Singh for allegedly hurting
the religious sentiments of a community on a TV show
Starry Trouble 34
Judging the Judge
46

8 January 13, 2020
Anthony Lawrence
RINGSIDE
The OppositionThe Opposition

ISTHAT
How is detention of a person
different from an arrest?
When law-enforcing agencies
restrict the freedom of movement
of people for a brief period by
keeping them in a police station
(left), it is called detention. How-
ever, they are not formally acc-
used of an offence. The grounds
for detention could be reasonable
suspicion, investigation or
interrogation.
On the other hand, a person
is arrested if there is a charge of
offence against him. The police
must state the offence for which
he has been arrested. He must
be produced before a magistrate
within 24 hours of the arrest. An
arrested person has the right to
consult a lawyer. A detained per-
son, however, does not enjoy
such rights. An arrested person
must apply for bail for his re-
lease. In case of detention, the
police will release the person
once they are satisfied with the
interrogation or investigation.
— Compiled by Ishita Purkaystha
What the Law Says
What are draft charges?
An accused is tried in court
based on charges framed on
offences alleged to have
been committed by him.
When the investigation in a
case is underway, the prose-
cution submits “draft char-
ges”, which can be consid-
ered a preliminary submis-
sion before the court on the
offence/s an accused is
charged with and is facing
trial, in case he pleads “not
guilty”. The prosecution,
thus, records an appearance
in court while still reserving
its right to file a revised or
more detailed and accurate
charge sheet.
?
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
Is consuming alcohol inside a
private vehicle an offence?
If a person is caught by the
police consuming alcohol inside
a moving vehicle, including at
traffic signals, it is an offence
punishable under the Motor Ve-
hicles Act, 1988. The person
can be prosecuted for drink-dri-
ving if the breathalyser test
shows more than 30 mg of
alcohol per 100 ml of his blood.
Further, the act of consum-
ing alcohol in a car is also pun-
ishable if the vehicle is parked
in a “public place” in Bihar,
Gujarat, Mizo-
ram, Nagaland
and the UT of
Lakshadweep
where drinking
in public places
has been ba-
nned by the ad-
ministration.
The drink-
driving law does
not exempt vehicles passing
through a state or anyone feign-
ing ignorance of the law after
the breathalyser test.
The Problem of
Drink Driving
To what extent is “the
right to protest” accept-
able in law?
The right to protest is
the manifestation of the
fundamental rights relat-
ed to freedom of expres-
sion, freedom of assem-
bly and freedom of ass-
ociation, subject to the
reasonable restrictions
under Article 19(2), (3),
(4) and (5) of the Cons-
titution. As long as any
form of protest does not
break an existing law,
say, a magistrate’s order
of Section 144 in the
area, or does not turn
violent leading to van-
dalising of public prop-
erty, or committing sedi-
tion, etc, a democratic
government must allow
protests against its poli-
cy or a law framed. The
right to protest is viewed
as a healthy democratic
option against majoritar-
ian rule.
Preliminary
Submission
Before Courts
A Fundamental Right
10 January 13, 2020

Daughters are the pride of home
Take full care of their education and health
Mukhyamantri Kanya
Sumangla Yojana
Schemecategoriesandfunds
First grade
` 2000/-
on the
birth of a
child
Permanent residence certificate of Uttar Pradesh Annual Family Income of more than Rs 3 Lakh
Benefit of the scheme limited to maximum 2 girls Maximum two children in a family
Second grade
` 1000/- on
full immu-
nization till
one year
Third grade
` 2000/-
on
admission in
Class-1
Fourth grade
` 2000/-
on
admission in
Class-6
Fifth grade
` 3000/-
on
admission in
Class-9
Sixth grade
` 5000/- on admission in
graduation or in diploma
courses of more than 2
years after completion of
10th/12th standard
Qualificationsfortheschemeeligibility
Application procedure
Girl child herself (if adult), parent or guardian can be applicant
Online application - Apply through the Common Service Centers / Cyber Cafe / own smartphone
or computer etc. by logging in to https://mksy.up.gov.in or contact the office of the District
Probation Officer of your district
Beti Bachao Beti Padhao Women Welfare Department, Uttar Pradeshhttps://mksy.up.gov.inCar drivers should wear seat belts

Lead/ Column/ Governor’s Role Shaan Katari Libby
ERALA Governor Arif Mo-
hammed Khan stirred up a
row recently with his defence
of the Citizenship (Amend-
ment) Act (CAA) at the In-
dian History Congress in Ka-
nnur. His defence in a state that has vo-
ted to keep out the CAA drew sharp
protests from some in the audience. He
then proceeded to describe those pro-
testing against the new citizenship law:
“You are potholes filled with dirty water
which is stinking,” who were left behind
in India after Partition. “My duty as gov-
ernor is to defend any law,” he said. This
was “a sacred duty”, he added. He spoke
about how Gandhiji was criticised too—
although the relevance of bringing Gan-
dhiji into this is somewhat unclear. The
governor then alleged that 88-year-old
historian Irfan Habib, a staunchly secu-
lar person, had simultaneously attempt-
ed to assault him.
Leave aside the unparliamentary lan-
guage, this brings into question the con-
stitutional duty of a governor. Governors
have similar powers and functions at the
state level as those of the president at
the Union level. Governors exist as
nominal heads, whereas real power lies
Parallel Power Centres?
KeralaGovernorArifMohammedKhan’sactofsupportingtheCitizenship(Amendment)Actis
beingseenasdivisiveandanti-constitutional.HasthetimecometoimplementtheSarkaria
Commission’srecommendations?
K
AGENT OF
THE CENTRE?
Kerala Governor Arif
Mohammed Khan
addressing the
Indian History
Congress in Kannur
twitter.com
12 January 13, 2020

with chief ministers and the council
of ministers. Articles 157 and 158 of the
Constitution specify eligibility require-
ments for the post of governor. Among
these, it is clearly stated that a governor
must not be a member of either House
of Parliament or of the state legislature.
In other words, a governor is not
a politician.
Every governor takes an oath under
Article 159. This is done in the presence
of the chief justice of the concerned High
Court and involves swearing in the name
of God that he/she solemnly affirms that
he/she will faithfully execute the office of
governor of the state and will to the best
of his/her ability preserve, protect and
defend the Constitution and the law and
devote himself/herself to the service and
well-being of the people of the state. The
governor also has rights under Article
200 with respect to giving assent to bills,
but ultimately, he is obliged to give his
assent even if it is returned unchanged.
Under Article 213, the governor has the
power to promulgate ordinances when
the legislature is in recess, but they are
liable to be void if they would not have
passed muster as Acts. All actions, rec-
ommendations and supervisory powers
are in order to implement the provisions
of the Constitution.
A
governor has executive powers
related to administration, app-
ointments and removals. He
appoints the chief minister, who enjoys
the support of the majority in the leg-
islative assembly, and also the council of
ministers and sees to the distribution of
portfolios on the advice of the CM. Whi-
le the council of ministers remains in
power during the “pleasure” of the gov-
ernor, it means as long as the majority
in the legislative assembly supports
the government.
The governor also appoints the advo-
cate general and the chairman and
members of the State Public Service
Commission. The president consults the
governor during the appointment of
judges of the High Courts and the latter
appoints the judges of the district
courts. The governor is also the chancel-
lor of most of the universities in the
state. The dignity and impartiality of the
office of the chancellor puts the gover-
nor in a unique position with regard to
protecting the autonomy of the universi-
ties and saving them from undue politi-
cal interference. The governor is, thus,
intended to be a neutral entity, acting
as a check on the power of the state
and ensuring that areas such as courts
and universities remain sufficiently
removed from the influence of the
Union government’s agenda or that of
the state government.
A governor is not meant to enter into
politics. The day-to-day role is often cer-
emonial and restricted to being the chief
guest at functions, to giving inspiring
speeches to students, to establishing
whether a majority exists in the assem-
bly for a proposed chief minister and
to then formally inviting the said per-
Everygovernortakesanoathunder
Article159topreserve,protectand
defendtheConstitutionandthelawand
devotehimself/herselftotheserviceand
well-beingofthepeopleofthestate.
NO POLITICAL ROLE
The oath-taking ceremony of a governor. The
post constitutes a nominal head

son to form the government. Following
this, the governor has no political role.
There have been anomalies, of cou-
rse, where governors have overstepped
their remit. The Congress has done this
numerous times, so also the Janata Dal.
Some say it is impossible for a governor
to remain far removed from the centre.
Sibranjan Chatterjee in his article on the
role of the governor published in the
Indian Journal of Political Science, does
a detailed analysis of governors. Appa-
rently, in 1970, following withdrawal of
the support of the Jana Congress from
the Swatantra-led coalition government
in Orissa, the chief minister, RN Singh,
resigned—and instead of accepting his
suggestion of dissolving the House, the
governor took over the reins of the state
government for a brief period. This was
unprecedented. More recently, we have
observed how governors were used to
impose President’s Rule in Arunachal
Pradesh and Uttarakhand under JP
Rajkhowa and KK Paul, respectively.
And how in November 2019, Maharash-
tra Governor Bhagat Singh Koshyari
imposed and then lifted President’s
Rule abruptly to invite a minority BJP
government to be formed. This failed
when it turned out that the Congress-
NCP-Shiv Sena alliance had the clear
majority.
A
governor is in a truly unique
position—he/she is not an elect-
ed person for a reason and is
meant to maintain a dignified neutrality.
This is not an easy role as it requires the
governor putting his post on the line—
he runs the risk of being sacked or
moved to another state. Very few gover-
nors actually get to complete their
terms, according to the Sarkaria Com-
mission report of 1983 (under the
Chairmanship of Justice RS Sarkaria
with B Sivaraman and Dr SR Sen).
The report recommended several
changes in the appointment of a gover-
nor: that he should be an eminent per-
son; from outside the state, who must
not have participated in active politics at
least for some time before his appoint-
ment; he should be a detached person
and not too intimately connected with
the local politics of the state; he should
be appointed in consultation with the
chief minister of the state, vice-presi-
dent of India and the speaker of the
Lok Sabha.
More importantly, his tenure of office
must be guaranteed and should not be
disturbed except for extremely com-
pelling reasons and if any action is to be
taken against him, he must be given a
reasonable opportunity for showing
cause against the grounds on which he is
sought to be removed. In case of such
termination or resignation of the gover-
nor, the government should lay before
both the Houses of Parliament a state-
ment explaining the circumstances
leading to such removal or resignation,
as the case may be. Finally, after demit-
ting office, a governor should not be eli-
Lead/ Column/ Governor’s Role/ Shaan Katari Libby
STAND-OFF WITH THE GOVERNMENT
West Bengal Governor Jagdeep
Dhankhar addressing the media after his
car was denied entry into Kolkata’s
Jadavpur University by TMC supporters
twitter.com/jdhankhar1
14 January 13, 2020

gible for any other appointment or office
of profit under the Union government
or a state one except for a second term as
governor or election as vice-president or
president of India, as the case may be. At
the end of his tenure, reasonable post-
retirement benefits should be provided.
T
he Commission felt that the state
government should be given pro-
minence in appointing the gover-
nor. The appointment should be made
from a panel to be prepared by the state
legislature and the chief minister should
be consulted as there has to be a person-
al rapport.
The general practice, however, seems
to be that the Union government merely
informs the chief minister that a certain
person is being appointed as the gover-
nor of the state. Some of the recommen-
dations have been adopted, including
the governor being from outside the
state. The Supreme Court has many
times emphasised the urgent need for
implementing the Sarkaria Commi-
ssion’s recommendations on selection
and appointment of governors.
There are some offices which are
meant to be completely neutral: gover-
nor, president, the judiciary. If these
crucial entities merely follow the will of
the centre, then we have no separation
of powers anymore.
In the case of Kerala Governor Arif
Mohammed Khan, he displayed repeat-
ed and fervent support for the govern-
ment policy of CAA. However, the Ker-
ala state legislature has rejected the
CAA, National Register of Citizens, Na-
tional Population Register and deten-
tion centres as blatantly divisive and
anti-constitutional. Far from being in
step with the state government law,
Khan was eagerly pandering to the cen-
tral government in a public forum. It is
disappointing when people in such
important constitutional roles do not
manage to maintain their neutrality.
It is the governor’s role and sacred
duty to defend the Constitution. Article
19(1)(a) confers the right to freedom of
speech and expression. India is also a
secular democracy—something that des-
perately needs defending. Khan defend-
ed neither. The perception should never
be that the governor’s office is being
used to further the interests of the rul-
ing party. Perhaps the time has come to
implement the recommendations of the
Sarkaria Commission—but who will be
bold enough to suggest it?
— The writer is Barrister-at-Law,
Honourable Society of Lincoln’s Inn,
UK, and a leading advocate in Chennai.
With inputs from Tarun M
QUESTIONABLE CONDUCT
(Clockwise from left) Maharashtra governor
BS Koshyari, JP Rajkhowa, former governor
of Arunachal Pradesh, and KK Paul, former
governor of Uttarakhand

Economy/ New Year Prediction
S we turn into a new year,
here is a prediction for the
Indian economy. Econo-
mic predictions are noto-
riously difficult because,
unlike in the physical sci-
ences, controlled experimentation is not
possible. But there are now enough
episodes in economic history to find
similarities and to allow for causal
interpretations.
One such episode is the uncanny si-
milarity between India’s current eco-
nomic environment and the Asian crisis
that started in Thailand in 1997, a crisis
that within a very short period plunged
stock markets and currencies across
seven East Asian countries. Hundreds of
banks, builders, and manufacturers
went bankrupt. The Thai baht, Indone-
sian rupiah, Malaysian ringgit, Phili-
ppine peso and the South Korean won
depreciated by between 40 percent to
80 percent.
All this happened despite the fact
Is a 1997 Asian
Crisis Looming?
India’seconomicenvironment
hasuncannysimilaritieswith
theAsiancrisiswhich
plungedstockmarketsand
currenciesacrosstheregion.
Withoutboldaction,itfacesa
similarsituation
By Sanjiv Bhatia
A
FINANCIAL MESS
Banks in Thailand failed and its currency
(right) collapsed during the 1997 Asian crisis
16 January 13, 2020
centralbanking.com
pixabay.com

that Asia’s fundamentals looked good:
inflation was low; fiscal deficits remai-
ned largely within limits; the existence
of independent and well-run central
banks; relatively high domestic savings
(albeit dropping); a large and growing
middle class; an educated workforce
(paid relatively low wages); a vibrant
entrepreneurial class and a stable politi-
cal environment. But these fundamen-
tals painted a false picture. Underneath
the seeming calm, investors were getting
concerned about serious structural defi-
ciencies and policy inconsistencies. We-
akening export growth, increasing trade
and fiscal deficits, high short-term for-
eign debts and financial systems that
were rotten to the core were creating
a heightened sense of uncertainty
among investors.
The unwinding of the 1990s boom
and the eventual crisis suffered by the
East Asian countries were a complicated
and multifaceted process. Four signifi-
cant elements precipitated the sequence
of events that led to the crisis. And there
is an eerie similarity to conditions that
currently exist in India and maybe a
harbinger of things to come in 2020.
MORAL HAZARD & CRONY
CAPITALISM
Moral hazard is a term used to describe
a tendency to take on more risk than is
warranted, given the knowledge that
one is protected against any loss. This
was at the heart of the Asian crisis. The
governments in the affected countries
directly or indirectly controlled the com-
mercial banking system, and this all-
owed the banks to operate injudiciously
with the knowledge that the state would
protect the downside. The South Korean
government, for example, directed the
banking system to lend to companies
that it viewed as economically strate-
A DOWNSLIDE
(From top) Similar to the Asian crisis,
exports in India have dropped by 2.2
percent and key sectors like gems and
jewellery, ready-made garments and
petroleum have posted negative growth
UNI
UNI
UNI

gic. As a result, financial institutions
were encouraged into funding risky
projects with little regard for their prof-
itability. This problem was compounded
by crony capitalism, where people
favourably connected with the govern-
ment were able to borrow large amounts
of money without proper due diligence.
Without the discipline that free capital
markets impose on bank lending, the
result was overinvestment and inflation
in the prices of assets in short supply
such as real estate.
India has a similar legacy of state-
run banks with investment directed by
the government. Currently, through the
public sector banks, the government
controls 70 percent of the banking
assets. And through its mandated statu-
tory buying of government securities
(SLR) and state-directed priority lend-
ing, it sucks up roughly 47 percent of
national savings. Mudra loans are an
excellent example of misdirected gov-
ernment-mandated lending as it causes
banks to over-lend to risky borrowers,
which in turn leads to bad loans and ev-
entually to fiscal deficits when the gov-
ernment uses tax revenues to recapital-
ize failing banks.
Excessive state intervention in the
capital allocation process and the associ-
ated policies of implicit guarantees com-
bined with crony capitalism and lax
banking supervision were significant
factors in the 1997 Asian crisis. These
same conditions exist in India and have
led to poor credit decisions and a mas-
sive misallocation of resources. This
reckless lending has created a large
stock of non-performing loans, posing a
high risk to the banking system.
EXPORT COMPETITIVENESS
Till 1990, India was a relatively closed
economy with less than 15 percent of its
GDP coming from international trade.
This changed dramatically after the 1991
liberalization reforms. By 2011, almost
56 percent of the country’s GDP was
associated with trade. During this peri-
od, India’s exports grew dramatically,
clocking an annual growth of 25 percent
in 2007.
This was very similar to the East
Asian countries before the 1997 crisis.
Those economies saw fast economic
growth fuelled by large increases in
exports. But the party ended when Chi-
na entered the global market, affecting
exports from Thailand, Malaysia, South
Korea and Indonesia. The rise of the
dollar, to which their currencies were
pegged, made things worse. Exports
started to plunge as these countries be-
came less competitive. Capacity utiliza-
tion rates and profits on huge invest-
ments in production capacity started to
plunge. The Asian central banks res-
ponded to this loss of export competi-
tiveness by devaluing their currencies,
providing speculators with an incentive
to attack those currencies almost simul-
taneously and forcing another round
of devaluations.
India faces a similar deterioration in
exports. In the first seven months of this
year, exports dropped by 2.2 percent.
Key export sectors such as leather, gems
and jewellery, ready-made garments and
petroleum have all posted negative
growth for four consecutive months and
the end is nowhere in sight. From 2003
to 2014, India’s exports grew at an an-
nual rate of 17 percent, but over the last
five years, the growth rate of exports
dropped to a mere 0.9 percent per year.
In contrast, exports from other coun-
tries that are competitors of Indian pro-
ducts grew at an annual rate of 20 per-
cent over these five years. Bangladesh
garment exports have increased by 40
percent in the past five years while In-
dia’s have dropped by 6 percent in the
last two years.
India’s export deterioration is remi-
niscent of the drop suffered by the East
Asian countries in the period leading up
to the 1997 crisis. In 2013, exports acc-
ounted for almost 26 percent of India’s
GDP, but today that number is close to
18 percent—a steep drop. Let’s hope that
the RBI doesn’t react by forcing a deval-
uation of the rupee. That could invite
the same speculative attacks on the ru-
pee that precipitated the Asian crisis.
Accompanying this decline in exports
is a sharp deterioration in terms of tra-
de—calculated as the value of exports as
a percent of the value of imports.
ProfitabilityofcorporateIndiahasbeen
decliningconsiderably.Wheneconomic
growthslowsdown,andcompaniesdon’t
makeenoughprofitstoservicetheir
debts,thingsstarttounravel.
18 January 13, 2020
udayraj.com

Inarecentarticle,ArvindSubramanian,
theformerchiefeconomicadvisortothe
government,calculatedthatthecostof
debtforIndianbusinessesnowexceeds
theirprofitgrowthby4.3percent
Increasing terms of trade suggest that a
country can buy more imports from the
sale of its exports. All the major East
Asian countries experienced a sharp
increase in terms of trade till about
1996, after which there was a sudden
decline as the prices on the goods they
imported (oil) increased, while at the
same time, prices of their electronics
and semi-conductors exports declined.
India faces a similar situation. Its terms
of trade increased by over 20 percent
from 2006 to 2011 but have now dro-
pped back to the pre-2006 levels. India’s
exports are just not competitive globally
and a depreciating currency makes im-
ports more expensive.
CORPORATE LEVERAGE &
GOVERNANCE
There was a pattern of increased vulner-
ability to capital market shocks that em-
erged among the Asian countries prior
to the 1997 crisis. Companies were high-
ly leveraged and when profits started to
drop, their ability to service debt was
severely compromised. Indian compa-
nies currently suffer from the same ma-
laise. In 1997, the average debt-to-equity
ratio of companies in the five countries
most affected by the crisis was 85 per-
cent—very similar to the current debt
ratio for Indian companies which stands
at 88 percent. And profitability of corpo-
rate India has been declining, down
from a high of 7.1 percent of GDP in
2007 to now only around 2.7 percent.
When economic growth slows down,
and companies don’t make enough pro-
fits to service their debts, things start to
unravel.
In a recent article, Arvind
Subramanian, the former chief econom-
ic advisor to the government, calculated
that the cost of debt for Indian business-
es now exceeds their profit growth by a
staggering 4.3 percent and the share of
debt owned by companies that cannot
service their debt has risen to 45 per-
cent. This is eerily similar to the situa-
tion for companies in the Asian coun-
tries in 1997.
There was also a sizeable maturity
mismatch in the balance sheets of finan-
cial institutions in countries like Korea,
Malaysia and Thailand. Short-term debt
was being used to finance long-term
projects. The problems associated with
mismatched liabilities and overleverag-
ing were exacerbated by poor corporate
governance. Similar mismatches exist in
India. Last year, the IL&FS crash, which
has had a considerable impact on lend-
ing by the non-banking financial sector,
was precipitated by the same set of
problems—mismatched balance sheets
compounded by poor governance.
REAL ESTATE BUBBLE
Financial excesses inevitably lead to ass-
et bubbles. Typically, a financial cycle is
generated by waves of optimism (greed)
that result in the underestimation of
risk, overextension of credit, excessive
price inflation in real assets and buoyant
consumer expenditures. Real estate
plays a central role in this cycle because
it allows banks to lend larger amounts
against increasing property values. With
rising prices, the value of bank capital
increases commensurate with their hol-
ding of real estate denominated assets,
allowing them to lend even more.
The dramatic turnaround in the for-
tunes of the East Asian countries from
high seven percent growth rates to eco-
nomic stagnation was preceded by a
sharp deterioration in the performance
of the real estate sector. A massive con-
struction boom during the eighties and
nineties created a huge oversupply of
properties and when the real estate bub-
ble burst in countries like Thailand and
Malaysia, there were large losses in the
unregulated shadow banking sector.
India has also experienced a large real
estate bubble that started around 2003
with massive investments by developers
in housing projects. Rising real estate
prices kept feeding into this, and both
the regulated and the unregulated bank-
ing system poured increasing amounts
of capital into this sector. But as with
every asset bubble, the underlying fun-
damentals did not support the run-up
in prices. Incomes did not match asset
valuations and soon the real estate bub-
ble burst.
Unsold inventory in the top eight
cities has risen to nearly 10 lakh units by
June 2019, compared to annual sales of
just over 2 lakh units. In other words,
there are four to five years of sales in
inventory, which means there is unlikely
to be much capacity expansion in the
real estate sector in the foreseeable
future. Also, the existing inventory will
need to be financed. But after the
IL&FS crash, there has been a sudden
and deep collapse in NBFC lending—
which provides almost 55 percent of
total real estate financing. Developers
are finding it difficult to stay afloat and
we are beginning to see bankruptcies
among large developers which will add
to the stress in financial markets. This is
similar to what precipitated the 1997
Asian crisis.
THE ENDGAME
When an asset bubble bursts, it starts

the dominoes falling. As asset prices fall,
so do their collateral values. NPAs
begin to increase and when investors
realize that the government does not
have the resources to bail out banks,
confidence drops.
By the end of this fiscal year, the gov-
ernment of India will have poured in
`3.5 lakh crore to bail out India’s failing
public banks—a massive cost to the tax-
payers. Investors know that this will
soon end because the government faces
a massive fiscal crisis of its own. The
combined fiscal deficit of all government
entities (central, state and PSUs) is ex-
pected to reach 8 percent of the GDP—
among the highest in the world.
Recent surveys by the RBI are
already showing steep declines in both
business and consumer confidence. As
confidence declines, foreign capital
starts to flee, the currency depreciates,
exports drop and growth slows down
dramatically. All these are now begin-
ning to happen in India.
The only way out as Confucius put it,
‘‘is through the door’’. The strategy the
East Asian countries adopted was to
quickly and methodically restructure
their financial systems by shutting down
and selling failing state-run banks and
disposing the collateral underlying the
bad loans. The key to India’s recovery is
also a massive institutional shakeup of
the financial system. Merging failing
public sector banks will only aggravate
systemic risk. These banks need to be
shut down, and government interven-
tion in, and regulation of, capital mar-
kets should immediately be reduced to a
minimum.
The RBI needs to clear the overhang
of bad loans in one swell swoop by buy-
ing the roughly `9.5 lakh crore in bad
loans from the commercial banks and
transfer them to its balance sheet. This
will give a tremendous boost of confi-
dence to the capital markets. Once the
pipeline is cleared of the NPA junk, cap-
ital can start flowing again and the eco-
nomy can start producing goods and
services again.
Without bold and immediate action
to restore confidence in the financial
system, India faces a 1997 Asian crisis of
its own in 2020.
—The writer is a financial economist
and founder, contractwithindia.com
India,liketheAsiancrisis,hasalso
experiencedalargerealestatebubble
thatstartedaround2003.Unsold
inventoryinthetopeightcitieshasrisen
tonearly10lakhunitsbyJune2019.
Indiaalsoneedsamassiveinstitutional
shakeupofitsfinancialsystem.Merging
failingpublicsectorbankswillonly
aggravatesystemicrisk.Thesebanks
needtobeshutdown.
20 January 13, 2020
Anil Shakya
UNI

Books/ Extract/ The Cases That India Forgot/ Chintan Chandrachud
HE next case considered in
this book offers a heady com-
bination of high political
drama and significant ques-
tions of constitutional law.
The Rameshwar Prasad case, and the
circumstances surrounding it, involves
no less than two state elections, mid-
night phone calls to Moscow, two Sup-
reme Court decisions (one of them un-
der five pages, the other close to five
hundred), resignations and near-resig-
nations, and hideaways in Jamshedpur.
An Incisive Look
Constitutional expert Chintan Chandrachud tells the stories
of 10 extraordinary and dramatic legal cases, from the
1950s to the present day, that have all but faded from public
memory. The book has a cast of characters that includes the
who’s who of the Indian legal system. It also paints an unex-
pected picture of the Indian Judiciary—the courts are not
always on the right side of history or justice, and they don’t
always have the last word on matters before them. An
extract of one of the chapters of the book—Rameshwar
Prasad v Union of India:
T
22 January 13, 2020
Photos: UNI

NDA on the one side and the RJD-
Congress combination on the other,
chose not to extend support to either.
Singh therefore wrote to the Presi-
dent of India recommending that
President’s rule be imposed in Bihar,
with the assembly being kept in a state
of ‘suspended animation’ (this meant
that although the assembly would not be
dissolved, it could not transact any busi-
ness). The idea was that this course of
action would leave more time and space
for discussions and political realign-
ments. The President accepted this rec-
ommendation, resulting in Bihar effec-
tively being administered by the United
Progressive Alliance (UPA) government
in New Delhi.
T
he process of political realign-
ments envisaged by the governor
was then well and truly set into
motion. First, the group of seventeen
independent MLAs declared their sup-
port for the NDA. Three other parties,
each holding a small number of seats,
followed. This took the NDA close to
securing a majority in the assembly.
However, in order to attain a majority, it
became clear that the NDA would still
require the support of some LJP or RJD
or Congress MLAs. Rumours ran rife, as
over a dozen MLAs from the LJP—seq-
uestered in resorts just outside Jam-
shedpur—were apparently being ‘indu-
ced’ to pledge their support to the NDA.
As these events were playing out,
Singh sent two further reports to the
President. The first was sent on 27 April
2005. The governor warned that the
BJP and the JDU were making concert-
ed efforts to win over MLAs from the
LJP through ‘various means’. This
‘unprincipled and opportunistic realign-
ment’ was undesirable and would distort
the mandate of the electorate, the gover-
nor said. The governor concluded with
the warning that in order to avoid any
further horse-trading, there may be no
choice but to organize a fresh round of
elections in Bihar.
Singh’s next report to the President
was sent about four weeks later, on 21
Lalu Prasad Yadav had administered
Bihar for nearly fifteen years by the time
the state assembly elections came aro-
und in February 2005. He did so direct-
ly as chief minister of the state for rou-
ghly the first half of that period. For the
second half, he governed the state by
proxy through his wife, Rabri Devi, who
assumed the position following his res-
ignation prompted by corruption char-
ges. Anti-incumbency was running high,
and internal rebellions within Yadav's
Rashtriya Janata Dal (RJD) were ex-
pected to impact its electoral fortunes.
Aside from the incumbents, at least
four other political parties had credible
aspirations of securing a substantial
number of seats in the assembly. They
were the Bharatiya Janata Party (BJP)
and the Janata Dal United (JDU)—both
part of the National Democratic Alli-
ance (NDA), the Lok Janshakti Party
(LJP) and the Congress. The Bihar
Legislative Assembly had 243
seats, making 122 the magic
number required to secure an
absolute majority in the ass-
embly and form a stable gov-
ernment. However, that num-
ber proved elusive. The elec-
tions yielded a hung assembly,
with no party or alliance with-
in striking distance of the ma-
gic number. The NDA secured
ninety-two seats, while the
RJD, the LJP and the Cong-
ress secured seventy-five,
twenty-nine and ten seats
respectively. Six other political
parties secured at least one
seat, and seventeen independ-
ent candidates were elected.
The governor of a state
assumes heightened responsi-
bility in circumstances where
there is a hung assembly, as
he has the authority to invite
those that are most likely to
cobble a majority to form the
government. The role of Buta Singh, Bi-
har’s governor, therefore became crucial
following the election results. Singh was
‘no novice to politics’ and had aligned
with different political forces over the
years—including as home minister in
Rajiv Gandhi’s Congress government
and communications minister in Atal
Bihari Vajpayee’s NDA government.
Singh held a series of meetings with
political parties in the days after the
election results were declared. However,
he concluded that no party or alliance
was in a position to mobilize a majority
in the assembly. This was predominantly
because the LJP, which could effectively
play the role of kingmaker between the
FourpetitionswerefiledintheSC
bythose electedtothedissolved
assembly,sayingthePresident
couldn’tdissolveanassembly
thatwasnotyetconvened.
WANING FORTUNES
Lalu Prasad Yadav (above) ruled Bihar for
around 15 years till the 2005 Bihar polls

sign if the file were sent back to him.
Alternatively, he could have waited until
he returned to Delhi—but this would
have involved a delay of eight days. In
that time, it was likely that the govern-
ment would be formed in any event. The
third option was simply to sign the file,
in spite of any misgivings about whether
it was appropriate to dissolve the assem-
bly in the circumstances. In a decision
that he would live to regret, Kalam
chose option three.
T
he Bihar Assembly was dissolved
within hours, and pandemonium
broke loose. Ram Vilas Paswan,
the president of the LJP, expelled seven
of his colleagues for anti-party activities.
The BJP organized dharnas and road
blockades in the state following the
announcement. Describing the dissolu-
tion as a ‘fraud on the Constitution and
murder of democracy’, it organized a
fairly successful statewide strike in pro-
test the next day. Senior leaders from
the NDA demanded early elections in a
meeting with the Election Commission.
Now that the assembly had been dis-
solved, the NDA didn’t want the UPA to
govern Bihar through President’s rule
and wanted fresh elections called at the
May 2005. By that stage, the governor
observed, one LJP MLA had already
moved across to the JDU, with a large
group of seventeen to eighteen MLAs
expected to follow suit upon being off-
ered allurements. The governor there-
fore recommended that the assembly be
dissolved and fresh elections be called in
the state.
The UPA government formally rec-
eived the governor’s report the next day.
The rumour on the street was that the
BJP and the JDU were on the brink of
staking claim to the government. The
UPA government had just concluded its
one-year anniversary celebrations, and
an emergency cabinet meeting was
called at 11 p.m. that evening to consider
Singh’s report. The cabinet swiftly acc-
epted the governor’s recommendation
and forwarded it to President A.P.J.
Abdul Kalam for his assent. The Presi-
dent’s assent was required for the disso-
lution of the assembly and the calling of
fresh elections. As it happened, Kalam
was in Moscow that evening as part of a
four-nation official visit to Russia, Ice-
land, Switzerland and Ukraine. Kalam
was woken up in the middle of the night
in his room at the Kempinski Hotel with
a request to sign on the dotted line. The
UPA presumably wanted to avoid the
formation of a BJP-JDU government at
all costs.
Ordinarily, a government may have
waited for the President to return from
his foreign trip or, at the least, left more
time for the President to consider the
file. Absent this luxury, Kalam had three
options, each of which raised its own
complications. He could return the file
to the UPA government for reconsidera-
tion, although he would be obliged to
earliest opportunity.
Together with its political strategy,
the NDA’s legal strategy was also set into
motion. Four writ petitions were filed in
the Supreme Court by candidates who
had been elected to the dissolved assem-
bly—one each by members of the BJP
and the JDU, the third by a ‘rebel’ LJP
member and the fourth by an independ-
ent candidate. They contended that the
President’s proclamation dissolving the
assembly was unconstitutional, as the
President could not dissolve an assem-
bly that had not yet been convened—not
least on the basis of a governor’s report
that was grounded in mere suspicions of
horse-trading.
One of the early skirmishes involved
the issue of whether, as the petitioners
contended, the court could issue notice
to the governor seeking his participation
in the proceedings. The court concluded
that it could not do so (since Article 361
of the Constitution states that the gover-
nor cannot be held answerable to a
court for the exercise of his powers), but
TheSCmadesomedamning
remarksabouttheroleofthe
governorButaSinghinthemat-
ter.ThethenCJIsaidSingh
misledthecouncilofministers.
24 January 13, 2020

time when the verdict would be deliv-
ered. Considering the nature of the
cases, we will not be able to give judg-
ment before October 18. We may come
out with a short judgment, if necessary,
before 18 October and the detailed judg-
ment will follow. Otherwise, there would
be one main judgment.’ This was inter-
preted as suggesting that the court
would pronounce its decision early if the
dissolution was held unconstitutional,
and would do so later if the dissolution
was upheld.
A
s it happened, the Supreme
Court issued a brief order one
week later, the last day before
the court closed for the Dussehra break,
with detailed reasons to follow. The tim-
ing of the decision aligned with the
expected outcome. The court held that
the President’s proclamation dissolving
the Bihar Assembly was unconstitution-
al. However, more surprising than the
outcome was the remedy. Despite the
unconstitutionality of the proclamation,
the court chose not to reinstate the
assembly since election preparations
were afoot. As the next elections had
already been planned and considerable
resources had been expended, no legal
remedy was made available to those that
filed the proceedings. (One op-ed at the
time described this as akin to the court
issuing a ‘conviction without a sen-
tence’.) However, what the BJP and the
JDU were denied in terms of legal
remedies was compensated through the
political traction that they secured upon
the court’s endorsement of their posi-
tion. Conversely, the court’s decision
as seen as a rebuke to the governor and
the President, and by implication, the
that it could nevertheless scrutinize his
reports and the proclamation issued by
the President. According to the Supreme
Court, the governor enjoyed immunity,
but his decisions and reports did not.
President Kalam keenly followed the
proceedings in the Supreme Court,
and was not pleased with the way his
decision was presented to the court.
Kalam noted that the court had not
been fully apprised of his discussions
with the government, and the sequence
of events that had taken place when he
was in Moscow.
This case offered a good example of
how the courts often struggle to keep up
with the pace of politics. On 3 Septem-
ber 2005, the Election Commission
announced dates for fresh elections in
Bihar. Elections would take place in
four phases, with voting to commence
on 18 October and to conclude on 19
November. By that stage, though the
writ petitions had been filed, the hear-
ing at the Supreme Court had not even
begun. This presented a quandary for
the court. If it decided that the dissolu-
tion of the assembly was unconstitution-
al, what remedy could it offer the peti-
tioners if the next elections were already
under way or concluded? Could it re-
constitute the dissolved assembly des-
pite the people’s fresh mandate and the
time and money spent on the next elec-
tions? Matters would be more compli-
cated if the fresh mandate was vastly
different from the mandate within the
dissolved assembly, as the court would
effectively be reinstating a government
that had lost its popular legitimacy.
Ultimately, the Supreme Court swift-
ly concluded the hearing by 29 Septem-
ber 2005, over a period of six days. Poli-
tical parties were left in suspense on the
last day of the hearing, as the bench
observed, ‘We want to allay impressions
and conjectures and surmises about the
ItwasPMManmohanSinghwho
persuadedPresident APJAbdul
Kalamnottoresign.The
President—respectedand
popular—escapednarrowly.
TheRameshwarPrasadcase,
andthecircumstances
surroundingit,involvestwo
stateelections,twoSC
decisions,resignationsand
near-resignations.

of the argument was simple—it is impo-
ssible to dissolve an assembly that has
not yet come into existence.
Chief Justice Sabharwal rejected this
argument on the basis that no provision
of the Constitution stipulated that an
assembly could only be dissolved after
its first meeting. The argument would
also yield unintended consequences,
for it could imply that there would be a
constitutional stalemate in the event
that no political party came forward
to stake a claim to the government fol-
lowing an election. If no political party
staked a claim to form the government,
the assembly could not be convened,
and therefore could also not be dis-
solved to enable fresh elections to
be called.
While the court rejected the argu-
ment that the President could never dis-
solve a legislative assembly before its
first meeting, it held that the decision to
dissolve the assembly was unconstitu-
tional in that instance. The dissolution
UPA government.
As would have been expected, the
NDA demanded the removal or resigna-
tion of Governor Buta Singh following
the court’s decision. Four days after the
court’s decision, Singh travelled to Delhi
(ostensibly on a personal trip to visit ail-
ing relatives). However, there was wide-
spread speculation that Singh used the
opportunity to meet with leaders from
the UPA government and the Congress
party to consider an appropriate res-
ponse to the court’s decision. Media
reports suggested that the leadership
seriously considered asking the governor
to resign. However, following delibera-
tions, it was determined that Buta Singh
would not be asked to resign and would
continue in office at least until the Sup-
reme Court issued the detailed reasons
for its decision. The Congress leadership
arrived at this conclusion after consider-
ing the possibility of Singh’s resignation
being perceived as an admission of res-
ponsibility, which would not bode well
for the party’s fortunes in the forthcom-
ing elections in Bihar.
T
he people of Bihar delivered a
more decisive verdict in the elec-
tion of October-November 2005.
The JDU and the BJP collectively
gained fifty-one additional seats from
their performance in the February elec-
tions, most of which were at the expense
of the RJD and the LJP.
This gave the NDA a comfortable
majority in the assembly. Governor
Singh had to ‘swallow his pride’ and
invite the NDA to form the government.
Nitish Kumar was sworn in as chief
minister. Governor Singh's position
remained vulnerable to any criticism
that could be forthcoming from the
Supreme Court’s reasoned decision.
The court’s reasoned decision came
about two months later, on 24 January
2006, two days before Republic Day. It
was argued on behalf of the four MLAs
that the President lacked the authority
to dissolve the assembly in circumstan-
ces where the first meeting of the ass-
embly had not yet taken place. The logic
was based exclusively on Governor Buta
Singh’s reports. The governor lacked any
credible material in support of his con-
clusion that an attempt was being made
to win over opposition MLAs through
bribes and other allurements.
Chief Justice Sabharwal also ob-
served that the governor’s primary task
was simply to ascertain whether a politi-
cal party or alliance could form a stable
government. There were well-estab-
lished conventions as to the pecking
order the governor should follow in
inviting parties or alliances to stake a
claim to form the government when a
single party did not secure an absolute
majority. For example, the largest pre-
poll alliance would take priority, fol-
lowed by the single largest party, there-
after followed by the largest post-poll
alliance. The governor’s role, according
to the chief justice, was not to ensure
good governance or promote trans-
parency in politics. Those were tasks
that were better performed by the
opposition and the electorate than
the governor.
The court also made some damning
remarks about the role of the governor
through this episode. According to the
chief justice, the governor misled the
council of ministers, resulting in them
advising the President to issue a procla-
mation dissolving the assembly. The
presidential proclamation could not be
ThepeopleofBihardelivereda
decisiveverdictintheelectionof
October-November2005.NDA
gotamajorityandNitishKumar
wassworninasCM.
26 January 13, 2020
UNI

Much to the relief of the government,
Singh resigned after taking the Republic
Day salute on 26 January 2006.
While the Supreme Court did not go
so far as to directly censure President
Kalam, there were murmurs as to whe-
ther he would accept moral responsibili-
ty for what was, in the final analysis, a
judgement striking down his proclama-
tion dissolving the Bihar Assembly.
Kalam seriously contemplated resig-
ning, going as far as discussing his resig-
nation with his brother and his close
advisers. He even kept a letter of resig-
nation ready. It was Prime Minister
Manmohan Singh who persuaded the
President not to resign, stating that it
could result in the UPA government
itself toppling.
A governor and a state government
were casualties during this episode. The
President—in particular, among India's
most respected and popular
Presidents—escaped only narrowly.
justified on the ‘suspicion, whims and
fancies of the Governor’. The court did
not stop with the conduct of the gover-
nor, but went as far as imputing ulterior
motives: ‘The action of the governor was
a mere pretence, the real object being to
keep away a political party from staking
a claim to form the government.’
The Supreme Court’s decision was
not unanimous, with two of the five
judges on the panel dissenting from the
majority view. According to Justice
Pasayat, the governor was not obliged to
remain a silent spectator in the face of
attempts to form a government through
dishonest means. He would have grant-
ed a wide margin of discretion to the
governor: ‘However suspicious [the]
conduct of the governor may be, and
even if it is accepted that he had acted
in hot haste it cannot be a ground to
term his action as extraneous.’ For
Justice Balakrishnan (who would later
become chief justice), a government
formed by foul means could hardly be
described as a democratically elected
government. In his view, the majority's
decision was antithetical to, rather than
in furtherance of, democratic values.
T
he Supreme Court’s decision pro-
voked serious deliberations with-
in the Congress party and the
UPA government. Any ideas of filing a
petition in the court seeking a review of
its decision were shot down on the basis
that there was a risk the court would
further reprimand the governor, or
worse still, the government. Damage
control was the order of the day. Given
the court's remarks about the role of the
governor, Buta Singh’s position app-
eared untenable. Widespread expecta-
tions were that he would either resign or
be removed by the government.
However, Singh remained obdurate
in the initial moments following the
decision. When asked about his inten-
tions following the court's decision,
Singh indicated that he would take the
Republic Day salute in Patna.
The UPA government was increas-
ingly concerned that if it attempted to
remove him or compel him to resign,
there was a risk that he would turn
against the government. Singh ‘knew
too much’, and there was ‘no way of
knowing what Singh could do, or how
he could be controlled after demitting
office’. It had long been suspected that
the RJD (which was a member of the
UPA) had pressured the UPA govern-
ment to dissolve the assembly on the eve
of an attempt to form the state govern-
ment. The UPA government hardly
wanted this confirmed in excruciating
detail by one of the protagonists of this
episode.
The Cases That
India Forgot
Author:
Chintan Chandrachud
Published by:
Juggernaut Books
Pages: 229
Price: `599
ThedecisionoftheSCbench
ledbyCJIYKSabharwal(above)
wasnotunanimous,withtwoof
thefivejudgesdissentingfrom
themajorityview.Theywere
JusticeBalakrishnan(above,
right)andArijitPasayat.

Spotlight/ Police Crackdown
ROTESTERS against the
Citizenship (Amendment)
Act (CAA) in UP have seen
the ugly and brutal face of
the state police. The bel-
ligerence with which it
attacked people has shocked and dis-
mayed all. In some districts, the police
inflicted lathi blows even on those
found standing outside their houses or
returning from work. At other places,
the cops are alleged to have barged into
homes and assaulted the inmates with a
vengeance. Four people arrested in
Muzaffarnagar were freed after 10 days
with the police admitting that they had
found no evidence linking them to the
violence on December 20.
In doing what it did, the police
snatched away a citizen’s democratic
Lawless
in UPThestatepolicehascrackeddownonCAA
protestersandmindlesslyarrestedallandsundry.
Manyhavebeenchargedwithvarioussectionsof
theIPCandaskedtopayheftypenaltiesforrioting
By Atul Chandra
in Lucknow
P
28 January 13, 2020

right to either protest or pray, as hap-
pened in the case of 55 Sikh devotees
who were booked for taking out nagar
kirtan (religious procession) to com-
memorate Martyrs’ Day of Guru Gobind
Singh’s sons in Pilibhit.
Not only are demonstrations against
the new citizenship law banned in the
state, even writing against it on Twitter
or Facebook can land one in jail. The
violence that took place in Lucknow and
other parts of the state on December 19
and 20 in protest against the police
crackdown on Jamia Millia students in
Delhi cannot be condoned.
A peaceful demonstration by civil
society members in Lucknow, for ins-
tance, turned ugly when some unidenti-
fied elements torched vehicles, including
OB vans belonging to some media hous-
es. Some set fire to a police outpost in
Khadra area. In some 21 districts, van-
dals hijacked the protest from peaceful,
civil society demonstrators, leading to 19
deaths and causing damage to private
and public property. These included
Lucknow, Kanpur, Rampur, Gorakhpur
and Meerut. Internet services in all the
affected districts remained snapped for
several days.
Over 1,000 people have been arrest-
ed for their alleged involvement in the
violence, although many were just silent
protesters. Prominent among those
arrested in Lucknow include retired IPS
officer SR Darapuri (a 77-year-old can-
cer patient), Congress worker and social
activist Sadaf Jafar (a mother of two),
and activist Deepak Kabir. Social acti-
vists Arundhati Dhuru and Madhvi
Kuckreja were detained when they went
to enquire about some of the detainees.
Although the above three were not in-
volved in the violence, a look at the
charges levelled against them shows the
extent to which the police went in order
to crush democratic rights.
On December 19, Darapuri was put
under house arrest in Lucknow to pre-
vent him from reaching the protest
venue and later arrested. He was
charged under Sections 147, 148, 149
(rioting, armed with a deadly weapon
Over1,000peoplehavebeenarrestedfor
theirallegedinvolvementintheviolence,
althoughmanywerejustsilentprotest-
ers.Tosaythatthepolicewantedtoinstil
fearwouldbeanunderstatement.
Photos: UNI

or anything which if used as a weapon
may cause death), 152 (obstructing
public servant when suppressing riot),
307 (attempt to murder), 323 (voluntar-
ily causing hurt), 504, 506 (intentional
insult, provoking someone to disturb
public peace), 332 (voluntarily causing
hurt), 353 (assaulting public servant to
deter from discharge of duty), 188 (dis-
obeying order promulgated by public
servant), 436 (mischief by fire or explo-
sive substance), 120-B (criminal con-
spiracy to commit an offence punishable
with death and 427 (causing mischief
to damage property of `50 and above) of
the IPC.
The manner in which the police stoo-
ped to send Darapuri to jail shows that
his basic human rights were also violat-
ed with impunity. According to Magsay-
say Award winner Sandeep Pandey, Da-
rapuri, who is also a Dalit rights activist,
was produced before a magistrate who
refused to order his imprisonment. Ano-
ther magistrate then ordered him to be
jailed. Deepak Kabir was arrested when
he went to enquire about Sadaf Jafar’s
whereabouts. Advocate Mohammad
Shoaib, also a septuagenarian, was put
behind bars without being produced
before a magistrate, Pandey said.
Most of the IPC sections invoked
against Darapuri have also been used
against Sadaf Jafar, but she faces addi-
tional charges under Sections 3 and 4 of
the Prevention of Destruction of Public
Property Act of 1984 and Section 7 of
the Criminal Law Amendment Act of
1932. Pandey was also detained for
protesting outside his house, but as he
did not carry a mobile, the police could-
n’t find any evidence to frame him and
set him free.
T
he extent of police high-handed-
ness can be gauged from the
arrest of four men in Meerut,
where the SP is alleged to have told
Muslim protesters to go to Pakistan.
One of the four men, a government
clerk, was jailed even though he was in
office on the day of the rioting. The
other three were taking their ailing rela-
tives to hospital when they were arrest-
ed. All four remained in jail for 11 days
and were released only after their family
members proved their innocence.
While the police are now serving no-
tices on protesters/rioters and collecting
hefty penalties from protesters for dam-
aging property, they obviously have no
moral obligation to pay compensation
for causing mental trauma to those
FREEDOM OF EXPRESSION?
(Left) A protest against CAA in Lucknow
(Below, L-R) SR Darapuri, Sadaf Jafar and
Deepak Kabir
Spotlight/ Police Crackdown
30 January 13, 2020
UNI

wrongly jailed and their families. Show-
cause notices have been served to ar-
ound 150 protesters in Lucknow alone.
Identified from CCTV and video footage,
they have been asked to explain within a
week why their properties should not be
attached for damaging public property.
Unlike their Delhi counterparts who
have approached the High Court for
the appointment of a claims commis-
sioner to assess the damage to proper-
ties due to the CAA protests, the UP
police have estimated the losses on their
own. Without any legal backing, the
administration has sought recovery of
an estimated `4 crore from the accused
in Lucknow alone.
L
ike the Meerut police’s “mistake”
of sending innocents to jail, many
other accused across the state
face the challenge of proving their non-
involvement in the violence. In Firoza-
bad, show-cause notices have been sent
to 26 persons. Families of some of them
have pleaded innocence. These accused
are already in jail and chances of their
coming out seem remote as they are too
poor to pay up.
The police are reluctant to admit
that some of the 20 killed in violence
were victims of police firing. Director-
General of Police of UP OP Singh re-
peatedly denied that the police fired on
the protesters until a video surfaced of a
policeman aiming his gun to fire at a
mob in Kanpur’s Yateemkhana area.
Kanpur SSP Anant Deo later clarified
that the police fired four rounds in the
air in self-defence. He insisted that no
one had died of shots fired by police-
men. Regarding three deaths due to bul-
let injuries, he said that only forensic
examination would confirm if the shots
were fired by policemen.
Meanwhile, in Bijnor, the police
admitted that a youth died when they
resorted to firing. Like the Kanpur SSP,
Bijnor SP (Rural) Vishwajit Srivastava
reportedly said that a 23-year-old man
died when a policeman fired at a violent
mob in self-defence.
Bungling by the police took a curious
turn in the case of Sheroz, a 23-year-old
who died of bullet injuries in Shamli on
December 20. While no one has been
named as an accused, the FIR mentions
Section 304, IPC (culpable homicide),
and not 302 (murder). Although a post-
mortem examination was carried out on
Sheroz’s body, his family had not been
given the report till January 1 night.
The police has now pinned the blame
on the Popular Front of India (PFI), a
Delhi-based organisation linked to SIMI
and its political front, the Social Demo-
cratic Party of India, for masterminding
and inciting the violence. Praveen Ku-
mar, IG (Law and Order), said at a press
conference that “25 persons affiliated
with the PFI have been arrested across
the state for their involvement in differ-
ent criminal activities”.
The state government has also sent a
report to the Union home ministry seek-
ing a ban on the PFI. The report is ba-
sed on PFI activities in the state over the
last 10 years. The PFI reportedly started
its activity around 2010 in Lucknow,
Barabanki, Bahraich, Muzaffarnagar,
Shamli and Meerut.
Waseem Ahmed, president of the
outfit, and two of its members—Nad-
eem and Ashraf—have been arrested
for their role in the Lucknow protests
on December 19. Six PFI members,
including the organisation’s founder-
member of western UP, Maulana
Shadab, are said to have been arrested
from Shamli. The police claimed to
have recovered pamphlets with objec-
tionable content from them. In Meerut,
two PFI members, Amzad and Javed,
have been arrested.
The police are invoking a 2011 High
Court order which directed the govern-
ment to make vandals compensate the
destruction of property. Ironically, the
government had a memory loss when a
Hindu mob led by Bajrang Dal activists
damaged property and killed police
Inspector Subodh Kumar Singh in
Bulandshahr over alleged cow slaughter
in 2018. The IT cell of the UP police
proved its bias when it took days to
track down one of the accused who kept
sending messages through a cell phone.
Clearly, UP is under police rule and
not of an elected government. And so
far, there is no indication that they will
be questioned for their atrocities.
Director-GeneralofPoliceofUPOPSingh(right)deniedthatthepolicefiredonthe
protestersuntilavideosurfacedofapolicemanaiminghisguntofireatamobin
Kanpur.PraveenKumar,IG(LawandOrder),blamedPFIforallcriminalactivities.

My Space/ Low-cost Drug Formulations Dr KK Aggarwal
N public interest, the National
Pharmaceutical Pricing Authority
(NPPA) has used its extraordinary
powers to ensure availability of 21
low-cost drug formulations. Some
are essential drugs, while others
are first-line drugs used in national
health programmes, the availability of
which was getting affected for the last
few years. The drugs were not available
as pharmaceuticals had limited or no-
profit margins. Limited stocks often
used to finish by mid-year.
Doctors were, therefore, forced to
write prescriptions for costly and often
less-effective alternatives. These include
costly antibiotics for the replacement of
standard penicillin prophylaxis for rheu-
matic fever. Two other drugs which were
in short supply are furosemide (to treat
fluid build-up due to heart failure, liver
scarring or kidney disease) and chloro-
quine (a malaria drug).
The NPPA noted: “Many companies
have applied for discontinuation of the
product on account of high cost of the
raw material for these drugs. Access to
these drugs cannot be jeopardised. Also,
we did not want the public to be forced
to switch to costly alternatives.”
However, the NPPA could change the
pricing only under extraordinary cir-
cumstances. It has no routine powers to
revise the prices of drugs and hence
took a series of meetings and permis-
sions to do so. It had to first establish
the prices and notify the changes, moni-
tor the prices of non-scheduled drugs
and formulations and oversee the imple-
mentation of the provisions of the Drugs
(Price Control) Order (DPCO).
A December 13 order said: “NPPA is
cognizant that as per the prevailing poli-
cy, cost-based pricing is not feasible. To
address the situation arising due to rep-
eated price control, one-time price in-
crease of 50% from the present ceiling
price is being considered in public inter-
est as an exceptional measure. Accor-
dingly, NPPA invoked extraordinary
powers in public interest under para 19
of DPCO 2013 for upward revision of
the ceiling prices of the 21 scheduled
formulations of 12 drugs by giving one-
time increase of 50% from the present
ceiling price.”
Para 19 gives power to the NPPA to
control the prices of drugs that are not
under the National List of Essential
Medicines under extraordinary circum-
stances in public interest. It was on May
30, 2013, that the ministry of chemicals
and fertilisers delegated powers under
specified paras of DPCO to NPPA.
NPPA receives regular applications for
The Price of Health
TheNationalPharmaceuticalPricingAuthorityhashikedthepricesof12life-savingessential
drugstoensuretheiravailabilityasmanufacturerswereunabletosustainproductivity
I
FOR A LARGER CAUSE
The price hike of essential drugs will lead to
low-cost affordable healthcare in India
wallpaperflare.com
32 January 13, 2020

upward price revision under Para 19 of
DPCO, 2013. These applications cite
various reasons such as increase in API
cost, increase in cost of production,
exchange rates, etc., resulting in unvia-
bility in sustained production and mar-
keting of various drugs.
In January 2019, the NPPA deliber-
ated upon 49 such applications consist-
ing of 72 formulations and shortlisted
19 for further examination. In another
meeting in March 2019, it constituted a
committee which recommended that
these 19 formulations could be consid-
ered for an upward price revision to en-
sure availability of these medicines.
In another meeting in June 2019, the
NPPA examined the recommendations
of the committee and took a view that
the revision of ceiling prices should be
undertaken only in exceptional circum-
stances as there was neither a precedent
nor any formula prescribed for it. Acc-
ordingly, NPPA further shortlisted 12
formulations and referred the issue to
the Standing Committee on Affordable
Medicines and Health Products
(SCAMHP), NITI Aayog.
I
n a meeting in November 2019,
SCAMHP said that there was a
need to revisit the prices of the 12
formulations by allowing a one-time 50
percent increase from the present ceil-
ing price. In another meeting later, the
Committee recommended an additional
nine formulations for revision of their
ceiling price. Finally, at a meeting on
December 9, 2019, the NPPA deliberat-
ed upon these 21 formulations and said
they were low-priced drugs and under
repeated price control. Most of these
drugs are used as a first line of treat-
ment and are crucial to the public
health programme of the country. Many
companies had applied for discontinua-
tion of the products due to unviability.
NPPA noted that while ensuring
affordability, access cannot be jeopar-
dised and the lifesaving essential drugs
must always remain available to the
public. It was felt that unviability of
these formulations should not lead to a
situation where they become unavailable
in the market and the public is forced to
switch to costly alternatives.
The 50 percent hike is a welcome
move as all these drugs were low-priced
and leaving the market purposefully or
due to no profitability. This move of
the government will allow the country
to move towards low-cost affordable
healthcare.
—The writer is President,
Confederation of Medical Associations of
Asia and Oceania, and Heart Care
Foundation of India
UNI
BCG vaccine: Each dose is `8.75;
used to prevent TB.
Benzathine benzylpenicillin
powder: For injection of 12 lakh
units, each pack is for `17.84; for
injection of six lakh units, it is `11.81
and for injection of 10 lakh units, it is
`7.64. These formulations are used
as three injections weekly for preven-
tion of rheumatic heart disease.
Once started, a child must get this
injection regularly up to the age
of 35.
Chloroquine: A 150 mg tablet
costs `1.16 (anti-malaria drug).
Dapsone: A 100 mg tablet costs
`0.35 (anti-leprosy drug).
Furosemide: A 40 mg tablet to
cost `0.74; furosemide injection: 10
mg/ml (1 ml injection): `2.43. The
drug is used to remove fluid from the
body during heart/kidney failure.
Metronidazole oral liquid: 200
mg/5 ml (1 ml injection): `0.44; 200
mg metronidazole tablet: `0.68; 400
mg metronidazole tablet: `1.25;
metronidazole injection 500 mg/100
ml (1 ml injection): `0.20. The drug
is used for anaerobic infections and
amoebic loose motions.
Ascorbic Acid (Vitamin C): 500
mg tablet: `1.34.
Co-trimoxazole: A 400 mg tablet
to cost `0.77. A most cost-effective
antibiotic and a must for HIV-positive
persons.
Pheniramine: An injection of 22.75
mg/ml (10 ml pack): `1.67; used for
cough and cold.
Prednisolone: One percent 1 ml
drops: `4.92; a steroid.
Clofazimine capsule: A 50 mg
capsule costs `2.13, while a 100 mg
one costs `3.63; used for treatment
of leprosy.
Apillfor
allseasons
The National Pharmaceutical
Pricing Authority has fixed the
prices of the following drugs:
IN A BIND
A doctor
attending a
patient in
Kerala. As the
life-saving
and essential
medicines
were
unavailable,
doctors
prescribed
costly and
often
less-effective
alternatives

Focus/ Religious Sentiments
34 January 13, 2020
HE rendezvous of Bolly-
wood stars with law viola-
tions appears to be on the
rise. While one rarely
heard of any old time me-
ga star being hauled up
for allegedly violating the law or hurting
the sentiments of any community, such
reports are now coming in with increas-
ing regularity.
Superstar Salman Khan could top
the list with stiff competition from San-
jay Dutt, but several other stars have
been making an appearance in courts
and police stations. Many, however, rush
to resolve the issue at the first sign of
trouble. The latest in the series is the
controversy involving Bollywood actor
Raveena Tandon, filmmaker Farah Khan
and comedian Bharti Singh for allegedly
hurting the religious sentiments of a
community during a comedy show.
The Amritsar police lodged a case
against them on the basis of a complaint
by Sonu Jafar, president of the Christian
Front of Ajnala Block, along with video
footage of the show that was aired on
Christmas Eve. The complainant alleged
that “the religious sentiments of Chris-
tians have been hurt” by certain refer-
ences made by them on the show.
Shortly after that, another complaint
was booked against the three on charges
under Section 295-A (deliberate and
malicious acts intended to outrage reli-
gious feelings of any class by insulting
its religion and religious beliefs). This
was registered on a complaint from the
chairman of Samson Brigade Christian
Youths, Vijay Goria, a resident of Kam-
boj Nagar in Ferozepur. He said the
three had allegedly made fun of the
word “Hallelujah” while trying to pro-
nounce it.
The trio was slapped with a third
case for the same alleged offence on the
complaint of Ashish Shinde, who heads
an NGO in Maharashtra’s Beed district.
The case was transferred to Malad po-
lice station in Mumbai where the three
accused live.
Evidently rattled by the spate of ca-
ses, Tandon and Khan took to Twitter to
offer apologies. “Please do watch this
link. I haven’t said a word that can be
interpreted as an insult to any religion.
The three of us (Farah Khan, Bharti
Singh and I) never intended to offend
anyone, but in case we did, my most sin-
cere apologies to those who were hurt,”
said Tandon in a tweet while sharing a
clip of the programme. YouTube has,
however, blocked the video. Khan too
tweeted: “I respect all religions, and it
Starry Trouble
ThreecaseshavebeenlodgedagainstBollywoodpersonalities
RaveenaTandon,FarahKhanandBhartiSinghforallegedly
hurtingthereligioussentimentsofacommunityonaTVshow
By Vipin Pubby in Chandigarh
COURTING TROUBLE
(From left) Raveena Tandon, Farah Khan and Bharti Singh offered apologies on Twitter;
(facing page) actress Payal Rohatgi was in trouble for uploading her video
T

would never be my intention to disre-
spect any. On behalf of the entire team,
Raveena Tandon, Bharti Singh and
myself.... we do sincerely apologise.”
While these three may have found
themselves in a mess unintentionally,
there are others who invite trouble to
stay in the headlines. A week prior to
the registration of cases against the
three, another actress and former Bigg
Boss contestant Payal Rohatgi was
involved in a controversy. She uploaded
her own video which contained deroga-
tory references to the Gandhi family,
including Motilal Nehru, Jawaharlal
Nehru, Indira Gandhi and other mem-
bers of the family. She was picked up
and sent to judicial custody for eight
days. Her lawyers took up the case in
higher courts and she was bailed out the
next day but the proceedings against her
will continue.
W
hile she has been courting
trouble, some like Salman
have been casual about fol-
lowing the law. A Mumbai court in 2018
stayed a bailable warrant issued against
him in a 2002 hit-and-run case, in
which the government’s appeal against
his acquittal is pending before the
Supreme Court. He was accused of run-
ning his car over some persons sleeping
on the pavement in Bandra. One person
died. The trial court awarded him a five-
year jail term.
Salman is also facing a criminal case
for killing two blackbuck in Rajasthan.
These animals are revered by the local
Bishnoi community. The shooting took
place in 1998 when he was with fellow
actors Saif Ali Khan, Tabu and Sonali
Bendre during the shoot of the film
Hum Saath Saath Hain. He was sen-
tenced to five years’ imprisonment in
2018 and appealed to a higher court for
reversal of the trial court order.
But apart from his personal forays
with the law, Salman also has his share
of controversies relating to hurting reli-
gious sentiments. A film produced by
him, and initially named Loveyatri,
attracted protests from Hindu outfits
who said it was an insult to the sacred
festival of Navratri. Even the name
change did not appease the protesters
who lodged a complaint against him
and six others at Meethanpur police sta-
tion in Muzaffarpur on charges of hurt-
ing the sentiments of Hindus. The com-
plaint was filed by them under Sections
295 (injuring or defiling place of wor-
ship), 298 (uttering words with deliber-
ate attempt to hurt religious senti-
ments), 153 (provoking with intent to
cause riots), 153 (B) (assertions prejudi-
cal to national integrity) and 120(B)
(criminal conspiracy) of the IPC.
Considering that a section of Indians
is sensitive to religious sentiments (and
there is no dearth of those who file cases
merely for attracting attention and gar-
nering publicity), Tandon, Khan and
Singh should have been more circum-
spect, even though they might have
taken the joke too far. They are now
making all attempts to get out of the
sticky situation. They met Cardinal
Oswald Gracias, the archbishop of
Bombay. After the meeting, Khan tweet-
ed: “His Eminence Cardinal met us. We
apologised and asked him to forgive our
mistakes and he very graciously accept-
ed our apology.”
Cardinal Gracias said in a statement:
“As also reported in the media, director-
choreographer Farah Khan and actor
Raveena Tandon met me to convey their
AOL apologies over the ‘Backbencher’
web show. They expressed their unquali-
fied apologies for hurting the sentiments
of the Christian community. Comedian
Bharti Singh, who is out of country, sent
an apology on an audio clip. They also
handed me a written apology. It is reg-
rettable that the prayer of praise was
treated so disrespectfully. I was told this
was due to ignorance. I accepted their
sincere apologies and prayed with them.
I was assured that they will be very
careful in the future. The Christmas sea-
son is one of joy, peace and reconcilia-
tion. With these sentiments, I closed
the matter.”
Hopefully, Bollywood stars and other
opinion leaders will be more circum-
spect and the general public more toler-
ant in the new year.
BollywoodstarSalmanKhanalsohashis
shareofcontroversiesrelatingtohurting
religioussentiments.Afilmproducedby
himattractedprotestsfromHinduoutfits
whosaiditwasaninsulttoNavratri.

He stood on the shoulders of lit-
erary giants, after all, he discov-
ered and published most of them—
Michael Ondaatje, VS Naipaul, Rys-
zard Kapuscinski, Haruki Murakami,
Gabriel García Márquez, Salman
Rushdie, Kazuo Ishiguro, Stieg
Larsson (the Millennium trilogy),
John Le Carre, Toni Morrison, Pope
John Paul II, Patti Smith, and even
low-brow but hugely successful
books like Fifty Shades of Grey.
Ishiguro, winner of the Nobel
Prize in Literature, once said: “There
are some very good publishers in this
world. Sonny Mehta is a great one.”
Mehta, who passed away last week
aged 77, was considered the world’s
best publisher. His 32-year tenure at
Alfred Knopf, after publishing stints
in London, earned him that reputa-
tion when his discerning eye and love
of literature inspired him to commis-
sion writers who would go on to earn
fame and nine Nobel prizes. He pub-
lished Rushdie’s Midnight’s Children
when at Picador, and the author
recalls “how great Sonny’s editorial
skills were. We went through the
draft line by line, and he wanted
clarifications, demanded more depth
and improved the text beyond all
measure”. Mehta leaves behind his
wife, Gita, sister of the Odisha Chief
Minister, Naveen Patnaik, and a
son, Aditya.
When Swedish tech-giant Ericsson was
forced to lay off thousands of local work-
ers in a cost-cutting exercise, there were no
protests or strikes. That is largely due to the
country’s unique Job Security Council, TRR. In
Sweden, employers pay part of their salary to
the councils, which acts like an insurance poli-
cy against unexpected retrenchment, till they
find a new job. Which is why Sweden’s work-
force barely ever experiences the stress and
trauma of losing a job.
The councils are run in a 50-50 partner-
ship between employers and trade unions. For
businesses and government, the system makes
it easier for Swedish businesses to get rid of
jobs made redundant by technology. That also
explains why Sweden has the highest re-em-
ployment rate in the developed world. The
councils also provide professional coaches who
re-train and counsel workers to help them find
jobs matching their skills and needs. In some
cases, Swedish workers have seen their earn-
ings actually rise after being laid off.
36 January 13, 2020
International Briefs
A Unique Safety Net
The big buzz in the global tech world is the
proposed merger of the technology that
drives the messaging apps, Instagram, Whats-
App and Messenger, all owned by Facebook.
The proposal was revealed in a leaked memo
but insiders have long known that it was one
of Facebook founder and chief executive Mark
Zuckerberg’s secret projects. Once the leak was
out, Zuckerberg admitted that the project was
on, saying it would make it easier for users to
send posts between the three platforms.
Experts point out that the move will create
a unified tech behemoth which increases the
risks of privacy breaches and makes it more
difficult to take any action against any of the
three in case of legal infringements. Already,
US senators have argued that Facebook wields
too much power and influence, while The Wall
Street Journal reported that the Federal Trade
Commission may intervene to prevent the apps
being integrated. Zuckerberg has already testi-
fied once before the US Senate Committee on
the usage of personal data by Facebook in rela-
tion to the Cambridge Analytica data breach.
The Great Merger
There’s one year-end list
everyone who is anyone
reads; it is ex-US President
Barack Obama’s favourite
books, music and shows
over the past year. His picks
showed his intellectual dep-
th and eclectic tastes. Most
interesting were his list of the best
music he heard in 2019, which, apart
from the usual suspects—Beyonce,
Solange, Frank Ocean—had an artist
from India, Prateek Kuhad (above,
centre). Kuhad gained popularity and
fame for his composition cold/mess
which went viral after its release in
2018, and was the song picked by
Obama. Kuhad has moved from play-
ing single-stage music at indie con-
certs to global concert tours, without
making much of an impact in the
country of his birth. Now, with
Obama’s endorsement, he is poised to
be a big music star.
After the list came out, Kuhad’s
cold/mess has been trending in Ame-
rica and elsewhere as music fans
download his releases. The singer/
composer was blown away. On his
Facebook page, he said: “This just
happened and I don’t think I’ll sleep
tonight. Totally flipping out. I have
no idea how cold/mess even reached
him but thank you @barackobama,
thank you universe I didn’t think
2019 could’ve gotten better, but da-
mn was I wrong. What an honour.”
Obama’s best books list also included
another Indian connection—Delhi-
based William Dalrymple’s (above,
right) The Anarchy, a riveting story
of the rise of the East India Company.
Literary Legend
The Ultimate List

Sabka Saath-Sabka Vikas-Sabka Vishwas
For
Convenience&Transparency
ofSugarcaneFarmers
“Webportal”
www.caneup.in
&
“E-Ganna App”
E-Ganna
INAUGURATIONBY
Yogi Adityanath
Chief Minister,
Uttar Pradesh
Features
Survey, weighing, slip, calendar and all information related to sugarcane.
Sugarcane weight via SMS and message when slip is issued.
Ban on sugarcane mafia and sale of sugarcane in a transparent manner.
KisanBhai,
FirstvisitERPWebportal
www.caneup.in
Clickonthelink
‘E-Gannasystem’
onthewebportal
Clickon‘KisanBhaiViewYourData’
andgetalltheinformationby
selectingthedistrict,factory,
villageandname.
Use a helmet when driving a two-wheeler InformationandPublicRelationsDepartment,UttarPradesh

Global Trends/ Pakistan
38 January 13, 2020
N para 66 of the detailed judgment
that sentenced former military dic-
tator Pervez Musharraf to death,
Justice Waqar Seth, the chief jus-
tice of Peshawar High Court and
head of the special court, observed:
“We direct the law enforcement agencies
to strive their level best to apprehend
the fugitive/convict and to ensure that
the punishment is inflicted as per law
and if found dead, his corpse be dragged
to the D-Chowk, Islamabad, Pakistan,
and be hanged for 03 days.”
In doing so after reportedly finding
the former general guilty of treason,
Justice Seth may have just pushed the
powerful Pakistan military establish-
ment and the Imran Khan government
into a tight corner.
His judgment provoked sharp criti-
cism from both the army and the gov-
ernment. Law Minister Farogh Naseem,
who had previously served as Gen
Musharraf’s lawyer, said Justice Seth
not only “violated judicial conduct” by
issuing the “bizarre order” but also was
“mentally unfit and incompetent” to be a
judge of any court. He added that the
government has decided to move the
Supreme Judicial Council of Pakistan (a
high-powered body that hears cases of
misconduct against judges) with the
plea “that such a judge has no authority
to be a judge of any high court or the
Supreme Court”.
Attorney General Anwar Mansoor
Khan said that the sanity of the author
of the detailed verdict in the Musharraf
treason case is “questionable” and called
for his trial and removal under Article
209 of the Constitution.
However, a few days later, the Imran
Khan government decided against
filing a reference against Justice Seth
because it would have caused serious
problems—both at the national and
international levels.
At the domestic level, the move wo-
uld have incurred a huge political cost
and embarrassed Prime Minister Imran
Khan, who had all along been a vocal
supporter of an independent judiciary
Judging the Judge
TheattacksbyPakistan’slawministerandotherofficialsagainstJusticeWaqarSeth,who
sentencedGenMusharraftodeath,mayhavehandedIndiaanewopeningintheJadhavcase
By Asif Ullah Khan
ISTRONG VERDICT
Justice Waqar Seth,
chief justice of
Peshawar High Court
kpja.edu.pk

and as an opposition leader had vehe-
mently called for Gen Musharraf’s trial
for suspending the Constitution.
Apart from the political cost, there
was a legal hitch as to how the govern-
ment could challenge the special court’s
verdict when it is the complainant in the
case. Only the aggrieved party can file
an appeal in the apex court for expung-
ing remarks of the special court’s judge.
Another question raised by legal experts
was whether an appeal can be filed in
respect of para 66 of the judgment,
which is not the operative part of the
majority judgment.
The major concern was that it would
weaken Pakistan’s case against alleged
Indian spy Kulbhushan Jadhav at the
International Court of Justice (ICJ) at
The Hague.
The ICJ, on India’s plea, had directed
Pakistan to “take all measures at its dis-
posal” to ensure that Jadhav would not
be executed pending a final decision in
the case, and to inform the court of all
the measures taken in implementation
of that order.
However, the ICJ did not uphold
India’s submissions to direct Pakistan to
take steps to annul the decision of the
military court, release Jadhav and facili-
tate his safe passage to India. But it
found that Pakistan was under an obli-
gation to provide, by means of its own
choosing, effective review and reconsid-
eration of the conviction and sentence
of Jadhav, so as to ensure that full wei-
ght was given to the violation of rights
set forth in Article 36 of the Vienna
Convention.
The ICJ’s decision to suspend but not
annul the execution of the death penalty
awarded to Jadhav and asking Pakistan
to ensure “effective review and reconsid-
eration of his conviction and sentences”
was hailed as a victory in Pakistan.
H
owever, the ICJ observed that
Article 199, Paragraph 3, of the
Constitution of Pakistan had
been interpreted by the Supreme Court
as limiting the availability of such a
review for a person who was subject to
any law relating to the armed forces of
Pakistan, including the Pakistan Army
Act of 1952. Here, Pakistan cited a deci-
sion of November 2018, where Justice
Seth, as part of a two-member bench of
the Peshawar High Court, had reversed
sentences of the military courts against
74 convicts, 50 of which were death
sentences, to stress that courts in
Pakistan are independent and operate
without any influence from the govern-
ment or the military.
Mohammed Rizwan, a Toronto-
based journalist of Pakistani origin, and
a fellow at Pragmora Institute, Canada,
told India Legal: “It helped Pakistan’s
case as the ICJ did not annul Jadhav’s
death sentence because Justice Seth’s
verdict established that decisions by the
military courts can be reviewed in Pak-
istan’s superior judiciary. Thus Jadhav is
also free to file a review petition.”
The Imran Khan government made
a laughing stock of itself when the law
minister and attorney general of
Pakistan questioned the “mental bal-
ance” of Justice Seth.
After 2009, the Pakistani judiciary
has become robust and independent
because of upright judges who have
refused to toe the line of the military
establishment, Rizwan told India Legal.
He said the Khan government did
not realise the gravity of the situation
when Justice Seth was nominated as
presiding judge of the special court by
AnyactionagainstJusticeSeth,in
thePervezMusharrafcaseverdict,
wouldweakenPakistan’scase
againstallegedIndianspyKulbhushan
Jadhav(right)attheICJ.
UNI

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