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` 100
Angel Tax:
Relief at last?
E-tender scam
cannot but marvel at the brilliant exposition
made by Prof Upendra Baxi of the drama (or
was it a farce?) that unravelled ...
It is clear that the
Article may be invoked
in emergency situations
when there’s a total
breakdown of law and
order, as a ...
functional arrangement for cooperative action,
than a static institutional concept. Article 258
(power of the Union to con...
A -9, Sector-68, Gautam Buddh Nagar, NO...
| INDIA LEGAL | February 18, 2019 7
Under the
8 February 18, 2019
“Removing from
WhatsApp groups,
unfollowing on
Twitter and not invit-
ing in meetings make
| INDIA LEGAL | February 18, 2019 9
Twitter: @indialegalmedia
Contact: editor@india...
10 February 18, 2019
What is the legality of live-in relationships in India?
Even though there is no specific legis...
Catch Us
Every Saturday at 8 pm
and Sunday at 2 pm
12 February 18, 2019
The foreign press has
taken special note of
an NDTV report that
Indian journalists wore
helmets to pr...
| INDIA LEGAL | February 18, 2019 13
Twitter: @indialegalmedia
Contact: editor@indialegall...
Lead/ Federalism
14 February 18, 2019
The Diverse
Colours of
Tata Nano factory) was preceded by two
dharnas earlier in Delhi by chief minis-
ter Arvind Kejriwal, one late last year at...
of delays in the criminal justice
This case illustrates the last problem...
ground that the resolution constituting
it needed presidential assent and that it
could not be treated as a police force
Criminal Procedure Code...into an off-
ence for the purpose of bringing to book
an offender”. In arriving at its own con-
Twitter: @indialegalmedia
Despite growing pains, GST ha...
20 February 18, 2019
ESPITE the Supreme
Court and the National
Green Tribunal (NGT)
keeping a close watch, the
Taj Mahal, ...
| INDIA LEGAL | February 18, 2019 21
who collude with polluters”. The state
authorities concerned, the NGT Bench
said, “ma...
the NGT and the Supreme Court, is a
cause of worry.
On July 11 last year, the apex court
had lashed out at the state gover...
villages because of the bad air quality.
Based on the revelations in these
reports, the Tribunal had directed the
My Space/Startups Sanjiv Bhatia
E live in the age of
The vast majority of
products, services
and technol...
Mukherjee (of retroactive tax fame). It
was put in place to arrest money laun-
dering. Given that there are a million
projected earnings, the strength of the
management team and other intangibles
is the fair value of the company. Why
would ...
Health/ Sections 269 & 270, IPC
28 February 18, 2019
S swine flu cases swamp
hospitals in Delhi and
Rajasthan, one wonders...
| INDIA LEGAL | February 18, 2019 29
development of the disease is not a
The law is clear on such issues.
Section 26...
Opinion/ Online Gun Licences Rajbir Deswal
30 February 18, 2019
HE Delhi police has, in kee-
ping with the times, started
| INDIA LEGAL | February 18, 2019 31
should be given to those who have train-
ing and are adept at handling weapons.
But u...
32 February 18, 2019
HE US federal govern-
ment recently published
the final rules for changes
to the H-1B visa pro-
| INDIA LEGAL | February 18, 2019 33
American immigration attorneys will
lose income, from the employer point of
view, cos...
Global Trends/ Taliban Talks
34 February 18, 2019
EACE moves are on in
Afghanistan. For the first
time in 17 years, the Ta...
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India Legal 18 February 2019


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Bugle of Federalism
Recourse to mass direct action by chief minsters to “ save the Constitution” is emerging as a means of attempting a reversal or an amelioration of Union policies, writes Prof Upendra Baxi

Published in: News & Politics
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India Legal 18 February 2019

  1. 1. NDIA EGALL ` 100 I February18,2019 Angel Tax: Relief at last? Chhattisgarh: E-tender scam Recoursetomassdirectactionbychiefminstersto“savetheConstitution”isemergingasa meansofattemptingareversaloranameliorationofUnionpolicies,writesProfUpendraBaxi R di i b hi f i “ h C i i ”i iR t di t ti b hi f i t t “ th C tit ti ”i i BugleofFederalism WEST BENGAL
  2. 2. cannot but marvel at the brilliant exposition made by Prof Upendra Baxi of the drama (or was it a farce?) that unravelled on the stage of Kolkata when some 40 CBI sleuths flew in from Delhi for a Grand Inquisition, and pos- sible arrest, of the police chief, Rajeev Kumar, on the suspicion that he may have tampered with evidence on the culprits involved in West Bengal’s chit fund scam. Baxi’s cover story delves with precision, depth and uncanny legal calibration into this sordid, pathetic episode. The acuity of his thoughts and the precision of his language are overwhelming and for me to try and paraphrase them would be akin to bringing clarity to what is already lucid and deserves careful reading, especially in the judicial community. The immediate points that bother me from a common sense perspective as I look at this case are 1. The CBI’s motive appeared to be harass- ment and humiliation; 2. Kumar is not an acc- used, no FIR has been registered against him; 3. He was the head of the Special Investigation Team which investigated the scam and two of the main accused who joined the BJP while the CBI was still investigating, were virtually let off the hook; 4. No FIR for offence under Section 201 during the years since the probe began; 5. If there’s no offence in the first place, how does the question of “surrender” arise? From a longer-term perspective, Prof Baxi has lured me into re-examining, actually, reiterating the wisdom of the Sarkaria Commission as I have done earlier in a similar editorial. It still fits. Not enough can be said about the sagacity, political perspicacity, scholarship and uncanny farsighted- ness of the luminaries—Ranjit Singh Sarkaria, B Sivaraman and Dr SR Sen. These notables under- took—between 1983 and 1988—a remarkable review of centre-state relations under the Indian Constitution and authored a 1,600-page magnum opus which stands out as a beacon to the Indian system of governance, guiding it more forcefully towards the cardinal principle that glues Indians together as citizens—the practice and pursuit of enlightened federalism. In the aftermath of the baffling politico-legal- constitutional melodrama being played out in West Bengal, it is significant that the Shiv Sena, a regional avatar of the Hindu Right more in tune with the BJP’s Hindutva nationalism than the Congress’s inclusive secularism, should be singing the same tune as Mamata Banerjee, Akhilesh Yadav, Tejaswi Yadav and the Grand Old Party. In an earlier episode of centre-state relations, the Sena officially condemned the BJP’s imposition of Governor’s Rule in Uttarakhand under Article 356 of the Constitution as a “strangulation” of democracy: “In a democracy, the voice of the opposition is of paramount importance and should not be strangled since a single-party rule would be worse than an Emergency or dictator- ship. The country will be destroyed if the opposi- tion is targeted and snuffed out.” The author of this sentence could well have been a member of India’s Constituent Assembly! What is deeply disturbing is the habitual and flagrant disregard for legal, constitutional and administrative pronouncements by politicians and political parties. The conditions under which Article 356 (to be applied in the “rarest of rare cases”) can be used to dismiss an elected assem- bly and impose Governor’s Rule are clearer than daylight. There are no loopholes. The Consti- tution and landmark Supreme Court decisions (Bommai in 1994, and Rajasthan versus Union of India in 1977) stand together as an impregnable legal fortress against the misuse of this provision by ruling parties at the centre to establish their primacy over a state government through horse- trading of legislators and political subterfuge with the connivance of state governors who act as agents of the ruling party rather than as represen- tatives of the Union of India. Yet, this Article has been invoked 126 times since Independence to dismiss state governments. SORDID EPISODE Inderjit Badhwar Letter from the Editor I Whatbothersmeis thattheCBI’s motiveappearedto beharassmentand humiliation;Kumar isnotanaccused, noFIRhasbeenreg- isteredagainsthim; hewastheheadof theSITwhichinves- tigatedthescam; therewasnoFIRfor offenceunder Section201during theyearssincethe probebeganandif there’snooffence inthefirstplace, howdoesthe questionof “surrender”arise? | INDIA LEGAL | February 18, 2019 3
  3. 3. It is clear that the Article may be invoked in emergency situations when there’s a total breakdown of law and order, as a constitutional necessity. But it cannot be used as a political weapon. And it certainly cannot be used in violation of the Gold Standard in case of an alleged loss of majority in a legisla- ture—the necessity of a floor test. A las, the party crying foul the loudest—the Congress—has historically been the worst violator, starting with the Nehru govern- ment which dismissed the first democratically elected Communist regime of EMS Namboodiripad in Kerala in 1959. As blogger Nived Narayan summed it up on Quora: “It set a precedent. And that was the real problem. The Congress government dismissed state govern- ments at will whenever they were formed by par- ties which it had problems with. Such belligerent show of strength by the central government, and that too from Nehru himself set a bad precedent which later set an example for the likes of Indira and the Janata government of Morarji to trample upon the federal structure.” “Trample upon the federal structure” is the operative phrase. It is playing with fire. It is tan- tamount to unravelling the delicately and sensi- tively woven warp and woof of India which came into being as a nation of citizens in 1947-48 after more than 562 independent principalities joined the Indian Union (formerly British India). It was to the preservation of this striking new national amalgam of the most culturally, geo- graphically and linguistically diverse people of the world through the concept of Indian citizenship that the Sarkaria Commission addressed itself. Its mandate—re-examining and suggesting reforms in the whole gamut of centre-state relations—was huge and daunting. Further, it laid the intellectu- al and academic framework for a monumental project later undertaken by the first NDA govern- ment in 2000. Under a bold initiative from Prime Minister Atal Bihari Vajpayee, the government established the National Commission to Review the Working of the Constitution (NCRWC), also known as the Justice Venkatachaliah Commi- ssion, to recommend possible amendments to the Constitution of India. The mammoth task force submitted its report in March 2002. What was the key feature in the Constitution that enabled the very idea of Indian nationhood? Both com- missions answered this question with an answer that was spot on! Federalism. To strengthen federalism, even at the cost of more decentralisation and greater regional auton- omy, Sarkaria believed, was to strengthen India. But laws and emergency provisions were also needed to prevent the disintegration of the nation through violence and anarchy. One of them was Article 356. The 1,600-page Sarkaria report with 247 rec- ommendations spread over 19 chapters made the following observations: “Federalism is more a Letter from the Editor 4 February 18, 2019 TheSarkaria Commission’s mandate—re-exam- iningandsuggest- ingreformsinthe wholegamutof centre-state relations—was hugeanddaunting. Further,itlaidthe intellectualand academicframe- workforamonu- mentalprojectlater undertakenbythe firstNDAgovern- mentin2000. STRENGTHENING FEDERALISM (Left) Justice Ranjit Singh Sarkaria; Jawaharlal Nehru had dismissed the first elected Communist regime of EMS Namboodiripad in Kerala
  4. 4. functional arrangement for cooperative action, than a static institutional concept. Article 258 (power of the Union to confer powers, etc, on states in certain cases) provides a tool by the lib- eral use of which cooperative federalism can be substantially realized in the working of the sys- tem. A more generous use of this tool should be made than has hitherto been done, for progres- sive decentralization of powers to the govern- ments of the states….” R elying heavily on the Sarkaria report, the NCRWC reiterated that only the spirit of “cooperative federalism” can preserve the balance between the Union and the states and promote the good of the people and not an atti- tude of dominance or superiority. “Under our constitutional system, no single entity can claim superiority,” states the Sarkaria report. “Sovereignty doesn’t lie in any one insti- tution or in any one wing of the government. The power of governance is distributed in several organs and institutions—a sine qua non for good governance. Even assuming that the centre has been given certain dominance over the states, that dominance should be used strictly for the purpose intended, not the oblique purposes. An unusual and extraordinary power like the one contained in Article 356 cannot be employed for furthering the prospects of a political party or to destabilize a duly elected government and a duly constituted legislative assembly. The consequen- ces of such improper use may not be evident immediately. But those do not go without any effect and their consequences become evident in the long run and may be irreversible.” Both the commissions remind the government that Article 356 appears in that part of the Cons- titution which relates to emergency provisions. Though the Article itself does not employ the expression emergency or any of its variants, “the fact that it occurs in the chapter relating to emer- gency cannot be lost sight of. This is merely to emphasise the unusual character of the said pro- vision and to remind ourselves of the hope expressed by Dr Ambedkar that ‘such articles (articles 355 and 356) will never be called into operation and that they would remain a dead letter’.” Post Script: Both the Sarkaria and Venakatachaliah reports—brilliant documents promoting liberal governance and democratic val- ues—are gathering dust. Far from being a “dead letter” as the father of our Constitution had hoped it would become, Article 356 seems to live on endlessly. Twitter: @indialegalmedia Website: Contact: | INDIA LEGAL | February 18, 2019 5 NOTABLE INITIATIVE Under a bold move from PM Atal Bihari Vajpayee in 2002, the NDA government established the Justice Venkatachaliah (right) Commission Tostrengthenfeder- alism,evenatthe costofmoredecen- tralisationand greaterregional autonomy,Sarkaria believed,wasto strengthenIndia.But lawsandemergency provisionswerealso neededtopreventthe disintegrationofthe nationthrough violenceandanarchy. Oneofthemwas Article356. BELLIGERENT MOVES Taking a cue from Nehru, Indira Gandhi and Morarji Desai too trampled upon the federal structure of India wikipedia
  5. 5. ContentsVOLUME XII ISSUE14 FEBRUARY18,2019 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: website: 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: 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 February 18, 2019 14The Diverse Colours of Federalism The thin line between “tyranny” and “liberty” is being increasingly seen today. As the federal design of the nation gets transformed, it has paradoxically accelerated central dominance, says Prof Upendra Baxi LEAD 20Monumental Apathy The Uttar Pradesh government has grossly failed to address the pollution crisis in the Taj Trapezium Zone, leading the NGT to impose a performance guarantee of `25 crore on it COURTS 23Polluters Must Pay The NGT has pulled up three industries in Mumbai for polluting two neighbouring villages and directed the central pollution control body to determine the penalty they should pay ENVIRONMENT
  6. 6. | INDIA LEGAL | February 18, 2019 7 Under the Scanner REGULARS Followuson Twitter:@indialegalmedia Cover Design ANTHONY LAWRENCE Ringside............................8 Courts ...............................9 Is That Legal...................10 Durbar.............................12 Media Watch ..................49 46 Hatching Hazards As ordinary citizens wake up to the effects of poultry farming on human health and the environment, the NGT begins to crack down on offending farms STATES Attractive Again The new H-1B rules introduced by the US government could augur well for Indians holding advanced degrees as there will be more visa slots open for them 32 COLUMN Fragile Peace In a positive first step, a mellowed Taliban has started speaking to political leaders in Afghanistan. India, watching from the sidelines, hopes its own interests will be secure 34 GLOBALTRENDS After a report revealed massive scams during the previous BJP regime in Chhattisgarh, Chief Minister Bhupesh Baghel has started a clean-up by targeting various departments held by his predecessor, Raman Singh 24 Don’t Kill the Golden Goose Imposing a tax on startups is unfair as most don’t make it to the second stage of financing, and angel investors end up bearing the brunt of financial losses MYSPACE Playing With Fire? The Delhi police’s initiative to set up an online portal through which gun licences can be applied for could backfire unless applicants are subjected to stringent background checks 30 OPINION No Ordinary Negligence Negligent and malicious acts likely to spread dangerous infections can be checked by invoking Sections 269 and 270 of the IPC 28 HEALTH End Minority Monopoly 44 A PIL before the Karnataka High Court has forced the state government to withdraw an order which stipulated that only a Muslim could be appointed chairperson of the State Minorities Commission 40Following the Herd Much like the previous BJP government, the new Congress government in Madhya Pradesh is indulging in cow politics and mulling ways to mop up money to build and run cowsheds 38
  7. 7. 8 February 18, 2019 “ RINGSIDE “Removing from WhatsApp groups, unfollowing on Twitter and not invit- ing in meetings make me feel that I deserve the same position and respect as other MLAs.... Otherwise, it will be very difficult for me to continue....” —AAP MLA Alka Lamba, on being side- lined by the party “I could not initiate the appeal process before a decision by the home secretary. Now I will initiate the appeal process.” —Vijay Mallya after the UK home secretary signed his extradition order to India, on Twitter “If you have all this massive amount of material...why are you giving it in press con- ferences?... If you had started giving this to the Government of India’s agencies which have been mis- used...we should have got some facts.” —Congress spokesper- son Abhishek Singhvi on BJP spokesperson Sambit Patra’s press conference on Robert Vadra’s ED queries “During my...agita- tion on Lokpal and Lokayukta, the en- tire country stood up.... That is the rea- son why you (BJP) came to power. Now you are betraying the people who brought you to power.” —Anna Hazare, lash- ing out at senior BJP leaders for shelving the Lokpal issue after coming to power “I am returning the Padma Shri award given to me by the Government of India in solidarity with the voice of the people of the North East and Manipur who have been vociferously opposing the Citizenship Bill.” —Manipuri filmmak- er Aribam Shyam Sharma on the Citizenship Bill “We have always respected Netaji.... I pledged I would not be CM till Akhilesh is there…do not give me any ticket in SP and I would still make our contestants win. But there is a limit to how much disrespect one can tolerate.” —Shivpal Yadav on his compulsions to form a new party and contest against the SP “I was very lucky to work under the lead- ership of late Atal Bihari Vajpayee and I am currently serving under Modiji. The day...Modi decides to hang his boots, I will also leave Indian politics.” —Union minister Smriti Irani “We have seen a number of (political) parties attempt to use WhatsApp in ways that were not intended and our firm message to them is using it in that way will result in bans... WhatsApp is...not a place to send messages at scale...we will be banning accounts that engage in automated bot behaviour....” —Carl Woog, head of communications at WhatsApp
  8. 8. Courts | INDIA LEGAL | February 18, 2019 9 Twitter: @indialegalmedia Website: Contact: —Compiled by India Legal Team NGT unhappy over bio-medical waste Coming down heavily on the cen- tre and the Bihar government for the shoddy progress of investigation into the Muzaffarpur shelter home case, the Supreme Court said the trial in the case will be moved out of Bihar. The Court directed that the trial must be con- ducted at the Saket District Court in Delhi and be concluded within six months. The CBI had sought a transfer of the trial out of Bihar, where the accused continue to be influential persons and may harass the wit- nesses. The Court also directed the Bihar government to extend full cooperation to the CBI and told the probe agency that it must take the assistance of experts from NIMHANS to conclude the investigation. The Court also slammed former interim CBI chief M Nageswara Rao for transferring the CBI officer heading the probe, and thus committing “contempt of court”. Rao has been asked to personally appear before the apex court on February 12. Abench of Justices Arun Mishra and Naveen Sinha of the Supreme Court issued a notice to advocate Prashant Bhushan on a contempt of court petition filed against him by Attorney General KK Venugopal. Bhushan accepted the notice in open court. He has been directed to file a reply within three weeks. Venugopal had moved the plea against Bhushan after the latter contended, through a series of tweets, that the attor- ney general had misled the Supreme Court last week on the process followed in the controver- sial appointment of M Nageswara Rao as the interim director of the CBI. Bhushan gets contempt notice Muzaffarpur shelter home case moved to Delhi court The Supreme Court slammed the home min- istry for trying to delay the process of completing the National Register of Citizens (NRC) in Assam on one pretext or another, and said there would be no extension beyond the July 31 deadline. A bench headed by Chief Justice Ranjan Gogoi dis- missed Attorney General KK Venugopal’s plea for an extension of the NRC deadline by two to three weeks on the grounds that central forces need to be redeployed for the up- coming Lok Sabha polls. “Elections and NRC can occur simultaneously and peacefully,” said the CJI. The CJI further said it is apparent that the home ministry does not want the NRC work to be completed and instead wants to “destroy the process”. SC raps home ministry for stalling the NRC process The National Green Tribunal (NGT), while hearing a petition seeking direction to hospitals in UP, Uttarakhand, Punjab and Haryana to comply with the Bio- Medical Waste Management Rules, 2016, expressed concern over the issue. “We hope you understand the seriousness of the case. If you don’t follow the rules, what kind of impact it has on the health of the people,” the bench dealing with the matter said. The NGT asked the director of the medical and health department of UP to come up with correct data on the number of private/govern- ment hospitals, nursing homes and healthcare centres in UP. In a setback for former AIADMK leader VK Sasikala’s nephew, TTV Dhinakaran, the Supreme Court refused to grant the pressure cooker poll symbol to the political party founded by him, the Amma Makkal Munnetra Kazhagam (AMMK). Dhinakaran had founded the AMMK after Sasikala and he were expelled from the AIADMK following a bitter battle with Tamil Nadu Chief Minister E Palaniswamy. The Delhi High Court had, on March 9 last year, directed the Election Commission to allot a common symbol, preferably that of a pressure cooker, and a name to the then AIADMK (Amma) faction led by Dhinakaran. Palaniswamy had challenged the Delhi High Court order in the Supreme Court. No relief for Dhinakaran in poll symbol case
  9. 9. 10 February 18, 2019 ISTHAT What is the legality of live-in relationships in India? Even though there is no specific legislation which legalises “live-in relationship”, it has nowhere been mentioned that live-in relationships are illegal. Further, the Protection of Women from Domestic Violence Act, 2005, recognises such relationships. Section 2(f) of the Act defines “domestic relation- ship” as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by con- sanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. There- fore, all the remedies available to a wife are avail- able to a female partner in a live-in relationship. There are numerous Supreme Court judgments which have mentioned that live-in relationships should be accepted more in society. Also, depend- ing upon the duration of the relationship, it may be seen as equivalent to a husband-wife relationship. A child born of a live-in relationship is considered legitimate and the female partner is entitled to claim maintenance from her male partner in such relationships. What should you do when someone gives you a cheque that bounces? If you receive a cheque from someone, it may bounce or be dishonoured due to vari- ous reasons such as: (a) insufficient funds in the drawer’s account; (b) mismatch in the signature or account number; (c) crossing of overdraft limit; (d) mismatch in the words and figures mentioned in the cheque; (e) overwriting; (f) closure of the account by the holder. In such cases, a remedy lies under Section 138 of the Negotiable Instruments Act, 1881. Accor- ding to this provision, the first step is to send the drawer of the cheque a legal notice after collecting the bounced cheque slip. The legal notice must be served within 30 days of cheque bounce, and after the drawer receives the notice, he must respond by paying the money within the next 15 days. If the drawer does not pay within the stipulated 15 days, the payee can move court to file a suit against the defaulter. If the drawer is convicted, he may face imprisonment and fine (double the amount of the cheque). Cheque Bouncing Has a Legal Remedy —Compiled by Sankalan Pal Live-in Relationships Are Not Illegal in India Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis What rights does a pregnant woman have in India? A pregnant woman is protected by the Mat- ernity Benefit Act. Pregnant women working in the private sector can get leave up to 12 weeks, extendable till 26 weeks. Thus, firing a woman from her job due to her pregnancy is illegal under this law. Pregnant women are also entitled to a medical bonus during their pregnancy. They are also entitled to free pick and drop services to and from the hospital. Under the Factories Act, if a factory contains a certain number of female emplo- yees, then crèches must be established for children. Further, a pregnant woman can go for abortion if the foetus is less than 20 weeks old, or if there are medical complications, or where continuation of the pregnancy may en- danger her life, or where the child may be born with serious handicap. PregnantWomenHave CertainRights ? Twitter: @indialegalmedia Website: Contact: Are foreign judgments or decrees conclusive and enforceable in India? Any judgment delivered by a foreign court is considered a foreign judgment as per Sec- tion 2(6) of the Civil Procedure Code (CPC). A foreign court is one which is situated out- side the jurisdiction of India and is not established by the central government. A foreign judgment is final and conclu- sive and can be enforced as if it were deliv- ered in India. However, Section 13 of the CPC stipulates the following exceptions where a foreign judgment cannot be held conclusive: (a) where it is not delivered by a judicial authority having competent jurisdic- tion; (b) where it is not delivered on the mer- its of the case; (c) where an incorrect view of international law is taken or any Indian law is not recognised in the proceedings of the matter; (d) where fraud has been com- mitted in obtaining it; (e) where the proceed- ings did not follow the rules of natural jus- tice; and (f) where there is breach of any law in force. If the judgment does not meet one of the above exceptions, then such judgment shall be enforceable. A Foreign Judgment Can be Enforced in India
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  11. 11. 12 February 18, 2019 The foreign press has taken special note of an NDTV report that Indian journalists wore helmets to protect themselves while cov- ering a function of the ruling Bharatiya Janata Party (BJP) in Raipur, the capital of the cen- tral Chhattisgarh state. The symbolic act came a week after a journalist was thra- shed by BJP activists at their party office in Raipur. The accused have been arrested and are behind bars. The Indian Journalists Union (IJU) termed it an “attack on the free- dom of press”. “They (journalists) wanted to send a sym- bolic message to the BJP government—and also fulfil a practical need in case they are attacked again,” NDTV quoted the reporters wearing helmets. The latest incident is one of several attacks on media in India which is ranked 138 out of 180 coun- tries in the World Press Freedom Index 2018. IN BATTLEDRESS Earlier last week, the Congress stal- wart from Andhra Pradesh and a six- term former MP, V Kishore Chandra Deo, quit the party. A former Union minister and confidant of UPA chair- person Sonia Gandhi, Deo has been upset over Rahul Gandhi’s failure to address his concerns over rebuilding the party in Andhra Pradesh. The state was a Congress bastion until 2009 but the UPA government’s decision to bifurcate it and create Telangana left the party decimated in the 2014 Lok Sabha polls. As a fall- out,. a large number of Congress leaders from the region quit the party. But Deo, the Nehru-Gandhi loyalist, had stayed. Deo had been urging Rahul and the AICC general secretary incharge of Andhra, Oomen Chandy, to take steps to rebuild the Congress in the state in time for the 2019 Lok Sabha polls but to no avail. With his concerns falling on deaf ears and Rahul refusing to grant him an audience, the soft-spoken tribal leader quit as chairman of the party’s Scheduled Tribes cell. Rahul still did not think it important enough to speak to Deo. Instead, a staffer in Rahul’s office called Deo to say that the resignation had not been accept- ed. The next day, Deo sent his resig- nation from the party’s membership. Sensing a chance to poach a popular leader in a state where it is still a fringe player, the BJP has been trying to woo him. However, the former MP from Araku has told his loyalists that he would rather quit politics than join the BJP. Just the kind of Congress- man Rahul shouldn’t have let go. The Ministry of External Affairs (MEA) is seething with quiet rage at what may be a diplomatic gaffe by the UK. Indian media were recently denied entry to an interna- tional conference on Kashmir held inside the precincts of the British parliament. The event was considered important enough for Pakistan to fly its foreign minister, Shah Mahmood Qureshi to London to partici- pate. Pakistan-occupied Kashmir (PoK)- born Rehman Chishti, chairperson of the All Party Parliamentary Group on Pakistan (APPG-Pakistan), was the main organiser. This “open to all” conference which barred the Indian media saw the usual anti-Indian rhetoric about which the world learned via a tweet from Qureshi: “In Indian Jammu & Kashmir, humanity is bleeding, No doctrine of state security or sovereignty can justify such heinous acts of violence. Pakistan has and will continue to stand by the people of Kashmir. You are not alone in your just struggle for self- determination.” According to official sources, India had registered a strong objection to the British parliament being misused as the venue. Britain is a “friendly country and strategic partner”, a spokes- man said, and expressed disappointment that London was not sensitive to New Delhi’s concerns. UK-based Indians stood in protest outside the parliament, “reques- ting the UK government to not allow activi- ties like these inside Parliament premises”. INDIANS NOT ALLOWED An inside track of happenings on the national stage RAHUL’S FOLLY It was widely anticipated that the official political debut of Priyanka Gandhi Vadra as Congress general secretary in charge of party affairs in east- ern UP would diversify the BJP’s diatribe against the Grand Old Party and the Nehru-Gandhi family. The BJP’s boringly repetitive Pappu-rap over Rahul Gandhi’s leader- ship would predictably get a fusion of “Vadrafication”. After all, the sudden revival of interest among investigating agencies like the Enforcement Directorate (ED) and the CBI in probing Robert Vadra, Priyanka’s controversial busi- nessman husband, has coin- cided with her political plunge and comes months ahead of the Lok Sabha polls. But then, the BJP perhaps underestimated Priyanka. When the ED summoned Robert for interrogation in a money laun- dering case, Priyanka drove with her husband to the agency’s office, dropped him off for interrogation and then made her way to 10, Janpath to see her mother, UPA chair- person Sonia Gandhi, before finally arriving at the party office at 24, Akbar Road to formally take charge as general secre- tary. The messaging was unambiguous. Priyanka sig- nalled that she was ready for baptism by fire (many would say she has been for a while), and that she wouldn’t let the BJP browbeat her with threats. The gloves are clearly off now. Priyanka has made it clear that comparisons between her polit- ical daredevilry and that of her grandmother, Indira Gandhi, are not unfounded. It is now for Narendra Modi and Amit Shah to decide how far they are will- ing to go to rein in the Nehru- Gandhi siblings. PRIYANKA’S BRASS KNUCKLES
  12. 12. | INDIA LEGAL | February 18, 2019 13 Twitter: @indialegalmedia Website: Contact: Many moons ago the Congress’s frontal organisa- tions like the Mahila Congress, Youth Congress, Seva Dal, and the National Students Union of India (NSUI) were galvanising forces in organising grass- roots support and electoral muscle for the Grand Old Party. But these have been in virtual decline sin- ce the death of Rajiv Gandhi. The story may now be turning around with the advent of Rahul Gandhi as a credible leader. In order to make professionals—artists, writers, actors, musicians, IT specialists, lawyers, doctors paramedics—a part of the Congress’s decision- making machinery, it has launched a huge recru- itment drive—at `1,000 per member—for the All India Professional Congress (AIPC) which describes itself as India’s first political platform focused on the needs and aspirations of working professionals and entrepreneurs. The organisation came into being over a year ago but remained more or less a mori- bund letterhead. But now its bossman, the flashy and articulate Shashi Tharoor, is trying to rev things up by organising high-level get-togethers at his Delhi home. The idea germinated from the assessment th- at professionals in today’s India are disconnected from politics, a starkly different situation from the first couple of decades after Independence. Among the first of several interactions planned is a “high tea” function in Delhi in mid-February hosted by Dr Ameeta Singh and Salman Soz, founding org- anisers of the AIPC. The leadership team as of now consists of Shashi Tharoor, chairman; Milind Deora, deputy chairman and regional coordinator, west zone; Szarita Laitphlang, regional coordinator, east zone; Salman Soz, regional coordinator, north zone; Dr Geeta Reddy, regional coordinator, south zone. After having announced sops and loan waivers for farmers in Madhya Pradesh, the flamboyant new chief minister, Kamal Nath, has more in store. Now he is getting ready to give state government employees the dearness allowance raise they have been clamouring for. Just as Rahul Gandhi beat the Modi government to the draw by announcing the implementation of a uni- versal guaranteed income, Nath has pulled a similar draw from the holster. He is likely to implement the sche- me sooner and faster than the centre which is still to implement the wage hikes for central government emp- loyees recommended by the Seventh Pay Commission. About 10 lakh employees are expected to reap the benefits. Central govern- ment employees have been asking for a raise of about `8,000. But government so- urces say that while raises can be expected, they may not meet expectations. QUICK GUN KAMAL NATH With the Lok Sabha elections coming up in the next three months, interest in Kerala is centred as much around the fortunes of the two main con- tenders, the ruling CPI(M)-led Left Democratic Front (LDF) and the Congress-led United Democratic Front (UDF), as the chances of the BJP winning its first Lok Sabha seat from the state in the new post- Sabarimala atmosphere. But there is another side to the battle that keeps Keralites guessing: Will He Or Won’t He? He, of course, is Oommen Chandy, the charismatic former chief minister who is now an AICC general secretary incharge of Andhra Pradesh. There is no doubt the High Command would give him the seat of his choice if he decided to fight, but the state party unit is divided. One group believes that Chandy should lead from the front as the UDF’s star campaigner, while there are others who think he should now stick to central politics and leave the field for Ramesh Chennithala, currently leader of the opposition. The two-time chief minister is reportedly yet to make up his mind on contesting, but the initial feed- back for the High Command from Delhi’s most influential Non Resident Keralite—AK Antony—is that Chandy must be rested until 2021 to bring the UDF back to power in the state in the assembly elections. It suits Antony too: another Congress strongman from the state would rob the former defence minister of his pre-eminent status in the AICC and indeed in the Congress’s sanctum sanctorum. OOMMEN’S OMENS THAROOR’S SHOW Just as its electoral fortunes began to look up, the Congress seems to be relapsing—with its age-old affliction of factional feuds and a leadership uninter- ested in addressing them. Close on the heels of Andhra strongman V Kishore Chandra Deo’s resignation from the party, ex-Congress MP Milind Deora too made his unease in the party known. Deora’s outburst on Twitter should arguably come as a bigger setback for Congress Presi- dent Rahul Gandhi than Deo’s resigna- tion. Deora, after all, is closely identified as a member of Rahul’s inner circle. In a series of Twitter posts, Deora said he was “disappointed with what is hap- pening” in the party and let it be known that the Mumbai Congress had become a “cricket pitch for sectarian politics”. Those close to the former South Mumbai MP say Deora has been urging Rahul for months to replace Mumbai Regional Congress chief Sanjay Nirupam with a leader who is not dictatorial. It is believed that Deora’s reservations against Nirupam’s style of functioning are shared by former Congress MP Priya Dutt, and former Chief Minister Ashok Chavan. Deora has also hinted that he will not contest the upcoming Lok Sabha polls if the central leadership refuses to resolve the crisis. Expect more fireworks soon. DEORA’S GRIPE Durbar
  13. 13. Lead/ Federalism 14 February 18, 2019 The Diverse Colours of FederalismThethinlinebetween“tyranny”and“liberty”isbeingincreasinglyseentoday.Asthefederal designofthenationgetstransformed,ithasparadoxicallyacceleratedcentraldominance By Upendra Baxi UNI
  14. 14. Tata Nano factory) was preceded by two dharnas earlier in Delhi by chief minis- ter Arvind Kejriwal, one late last year at the house of the Lt-governor, and a little earlier outside the Central Secretariat protesting Union polices with regard to the state of Delhi. Apparently, recourse to mass direct action by chief minsters to “save the Constitution” is emerging as a means of attempting a reversal, or an amelioration of Union policies. It is also considered an appropriate way of achieving Opposition solidarity when general elections are looming large, and when public perception of politics as vendetta, and law as a programme of avenging Opposition leaders is seen as growing. The counter-perception that this is a war declared on systemic gover- nance corruption should be welcome. But is it equally relevant that while looking at the beam in others eyes, one also looks at the moat in one’s own (as the Biblical saying goes)? The Supreme Court ordered on February 5, 2019 that the police com- missioner “would faithfully cooperate with the investigating agency at all times”. But, it has also ordered that “that no coercive steps including arrest shall be taken against the Commi- ssioner of Police”. At the same moment, Shillong stands designated as the place where he will “appear before the investi- gating agency… on such date(s) as may | INDIA LEGAL | February 18, 2019 15 NE may at least think and write about the federal design—the principle and the detail—of the consti- tutional schema of feder- alism at the level of politi- cal action and constitutional law and culture. The distribution in Union-State relations of various powers for legal and political action may be perceived as an intensely political matter. However, constitutional adjudication proceeds on first principles of jurisprudence (what is good as a matter of legal theory) and demosprudence (what is good for con- stitutional cultures and constitutional faith). Chief Justice of India Ranjan Gogoi, along with Justices Deepak Gupta and Sanjiv Khanna, has rung down the cur- tain, as it were, on the unfolding drama in West Bengal concerning the possible inquisition and arrest by the CBI of Rajeev Kumar, Kolkata’s Commissioner of Police. Chief minister Mamata Banerjee’s sitting on dharna in Kolkata (at the same site where she sat in protest against the CPM-led government during the acquisition of land in Singur for the O WAR AGAINST THE CENTRE? (Left) West Bengal CM Mamata Banerjee addressing the media from her dharna site in Kolkata; CBI officers being manhandled by policemen; Police Commissioner Rajeev Kumar be fixed”. The order deftly avoids the larger question of whether the state of West Bengal may withdraw its consent from the CBI to operate in the state posing some insuperable difficulties in the workings of special investigative teams. Notices have been issued for contempt proceedings, initiated by the CBI, agai- nst the chief secretary of West Bengal, the Director of Police and Commi- ssioner of Police, Kolkata, and the hear- ing is listed for February 20. No adverse finding of fact has been recorded, although the CBI appears to be con- vinced that the official was uncoopera- tive and has committed contempt and the purported arrest of its officials also amounts to contempt. But the order only allows non-coercive interrogation and certainly places a ban on the arrest of the Commissioner. This is indeed a Solomonic verdict. High stakes are involved in India’s most volatile year with the 2019 general elec- tions to be shortly announced. The Opposition has planned a national anti- Narendra Modi coalition, which is fought valiantly by the ruling NDA coa- lition. The Court decided the matter on merits, but each side applauded the order as upholding their contention. The BJP was able to say that it was a
  15. 15. of delays in the criminal justice administration. IS THE CBI A CONSTITUTIONAL BODY? This case illustrates the last problem very poignantly. On November 6, 2013, Justices IA Ansari and Indira Shah of the Gauhati High Court reversed a judg- ment of a learned single justice (on November 30, 2007) and declared the very existence of the CBI ultra vires. The ruling that “the CBI is not a statuto- ry body”, because “constituted under an Executive Order/Resolution” of 1963 would mean that only the states are “competent to legislate on the subject of police” and, therefore, the central gov- ernment could not have taken away the power and “create or establish an inves- tigating agency, in the name of CBI, adversely affecting or offending the fun- damental rights, guaranteed under Part III of the Constitution of India”. The Court ruled that when state action is “neither sanctioned by a legislation nor vindication of the CBI, whereas an almost united Opposition that assem- bled in Kolkata held it as “victory of democracy”. Mamata Banerjee applaud- ed the order as upholding constitutional good governance nurturing democracy, whereas law minister Ravi Shankar Prasad hailed it as a victory of crusade against corruption and for probity and integrity in national life. Both sides emphasized ways in which the order reinforced their stand. How long these conflicting interpretations will prevail is anyone’s guess. The February 20 con- tempt hearing will perhaps provide some indications whether contemptuous action resulting in obstruction of the investigation actually occurred. The CBI proceeded on the basis that it was merely following an investigation path, but the context and timing of possible action, which occurred shortly after the Kolkata conclave (a site for a show of strength by almost all Opposi- tion leaders) escalated suspicions. Did a pattern of relative quiescence (the case against Sharada chit fund multi- crore scam began in 2014) find immediacy now? This suspicion can be dispelled only when some incontrovert- ible details about the workload and the schedule of investigations becomes known. Further, although the govern- ment of West Bengal disbursed an amount of `500 crore to the victims of the scam, not much is known about victims in the markets of avarice. Does not redressing victims of injustice remain as important a task as pursuing those offenders who are still at large? Does not the tendency to engage in blame-game make the structural issues of reform of the sector invisible to the evangelists of good governance? There also remains the basic problem TherecentSupremeCourtorderonthe CBIversusKolkataPolicematterdeftly avoidsthelargerquestionofwhether WestBengalmaywithdrawitsconsent fromtheCBItooperateinthestate. West Bengal Chief Minister Mamata Banerjee’s “satya- graha rally” in Kolkata from February 3 to 5, in protest against the CBI conducting a raid on the premises of Police Commissioner Rajeev Kumar received wide- spread support from Opposition parties. Many of them spoke against the Modi government’s attempt to destroy the federal struc- ture of the Constitution. “Anattackon federalism” “This is not the Trina- mool’s dharna. This is a political ‘satyagrah’—it was organised to save our democracy, to save our Constitution, to save our federal structure, to save the IAS officers, administrative officers, and to save the country. When we are fighting a battle collectively....” —West Bengal chief minister Mamata Banerjee “This is shocking and we strongly condemn this. We stand by chief minis- ter of West Bengal to pre- serve and protect the Constitution and spirit of federalism in the country. After opposition parties started uniting and started to fight together to save democracy, the Modi led BJP is losing all hope...” —TDP chief and CM Andhra Pradesh N Chandrababu Naidu “The independence of every institution has been compromised under this fascist BJP Government. I stand with @MamataOfficial Didi in her fight to protect the federal structure of this country and to save democracy...” —DMK president MK Stalin, on Twitter Lead/ Federalism 16 February 18, 2019
  16. 16. ground that the resolution constituting it needed presidential assent and that it could not be treated as a police force seemed, indeed, a bit odd. The Union of India argued that the High Court’s decision will adversely im- pact thousands of criminal cases pend- … taken in valid exercise of its executive powers, the ineffaceable mandate of Article gets smudged”. In this case, the petitioner, Naeven- dra Kumar, an employee of Mahanagar Telephone Nigam, was charged under the Prevention of Corruption Act. He reached the appellate Bench after “a decade of litigation”. But fate had other plans for him. The High Court decision was stayed at a special Supreme Court hearing by the bench of Chief Justice P Sathasivam and Justice Ranjana Desai, who held a special sitting at the resi- dence of the CJI on February 17, 2014. No doubt, despite some recent diffi- culties, the CBI has emerged as profes- sional body and has earned a just repu- tation for its professional expertise. Public demands for a CBI investigation have increased its reputation. To invali- date the very existence of the CBI on the ing across the country; it apprehended that the judgment would directly impact about 9,000 trials currently underway and about 1,000 investigations being undertaken by the CBI. Also, it was argued that if the High Court order was not stayed, “it will frustrate the law UNITED WE STAND DMK leader Kanimozhi and RJD’s Tejashwi Yadav with Mamata at the rally “What happened in West Bengal is an attack on a state’s federal rights guar- anteed by our Consti- tution. We stand with West Bengal chief minis- ter Mamata Banerjee.” —Karnataka CM HD Kumaraswamy “Anyone who cares for Democracy, Federalism and Constitution must stand with Ms @MamataOfficial.” —DMK Rajya Sabha MP Kanimozhi, on Twitter “The use of the CBI as a political tool has crossed all limits as has the Modi government’s misuse of institutions. A former CM having such little regard for India’s federalism is shocking.” —National Conference vice president Omar Abdullah “Modi-Shah duo’s action is completely bizarre and anti-democracy. Modiji has made a complete mockery of democracy and the federal struc- ture.... We strongly con- demn this action.” —AAP chief and Delhi CM Arvind Kejriwal | INDIA LEGAL | February 18, 2019 17 UNI —Compiled by India Legal Team
  17. 17. Criminal Procedure Code...into an off- ence for the purpose of bringing to book an offender”. In arriving at its own con- clusion, the Supreme Court may well ponder the wisdom of Thomas Jeffer- son, a founder of the American Consti- tution. Justice Ansari prefaces the judg- ment by the following quote from him: “When the people fear the government, there is tyranny. When the government fears the people, there is liberty.” THE ISSUE OF FEDERALISM Federalism has come to the fore both as a matter of principle and detail. It has been vital to drawing bright lines between “tyranny” and “liberty”. Will it be an error of great magnitude to revive the talk of a hegemonic or strong centre, apt perhaps only for the early decades of Indian federalism? Has this has now become “polycentric”, “multilevel” and “regulatory”? [see, however, Balveer Arora, KK Kailash, Rekha Saxena and H Kham Khan Suan, “Indian Federalism” in KC Suri and Achin Vanaik (eds.), Political Science: Indian Democracy, Vol.2 (New Delhi: Oxford University Press, 2013)]. machinery and may result in multiplici- ty of proceedings”, adding that the 50- year-old resolution issued by the home ministry through which the CBI was established had stood the test of time. Could then the High Court have decided otherwise? It felt it had no alterative because “the learned ASG as well the learned Amicus Curiae, with commendable fairness, have admitted that in the light of the reported deci- sions, this issue has never been raised, in any case, in any other High Court or the Supreme Court”. The High Court felt duty bound to constitutionally adjudi- cate this issue. It is now for the overbur- dened Supreme Court to consider and settle this matter of national priority. Through the doctrine of prospective overruling, available since the Goalk Nath decision in 1969, the Court may render all past actions valid (already conducted investigations and those in the pipeline). Further as, the High Court clearly noted, Entry 8, List I (Union List) “definitely empowers … Parliament to enact a law in the form of ‘Central Bureau of Intelligence and Investigation’ and that such ‘a legislative competence is preserved under Art. 246 (1)’.” However, the Supreme Court will have to form a final view on the High Court decision that “Parliament cannot, by taking resort to Entry 8 of List I (Union List), make any law empowering a police officer to make ‘investigation’ in the same manner as is done, under the TheGauhatiHighCourt’sdecisiontodeclaretheveryexistenceoftheCBIasultravires onthegroundthatitwasnotastatutorybodywaslaterstayedataspecialSChearing bythebenchofthenChiefJusticePSathasivam(left)andJusticeRanjanaDesai. CAUGHT IN THE NET Sudipto Sen, the head of Saradha group, after his arrest Lead/ Federalism 18 February 18, 2019
  18. 18. Twitter: @indialegalmedia Website: Contact: Despite growing pains, GST has led to the emergence of a new style of “cooperative federalism”. The institu- tional mechanism of GST Council has led to a new level of basic principles and approaches to resourcing the state and the centre. Some might even say that a new architecture of federal design, now at work in the Council, signifies new lev- els of institutional engagement. The impact of new technology on Union- States relations has yet to be fully explored, but digitalization especially has led to such contrary tendencies as revivalism, a deepening of pluralism and democracy, fake news that promotes ethnic or political violence and new ways of terror wars. The 73rd and 74th Amendments have led to different modes of political mobilization and ways of grassroots governance. The ascendency of coalition governance at the center and Opposition parties at the state-level has been a ism have been described and declared with, and since, Kesavananda as an essential feature of the basic structure, which even Parliament may not amend unless the Supreme Court concurs. The Court was led to this position by the extreme insistence on Parliament’s absolute power to change each and every provision of the Constitution, including even making it a unitary or monarchical system. However, the Supreme Court has also recognized Indian “asymmetric federal- ism” in that it recognises a strong centre, while also underscoring the importance of diverse and plural cultures that states embody and represent. May one still say that federal design is a core value and a collective peoples’ right under the Constitution and closely linked with rights to plurality and culture as integral aspects of Article 21 rights? —The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer. UNORTHODOX BUT EFFECTIVE Delhi CM Arvind Kejriwal in protest at LG Anil Baijal’s (right) office along with his cabinet colleagues. He wanted IAS officers in Delhi to call off their strike | INDIA LEGAL | February 18, 2019 19 Theprincipleoffederalismhavebeen described,andsince,Kesavananda asan essentialfeatureofthebasicstructureof theConstitution,whichevenParliament maynotamendunlesstheSCconcurs. factor of considerable importance not just for the functioning of Parliament but stands possessed of “federal rele- vance”. In sum, the federal design of the nation has witnessed many basic trans- formations, progressively reducing, yet paradoxically accelerating, central dominance. The principle and detail of federal- Twitter
  19. 19. 20 February 18, 2019 ESPITE the Supreme Court and the National Green Tribunal (NGT) keeping a close watch, the Taj Mahal, the monument of love, is fighting a losing battle against pollution due to the cal- lous and corrupt ways of agencies res- ponsible for protecting it. The NGT found the situation in the Taj Trapezium Zone (TTZ) “grave” and recently imposed a performance guaran- tee of `25 crore on the Uttar Pradesh government to ensure proper manage- ment of solid waste in the area around the monument. The Taj Trapezium Zone is an area of about 10,400 km spread over the dis- tricts of Agra, Firozabad, Hathras, Ma- thura and Etah in Uttar Pradesh and Bharatpur in Rajasthan. Slamming the state government for its failure to curb open dumping and garbage burning, a bench headed by NGT Chairman Justice Adarsh Kumar Goel said: “Mere passing of orders by the Tribunal are of no value unless the same are faithfully executed. The autho- rities have not been fully successful in their performance of duties to protect the environment.” “In view of the grave situation affect- ing public health in a big way and the failure of authorities in discharging their duties, we direct the State of UP to fur- nish a performance guarantee of `25 crore to comply with timelines in the action plan to be submitted,” the Bench ordered. The NGT also directed the govern- ment to fix accountability on polluters and non-performing officials and added that “damages can be recovered not only from polluters but state functionaries Despitebeingrappedontheknucklesbycourts,the stategovernmenthasdonelittletoamelioratethe pollutioncrisisinthisarea,leadingtheNGTto imposeaperformanceguaranteeof`25croreonit By Atul Chandra in Lucknow D TAJ UNDER THREAT? (Right) Solid waste management around the monument is a concern for environmentalists; the marble surface being cleaned by the ASI Courts/ NGT/ Taj Trapezium Zone UP Blunders On UNI
  20. 20. | INDIA LEGAL | February 18, 2019 21 who collude with polluters”. The state authorities concerned, the NGT Bench said, “may take steps to recover appro- priate compensation from the identified polluters in accordance with law and furnish an action taken report within three months”. The state chief secretary has been directed to be personally pres- ent before the Tribunal on March 12. T his is not the first time the NGT has pulled up authorities in this regard. In October 2018, a bench headed by Justice Adarsh Kumar Goel had described the drinking water sewer- age, drainage system and solid waste disposal in Agra as “shocking”. He had then formed a three-member committee comprising the chairman of the Central Pollution Control Board, a nominee of the National Environmental Enginee- ring Research Institute (NEERI) and the district magistrate of Agra to find out the factual position. The state government had then informed the Court that the “problem of drinking water supply, sewerage drai- nage system and solid waste disposal had been considered and instructions issued”. About sewerage, the state gov- ernment’s statement was that “514 km sewer line has been laid and 336 km remains, while nine sewerage treatment plants are operating as on date”. On solid waste disposal, it said that 19 drains were proposed to be diverted to sewage treatment plants. The govern- ment also informed the Court that there was a waste to compost plant which was in operation for disposal of municipal solid waste. ThisisnotthefirsttimethattheNGT haspulledupauthorities.InOctober 2018,ithaddescribedthedrinkingwater sewerage,drainagesystemandsolid wastedisposalinAgraas“shocking”.
  21. 21. the NGT and the Supreme Court, is a cause of worry. On July 11 last year, the apex court had lashed out at the state government for its apathy towards the Taj Mahal. Following this, the government filed a draft report of its vision document on protection and preservation of the mon- ument. Besides some other suggestions, the document advocated closing down all polluting industries in the region and declaring the TTZ as a no-plastic zone, with no plastic water bottles in the Taj precincts. The Supreme Court had earlier told the government that while preparing the vision document, it should “take a larger perspective on issues of pollution and green cover” as there won’t be a “second chance” to preserve the monu- ment. A three-judge bench headed by Justice Madan B Lokur said that the Taj Mahal was the “centrepiece” and there was also a need to protect the forest cover, the Yamuna and the grounds. When the project coordinator for the vision document, Prof Meenakshi Dhote, pointed out that her team had not been given correct data on the pol- luting industries in the TTZ, the judges said that if the government gave incor- rect data to the panel, “it will come up with an incorrect vision document. If Taj Mahal goes, you will not get a sec- ond chance to retrieve it”. As far as waste disposal is concerned, the situation in the state capital, Luck- now, and other districts is no better. According to the chairman of the UP Solid Waste Management Monitoring Committee, which has been constituted by the NGT, the situation in Lucknow is dismal as not only sewage but also solid waste is flowing into the Gomti river. Pollution, a source claimed, is a big money-spinner for unscrupulous burea- ucrats and officials. Tackling the prob- lem, whether in the TTZ or Lucknow, will be a big challenge. Twitter: @indialegalmedia Website: Contact: Going by the imposition of this hefty performance guarantee, the state gover- nment failed to change the ground reali- ty regarding pollution from sewage and solid waste. According to data released by the Central Pollution Control Board, the air quality continued to deteriorate in Agra and was in the “very poor” cate- gory some days after the fact-finding committee was constituted. A member of the Supreme Court monitoring com- mittee assisting the three-member NGT panel told a newspaper that solid waste was being burned in the open. A ir and water pollution around the Taj Mahal due to lack of pro- per solid waste management has been an area of concern for environ- mentalists, the Supreme Court and the NGT. In June 2016, the NGT had restrained Agra civic authorities from burning municipal solid waste in the city and in the eco-sensitive TTZ. The restraint order was passed by a bench headed by then NGT chairman Justice Swatanter Kumar on a plea filed by a green activist of Agra, DK Joshi. The plaintiff claimed that a joint study by IIT-Kanpur, the Georgia Institute of Technology and the University of Wisconsin found that “brown and black carbons along with dust” was turning the white-marble monument yellow. The plea said that “subsequent to the report the parliamentary standing com- mittee on environment passed several directions to the Agra administration to curb pollution in the city. According to a study carried out by Ajay Nagpure, the burning of municipal solid waste releas- es a high amount of particulate matter (PM 10 and PM 2.5), which is responsi- ble for damaging the aesthetics of a cul- turally important monument, like the Taj Mahal”. The plea argued that civic bodies in Agra were daily dumping more than 2,000 metric tonnes of solid waste in different parts of the city in blatant vio- lation of the Solid Waste Management Rules. The large-scale burning of this solid waste released high levels of par- ticulate matter which was posing a threat to the beauty of the monument, the plaintiff said. That the state government continues to neglect the monument, which some BJP leaders claim to be a temple and was once described by Chief Minister Yogi Adityanath as a symbol of Mughal invasion, despite occasional raps from Courts/ NGT/ Taj Trapezium Zone AnSCbenchheadedbyJusticeMadan BLokurhadearliersaidthatthe government,whilepreparingthevision documentontheTaj,shouldtakealarger perspectiveonpollutionandgreencover. AbenchheadedbyNGTChairman JusticeAKGoelsaidthattheconcerned authoritieshavenotbeenfullysuccess- fulintheirperformanceofdutiestopro- tecttheenvironmentaroundtheTaj. 22 February 18, 2019
  22. 22. villages because of the bad air quality. Based on the revelations in these reports, the Tribunal had directed the Maharashtra Pollution Control Board to prepare a comprehensive action plan which would focus on the control of emissions. It was given a year to imple- ment the action plan. KEM Hospital was directed to conduct a health impact assessment for three years, necessary medical facilities and treatment were directed to be provided to the residents and the industries were required to pay `5 lakh to each applicant. However, there was no implementa- tion of the judgment of the Tribunal. The defence taken by the polluting industries was that there were other sources of air pollution in the area and thus their role was not fully established. The Tribunal, however, made it clear that no polluter could escape liability for damaging and polluting the environ- ment. Even “suspect polluters” could be held accountable under the precaution- ary principle and remedial action could be taken against them, prohibiting them from indulging in certain activities which may harm the environment. Thus, to ensure that the polluters don’t evade the penalty, the Tribunal directed the Central Pollution Control Board to determine the amount of penalty that should be imposed on the polluting industries for the damage caused to the environment and their contribution to the deterioration of the air quality which was hazardous to the health of the inhabitants. —By Pragya Ratna | INDIA LEGAL | February 18, 2019 23 Environment/ NGT/ Air Pollution principal bench of the Na- tional Green Tribunal (NGT) has held that Bharat Petroleum Corporation Limited, Hindustan Petro- leum Corporation Limited and Sea Lord Containers Limited are major sources of air pollution plaguing villages nearby. The inhabitants of Ambapada and Mahul villages in Mumbai are being exposed to adverse health effects due to the emission of hazardous chemicals from these refineries and factories. The Tribunal delivered this judgment after considering reports by various committees. It was found that there was a significant deterioration in the air quality below the prescribed standards, which had a direct impact on the health of inhabitants of the area. According to a report filed by the Maharashtra Pollu- tion Control Board, there was a signifi- cant presence of volatile organics such as benzene, toluene and ethyl benzene. According to a respiratory morbidity survey conducted by KEM Hospital in Mahul area, 67.1 percent of the popula- tion had complaints of breathlessness more than three times a month and 76.3 percent in all seasons, while 86.6 per- cent complained of eye irritation and 84.5 percent had a history of persistent choking sensation in the chest. Ambapada village residents faced si- milar problems with 66.5 percent repor- ting coughs, 61.3 percent eye irritation, 51.4 percent choking sensation in the chest, 53.3 percent frequent colds and running nose and 81 percent saying there was a strong smell in the area. The report revealed a corelation between the air quality in the areas and the pre- valence of asthma. Thus, it was clear that there was a perceptible threat to the health of the inhabitants of the two Every Breath You Take.... TheTribunalhaspulledupthreeindustriesforpollutingtwovillagesanddirectedthe CPCBtodeterminethepenaltytheyshouldpay Twitter: @indialegalmedia Website: Contact: A THREATENING LIVES Pollutants from a BPCL refinery have led to poor air quality in Mahul and Ambapada UNI
  23. 23. My Space/Startups Sanjiv Bhatia E live in the age of entrepreneurship. The vast majority of products, services and technologies we use today come from startups, and over 70 percent of global employment is attributed to these new- age entrepreneurs. It is vital for policy- makers to understand how this ecosys- tem works and how to incentivise it to generate maximum economic growth and employment. Capital is the lifeblood of any new business. The various sources of finance available to entrepreneurs include their own resources (bootstrapping), angel investors, crowd-funding platforms, accelerators, venture capitalists, private equity funds, banks, public grants, fam- ily offices and stock exchanges. Angel investors are the earliest stage providers of capital and provide more than just money to entrepreneurs. They provide know-how and mentorship, and share their network in contributing to the development of the business. They are thus the main drivers of innovation and a vital cog in the startup ecosystem. Angel investing is, however, risky business. Ninety percent of startups don’t make it to the second stage of fin- ancing, and angel investors have to bear the brunt of the financial loss. Providing the right set of investment and tax inc- entives to angel investors is, therefore, a necessary condition for a thriving start- up ecosystem. In most countries, the capital inves- ted by angel investors is not taxable because it is not considered income. The amount an external investor puts into a company, either as debt or equity, goes on its balance sheet, not the income statement. As a result, it is not a part of taxable income. But in India, there is an angel tax (yes, paradoxically that is the true name), where a 30.9 percent tax is levied on investments made by external investors in startups or other small com- panies. To clarify, the entire investment is not taxed—only the amount consid- ered above the “fair value” is classified as “income from other sources” under the Income Tax Act (Section 56). So, assume that an angel investor puts in `1 crore in a startup in exchange for 10 percent interest in the company. If the tax authorities deem the fair value of that 10 percent shareholding to be `60 lakh, then the company (read entre- preneur) will have to pay 30 percent tax on the amount above the deemed fair value—in this case, on `40 lakh. The angel tax was introduced in 2012 by then Union Finance Minister Pranab Wanted: A Guardian Angel Imposingataxonstartupsisunfairasmost don’tmakeittothesecondstageoffinanc- ingandangelinvestorsbearthebruntof financialloss.Itisimperativetoprovide themincentiveslesttheystopinvesting W Anthony Lawrence 24 February 18, 2019
  24. 24. Mukherjee (of retroactive tax fame). It was put in place to arrest money laun- dering. Given that there are a million other ways to launder money, it is hard to understand how taxing a small start- up company will stop money launder- ing. And even assuming there is some money laundering (best estimates are around 5-10 percent of total angel in- vesting), why tax the entire ecosystem? Why throw the baby out with the bath- water? Creating rules and regulations to try and plug every loophole seems to be a fixation with Indian bureaucracy and policymaking. Demonetisation adversely affected an entire nation, in attempting to go after a small percentage that evades taxes. A recent survey by the Indian Private Equity & Venture Capital Association found that a whopping 73 percent of startups received notices to pay angel tax. Take the example of Clifon (name disguised), a startup that is developing new-age artificial intelligence software. The company raised `1.5 crore from an angel investor. The tax assessment offi- cer decided that the “fair value” of the investment was only `1 crore, so the remaining `50 lakh would be taxed as income, and Clifon would have to pay 30 percent tax on this. There is an appeal process, but as per law, Clifon founders have to pay up 20 percent of the tax at the time of filing an appeal. Most founders do not have this kind of money, which then allows the tax authorities to go after the personal assets of the startup’s directors if they don’t pay up. “You raise `1 crore, and then you have to spend `5 lakh on tax consultants and lawyers. It is an unnec- essary distraction. Instead of spending time developing our product, we are spending time arguing with income tax officers whose major objective is to shake us down,” said one entrepreneur. I nvestors, too, are wary. Many angel investors have been asked to furnish details about their source of income, bank statements and other financial data. It is forcing many angel investors to shy away from providing financial support to startups. Estimates by Inc42 Data Labs show that there was a 12 percent decline in early-stage investing from 2016 to 2017 and a whopping 47 percent decline from 2017 to 2018. Talk about killing the goose that will lay a golden egg. Startups are like saplings that eventually grow into big trees and bear fruit. Trampling on them for a few extra rupees in taxes makes no sense from a tax policy per- spective. Google (and its 85,000 employees) paid almost $20 billion in direct and indirect taxes to the US Treasury last year. It, too, was a startup 15 years ago. Thank God short-sighted policymakers didn’t kill the company back then to collect a few thousand dollars in taxes. Not only does the angel tax make no economic or accounting sense, but the arbitrariness of the assessment process is also disturbing. Tax inspectors have complete freedom to assess the fair value of a startup. Most startups don’t make any money for the first three or four years, so there is no way to model its fair value using either a discounted cash flow model or the net asset value method. The best assessment of value is what the market perceives it to be. Therefore, the price paid by the angel investor, which is a function of many variables including the company’s IN NEED OF IMPETUS (Left) Prime Minister Modi with Israeli Prime Minister Benjamin Netanyahu at a Startup Exhibition in Gujarat; (above) industrialists at the UP Investors Summit in Lucknow Photos: UNI | INDIA LEGAL | February 18, 2019 25
  25. 25. projected earnings, the strength of the management team and other intangibles is the fair value of the company. Why would an angel investor pay more than what he perceives to be the real value— if anything, a smart investor would pay less. How could a tax inspector, with no knowledge of the startup, come up with a better assessment of its fair value than the angel investor who is risking his capital? E ven though the Modi government did not initiate the angel tax, it has had five budgets to fix it, but has not attempted to kill the tax. Only recently, when faced with the reality of high unemployment (and pressure from the startup industry), has the govern- ment woken up to the absurdity of the angel tax. It recently said that no coer- cive action would be taken to recover the tax demands and has set up a com- mittee to review the entire issue. Slight modifications were made to the tax in 2018 and exemptions granted for app- roved startups that obtain a valuation certification from a merchant banker and where the angel investors were approved as accredited investors by an Interministerial Board of Certification. This is just more bureaucracy and hurdles for both entrepreneurs and angel investors. Why not just get rid of the angel tax? No other country has such an unnecessary tax because they use the criminal justice system to add- ress issues like money laundering and black money instead of adding unneces- sary and burdensome regulations to the tax code. In Australia, for example, angel investors are allowed to deduct 20 per- cent of their investment in a startup as expenses from their income tax (up to a maximum amount). Also, if an invest- ment is held for between one to 10 years, they don’t have to pay any capital gains realised from their investment. China has built a robust manufacturing ecosystem by allowing angel investors to deduct 70 percent of their total invest- ment from taxation two years after an investment is made in high-tech start- ups. In the US, startups are permitted to defer any tax liability incurred during the critical first five years and to apply that tax liability at any time over the ensuing 20 years. In Germany, startups can expense 100 percent of all business- related capital, equipment, real estate and research and development invest- ment in the first year. Twitter: @indialegalmedia Website: Contact: India needs a serious rethink of its tax policy and the impulse to coercively extract every available rupee in taxes. The rules and regulations to ensnarl a few black marketers have become a burdensome straitjacket for businesses. No country in history has taxed itself into prosperity and anyone who thinks that increasing tax collection will magi- cally transform India into El Dorado, the mythical city of gold, does not understand economics. I have repeat- edly written about the need to simplify India’s tax laws, including the elimina- tion of income tax, corporate tax, capi- tal gains tax and substituting it with a simple 10 percent value-added con- sumption tax on all goods and services consumed in the country. And there is no better place to start the tax simplification process than the startup ecosystem—the most critical component of the modern economy. Angel investors support entrepreneurs in starting up, and they support SMEs as they scale up their businesses, creat- ing hundreds of thousands of new jobs in the process. In 2018, the US had more than 3,50,000 angel investors investing $25 billion in startups. And more than 3,00,000 angel investors put more than six billion euros in Europe. In contrast, India had less than 1,000 startup investments in 2018. The government needs to eliminate the angel tax and create tax incentives for early-stage investors to promote an entrepreneurial and risk-taking culture that is vital to propel the economy. Let’s nurture these saplings so they can bear lots of fruit later. That is sound eco- nomics and sound tax policy. —The writer is a financial economist and founder, My Space/ Startups/ Sanjiv Bhatia Angelinvestorssupportentrepreneursin startingup,andtheysupportSMEsas theyscaleuptheirbusinesses,creating hundredsofthousandsofnewjobsin theprocess. ENTREPRENEURIAL MIGHT Students at a Startup Conference at the BITS, Pilani-Hyderabad Campus in October 2018 26 February 18, 2019 UNI
  26. 26. Health/ Sections 269 & 270, IPC 28 February 18, 2019 S swine flu cases swamp hospitals in Delhi and Rajasthan, one wonders why some of these infect- ed patients aren’t wearing masks. This would defi- nitely bring down the spread of this dis- ease which can assume dangerous pro- portions. The law, in fact, has provisions in this regard under Sections 269 and 270 of the Indian Penal Code. Similarly, take the case of tuberculo- sis (TB). Prime Minister Narendra Modi had vowed to wipe out TB from India by 2025. In order to do so, the government even announced stringent steps, includ- ing jail terms for doctors, hospital staff and chemists if they failed to report TB cases. The ministry of health and family welfare, in a notification, had said that clinical establishments (hospitals and clinics in all recognised systems of medi- cine), doctors, chemists and druggists “shall notify every tuberculosis patient to the local public health authority” in a prescribed format. TB, drug-resistant TB and extremely drug-resistant TB (XDR) are highly contagious diseases. Once a person develops XDR, it may be difficult to treat him. Today, two percent of primary cases of TB are drug- resistant. The solution lies in early reporting and fully supervised treatment. Not taking treatment after you know that you are infec- ted can be dangerous for society. Under the notifica- tion concerned, state tuberculosis officers and district tuberculosis offi- cers are responsible for implementation of the notification in their areas of jurisdiction and to ensure that follow-up action is taken by local public health staff on receipt of informa- tion about such patients through a hard copy or through an online application named Nikshay. These actions include visiting the patient at home; counselling him and his family members; ensuring treatment adherence and providing fol- low-up support, etc. The law, therefore, has provisions for checking the spread of TB and makes the patient, doctor and public health caregivers accountable. Let us understand the implications of Sections 269 and 270, IPC, and their use in non-TB public health situations. For application of these two sections, one needs to demonstrate that the per- son knew about the possibility of infec- tion and yet did not act or take precau- tions. For the application of either, A Case of Paranoia? BoththeseSectionsdealwithnegligentandmaliciousactslikelytospreadinfections thataredangerousandcourtshaveadjudicatedonsuchcasesinthepast By Dr KK Aggarwal A Forapplicationofthesetwosections, oneneedstodemonstratethatthe negligentpersonknewaboutthe possibilityofaninfectionandstillhe didnotactortakeprecautions. TAKING PRECAUTIONS A central medical team checking swine flu patients at Gandhi Hospital in Hyderabad
  27. 27. | INDIA LEGAL | February 18, 2019 29 development of the disease is not a must. The law is clear on such issues. Section 269, IPC, deals with a “negligent act likely to spread infection of disease dangerous to life”. It says: “Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprison- ment of either description for a term which may extend to six months, or with fine, or with both.” Section 270, IPC, deals with a “malignant act likely to spread infection of disease dangerous to life” and says: “Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprison- ment of either description for a term which may extend to two years, or with fine, or with both.” T hese laws should also be applied by the police to make our country Swachh Bharat. These can be enforced for various acts such as public spitting, dumping garbage on the road, urinating and defecating in the open, not wearing face masks in public when suffering from swine flu, medical estab- lishments not making masks available at the registration counter and not imple- menting infection control precautions, the government not handling air pollu- tion and allowing water to stagnate, leading to the spread of mosquito-borne diseases. Such issues have come to various courts. On October 1, 2001, a case came up before the Delhi High Court relating to hospital infection leading to abortion. In this case, Dr. Meeru Bhatia Prasad vs State, High Court judge SK Agarwal allowed the trial court to go ahead with trial formalities under Section 269 against the doctor on the plea that the needle used in an amniocentesis proce- dure caused infection and the subse- quent abortion. Today, we know that there is a 10 percent chance of getting hospital acquired infections and therefore, all precautions must be taken by hospitals. They should have an infection control department, and consent from the patient must include the possibility of acquiring secondary infections. In Sanjay Goel vs Dongsan Auto- motive India Pvt. Ltd., the Madras High Court on August 5, 2016, handled a case of contaminated effluents and dust par- ticles from a factory being thrown into neighbouring land, harming the health of people and allowing breeding of mos- quitoes. The Court said that there was a prima facie case under various offences, including Section 269, IPC. But can adulterated paneer be chal- lenged under Section 269, IPC? The Punjab and Haryana High Court in Shiv Kumar vs State of Punjab on September 12, 2008, said it couldn’t as adulteration was distinct from fake or infected paneer. Also, can an HIV-posi- tive person marrying an HIV-negative person attract Sections 269 and 270? Again, the answer is no if the marriage was with a willing partner as decided by the Madras High Court in P. Ravikumar vs Malarvizhi on February 17, 2011. In a similar case, the Bombay High Court on February 1, 1974, said in Ramkrishna Baburao Maske vs Kishan Shivraj Shelke that if a commercial sex worker suffering from syphilis commu- nicates the disease to another person during sexual intercourse, she is not liable to punishment under Section 269. Looking at these judgments, it is obvious that Sections 269 and 270 can be the answer to many issues plaguing society. If we can demonstrate that there was a negligent act by an individual, establishment or government which is likely to spread infection dangerous to life and no precautions were taken, we should exercise our rights using the pro- visions of Section 269 of the Indian Penal Code. —The writer is president, Heart Care Foundation of India, and president- elect, Confederation of Medical Associations Twitter: @indialegalmedia Website: Contact: Theselawsshouldbeappliedtomakeour countrySwachhBharat.Thesecanbe enforcedforvariousactssuchaspublic spitting,dumpinggarbageontheroads, urinatinganddefecatingintheopen. Photos: UNI
  28. 28. Opinion/ Online Gun Licences Rajbir Deswal 30 February 18, 2019 HE Delhi police has, in kee- ping with the times, started providing various facilities to those wanting guns. From February 1, it has provided a fast and easy online service whereby a person can apply for a gun licence. All that the applicants need to do is submit certain documents as attachments. There is also a background check and an interview with the licensee before the final issuance. This seems to be a positive step although some have questioned the liberal granting of a licence for something as lethal as a gun. The new facility has other provisions too that include renewing and transfer- ring ownership of guns, having more than one weapon, converting one kind of weapon to another, extending the purchase period on the licence, permis- sion to take the gun out of Delhi and surrendering the weapon and having someone else as a retainer of it. This is a fairly exhaustive facility and every pre- caution has been taken to ensure gen- uineness of the claim. All relevant evi- dence is sought to be placed on record for those needing a licensed weapon. But the fact remains that in India where feudalistic traditions and ostenta- tion are flaunted, would it be safe to allow an unchecked gun culture? These are issues which advanced countries such as the US, Canada, Britain, Israel, Australia, Norway, etc, are grappling with. There is a debate going on about whether to freely allow guns or to have necessary checks and balances. Un- fortunately, almost all of them have made their laws stricter only after inci- dents of mindless shootings have taken place, killing innocent people in congre- gations, schools and restaurants. According to the Arms Act, the des- ignated authorities for issuing an arms licence are the district magistrate (DM) or the commissioner of police. The DM, invariably, would ask for a police report and a recommendation from the district superintendant of police, while in a police commissionerate, the facility for verification is an in-house activity. It’s an open secret that those with influence or money power get an arms licence easily. These can be in any of the three categories of arms—restricted, non- restricted and prohibited. Experience has shown that licences Playing With Fire? WhilethisinitiativeoftheDelhipoliceshouldbecommended,stringentbackgroundchecksshouldbe conductedsothatgangsandunscrupulouspeopledon’tgetholdoftheselethalweapons T EASY ACCESS Screenshot of the online service set up by the Delhi police whereby a person can apply for a gun licence; (above) the office of the Delhi police’s gun licensing unit It’sanopensecretthatthosewith influenceormoneypowergetanarms licenceeasily.Thesecanbeinanyofthe threecategoriesofarms—restricted, non-restrictedandprohibited.
  29. 29. | INDIA LEGAL | February 18, 2019 31 should be given to those who have train- ing and are adept at handling weapons. But unfortunately, these crucial require- ments are often given the go-by. This results in novices acquiring licences and possessing guns, leading to their misuse and unfortunate incidents. The Delhi police will do well to have its firing ranges and firing simulators thrown open to those seeking gun licen- ces, thereby fixing a standard for profes- sional competence. These tests need to be made tough and designed in such a way that no element of favour is allowed to creep in. For example, let a computer- ised simulator fix a minimum number of hits in the bull’s eye for a person to qualify as a trained handler of weapons. Only then should licences be given. Though the newly introduced mod- ule of the Delhi Police has incorporated an interview component, it remains to be seen if the gun-seeker genuinely needs a weapon for his personal safety or otherwise. The threat perception needs to be assessed by an intelligence unit, which should take into account various aspects of a licence-seeker’s pro- file. Different people feel differently about their threat perception. A politi- cian, an ideologue, a rich man, a contro- versial figure, minorities, the old and infirm, women—all could view them- selves as vulnerable. T he moot question again is whether we are promoting gun culture. In Japan, incidents of gun-related homicide are one in a 10 million population. In Norway, owner- ship of a weapon is allowed, but its use is almost absent. Norwegian police, like the British police, does not carry arms. In the US, some states provide for free possession of guns, while others have restrictions. In Australia, gun laws are stricter. However, in India, we cannot afford to liberalise licensing of weapons to just about everyone. In our feudalistic ways, we indulge more in flaunting weapons than pos- sessing them out of necessity or for self- defence. In north India, people indulge in celebratory firing and use weapons to scare or impress onlookers. This un- abashed use of firearms needs to be curbed. The Delhi police notification, therefore, could enable undeserving goons and the mafia to acquire wea- pons. A stringent background check of a person’s character and antecedents is essential before issuing an arms licence. It cannot be issued to a mentally un- sound person or to an army deserter. There have often been incidents of uniformed men shooting their seniors. Recently, a Haryana cop killed a magis- trate’s wife and son in broad daylight in a Gurugram upscale market as people looked on. There is a school of thought which advocates disarming cops as well, like the UK’s Bobby. Trigger-happy cops and other undeserving and irresponsible weapon holders are a threat to society. In England, it’s the London Metro- politan Police only which carries arms. If firepower is needed, they have tactical squads which are put into action. It’s a difficult decision to take as to who should be allowed to acquire guns. Even our police officials lack finesse in handling weapons as their annual firing practice is often given the go-by. Sadly, many times, bullying cops, lacking the firm emotional quotient required by an arms handler and being weak in their reflexes, create an embarrassing situa- tion for the government when they open fire on mobs in the garb of crowd con- trol. Though the government has, by a gazette notification in July 2016, dealt in detail with the Arms Rules, a res- tricted gun culture would be the best option. —The writer is a former Haryana IPS officer and practising advocate in the Punjab & Haryana High Court UNI It’sadifficultdecisiontotakeastowho shouldbeallowedtoacquireguns.Even ourpoliceofficialslackfinessein handlingweaponsastheirannualfiring practiceisoftengiventhego-by. Twitter: @indialegalmedia Website: Contact: FATAL CONSEQUENCES An unchecked gun culture has claimed many innocent lives in school shootings in the US
  30. 30. 32 February 18, 2019 HE US federal govern- ment recently published the final rules for changes to the H-1B visa pro- gramme. For Indians who want to go to the US through their employer, the H-1B pro- gramme is the best method available. For the US government, this visa pro- cess allows it to filter immigration into the country of qualified talent, specifi- cally in the STEM (Science & Techno- logy Education) segment where there is an acute shortage of capable people. There are two key changes coming in the rules. First, the government will require applicants for an H-1B visa to electronically register with the immigra- tion office for the H-1B lottery before they submit their applications or docu- mentation, starting in 2020. We are now talking about the H-1B visa process for the forthcoming year, 2020, for which applications will be accepted by the US government from April 1 of 2019. Currently, there is a lottery process if the number of applicants is more than the 85,000 limit specified by the US Co- ngress. Applicants must submit their complete applications, including sup- porting documentation, in order to apply for a lottery run by USCIS, the immigration authority. Last year, rough- ly 1,90,000 applicants applied for the 85,000 slots. That means 1,05,000 peo- ple put together sub- mitted applications, but lost out on the lottery. Under the new rule that will be in force for the 2020 H-1B process, applicants must first register with USCIS electronically. If selected, the appli- cant would then be invited to submit his application and sup- porting materials. The idea is that you only have to take the trouble of applying when there is an actual slot available. The change is likely to cut into the revenue of immigration attorneys, who today prepare complete applications for all applicants. A typical H-1B visa application retainer for an attorney today in Silicon Valley runs between $3,000-$6,000. If your company is applying for you, then it will pick up the tab. Alterna- tively, there are thousands of people who desperately want to go to the US. They apply through small-time companies who often charge them between `2 lakh and `3 lakh for processing of the visa. However, in all cases, as it is a lottery, there is no guarantee that the applicant will get the H-1B visa. Though the new rules mean that The Right Fit NewH-1BrulesaregoodnewsforIndiansholdingadvanceddegreesastherearemorevisaslots openforthemandforIndiancompaniesastheyneednotpaylawyersdealingwiththisissue Column/ H-1B Programme Kris Lakshmikanth Inthepasttwoyears,Canadahas overtakentheUSwithrespectto overseasstudiesforIndianstudents astheyhadbetterchancesofgetting aworkpermitlocally. THUMBS-UP FOR INDIAN STUDENTS The new H1-B rules will boost foreign admissions to US colleges and universities T Representative Image:
  31. 31. | INDIA LEGAL | February 18, 2019 33 American immigration attorneys will lose income, from the employer point of view, costs will come down. Let us look at the case of a top soft- ware services company which applies for 5,000 H-1B visas and gets only around 2,000 visas. For this company, the sav- ings in visa processing charges can be as much as 3,000 x 4,000=$1.2 million. An amount not to be sniffed at. T he second change of the final rule has to do with how the lottery is conducted. Under the H-1B programme, there are two pools of applicants: let’s call them the regular pool and the advanced degree holders’ pool. There is a cap of 65,000 for the regular pool and 20,000 for the advan- ced degree pool, which is limited to applicants holding a master’s degree or higher. In today’s process, advanced degree applicants first go through the lottery of the advanced degree pool, and if they fail, they get added to the regular pool for the second lottery. In the new process just confirmed by USCIS, that process is inverted: the reg- ular pool lottery will be run first with all applicants and then the advanced degree pool will take place with advanced degree applicants who failed in the first lottery. What does that mean for applicants? Using last year’s numbers, there were 95,885 advanced degree applicants for 20,000 spots, so a roughly 20.85 per- cent chance of receiving a visa. That means 75,885 advanced degree appli- cants who lost out were then added to the regular pool of 94,213 applicants. That’s 1,70,098 applicants for 65,000 visas, or roughly 38.21 percent chance of getting a visa. Across the two lotteries then, advanced degree holders statisti- cally would have got 20,000 visas from the first lottery, and then 38.21 percent of 75,885 or 28,998 visas from the regu- lar pool lottery. So an advanced degree holder had a 51.1 percent chance of get- ting an H-1B visa, compared to 38.21 percent for regular pool applicants. That’s the old probabilities, so let’s see how reversing the sequence of lotter- ies changes things. Now, 95,885 advanced degree holders join 94,213 regular applicants for 65,000 spots, for a success rate of 34.19 percent. That means 32,786 advanced degree holders will be successful in the regular pool. From there, the 63,099 advanced degree applicants who were not suc- cessful would get to go through the advanced degree lottery of 20,000 spots, a probability rate of 31.70 per- cent. Combined then, you have 20,000 + 32,786 = 52,786 successful advanced degree holders out of 95,885, for a com- bined statistical success rate of 55.05 percent. Net-net, the changes in the lottery sequence mean that advanced degree holders would have been successful 55.05 percent of the time last year com- pared with 51.1 percent under the previ- ous system. For regular applicants, the success rate declines from 38.21 percent to 31.70 percent The USCIS is (from a statistical point of view) “placing an additional emphasis” on advanced degree holders. It’s a meaningful adjustment if you are applying, of course, but ultimately, noth- ing has changed as immigration priori- ties are written into the law and the executive branch doesn’t have much flexibility to change these systems. Looking at the overall picture, the Trump administration wants to promote domestic employment. The new H-1B rules will make the US once again an attractive destination for overseas stud- ies from India. This will help US col- leges and universities as admissions go up and foreign students bring in money which boosts the local economy. In the past two years, Canada has overtaken the US with respect to overseas studies for Indian students as they have better chances of getting a work permit locally. The US government is realising that it is better to utilise Indian manpower for the software industry compared to China and hence, the new rules will favour our nation. —The writer is the Founder Chairman & MD of The Head Hunters India Private Limited, a Bengaluru-based firm Twitter: @indialegalmedia Website: Contact: TheTrumpadministrationwantsto promotedomesticemployment. However,thenewH-1Bruleswillmake theUSonceagainanattractive destinationforstudentsfromIndia.
  32. 32. Global Trends/ Taliban Talks 34 February 18, 2019 EACE moves are on in Afghanistan. For the first time in 17 years, the Taliban appears to be serious about bringing the civil war to an end. In January, the Taliban wrapped up six days of talks with Zalmay Khalilzad, US President Donald Trump’s peace envoy for Afghanistan. The talks in Qatar satisfied both sides. According to reports, a broad frame- work agreement was reached between the US and the Taliban, though details would have to be fleshed out. There is no word on what the Taliban may demand when it comes to a final political settlement. This is what is of growing concern to India, which has been watching developments from the sidelines. While Pakistan is key to a solution, India is only a minor player. However, Afghanistan remains of strate- gic interest to Delhi. The January talks with the US were followed up last week with another go at peace, this time in Moscow. A Taliban delegation is holding intra-Afghan talks, sponsored by Russia, and attended by former Afghan President Hamid Karzai, leaders of various opposition parties and tribal chiefs of the country. This is sig- nificant as it is the first time the Taliban met with political parties of Afghan- istan. For a permanent solution, all sec- tions within Afghanistan have to be in the picture. Attending the discussions with Karzai are several important A Tenuous Peace Deal Inapositivefirststep,amellowedTalibanhasstartedspeakingtopoliticalleadersin Afghanistan.India,watchingfromthesidelines,hopesitsinterestswillbesecure By Seema Guha P Photos: UNI EMBATTLED NATION Taliban militants stand next to the wreckage of a damaged aircraft, in Sayed Karam district, Afghanistan