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India Legal 14 January 2019

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India Legal 14 January 2019

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com January 14,2019 ImmigrationOverhaulOwingtoimpendingchangesinUK’slaws,thereisgoodnewsforIndiansasskillsrather thannationalitywillmatter,creatingalevelplayingfieldforallmigrants Govt’s New Snooping Laws: Are there enough safeguards?
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  3. 3. 4 January 14, 2019 T is impossible to decipher, as the agitation over expansion of rights of women to wor- ship in the Sabarimala temple in Kerala intensifies, where the political chips will fall. Will the Hindu fundamentalists, who are opposing the Supreme Court ruling, and conse- quent entry of three women score points as pro- tectors of a centuries-old tradition—an “essential practice”—and polarise the Hindu voters? Or will the secularists and the burgeoning women’s rights movement, now imbued with religious fervour, win the day? What is the actual case law that preceded the Supreme Court’s recent decision lifting the ban on women in a certain age bracket worshipping inside this temple? Courts do protect the right to worship as a civil right and the freedom to do so according to one’s own belief. But should this right of worship be allowed to interfere with the rights of other persons? While researching this subject in relation to the ongoing Sabarimala agitation, I chanced upon an illuminating paper by social anthropologist Gilles Tarabout published by the South Asia Multi-disciplinary Journal. I will excerpt cases from Indian jurisprudence, cited by Tarabout (taken directly from his paper), regarding striking a balance between the right to worship and ways of worshipping. They have a direct bearing on the Sabarimala controversy: The Punjab and Haryana High Court in Rattan Singh and ors. (1951) had to deal with a conflict between bareheaded devotees and covered-head- ed ones in a mandir which Lahore High Court had previously (1936) declared not to be a Sikh Gurdwara. Bareheaded devotees complained they were prevented by the covered-headed ones from entering the mandir and worshipping there. The High Court, quoting precedents, underlined the general principle according to which the right to worship a deity according to one’s own belief is of a civil nature. The judge decided in favor of the plaintiffs because, according to him, coming bare- headed could not be seen as affecting others’ right to worship: “whether a man goes bare-headed or otherwise is not a form of ritual and even if he goes into the temple and begins to worship with- out anything on his head it may be good or bad manners according to the notions of the people but this has no reference to the ritual” (Rattan Singh and ors. 1951:§5). This power of the courts does not concern Hinduism alone—which reinforces the idea that this form of legal action in religious matters is beyond any particularities regarding policies or persons. For instance, Allahabad High Court ruled in Syed Farzand Ali (1980) that Muslims of the Ahl-i-Hadith tradition had the right to speak the word “Amen” aloud in response to the prayer leader in mosques of the Mathura district without being hindered by Muslims of the Hanafi tradi- tion who tried to oppose this practice. This was a long-standing conflict and judgments to decide the same question already existed by the end of the nineteenth century (Queen Empress 1885; Ataullah 1890). These earlier rulings were con- firmed by the Allahabad High Court, with partic- ular reference to Justice Mahmood in Ataullah: “As to the question of pronouncing the word ‘Aameen’ I hold that the word ‘Aameen’ must be said at the end of the prayer ending with Sure-i- Fateha. I hold also that this should be pro- nounced. I hold also that there is a difference of the exact note in which it should be pronounced and I hold that there is no authority to say at what note of the vocal octave the voice should emanate. “There are some who think that the speaking of the word ‘Aameen’ aloud is required by devotion and feeling and is necessary for their prayers. I hold, therefore, that there is no authority in the Mohammadan Ecclesiastical Law to limit the tone of voice in which the word Aameen is to be pronounced; that so long as the plaintiffs appel- lants are Muhammadans, as we have found they are, so long they are entitled to enter the mosque and perform the worship and say the word ‘Aameen’ without anything to restrain their tone STRIKING A BALANCE Inderjit Badhwar I Whileresearching ontherightto worshipinrelation totheongoing Sabarimala agitation,Ichanced uponanilluminating paperbysocial anthropologist GillesTarabout publishedbythe SouthAsia Multi-disciplinary Journal.Iwill excerptcasescited byTarabout.They havea directbearingon theSabarimala controversy. Letter from the Editor
  4. 4. or note of the octave. But if the pronouncement of the word ‘Aameen’ results in the disturbance of peace, that of course will have to be dealt with under the Criminal Law.” (Quoted in Syed Farzand Ali 1980:§5) In his final remarks, the author says: Discussing secularism in India is usually done by analyzing the Constitutional provisions and the acts of judges in their implementation. As the first part of this paper recalls, extended scholar- ship has underlined the growth and the impor- tance of legal categories such as “secular,” “essen- tial practices,” “superstition,” in shaping Hinduism today. The reformist agenda promoted by some judges in accordance with an interpreta- tion of the Constitution that gives precedence to fundamental rights over the protection of reli- gious freedom has further widened the scope of the law’s intervention. However, important changes in religion are also brought forth through action of a less political nature on the part of the courts. Such processes result from systemic properties of Common law and are quite independent from any secularist agenda. One of them, already identified by schol- ars, is the general effect produced by the fact that the Constitution is centered on individuals on the basis of equality, a legal framework at odds with widely shared Hindu conceptions and practices. The second part of this paper has tried to explore two other characteristics of the legal sys- tem that may similarly have a quasi-mechanical impact on religion (not only Hinduism but others as well): the fact that ordinary words are given a legal, technical definition that is sometimes quite different from their usual understanding in the religious realm (for instance “religious service,” “religious office,” “religious honor”); and the fact that the protection of a civil right such as the “right to worship” imposes on the court the duty to rule on related religious issues, even “essential” ones. As a matter of fact, many of these legal defini- tions and the whole reasoning behind the discus- sion on jurisdiction make use of notions that were originally developed for other purposes. A right to an office is taken as an instance of a more general right to property. The right to a religious office does not differ from the right to any other office, which means that it must satisfy the same condi- tions to be held valid. The right to worship is taken as just one instance of the right to access or use land and water, which is regulated by disposi- tions of the Criminal Code. This suggests a much deeper-rooted entangle- ment of law and religion than is usually assumed. At one level it certainly can be approached in terms of heritage, or enforcement of secularism, or religious reform, or a judge’s personal agenda. But at a much more fundamental level it also results from the legal system itself which imposes a legal categorization on aspects of religious life: religion has to fall within this legal universe of discourse and of enforceable rules. The kind of religion that is thus eventually shaped is mostly framed by questions and rules that were initially elaborated for other, non-religious litigations. Indeed, nearly all aspects of religious life may thus be re-defined through such legal categories. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com | INDIA LEGAL | January 14, 2019 5 Kaviyoor Santhosh POLITICAL SLUGFEST Violent protests in Kerala over Sabarimala
  5. 5. ContentsVOLUME XII ISSUE9 JANUARY14,2019 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 January 14, 2019 14Courting the Best & the Brightest Britain’s immigration laws are set for a revamp as visas will be issued to migrants based on their skills rather than nationality. This will create a level playing field for all migrants LEAD 17Controversy’s Child Despite the Supreme Court giving a clean chit to the Rafale deal, there seems to be no let-up in the pressure on the government as a review petition has been filed against the judgment SUPREMECOURT 18Much Ado about Nothing? Two recent notices issued by the centre have kicked up an unnecessary storm over privacy concerns when, in fact, they seem to be a step towards better regulation of social media CYBERSECURITY
  6. 6. | INDIA LEGAL | January 14, 2019 7 Grip Tightens REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE Cover Photo: HEATHROW AIRPORT Ringside............................8 Courts ...............................9 Is That Legal...................10 Delhi Durbar ...................12 Media Watch ..................49 With the Pakistan army sharpening its knives, the PML(N) and the PPP are in dire straits. Hope lies with the next gen leaders, Maryam Nawaz and Bilawal Bhutto 46 Nothing Sacred Here In the fourth of India Legal’s series on significant judgments by former chief justices, we bring you a verdict by former CJI Dipak Misra in which he advocated animal rights while maintaining the ban on Jallikattu 22 Hard Measures The NGT has directed the Himachal Pradesh pollution body to stop all stone crushers operating near water bodies in the state 31 No Child’s Play In today’s wired world, children are most vulnerable to abuse, both online and offline. Are existing laws enough to protect them? 32 GLOBALTRENDS BOOKS CYBERCRIME SPECIAL Unjustified Delay 42 The Uttar Pradesh government has been fending off SIT requests for prosecution of the accused in the 2013 Muzaffarnagar riots case. For the vic- tims, it could be a long wait for justice Tourism on the Rampage 44 Farmers are up in arms against the Karnataka government’s plans to set up a Disneyland-style park at the KRS dam site in Mandya district, but the CM is hell bent Religion a Threat to Secularism In his book, Politics, Religion and Judiciary in India, Dr HR Bhardwaj, former Union law minister, talks about the role of religion in India, how politics has often interfered with it and how the judiciary has intervened to set things right Saving Srinagar’s Pride Autonomy Battles The iconic Dal Lake is on the brink of inevitable death. The J&K High Court has called for rescue efforts to be undertaken on a war footing and asked the state government to take time-bound remedial steps Based on his forthcoming book, India’s Quasi-federalism—Faultlines, Challenges and Opportunities, former Home Secretary and Secretary, Justice, Madhav Godbole says the Concurrent List should be expanded 28 34 38 Hit by a Tempest 40 Kerala CM Pinarayi Vijayan had mooted the idea of a Women’s Wall to uphold gender equality in the Sabarimala case. But he is facing criticism from many quarters while violence has flared up again STATES ENVIRONMENT MYSPACE 24 Don’t Tarnish a Good Name Though doctors and hospitals are at the receiving end of patients’ ire, the Constitution has built-in guarantees to protect a person’s reputation and goodwill HEALTH
  7. 7. 8 January 14, 2019 “ RINGSIDE “I would very much like to debate with the Prime Minister one-on-one on Rafale, on anything about combat air- craft, on any strategic issue.... But the Prime Minister does not have the guts… to come and sit in front of you....” —Congress President Rahul Gandhi while addressing a press conference “The audio clip re- leased by the Cong- ress...is a desperate attempt to fabricate facts after their lies were exposed by the recent Supreme Court verdict on Rafale....” —Goa CM Manohar Parrikar on his pur- ported comments on Rafale files at a cabi- net meeting ...he is constantly telling me, he built a library in Afghanis- tan. Library! That’s like five hours of what we spend (in Afghanistan).... Don’t know who’s using it (the library) in Afghanistan....” —US President Donald Trump, refer- ring to PM Modi funding a library in Afghanistan “If the Congress doesn’t know the lyrics of Vande Mata- ram or if they feel ashamed singing it, then let me know. I along with people will sing it on the first day of every month at the Vallabh Bhawan premises.” —Former MP CM SS Chouhan after the state government dis- pensed with singing of Vande Mataram “T 3045 - Kadar Khan passes away .. sad depressing news .. my prayers and condolences .. a bril- liant stage artist a most compassionate and accomplished talent on film .. a writer of eminence ; in most of my very successful films .. a delightful company...” —Amitabh Bachchan after Kader Khan’s demise, on Twitter “...militancy has increased… ceasefire violations have gone up… economic activi- ty, handicraft activity, all are nil and there is no employment generation...” —Congress leader Ghulam Nabi Azad, blaming the Modi gov- ernment for destabil- ising J&K in a debate in Parliament “Like many of his students, I learnt my ABCD of cricket un- der Sir’s guidance. His contribution to my life cannot be captured in words. He built the foundation that I stand on....” —Sachin Tendulkar on the passing away of his coach, Rama- kant Achrekar “We have given three extra holidays in between. In asking for holidays, there seems to be a broad consensus. As far as the working of the House is concerned, there seems to be some reservation for some people.” —Rajya Sabha Chairman M Venkaiah Naidu to members disrupting proceedings in the House
  8. 8. The Supreme Court agreed to hear on January 8 the BJP’s plea against a Calcutta HC order, denying the party permission to hold a rath yatra in West Bengal. The party had moved the apex court, challenging the divi- sion bench’s order which had set aside a single bench order allowing the party to hold its rath yatra progr- amme renamed as “save democracy rallies”. Last month, though the party had sought urgent hearing the Court put off the matter until after winter vacation. In its plea, the BJP contended that the fundamental right of the petitioner to organise a non violent yatra cannot be refu- sed on the ground of mere hypothesis and speculations. The West Bengal governm- ent had cited law and order concerns to deny clearance. Courts | INDIA LEGAL | January 14, 2019 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal Team 1984 convict Sajjan Kumar surrenders ASupreme Court bench of Chief Justice Ranjan Gogoi and Justice Sanjay Kishan Kaul said that further order on hearing of the Ayodhya land dispute case will be passed by an appropriate bench on January 10. On October 28, 2018, the Supreme Court had said the matter will be listed in the first week of January for fixing the date of hearing. Prior to that, on September 27, then Chief Justice Dipak Misra headed bench, had in a 2:1 verdict, decided against referring a ques- tion of law—whether offering prayers in a mosque is an essential practice of Islam—to a larger bench. The major- ity opinion, authored by Justice Ashok Bhushan and supported by Justice Misra, had ordered that the Ayodhya appeals “which are awaiting considerations by this Court for quite a long period, to be now listed in week commencing October 29, 2018 for hearing”. Justice AK Sikri, the second sen- ior most judge in the Supreme Court, has been appointed the executive chairman of the National Legal Services Authority (NALSA) with effect from December 31, 2018. The post became vacant after the earlier incumbent, Justice Madan B Lokur, retired from the apex court on December 30. NALSA was constituted under the Legal Services Authorities Act, 1987, to inter alia provide free legal services to the weaker sections of society. SC to hear BJP’s rath yatra plea on January 8 Hearing a plea filed by advocate Aditya N Prasad, a Supreme Court bench of Justices AK Sikri and S Abdul Nazeer came down heavily on the Meghalaya government and the centre for failing to rescue the 15 miners, who have been trapped in a rat hole mine in the East Jaintia hills district since December 13. “We're not satisfied with rescue operations....We pray to God they are alive,” the Court said. The centre informed the Court that the mine rescue operation was much tougher than the one in the Thailand cave, and the lack of a blueprint and constant water seepage were hampering the efforts. The apex court has asked the centre to file a status report on the steps taken so far by January 7. Former Congress MP and 1984 anti-Sikh riots convict Sajjan Kumar surrendered before Delhi’s Karkardooma court on December 30 and was immediately sent to Mandoli Jail. Last month, the Delhi HC had sentenced Kumar to life imprisonment, reversing the acqui- ttal granted to him by a trial court in 2013, and asked him to surren- der before December 31. He had filed a petition seeking more time to surrender, first before the Delhi HC, and then, before the SC. Both petitions were, however, rejected. Why are miners still trapped?: SC asks Meghalaya govt Ayodhya hearing date to be fixed on January 10 NALSA gets new executive chairman
  9. 9. 10 January 14, 2019 ISTHAT When is an arbitral award given in a foreign country enforceable in India? Foreign awards are enforceable in India in the same way as a decree of a foreign court, given that India is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention) and the Conven- tion on the Execution of Foreign Arbitral Awards, 1927 (Geneva Convention). This means that if a party receives a binding arbitral award in a foreign country which is a signatory to the New York Convention and Geneva Convention, and which has been notified as a convention country by India, then the award is enforceable in India. How can a person directly approach the Supreme Court of India? Generally, a person approaches the Supreme Court by invoking the appellate jurisdiction mechanism, i.e. by filing an appeal in the Supreme Court against an order or judgment of a High Court. In order to file a case directly before the Supreme Court, a person can invoke Article 32 of the Constitution which empowers a person to approach the Supreme Court for the purpose of enforcement of the rights con- ferred by the Constitution. When approach- ing the Supreme Court, one needs to file a writ application before the Court, alleging that his or her fundamental rights have been infringed upon. Possible to Directly Approach the SC —Compiled by Divyansh Trivedi Enforcement of a Foreign Arbitral Award Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis How can one obtain a certified copy of the order of the Delhi High Court? Certified copies can be procured under the rules of Chapter 5 of Volume 5 of the Delhi High Court Rules and Orders. A certified copy can be obtained by filing an application under the above mentioned rules. One prerequisite is that the person filing the application should be a party to the matter which is pending before the Court. In the case of a matter which has been decided by the Court, any person can obtain a certified copy. The digital copy is provided to the applicant through a digital data server and the hard copy is sent after the judgment is photocopied and compared with the original file. Getting Certified Copy of a Delhi HC Order ? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Is the registration of a marriage compulsory for filing a divorce peti- tion in a court of law? Registration of a mar- riage is not a mandato- ry requirement, and in order to file a divorce petition in a court of law, the registration of a marriage is not a pre- requisite. The purpose of a marriage certifi- cate is that it is taken as evidence in a court of law. However, if the marriage certificate is not available, the pho- tographs of the wed- ding, the wedding invi- tation card and the statements of witness- es would suffice. One important requirement that has to be met in filing a divorce petition is that it should be filed at the same place where the marriage was solemnised or where the parties last resided. Registration of a Marriage Not a Must
  10. 10. 12 January 14, 2019 An inside track of happenings in Lutyens’ Delhi Over the last four years, the BJP has been claiming icons to prove that the party’s identity is deeply rooted in Indian soil as well as the national movement which was a creation of the Congress party. It has adopted Ambedkar (law minister under Nehru), Subhash Bose and Sardar Patel, and, lately, Mahatma Gandhi as its own. And now the party is laying claim to the famous Nehru jacket which has no sleeves, hangs below the belt and rises at the neck to form a stand-up collar. After having tried to wipe out Nehru’s name from history textbooks in Rajasthan, the BJP is asserting a sartorial right over India’s first prime minis- ter’s signature upper body adornment by calling it the “Modi jacket”. The Guardian notes that while Modi’s supporters call it proof of the prime minister’s popular appeal because it is selling like hotcakes in India’s khadi shops, critics call the jacket a “fraud”. Professor Ashok Swain of Uppsala University in Sweden is quoted as saying that “it is the same style that Jawaharlal Nehru made popular. It is exactly the same. Modi just changed the colour”. South Korea’s president, Moon Jae-in, recently tweeted a picture of himself wearing a “Modi vest”. “During my visit to India, I had told the Prime Minister @narendramodi that he looked great in those vests, and he duly sent them over, all meticulously tailored to my size. I would like to thank him for this kind gesture,” he tweeted. Quipped Omar Abdullah in a return tweet:“It’s really nice of our PM to send these but could he not have sent them without changing the name? All my life I’ve known these jackets as Nehru jackets & now I find these ones have been labelled ‘Modi Jacket’. Clearly nothing existed in India before 2014.” Observed The Guardian: “Now the Nehru-cum-Modi jacket has found itself drafted into the wider fight over Indian history and identity.” JACKET WARS The Hindu Photo Archives bjp.org
  11. 11. | INDIA LEGAL | January 14, 2019 13 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Delhi Durbar There could not have been a better kick-off to a new year in Parliament than the debate over the Rafale deal in the Lok Sabha that saw the finance minister, the Virtual No 2 in the cabinet and unofficial government spokesman, Arun Jaitley, taking on a sprightly, fresh-from-electoral victory Rahul Gandhi. As parliamentary debates go, there was a surfeit of wit and barbs thrown by both sides. On one occasion, reminded by the speaker that he could not name business- man Anil Ambani in his speech, Rahul respond- ed by putting on a look of disbelief and asking the speaker: “I can't name him?” Lok Sabha Speaker Sumitra Mahajan said it was against the rules. Rahul asked: “Ma'am, may I refer to him as AA?” The FM later countered Rahul, saying, “Since he has been using abbreviations, I would like to ask, was he playing in the lap of one Q,” using the initial of the controversial Italian business- man, Ottavio Quattrocchi, who was a close friend of the Gandhi family and a key accused in the Bofors case. The mix of barbs and banter threatened to derail the debate itself, but for Kalikesh Narayan Singh Deo (below), the young BJD MP from Odisha, whose interjection was both short and to the point. “Where are the pricing details of Rafale? Why not have the House take a closer look at the deal, which has paralysed the Indian Air Force? Jaitley has cherrypicked facts. Why is the pricing of the deal available everywhere except the official sources?” Not only were his queries brief and sharp, they gave an idea of which way the BJD—never a trenchant govern- ment critic—wind was blowing. Persistent rumours that cricketing ace-turned- Congress politician Mohammed Azharuddin would be joining the Telangana Rashtra Samithi to contest the 2019 general election have now been staunchly denied by the former Indian skipper in a tweet: “The news doing the rounds in the media of me joining the TRS party in Telangana is incorrect & false.” He is now firmly entrenched in Telangana politics as one of the Congress’s state working committee presidents. The buzz about Azhar ditching the Grand Old Party, which he joined in 2009 and successfully con- tested his first election from UP’s Moradabad, started when some of his support- ers began spreading the word that he would like to contest from the Secun- derabad Lok Sabha con- stituency this time and had received approval from the party chieftains in Delhi. The Secunderabad option, however, met tough resistance from the Greater Hyderabad Congress Committee president, Anjan Kumar Yadav, who believes he has a better foothold there. Azhar, sources say, was dis- pleased with this rebuff and sent an informal feeler to Telangana CM K Chandrasekhar Rao and his son, KT Rama Rao. As of now, it is still uncer- tain from where Azhar will contest. AZHAR’S WRIST WORK P’s & Q’s
  12. 12. Lead/ UK/ Immigration Rules 14 January 14, 2019 Welcome: The Best and the Brightest Inagladlyreceivedmove,thebiggestoverhaulofBritain’simmigrationsystemwillbeundertaken whereskillsratherthannationalitywillmatter.Thiswillcreatealevelplayingfieldforallmigrants By Sajeda Momin in London @HighlySkilledUK
  13. 13. | INDIA LEGAL | January 14, 2019 15 HERE is good news for Indians wanting to mig- rate to the United King- dom. British Home Sec- retary Sajid Javid has published a White Paper that sets out new immigration rules in which migrants will be issued visas on the basis of their skills and talent and not their nationality. In what is being described as the big- gest overhaul of Britain’s immigration system in 40 years, European Union nationals will lose their current prefer- ential status and migration targets will be scrapped. “We are taking a skills- based approach to ensure we can attract the brightest and best migrants to the UK,” said Javid, who is himself the son of Pakistani immigrants to Britain. Call- ing the proposals the “biggest change to our immigration system in a genera- tion,” Javid said he would be ending the current dual system of admitting only highly skilled workers from outside the EU and workers of all skill levels from the EU, and will be creating a level play- ing field for all migrants. The much-delayed White Paper also announces the complete removal of a cap on the number of work visas issued. Currently, only 20,700 Tier 2, five-year work permits are issued per year to highly skilled employees from outside the EU. The cap was imposed by There- sa May when she was home secretary. It ends the need for resident labour market tests by UK employers in which businesses have to advertise positions to British workers first and can bring wor- kers from abroad only if there are no suitable domestic candidates. However, there is no need for poten- tial Indian migrants to start queuing up for British visas just yet as these propos- als, even if they get passed in parliament and become a bill, will only come into effect from January 1, 2021, after Britain has left the EU and completed the post- Brexit implementation period. If Brexit does go through on March 29 this year, it will end the right of EU nationals to come into the UK without visas and work freely. The Brexit referendum has been pre- dominantly won on the basis of “ending free movement” of people and decreas- ing migration into the UK. The propo- nents of Britain leaving the EU had promised their constituency that Brexit would stop migrants “coming over and taking their jobs”. While this had gone down well among a large section of the white British population, even some Indian-origin immigrants had voted for Brexit, believing that stopping free movement from the EU would mean more of their relatives from India would be able to come to the UK. Ironically, after the referendum, racist attacks on South Asian immi- grants increased as right-wing national- ists, who were emboldened by winning the Brexit vote, saw it as an opportunity to end immigration from everywhere, not just the EU. More incidents were reported of white supremacists telling South Asians to “go home”. Prime Minister May has been a long- standing advocate of lower immigration levels. Even as home secretary, she had promised that she would bring net immigration down to below a lakh. After she took up the prime minister’s post in 2016, she has repeatedly stressed that the central message of the Brexit referendum was a demand that migra- tion be controlled and she has vowed to do it. Javid, who is known to be close to May, has in his proposal avoided men- tioning an explicit cap on the total num- ber of migrants who will be allowed into Britain after Brexit. He said there would be “no specific target” under the new sy- stem, which would instead focus on ach- ieving a level of migration that is “sus- tainable for our economic need but at the same time is not too high a burden T “Wearetakingaskills-basedapproachto ensurewecanattractthebrightestand bestmigrantstotheUK.” —SajidJavid,BritishHomeSecretary FUTURE PERFECT? Highly-skilled migrants to the UK, who have been seeking equity, can hope for a bright future in the light of new visa proposals UNI
  14. 14. Lead/ UK/ Immigration Rules 16 January 14, 2019 to our communities or our infrastruc- ture”. While this is certainly better than the current cap, it also does not mean that an unlimited number of migrants will be allowed in—it simply gives the government the chance to choose and change the number as it sees fit. With the May government’s obsession with lower levels of immigration, “sustain- able” is bound to be a figure in the tens of thousands as promised in the Conser- vative Party manifesto. T hough the new system which “favours experience and talent over nationality” has been wel- comed by some Indians, it is specific. The new skilled work visa will be open to non-EU and EU citizens alike, but will have a lower annual salary thresh- old of £30,000 and will require spon- sorship from an employer just like the current Tier 2 visas. What it will not need is the resident labour market test, and the skilled applicant does not need to be a graduate, but can have interme- diate education up to “A” Levels (Higher Secondary in India). Those who come in on this visa will be able to bring dependents, extend their stay and settle permanently. Critics argue that it is impossible for many skilled professions to meet the £30,000 per year minimum income guarantee as salaries for some profes- sionals are not so high. For example, the Indian restaurant industry has suffered badly due to the immigration rules until now which insisted that jobs should be given to domestic employees first. They were not allowed to bring in Indian chefs and had to be content with non- Indian employees who often could not pronounce the names of the Indian dishes, let alone cook them. With the resident labour market test no longer applicable, restaurants can bring in staff from India, but the £30,000 per year salary will be a difficult hurdle to cross. Another area of concern is the National Health Service which is essen- tially run by immigrants. Saffron Cordery, deputy chief executive of NHS Providers, has warned that a high salary threshold would have a disastrous im- pact on the health service. “You have got starting salaries for nurses at £23,000, also for paramedics and mid- wives. Junior doctors’ starting salaries at £27,000, healthcare assistants at £17,000, all coming in way below that £30,000 cap,” said Cordery. Currently, the NHS in England alone employs 63,000 EU nationals and if they all leave, the NHS will collapse. It is believed that Chancellor of the Exchequer (finance minister) Philip Hammond, Business Secretary Greg Davis and Javid himself had expressed concern in private about potential staffing shortages resulting from the salary threshold and supported a far lo- wer cut-off at £21,000 per year. Howev- er, May had resisted the proposal, hop- ing that cutting the supply of cheap for- eign labour will act as an incentive for businesses to train home-grown staff. Not convinced by May’s argument, Javid has left a window open by insisting that a final salary threshold would be con- firmed only after further consultation. To make up for the predicted short- fall in low-skilled labour, the White Paper announced a short-term workers scheme which will only be for 12 months without the option to extend. This scheme will only allow citizens from “low-risk countries”, but it is not clear if India falls in this category. “This new route will only be available for nationals of specified countries, for example those low risk countries with whom the UK negotiates an agreement concerning the supply of labour, including returns arrangement,” says the White Paper. Jim Bligh, chair of CII UK India Business Forum, told India Legal: “Indi- an industry has long called for a fair, transparent and skills-based immigra- tion system and the proposals go some way to achieving these goals. Tackling the UK’s skills gap, particularly in digi- tal and technology, must remain a key focus for government and it is welcome that this paper recognises the value that skilled workers from overseas can bring to helping improve UK’s skills base.” May hopes that by refusing to offer EU migrants preferential treatment, it will help to unlock future trade deals with non-EU countries such as India. With only three months before the Brexit deadline, the end result of the negotiations is still uncertain. Whether this White Paper finally becomes a law will have a lot to do with what eventu- ally happens by the end of March. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com VENTING FRUSTRATION Ravneet Singh from Punjab whose turban was ripped by a white man outside the British Parliamentary Estate in UK youtube.com
  15. 15. | INDIA LEGAL | January 14, 2019 17 Supreme Court/ Rafale Deal ESPITE the Supreme Court giving a clean chit, there seems to be no let- up in the pressure on the government over the Rafale deal, both in Parli- ament and in the courts. While the opp- osition is keeping up the pressure in both houses of Parliament, two former BJP leaders and a PIL lawyer have filed a review petition in the Supreme Court on the ground that the judgment was based on errors apparent in the first instance and that it would cause “grave miscarriage of justice” if left unchecked. The petition also states that the judg- ment did not deal with the petitioners’ prayer for registration of an FIR and investigation of the matter by the CBI, and the contract was reviewed “prema- turely” without any “investigation” or “inquiry” into the facts. The review petition has been filed by former BJP ministers Arun Shourie and Yashwant Sinha and Senior Advocate Prashant Bhushan. The judgment in question was delivered by a three-judge bench comprising Chief Justice Ranjan Gogoi and Justices Sanjay Kishan Kaul and KM Joseph on December 14, 2018, and noted that the Court found no “occasion to really doubt the [decision- making] process [on the Rafale deal], and even if minor deviations have occ- urred, that would not result in either setting aside the contract or requiring a detailed scrutiny by the Court”. The petition states that the impugn- ed judgment relied on facts that are “patently false”. It is further mentioned in the petition that the CAG report which had been relied upon in the judg- ment does not exist at all. And there- fore, there is no question of it having been examined by the Public Accounts Committee (PAC). The petition accuses the central government of misleading the Court, saying that: “The government has blatantly misled the Hon’ble Court and the Hon’ble Court has grossly erred in placing reliance on false averments in the note not even supported by an affi- davit. The entire judgment is based on disputed questions of facts in respect of which an investigation needs to be done. As the judgment is based on evidently false averments in the note not shared with the petitioners, on that ground alone, the entire judgement ought to be not just reviewed but recalled.” The centre’s application seeking cor- rections in the judgment regarding the submission of the CAG report on the pricing of the deal and the report’s sta- tus in Parliament is also pending before the top court. The centre’s submission had recorded that under paragraph 25 of the judgment it is stated that pricing details were shared with the CAG and that the CAG report had been examined by the PAC. Only a redacted portion of the report was placed before Parliament, the judgment added. The petitioners have demanded a review in this matter as the Court has “erred” in reaching its judgment. Elab- orating further, the petition states that “because several new facts have come to light after the judgment was reserved in the matter, which go to the root of the matter and falsify the claims of the gov- ernment” it is imperative that the matter be reviewed in an “open court” to serve the interests of justice. The petition also claims that the judgment was in viola- tion of the principles of natural justice as “the petitioners were not given an opportunity to be heard on the claims made in the government’s unsigned notes resulting in gross miscarriage of justice.” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com D POLITICAL HOT POTATO Congress leaders including Rahul Gandhi at a protest demonstration against the Rafale deal Anil Shakya No Let-Up on Rafale Heat Threepetitionershavemovedthe SupremeCourt,seekingreviewofits decisiontodismissallPILsalleging irregularitiesinthedeal,sayingthe judgmentrelieduponpatentlyincorrect claimsmadebythecentre By Naved Ahmed
  16. 16. Cyber Security/ Column/ Na Vijayashankar 18 January 14, 2019 Tworecentnoticesbythe governmentkickedupa stormoverallegationsthat theywouldcompromise privacy.However,theyseem tobeattemptstocurbillegal activitiesonsocialmedia Is Big Brother Watching? HE privacy of individuals seemed to be at stake re- cently. Two PILs were filed in the Supreme Court against a notification of the Union home ministry, with more promising to follow. They sought quashing of the recent order of December 20, 2018, on the grounds of violation of privacy of citizens. The order was made under Section 69 of the Information Technology Act, 2000, as amended in 2008 (ITA 2000/8) and was called a mass surveillance attempt, an assault on privacy and an attempt by the Modi government to gain advantage during the forthcoming general election over its political opponents. Before the Court could hear these petitions, another order dated Decem- ber 24, 2018, from the Ministry of Elec- tronics and Information Technology (MeitY) amending Section 79 of ITA 2000/8 raised a storm in the media. This, too, could land in the Supreme Court shortly. It was alleged that this order violated freedom of speech and was an attempt to censor and control social media as well as facilitate snoop- ing on citizens. While this has understandably char- ged up opponents, even professional cir- cles seem confused about the legality of the orders. The home ministry order (see box: Ministry of Home Affairs) is powers only as per the constitutional propriety of “reasonable restrictions” that can be placed on fundamental rights through due process of law. The due process is represented by Section 69 and the rules made thereunder. This Section has existed in its present form since October 27, 2009, and enables the issue of directions for interception/mon- itoring/decryption of any information by a “competent authority” and for a “spe- cific purpose”. As Section 69 clearly emphasises that it can be used only when the require- ment is under “Permitted Reasonable Restrictions of Fundamental Rights” under Article 19(2) of the Constitution, T “in exercise of powers conferred under Section 69(1) of ITA 2000 read with Rule 4 of the Information Technology (Procedure and safeguard for intercep- tion, Monitoring and Decryption of Information) Rules, 2009”. However, this order is not an independent direc- tive that can be considered actionable without reference to the restrictions under the relevant Act and Rules. This fact has been ignored in most discus- sions and media reports as well as the PILs. The order is only designating the agencies that can be used by a “compe- tent authority” for exercising its powers under Section 69 (1) of ITA2000/8. Section 69 (1) itself is providing Anthony Lawrence
  17. 17. | INDIA LEGAL | January 14, 2019 19 it is not ultra vires the Constitution. The rules under Section 69 were notified on October 27, 2009, under the title “Infor- mation Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009”. This contains 25 clauses which include: Prohibition of any person carrying out the monitoring except as provided un- der the regulations. In view of the prohi- bition, any violation of the due process would render the person who carries out such monitoring liable to be punished under other sections of ITA 2000 such as Section 66 with a possibility of imprisonment up to three years with a fine and also make him liable to the affected individual to pay civil damages. Designation of the competent authori- ty, namely the Secretary, Home, in cen- tral and state government. Designation of agencies through which the competent authority may con- duct the monitoring. It is now restricted through the ministry order to only 10 agencies. In the absence of this designa- tion of agencies, the competent authori- ty could have designated any official or agency of its choice for conducting the monitoring. The direction for monitoring to be issued in writing and should contain the reasons for it and also name a person responsible for execution of the order. The agencies are authorised to desig- nate a “nodal officer” who shall be responsible for implementation and will be accountable for strictly following the order. The orders of the competent authority to be reviewed by a review committee which is the same one constituted under Rule 419A of the Indian Telegraph Rules, 1951. The order of monitoring to be for spe- cific information and shall be valid for a limited period of 60 days from the issue with a possible renewal up to 180 days. The information so collected to be destroyed after 180 days unless it is required for legal purposes as evidence. Intermediaries and computer owners to assist the monitoring agency to be co- operative, failing which they shall be liable for prosecution, which will be through a judicial process. Thus, it is to be noted that the rules are comprehensive and fully meet the requirements of “due process”. All the excitement generated about the order being “mass surveillance” of citizens is not backed by facts. So on what grounds were the two PILs filed? Some of the objections were: This is a blanket order against the public for monitoring their activities without reason: This may be unsustain- able as the power to monitor can be exercised only by the competent author- ity through these agencies and not by the agencies themselves. It considers every citizen a criminal: This may not be true as the competent authority has to specify the reasons in a written order which is also subject to review by a higher authority and will also be subjected to judicial review by any person who suffers a wrongful con- sequence thereof. It is bad in law: This too may be unsustainable as it is the duty of the government to secure the State and col- lecting information that can lead to bet- ter security of the people is part of the expected duties of the government. It allows imposition of criminal pun- ishments under several sections of ITA 2000/8: Such punishments can be imposed only against persons who are so liable for conviction and not merely because their criminal activities became known to the law enforcement authori- ties because of the monitoring. It will be used to fix innocent citizens and control the entire country under dictatorship: This is mere speculation. Without an FIR, the State cannot ini- tiate any action against any citizen of India in a cognisable offence: These powers are exercisable only if the re- quirement is recorded in writing. Also, the person giving such an order is liable for prosecution if it is proved that he has misused the powers. Hence, the grounds on which the PILs have been filed do not seem to be based on facts or logical reasoning. This conclusion would remain even if the landmark Puttaswamy judgment is Itseemsthatthetwonotifications relatedtotheITActfromthegovernment areaseriousattempttomitigatethe possibilityofsocialmediaandthe internetbeingusedforillegalactivities. Sec 69: Powers to issue directions for interception or monitoring or decryp- tion of any information through any computer resource (1) Where the Central Government or a State Government or any of its officer spe- cially authorized by the Central Government or the State Government, as the case may be, in this behalf may, if is satisfied that it Is necessary or expedient to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may, subject to the provisions of sub-section (2), for reasons to be recorded In writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information transmitted, received or stored through any computer resource.
  18. 18. Cyber Security/ Column/ Na Vijayashankar 20 January 14, 2019 brought into the discussion as the con- ditions under which privacy is a funda- mental right are subject to reasonable restrictions. These are met by Section 69 and the notification which together constitute “due process of law”. In the Justice KS Puttaswamy (retd) and Anr vs Union of India and Ors judgment, it was held that the right to privacy is pro- tected as a fundamental constitutional right under Articles 14, 19 and 21 of the Constitution. O n December 24, 2018, the gov- ernment put up a draft amend- ed rule under Section 79 of ITA 2000/8 for public comments. This is called the Information Technology [Intermediaries Guidelines (Amend- ment) Rules], 2018, and amends the earlier rule which was issued on April 11, 2011. The new regulations have pro- posed some important changes related to social issues such as prohibition of promotion of cigarettes, tobacco prod- ucts, liquor, etc, which have not faced any objection in the initial media reac- tions. What has now attracted the ad- verse attention of critics are those relat- ed to the proposals to curb spread of fake news through social media. The key provisions that have attract- ed attention in these guidelines are that appropriate agency. Deploy technical measures and con- trols for proactively removing unlawful content. Like the objections raised for data localisation in respect of the proposed personal data protection law, industry players, which include international giants such as Google, Facebook, Twitter, WhatsApp, Instagram, etc, may the intermediary: Operate through a company incorpo- rated in India (applicable if there are more than 50 lakh users or the govern- ment has otherwise notified the inter- mediary). Provide information and assistance to a government/investigation agency within 72 hours, when required under a “lawful order”. Remove objectionable information within 24 hours when receiving either a Court order or a notification from an T he recent notification on December 20 by the Ministry of Home Affairs notified 10 agencies to intercept, monitor or decrypt any information through any computer source. Many of these agencies are even exempted under the RTI Act and report directly to the Executive. Another notification was on Decem- ber 24 by the Ministry of Electronics and Information Technology which amended Section 79 of the Information Technology Act ostensibly to address the issue of fake news. But the notifications were challenged in the apex court as they were against existing laws. No one can be put under surveillance unless he is a threat to the nation’s security and the reasons must be in writing. It was laid down by the Supreme Court in Shreya Singhal vs Union of India while discussing the constitutionality of Section 69 A that the reasons for block- ing content must always be in writing so that they can be challenged in a writ peti- tion under Article 226. The Article says: “…every High Court shall have powers… to issue to any person or authority, inclu- ding in appropriate cases, any Govern- ment, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, Privacyisafundamentalright Any attempt by the Executive at surveillance of its citizens cannot be arbitrary as the Court has laid down clear guidelines in this regard TRAWLING WOES Changes in the IT Act may affect social media
  19. 19. | INDIA LEGAL | January 14, 2019 21 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com raise their objections to resist the need to have a local company which could add to their corporate governance costs. There is a counter view that many of these entities are today much more than communication platforms and have even ventured into becoming financial intermediaries (GPay, WhatsApp Pay, Twitter or Facebook Banking, etc) and there is a need to bring them under tighter local regulatory supervision. The proposed measures of “management localisation” would be a step in this direction and lead to better tax and legal compliance. A s regards the need to remove content under certain circum- stances, the requirement arises only when the order is “lawful” or there is a “Court order”. Hence, there is no justification for objection. The interme- diary needs to put in place systems and procedures to comply with the provi- sions as a part of ITA 2008 compliance. Identifying what is “lawful” will be with reference to “objectionable content” re- ferred to in the guideline itself and the information which is relatable to Article 19(2) of the Constitution. Understanding these and translating it into necessary policies and procedures are part of the compliance process. When these intermediaries can translate complicated regulations like General Data Protection Regulation into auto- mated technical compliance controls, converting these guidelines should not be an issue. When there is disagreement between the authority seeking removal of the content and the intermediary, it is open for either to resort to “adjudica- tion” as provided under ITA 2000/8 or other means that may be available under law. The technical measures and controls required to be implemented under the guidelines do not speak of any “decryp- tion”, though this is a power available under Section 69 of the ITA 2000 and can be exercised over any IT operator, including an intermediary, subject to conditions indicated under Section 69. On the other hand, what is required under the Section 79 guideline is a reli- able identification of the origin of the message such as the IP address, mobile number, etc. These are measures which are not difficult to implement. Such requirements have come up for judicial review globally as far back as 2000 in the LICRA vs Yahoo case and courts have held that the intermediary is duty- bound to introduce adequate technical measures to comply with the legal requirements. The amendments are, therefore, rea- sonable and the objections raised repre- sent more the economic inconvenience that the intermediaries may face. They do not carry legal weight. In short, it seems that the two notifi- cations are a serious attempt by the gov- ernment to mitigate the possibility of social media and the internet being used to carry out illegal activities. The ques- tion “why now” can only be countered with “why not now?” Hopefully, the industry will cooper- ate and the courts will appreciate the need for such regulations and deal with the legal objections in an appropri- ate manner. —The writer is a cyber law and techno-legal information security consultant based in Bengaluru. The views expressed are personal or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.” The 1996 judgment in People’s Union for Civil Liberties (PUCL) vs Union of India was a significant attempt to solve the problem of widespread telephone tap- ping, and its influence has been strongly felt in subsequent laws designed to bal- ance the right to privacy against the State’s power to conduct surveillance. This landmark decision discussed the right to privacy at length. It was later declared a Fundamental Right under Article 21 of the Constitution in Justice KS Puttaswamy (retd) & Anr vs Union of India & Ors. In this judgment, the Court also laid down detailed guidelines for the exercise of the Executive’s surveillance powers. These include: Orders for telephone tapping must only be issued by the home secretary of the central or state government. In an emergency, this power may be delegated to an officer of the home department of the central or state government, and a copy of the order must be sent to the concerned review committee within one week. The authority making the order must consider whether the information consid- ered necessary to acquire can be rea- sonably acquired by other means. Review committees shall be constitut- ed consisting of secretary-level officers at both central and state levels. They may evaluate whether an interception order has been passed in compliance with the law, and if it has not, they may set it aside and direct destruction of any copies of intercepted communications. The safeguards against arbitrariness in the exercise of the state’s surveillance powers designed by the Court continue to apply in the internet age. However, new mass surveillance programmes being undertaken by the government that seem unprecedented in their scope necessitate a thorough re-examination of our privacy laws —By Kunal Rao Thequestion“whynow”canonly becounteredwith“whynotnow?”One hopesthattheindustrywillcooperate andthejudiciarywillappreciatethe needforsuchregulations.
  20. 20. A CRUEL SPORT Youth trying to tame a bull during a Jallikattu event at Alanganallur village near Madurai Special/ Former CJI Dipak Misra’s Judgments/ Jallikattu 22 January 14, 2019 FewwoulddisagreethatformerChiefJusticeofIndiaDipakMisraleft hisstamponthejudiciary.Thiscanbeviewedthroughtheprismofsome ofhismajorjudgmentsthatshowthebreadthoflegaldimensionsa chiefjusticemusttackle.IndiaLegal runsaseriesonthesejudgments CASEDETAILS Title: Chief Secretary to the Government, Chennai, Tamil Nadu & Ors vs Animal Welfare Board & Anr Bench: Justices Dipak Misra and Rohinton Fali Nariman Case no: Review Petition (Civil) No 3769 of 2016 in Civil Appeal No 5387 of 2014 Date of judgment: November 16, 2016 In Defence of Animal Rights By Ramesh Menon between bulls and bull tamers are pro- hibited under Section 11(1)(m)(ii) read with Section 3 of the Prevention of Cru- elty to Animals Act, 1960. However, Section 5 of the Tamil Nadu Regulation of Jallikattu Act, 2009, permits fights between bulls and bull tamers. Hence, there is a contradiction between the Tamil Nadu Regulation of Jallikattu Act, 2009, and the Prevention of Cru- elty to Animals Act, 1960. The apex court had dismissed the review petition. In its wisdom, the Supreme Court had disallowed the age-old practice of Jallikattu in Tamil Nadu, where bulls are let out into an open arena while groups of young men try to take control of them. The frightened bulls are natu- rally aggressive as they are put in a nar- row enclosure before being let out. To agitate them further, participants often beat them with sticks, bite their tails and even insert chilli paste into the eyes or anus. While animal activists had welcomed the judgment banning the primitive pra- ctice, supporters of Jallikattu organised state-wide protests against the verdict, saying that the tradition was a part of the indigenous culture of the state. They played up the sentiment that it was a question of Tamil cultural practices and REVIEW petition was filed by Tamil Nadu against the judgment of the Supreme Court which held that Jalli- kattu is not an act essential to religion or any religious practice, and therefore cannot be pro- tected under Article 25 of the Consti- tution. After hearing the arguments of both parties, the Court held that fights A Photo: UNI
  21. 21. pride and that was what was being destroyed. The narrative worked. The central government was caught in a weak-kneed moment. It directed the Tamil Nadu governor to bring in an ordinance in 2017 to allow Jallikattu. As many as 43 people died and 5,263 were injured in Jallikattu events betwe- en 2008 and 2014, according to the An- imal Welfare Board of India. Many of the victims saw a bloody end as they were gored by bulls during the Pongal festival when Jallikattu is traditionally held. Four bulls also died during this period. This is precisely why animal activists had prayed in the Supreme Court for a ban which was imposed numerous times by the Court. An inde- pendent investigation by the Animal Welfare Board of India had revealed that Jallikattu was inherently cruel to animals. In 2011, the Ministry of Environment and Forests had banned the use of bulls as performing animals. This naturally meant that Jallikattu could not conti- nue. But it did continue under the cover of a state law. In May 2014, the Supreme Court had struck down the state law and banned Jallikattu. The Court said that if the ban were flouted, penalties would be enforc- ed under the Prevention of Cruelty to Animals Act, 1960. The Court also called upon the central government to amend the law on preventing cruelty to animas to include bulls within its ambit. Events such as Jallikattu have cruelty inherent in them as bulls are not suited for such activities and making them par- ticipate in them results in unnecessary pain and suffering, the Court said. T he review petition asking for the ban to be removed was heard by a bench of Chief Justice Dipak Misra and Justice Rohinton Fali Nari- man. The judges minced no words when they said that Jallikattu caused consid- erable pain, stress and strain to the tor- tured bulls, exhausting and injuring them. They further said the Court could refer to the cultural ethos only if it did not run counter to constitutional thought and principle. Saying that there was no connection between Jallikattu and the right to freedom of religion, the Court dismissed the review petition. Earlier, the Ministry of Environment and Forests had permitted the continua- tion of the tradition under certain con- ditions. What this did was end the ban. However, the Supreme Court had stayed the order permitting Jallikattu. It, there- fore, effectively upheld the earlier ban. | INDIA LEGAL | January 14, 2019 23 This led to widespread protests in vari- ous districts in Tamil Nadu. While hear- ing petitions asking for the ban to be removed, the Supreme Court made it clear that it would not do so. Unable to handle the protests, the Tamil Nadu governor used the ordinance route to authorise the continuation of Jallikattu. In January 2017, the state legislature passed a Bill exempting Jallikattu from the ambit of the Prevention of Cruelty to Animals Act. Unless the centre amends the law, the state law will prevail. Not wanting to ruffle feathers in the southern state, it is unlikely the centre will make any such move. In Tamil Nadu, Jallikattu is no longer seen only as a traditional festival, but a form of resistance against the cen- tral government which allegedly wants to destroy Tamil culture and impose northern dominance. Pro-Jallikattu activists twisted the narrative to say that their culture was in danger and this rhetoric found acceptance on a scale that even they had not expected. The protests drew religious leaders and politicians who were eager to play to the gallery and exploit the situation for their narrow ends. On the street, they were ready to defy the directions of the high- est court of the land. TAKING A STAND (Left) Protesters in Chennai demanding lifting of the ban on Jallikattu; (above) Justice RF Nariman was also part of the SC bench Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Asmanyas43peoplediedand5,263 wereinjuredinJallikattueventsbetween 2008and2014,accordingtotheAnimal WelfareBoardofIndia.Fourbullsalso diedduringthisperiod.
  22. 22. My Space/ Concurrent List Madhav Godbole 24 January 14, 2019 Chandrashekar Rao, chief minister of Telangana, who won a second term with a comfortable majority in the recent elections and who has ambitions to play a ma- jor role in national politics, has stressed the importance of giving more auto- nomy to states. He has suggested that the Concurrent List in the Seventh Schedule of the Constitution should be done away with. He believes that state governments should be free to decide what is in their best interest. “I am go- ing to give a new definition to the poli- tical scenario in this country,” he pro- claimed recently (The Indian Express, December 17, 2018, p. 10). Such half- baked, ill-considered pronouncements by someone who has prime-ministerial ambitions are worrying. At the outset, it needs to be stated that the Concurrent List includes, am- ong others, items of common concern for states and the centre such as civil and criminal laws and procedures, edu- cation, administration of justice and electricity. The importance of having a nation-wide common approach on a number of such subjects can be readily appreciated. Pooling the resources of states and the centre can go a long way in meeting the ever-rising expectations of people. This is amply brought out by the sizeable investments made by the central government in the electricity sector to supplement the efforts of states. To leave all these subjects entirely to states will retard the progress of the country. It may be pertinent to note that when the eternal question of powers of the Dominion government to legislate The Nation Comes First TheTelanganaCMhasdemandedabolitionofthisList.Thisisahalf-bakedsuggestionasthe Listincludesitemsofcommonconcernforstatesandthecentre,andshouldbeenlarged K A PURPOSEFUL FORUM? Union Home Minister Rajnath Singh chairing the 11th Standing Committee meeting of the Inter-State Council in New Delhi UNI
  23. 23. | INDIA LEGAL | January 14, 2019 25 on matters falling in the state’s concerns was raised by the State of Ontario in Canada, the Privy Council applying the test of “national concerns” had held that if the subject matter of the legislation goes beyond local or provincial concerns or interests…it must be treated as affect- ing the peace, order and good govern- ance of Canada (Ontario (AG) vs Can- ada Temperance Federation). Thus, uni- versally, the tendency is to look at issues in the larger national perspective. In the case of India too, in the light of experi- ence so far, the Concurrent List needs to be enlarged, rather than curtailed, leave aside abolishing it. The Indian Constitution is one of the more successful constitutions adopted by any country in recent years. It has been flexible enough to incorporate over 120 amendments considered necessary from time to time in the last 68 years. Except for some highly controversial amendments effected during the term of Indira Gandhi as prime minister, most of the others were well conceived and largely welcomed. Significantly, a few of these led to the transfer of some subjects from the State List to the Concurrent List. These included administration of justice; constitution and organisation of all courts (except the Supreme Court and High Courts which were always in the Union List); education, including technical education, medical education and universities; trade and commerce; forests, protection of wild animals and birds; and weights and measures. In a number of countries, the trend is towards greater centralisation of pow- ers, rather than decentralisation. The decisions of the highest courts in these countries, too, have contributed to this development. The forces of globalisation and the compulsions of increasing inter- national competition, too, have under- lined the importance of adopting nat- ional policies on a number of subjects. An article by Dr KK Aggarwal titled “One India-One Health Policy?” in the India Legal issue of December 24, 2018, for example, makes a plea for adoption of a national health policy on the lines of the national eligibility-cum-entrance test. It has been gratifying to see that the initial resistance of some states such as Tamil Nadu to the entrance test for admission to medical colleges in the country has disappeared completely. There are indications of greater accept- ance of the proposal for setting up more all-India services such as for the subor- dinate judicial service. Laying down all- India standards for various subjects, institutions and services is the only way in which the productivity, efficiency and quality of life can be improved. After non-Congress governments came to power in a number of states, the overbearing attitude adopted by the Union government from the time of Indira Gandhi’s prime ministership led to strained relations between the central government and states and these have become even more acrimonious. As a result, the term “confidence-building measures”, which is generally used in the context of improving relations between countries, is equally apt for mending relations between the Union govern- ment and states. T he concept of federalism is being increasingly bandied about by political parties and states in the context of the Lok Sabha elections this year. At the outset, it needs to be under- lined that India is not a federation. The Constitution clearly states that India is a union of states. But, for ensuring a smooth working relationship between the Union and states, the founding fathers of the Constitution had con- sciously included several features of fed- eralism in it. The Constitution can, therefore, rightly be described as quasi- federal. It has also been variously de- scribed as a union of federal states, pra- gmatic federalism, asymmetrical feder- alism, and amphibian federalism. The political rhetoric of federalism is being increasingly used by states to opp- ose even some worthwhile proposals made by the Union government. Two recent examples bring this out. Railway police is a state subject. This police, be- longing to the railway ministry, is res- ponsible only for watch and ward Theroleofthestatehastobethatofa facilitatorineveryway.Towardsthisend, somesubjectsmustbeentrustedatthe municipaloreventhelowerlevelofa villagepanchayat(below). yourarticlelibrary.com
  24. 24. My Space/ Concurrent List/ Madhav Godbole 26 January 14, 2019 duties. As has been seen, in the case of offences during travel, the victim has to run from pillar to post to register the offence in the relevant police jurisdic- tion. It is imperative that the railway police is given powers under the Police Act. Such a proposal made by the min- istry of railways was strongly opposed by some states on the ground that it would dilute their powers! Another issue was that of Lokayuktas who had been repeatedly urging in their annual conferences that a uniform all- India law should be enacted to increase their powers and make their offices more effective. Such a proposal was opposed by some states on the specious ground that it would militate against the federal spirit of the Constitution, what- ever it means! One is unable to see why there should not be an all-India law for police, but this too has been opposed on the ground that police is a state subject. Each state can enact special provisions in the said law to suit its requirements, but there is every justification to have an all-India law on police with common features such as recruitment, training, representation to minorities, women and weaker sections, emphasis on hu- man rights, redressal of public grievan- ces, upholding the rule of law, uniform policy on transfers, fixation of tenure and so on. Why should there not be a national policy on eradication of corrup- tion? Why should autonomy of states intrude into these matters? W hen the Constitution was framed, the menace of terror- ism was not as prevalent or as acute as at present. Several crimes are now seen to have not only an all-India spread but have international ramifica- tions. Serious and widespread commu- nal violence in places such as Godhra, Mumbai and Ahmedabad, to name a few, had national repercussions. The demolition of Babri Masjid by frenzied mobs with active connivance of the state government was a new experience which was not foreseen by the framers of the Constitution. It is shocking that in a continental-size country with so many diversities, India cannot have a federal civil police. In this light, it is imperative that the entries “police and public order” are shifted from the State List to the Concurrent List. It is necessary that these concerns are looked at in the larger national per- spective rather than from the narrow confines of autonomy of states. It is also necessary that they are considered keep- ing in mind India’s emergence as a regional power. The role of the state has to be that of a facilitator in every way. Towards this end, some subjects must not be dealt with even at the state level. Some must be entrusted at the munici- pal or even the lower level of a village panchayat. But there are a large number of subjects on which a national perspec- tive is necessary. India has set an outstanding example of co-operative federalism by enacting the Goods and Services Tax. All political parties have come together in achieving this. The UPA government, led by the Congress itself, had taken the initiative in the matter, though it is now being unfairly derided by Rahul Gandhi, the Congress president, as a Gabber Singh Tax! This is ridiculous, to put it mildly. I have been suggesting for quite some time that for the CBI, a governing coun- cil comprising the prime minister, con- cerned central ministers, and some chief ministers, by rotation could be consti- tuted to oversee larger policy matters pertaining to the organisation. This would go a long way in reducing the resistance of states to the enactment of a separate law for the CBI. The constitu- tional mechanism of Inter-State Council ought to be used more effectively and purposefully to discuss and resolve cen- tre-state issues. With political maturity and statesmanship, innovative app- roaches can be developed to impart a new meaning and content to India’s quasi-federalism. —The writer is a former home secretary and secretary, justice, Government of India. The essay is based on his forth- coming book, “India’s Quasi-federal- ism—Faultlines, Challenges and Opportunities” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Thepoliticalrhetoricoffederalismisbeing increasinglyusedbystatestoopposeeven worthwhileproposalsmadebythecentre. Tworecentexamplespertaintotherailway policeandtheLokayuktas. LEADERS WITH GIANT AMBITIONS Centre-state relations were severely strained during Indira Gandhi’s prime ministership; (right) Telangana CM K Chandrashekar Rao UNI
  25. 25. Environment/ Dal Lake 28 January 14, 2019 FFORTS are on by the judici- ary to save the iconic Dal Lake. Recently, a division bench of the Jammu and Kashmir High Court headed by Chief Justice Gita Mittal and including Justice Sanjeev Kumar said that the “Dal Lake will die” if “Her- culean”, “multi-pronged” rescue opera- tions are not undertaken on a “war foot- ing”. It has fixed a time schedule for gov- ernment authorities to take numerous steps to save this historic water body. The Dal Lake is the pride and joy of the Kashmir Valley, especially Srinagar, and one of the key tourist attractions. A boat ride on its placid waters in the ba- ckdrop of the picturesque Zabarwan range is a must for tourists. However, human greed is consuming the lake. Its area has shrunk to 13.5 sq km from 50 sq km half a century ago. It is inhabited by about 70,000 people living in pucca houses, houseboats and dungas (old- fashioned houseboats not as luxurious as modern ones which have top-class furniture and intricate wood panelling). There are 911 houseboats, all but one registered. In addition, there are 140 dungas where cooking and other activi- ties are undertaken for guests living in houseboats. The sewage from all these, including night soil, sullage and solid waste are released into the lake. There are floating gardens where chemical fertilisers and pesticides are used to increase produc- tion, harming the quality of the water. Existing sewage treatment plants (STPs) have outdated technology. A substantial part of the northern side of the lake is inundated by effluents from nearby habitats which don’t have STPs. In addition, the catchment area, cov- ering 337 sq km is extensively cultivat- ed. As a result of this, weeds, commer- cial fertilisers and chemicals flow towa- rds the lake, causing its “slow death”. All these details are based on court judgments from time to time, a reported study of Kashmir University and find- ings of the first report of a Court-app- ointed Committee of Experts (CoE). The coordinator of the CoE is Nivedita P Haran, a retired IAS officer credited with experience in disaster management and labour migration. Its other two members are MC Mehta, a well-known environment lawyer hailing from Jammu and Kashmir, and Mangu Singh, CEO of Delhi Metro Rail Corporation. After 2002, a whopping sum of `759 Saving Srinagar’s JewelQuitelikeotherwaterbodiesinIndia,this iconiclaketooisdyingaslowdeath.The JammuandKashmirHighCourthasnow steppedinwithtime-boundmeasurestorescue itfromsewageandeffluents By Pushp Saraf E HumangreedhasconsumedtheDal Lake.Itsareahasshrunkovertheyears. Sewage,includingnightsoil,sullageand solidwastefromhouses,houseboatsand dungasarereleasedintothelake.
  26. 26. | INDIA LEGAL | January 14, 2019 29 crore was spent in the name of the lake, but, shockingly, has gone down the drain. A bench headed by Chief Justice Mittal and including Justice Dhiraj Singh Thakur had in a judgment on September 18, 2018, stingingly obser- ved: “Over four hundred crores of rupees have pumped into the issues relating to the Dal Lake by the Govt. of India. The authorities of the State claim to have spent Rs. 359.93 crores from 2002-03 to 2018/19 ending 08/2018 with nothing to show for it as so far nothing appears to have happened on ground. We are of the view that given position on the ground deserves to be investigated. However, saving the Dal Lake being more critical, we shall defer this issue as at present... We have no manner of doubt that immediate meas- ures are necessary before the critical sit- uation is rendered hopeless.” T he September 18 judgment reflected the renewed determina- tion of the Court to save the lake despite lack of response by concerned authorities. It appointed the CoE and on the basis of its report, the division bench has now ordered time-bound measures. It recalled past experiences and said the matter has “engaged the attention of this Court for a period of almost 16 years”. Expressing its anguish, the Court said: “The order sheet in the case runs into 13 volumes. A cursory examination thereof would show that the repeated agony has been expressed by the Divi- sion Benches with regard to the failure as well as inability of the respondents to take effective steps for discharging their constitutional statutory as well as public law responsibilities.” It specifically recalled at least three previous rulings. A ruling on August 18, 2015, attributed the decrease in the lake’s area to “illegal constructions and encroachments because of such con- struction” and remarked that “a large area of Lake has been eaten up by ever expanding neighborhoods and commer- cial buildings like hotels, guest houses and restaurants. Lackadaisical A LAKE IN PERIL: (Top) Labourers de-weeding the Dal Lake to restore its former glory; foreign tourists boarding a shikara to take a ride on the lake Photos: UNI
  27. 27. Environment/ Dal Lake 30 January 14, 2019 approach on part of law enforcing agen- cies has emboldened land mafia, tress- passers and encroachers to undertake earth filing of peripheries of Lake result- ing in further decrease in its area”. Ano- ther judgment on March 23, 2009 decl- ared the lake “custodia legis”, while a ju- dgment on July 19, 2002, disallowed co- nstruction activities “within 200 metres from the centre of the offshore road” and in restricted and green belt areas. CJ Mittal and Justice Thakur ob- served: “Despite all of the above, the sit- uation of the Dal Lake continues to reg- ress and the position remains dismal... the authorities within the State have proved helpless and unable to effectively ensure that some meaningful outcome results.” Competent authorities did not inform the Court about violations and citizens largely stayed back for fear of reprisal by violators. The High Court’s latest order follows an unambiguous warning by the CoE: “If the situation continued with business as usual, the Lake will not survive be- yond 30 years maximum.” Based on the CoE’s finding, the Court in December said that “the Dal Lake is dying. The pollution load in the Lake has reached such alarming levels that unless some- thing is done with urgency and alacrity, it may be impossible to save the Lake”. The CoE reached the conclusion af- ter collecting “first hand evidence” and interacting “with a host of experts, both scientific and technical, officials at every level and non-state actors”. One of its findings was that there was a mismatch between intentions and performance: “...there is no dearth of authorities or regulations. The problem seems to be primarily of enforcement and imple- mentation”. It pointed out: “The flow-in of pollutants into the Lake has contin- ued unrestricted for so long now that it has turned the Lake into a congested, sludge-filled, weed-infested body. If the Dal is to be saved, many of the cruel, in- considerate, and some criminal activities need to stop and stop at the earliest.” It has cited scientific data to support its arguments. T his prompted CJ Mittal and Justice Kumar to stress preserv- ing “the continued existence of the Dal Lake”. This, in the CoE’s opin- ion, “is imperative for climatological, geological, ecological, economic and socio-cultural reasons” as “the Dal is the epicentre of Kashmir and a pride of this place, nay, our country” and “tourists visit Srinagar only for a glimpse of the lake, to admire its beauty and to take a ride on its once-sparkling clear water”. The division bench gave a slew of directions. These included: Secretary, Department of Environment and Forest, to make available geological or any other maps, satellite, digital or other ima- geries setting out the boundaries of the lake and the variations thereof over a period of time; dismantling and clearing floating gardens within six months; cre- ating a fully-dedicated body called the Dal Lake Conservation and Develop- ment Authority; the existing Lakes and Waterways Development Authority (LAWDA) responsible for the mainte- nance of the lake to ascertain within one week details of families exclusively dependent on vegetable cultivation within the lake and rehabilitate them by providing avenues for gainful employ- ment including agriculture and to undertake effective steps for simultane- ous cessation of all vegetable cultivation over the next three months; to issue notices asking commercial establish- ments to instal technically suitable and environment-friendly arrangements within three months for treatment of sewage and sullage within their premis- es without releasing them into the Dal or any nallah that flows into the Dal or any other lake and seven-day notices to houseboats for removing illegal con- structions. The Court made it clear that it would evoke the “polluter pays” principle: a polluting unit shall have to shut down its operations and deposit a penalty of a minimum of `50,000 with LAWDA, subject to enhancement upon considera- tion of the nature and magnitude of the violations. The Court’s other directions include creation of general awareness, fixing the number of houseboats that can be ideally anchored; fitting them with bio-digesters and clearance of effluents in accordance with norms. Observers are keeping their fingers crossed about how much follow-up will be done in view of the dismal record earlier. Rising Kashmir, a leading English daily of Srinagar, in an editorial after the September 18 judgment, put it succinctly by saying, “the keen interest shown by J&K high court in saving the lake is worth appreciation, especially given the fact that successive govern- ments have not gone beyond lip service in restoring the pristine glory of the world famous water body”. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com ThedivisionbenchoftheJammuandKashmirHighCourtheadedbyChiefJusticeGita Mittal(left)andincludingJusticeSanjeevKumarhasfixedatimeschedulefor governmentauthoritiestotakenumerousstepstosavethehistoricDalLake.
  28. 28. | INDIA LEGAL | January 14, 2019 31 Environment/ NGT/ HP Stone Crushers HE National Green Trib- unal (NGT), while stress- ing the importance of pre- serving water bodies, has directed the Himachal Pradesh Pollution Control Board to shut down stone crushers situ- ated within 100 metres of a water body in the state. However, officials in charge of implementation of the order are fac- ing difficulties in its implementation, and are all set to approach the NGT for a clarification. The Tribunal was dealing with a peti- tion questioning the legality of stone crushers operating near water bodies in Himachal Pradesh. The petitioner was concerned that stone crushers were operating in a forest area very close to the water bodies, and this would have a negative impact on the ecology of the surrounding area. The stone crushers in question were situated at a distance of less than 100 metres from nearby water bodies. They were operating without registration and the requisite consent to operate under the Environment Protection Act. The Tribunal then directed that an inspec- tion be carried out to look into the issue. The inspection team found that the stone crushers were located within 100 metres of the Balyana khad (a river). In their defence, the stone crusher owners contended that Balyana khad was not a perennial rivulet, and a notifi- cation released by the environment department of Himachal Pradesh did not include any khads and thus their operations were not illegal. The Tribunal observed that the pro- hibition on establishment of stone crushers within 100 metres of a water body specifically mentions rivulets of a perennial nature. However, the notifica- tion does not include non-perennial water bodies. The Tribunal said that the “importance of protection of water bod- ies can hardly be over-emphasised” and if a stone crusher was located close to a water body, it would violate the princi- ple of sustainable development and the precautionary principle. Therefore, the NGT held that any stone crusher in Himachal Pradesh operating within 100 metres of a water body would be illegal and would have to be shut down. The bench placed the responsibility of implementing its orders on the Himachal Pradesh Pollution Control Board, which has been directed to take necessary steps to close down the stone crushers. It has also been directed to submit a report to the NGT within two months. However, the Board will approach the NGT to seek clarifications. Officials state that they have not pre- pared a final report as of now, and after conducting a preliminary assessment, around 15 to 20 stone crushers may be closed down. There is also uncertainty among the officials regarding the point from which the prescribed 100 metres should be measured. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Inordertopreservetheecology,theTribunalhasdirectedtheHimachalPradeshPollution ControlBoardtoshutdownallstonecrushersoperatingnearwaterbodiesinthestate By Pragya Ratna T Leaving No Stone Unturned TheNGTsaidthatthe“importanceof protectionofwaterbodiescanhardlybe over-emphasised”andthestone crusherswereactinginviolationofthe principleofsustainabledevelopment. THREAT TO ECOLOGY Stone crushers near a J&K forest where too a Pollution Control Board ban is in place Representative Image; Photo: UNI
  29. 29. Cybercrime/ Online Abuse of Children 32 January 14, 2019 AST-PACED technological innovation and widespread accessibility of information and communication technolo- gy have transformed societies around the world. Children, in particular, have unprecedented access to smartphones and other forms of elec- tronic media which offer them unimag- inable access to information. At the same time, this technology provides sex- ual predators with an anonymous and swift medium to contact potential vic- tims with ease, share images of sexual abuse, exploit children online across borders and create networks that en- courage the commission of further cybercrimes. While cybercrime is a glob- al phenomenon, India has some of the highest rates of child abuse, both online and offline. The home ministry has come out with a booklet on cyber safety for tee- nagers which addresses their increased use of smartphones, gadgets, online gaming, social media and fake news. The booklet, A Handbook for Students on Cyber Safety, also deals with cyber bullying, cyber grooming and email fraud. The centre has already launched a cybercrime portal to tackle this crime. It is children who are most vulnera- ble to such crime. A 2016 UNICEF report titled, “Child Online Protection in India”, had mapped existing laws on safeguarding children from online exploitation, and also put forward rec- ommendations to ensure cyber safety. According to the report, there were 40 lakh internet users in India, and an esti- mated 13.4 lakh Indian children use mobile phones. The National Crime Records Bureau (NCRB) registered 1,540 cases of online child abuse between 2013 and 2015 and three percent of children who called Childline, a helpline, in 2015 cited prob- lems related to online abuse. Cybercrime against children includes child pornography, stalking, cyber bully- ing, online child trafficking and sexual harassment. The relevant legislation in this regard includes the Indian Penal Code, 1860, and Protection of Children from Sexual Offences (POCSO) Act, 2012, as well as legal provisions as pro- vided in the Information Technology Act, 2000, and Immoral Trafficking (Prevention) Act, 1956. CHILD PORNOGRAPHY Pornography can be found and circulat- ed through various mediums, both online and offline. This includes the cir- culation of any form of media (video, picture, sound recording) via the inter- net through a computer, telephone, mobile or tablet. In India, any sexual act performed with a child, consensual or otherwise, is a criminal offence. Section 13 of POCSO provides for imprisonment for a term of up to five Intoday’swiredworld,childrenaremostvulnerabletoonlineexploitationandsexualpredators. Sadly,Indiahasthehighestratesofchildabuse,onlineandoffline By Shruti Bist Anil Shakya F Handle with Kid Gloves
  30. 30. | INDIA LEGAL | January 14, 2019 33 years and in case of subse- quent conviction, for a term up to seven years and a fine. Section 15 provides for punishment for storage of child pornography for commercial purposes with up to three years of imprisonment or a fine. The Supreme Court recently imposed a cost of `1 lakh on internet giants such as Google, Face- book, Yahoo, Microsoft and WhatsApp for online child pornography. In February 2018, the Indore cell of MP’s cyber police arrested a man from Dhar for being involved in a child auc- tion pornography group. The police, acting on information from Interpol, said the group is named Groupo De Leila (an auction group) operating from Portugal. CYBER BULLYING Cyber bullying is intimidation, threat or harassment using an electronic form of contact by the use of computers, mobiles and/or the internet. It is punishable under Section 506 of the IPC. It pro- vides for imprisonment for a term which may extend to two years, a fine or both. If the threat is to cause death or griev- ous hurt, it can lead to imprisonment for a term which may extend to seven years. According to a Microsoft study of online bullying in 25 countries among eight to 17-year-olds, children in India reported the third highest online bully- ing rate. In an Ipsos survey in 2014, India topped the list of 254 countries for cyber bullying. Blue Whale Challenge and other viral challenges such as the Choking Game and the Cinnamon Challenge are the most brutal form of bullying. There have been cases of children being trolled by classmates and becom- ing depressed and indulging in self- mutilation. In such cases, Section 503, IPC, can be applied because there was a threat to the reputation of a person. ONLINE CHILD TRAFFICKING Child trafficking, according to UNICEF, is defined as “any person under 18 who is recruited, transported, transferred, harboured or received for the purpose of exploitation, either within or outside a country”. The online space can provide an unprecedented window into observ- ing tracking, monitoring and notifying prospective buyers as well as identifying targeted children. In India, the Immoral Traffic Prevention Act, 1956, covers off- ences related to child trafficking and can be interpreted to cover online cases. On August 22, 2018, the police arrested a man for trafficking 14 children, includ- ing minor girls, from Jharkhand. CYBER STALKING Section 11(iv) of the POCSO Act, 2012, states that when a person monitors or follows a child through the digital media, he or she is committing sexual harassment. However, the “monitoring” or “following” of a person has the char- acteristics of stalking; the addition of “digital media” in the section also makes it applicable for cyber stalking. It is a cognisable and non-bailable offence. Section 12 provides for imprisonment of a term which may extend to three years and a fine. There was a case in May 2017, where Ritika Sharma (name changed), a student of a prominent Delhi school, was stalked by a Facebook user. A case was registered with the Delhi police. ONLINE SEXUAL HARASSMENT This is a form of abuse where a child is exposed to sexual content online fol- lowed by text messages with a sexual overtone. There are threats to use the child in a sexual act and these act(s) can be a real or fabricated depiction of the child or his/her body. The act has to be recorded or there may be a threat to record it through a phone, camera, video recorder computer or other modes. Section 14 of POCSO specifies a punish- ment of a prison term of up to five years for this offence. There should be better awareness among parents, society and law enforce- ment agencies to eliminate this crime. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Use parental control software: Acc- ording to a study by McAfee, by age 16, 56 percent of teens conceal their internet activity from their parents. But parental control software can make their activity much more transparent. Avoid downloads: Before download- ing, a software should be used to pro- tect your personal information against spyware and viruses. Manage social media settings: Keep your kids’ information locked down to save it from predators. Permissions: Teach your children to always ask permission before clicking on or downloading from unsafe sites. Set limits on late night use: As chil- dren gain independence, it would be wise to set limits on late night internet use at an early age. This can help min- imise the chance that your child will be contacted by a paedophile. Establish rules: The internet has become such an intricate part of chil- dren’s lives. But using it is a privilege, not a right. Establish rules for internet use, and post them in an area where children congregate such as the kitchen. KeepchildrensafeGENERATING AWARENESS A workshop in a school on cybercrime and safety Dikshant international School
  31. 31. In the book “Politics, Religion and Judiciary in India”, which has been published by Har-Anand Publications Pvt Ltd, DR HANS RAJ BHARDWAJ speaks eloquently about the role of religion in India, how politics has often interfered with religion and how the judiciary has attempted to set things right. Born in 1937, Dr HR Bhardwaj earned several accolades during his four- decade-long career in public life. His first brush with fame came in 1978 when he defended Indira Gandhi, Bansi Lal and Sanjay Gandhi in the special courts set up by the Morarji Desai government. From thereon, there was no looking back as he worked in several capacities—as a Congress leader, MP and minister of law and justice. He was first elected to the Rajya Sabha in 1982, and subse- quently, received this honour on four more occasions. He also enjoys the dis- tinction of having the second longest tenure as law minister and has served three prime ministers—Rajiv Gandhi in 1985, PV Narasimha Rao in 1991 and Dr Manmohan Singh in 2004. He also served as governor of Karnataka from 2009 to 2014. Excerpts from the book: 34 January 14, 2019 “The Use of Religion is a Potent Threat to Secular Democracy” Books/ Politics, Religion and Judiciary in India / Excerpts

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