Judiciary and Parliament's 69-year journey

NDIA EGALL STORIES THAT COUNT
I
December2, 2019
Chief Justice under RTI Act
by Prof Upendra Baxi
The Pegasus
Trap
ConstitutionDayThedocumenthasbeenamendedover100timesbutjudicialvigilance
hasensuredthatthe basicstructureremainsintact

PROFILES IN COURAGE
HE testimony that witnesses gave
under oath during the past 10 days to
the US House Intelligence Committee
considering the impeachment of a ser-
ving president was devastating. Coll-
ectively, the evidence they proffered, most of it
first-hand, corroborated the charge that President
Donald Trump tried to bully and badger Ukrai-
ne—an ally—to help him destroy a domestic po-
litical opponent through nefarious means and
sacrificed the American national interest at the
altar of his personal agenda.
Many of the details have already been spelled
out through first-hand reporting in India Legal
(see: https://bit.ly/2XHdEvA) and they are
available in the world press. They do not bear
reporting again in this space. The testimony was,
as I said, devastating. But more than that, it
was elevating.
Even if it “devastated” Trump’s record and the
defenders of his mala fide machinations, it did lit-
tle to dislodge him from power or to chasten him.
His support base among the House Republicans
remained tenaciously defiant as it grovelled to
support him with non sequiturs; the Trumpers-
forever base of neo-Tea Party hardcore Republi-
cans in the Red States appears to continue at 35
percent or more; it is unlikely that even if the
House approves an impeachment resolution, it
will pass the Senate where the Republican major-
ity will strangle it.
And that is precisely why the performance of
the witnesses before the House Intelligence Com-
mittee was elevating! These were mostly career
foreign service officers, ambassadors, national
security advisers and analysts, senior State Dep-
artment officials, with a sprinkling of political
appointees who reported through a chain of com-
mand to POTUS (President of the United States).
They had nothing to lose but their jobs. They had
nothing to risk except deadly reprisals. Many of
them were first-generation immigrants who chose
to become citizens of and serve in a new land
which offered them not just opportunity but hope
and dignity. They knew that they stood little
chance as they stood up and testified to what they
considered to be conspiratorial, anti-national
behaviour against the foreign policy imperatives
of his own country by the most powerful man in
the world—which he still continues to be.
They knew that their voices, given the political
realities of present-day America, would not top-
ple him and that he and his supporters inside the
administration, inside Congress, within his politi-
cal “base”, the attack-dog press and social media,
are capable of fearsome reprisals notwithstanding
the public assurances given to them by Commi-
ttee Chairman Adam Schiff that the law would
protect them against retaliation for speaking out
in public. Yet, they raised their right hands, pro-
mised to speak the truth and nothing but the
truth, and they told it like it is.
My friend and former classmate, best-selling
US author and commentator Laurence Leamer
wrote on his Facebook timeline: “What an incred-
ible day in American history. We saw a new high
in an honourable patriotic ambassador and
Trump at a new low. I think we may remember
this day like the most dramatic moment in the
Army-McCarthy hearings or Watergate. I feel
good about my country today.”
That’s what I mean by “elevating”. It’s a high to
see democracy at work when the whole world
Inderjit Badhwar
T
Thewitnesses
spokethetruth
beforetheHouse
Intelligence
Committee,
knowingfullywell
therecouldbe
fearsomereprisals
notwithstanding
assurancesgiven
tothemby
Committee
ChairmanAdam
Schiff(right)that
thelawwould
protectthem.
Letter from the Editor
4 December 2, 2019

| INDIA LEGAL | December 2, 2019 5
seems to have given up on itself—on the very prin-
ciples of the rule of law, freedom of expression, the
freedom to try and soar above the rest even when
you see wings being clipped or hacked off all ar-
ound you and feathers scatter like ashes. These
men and women may not have toppled Trump as
they faced the cameras and the world, but they cer-
tainly took a mighty swipe at the culture of impuni-
ty. They may even have toppled it. They were true
profiles in courage.
T
hese were not American aristocrats or Bos-
ton Brahmins protected by pelf and wealth.
They were representatives of what Richard
Nixon used to call the “silent majority”—descen-
dants of middle America, from simple, most likely
Republican backgrounds (even though their politi-
cal affiliations did not come up). They had served
their country under Republican as well as Demo-
crat presidents.
“Served their country” is the operative phrase
here which presidents in their lust for “executive
privilege” seem to forget. Under the US constitu-
tion, the King is dead. He, unlike in Britain, does
not “long live!” Under the separation of powers for-
mula adopted by America’s founding fathers, all
three branches share equally in a distribution of
powers. The government is not sovereign. Sove-
reignty resides with the people—the real masters—
who surrender, under a contractual agreement
through elections, their sovereignty to their elected
representatives and the administration. Under this
arrangement, the career civil servant owes his oath
of loyalty to the Constitution and not to any poten-
tate-president or political boss.
The civil servant’s function under the executive
is to carry out the mandate and laws of Congress
and not the whims and fancies of a sultan. The men
and women who stepped forward in the House
Intelligence Committee—as others, too, have done
in the past, such as celebrated whistleblowers like
Ernest Fitzgerald, consumer crusader Ralph Nader,
Daniel Ellsberg, Mark Felt, Cynthia Cooper, John
Dean, Victor Marchetti—are (I use the word again)
an elevating demonstration that the spirit of
America’s founding fathers, no matter what evil or
vengeance lurks in the minds of potentates and
presidents and their circles of evil, their conspirato-
rial durbars, is alive. The American Constitution
and its institutional liberties probably have as many
torchbearers as they have pall-bearers. I would like
to believe that the American Constitution’s Hall of
Fame is larger in mind, spirit and doughtiness than
its Gallery of Rogues.
As India celebrates her Constitutional Day, I am
reminded that the Indian Constitution and the lib-
erties and freedom of speech enshrined within the
Fundamental Rights it bestows on all were inspired
to a great extent by the ideas of Thomas Jefferson
and Adams and Franklin. But its separation of
powers is flawed because the legislature is really a
slavish extension of the executive, and true, biparti-
san oversight and accountability—as the Indian
founding fathers may have envisioned it while
drafting the Constitution—are, with exceptions, a
pipe dream. In India, political vendetta, undertak-
en with the connivance of law-enforcement agen-
cies, are passed off as “oversight”. It would be rare
indeed, well nigh impossible, that a serving Indian
ambassador would appear before a parliamentary
committee in secret or, God forbid, a public hearing
to answer questions about the dubious foreign poli-
cy dealings of a serving prime minister or, for that
matter, any minister. We took a lesson from
America’s Constitution while framing our own sev-
eral decades ago. Perhaps we can still take a page
or two out of that venerable document.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
PROVIDING
EVIDENCE
(Left) Fiona Hill,
former senior
director for
Russia and
Europe at the
National Security
Council, and
Diplomat David
Holmes (below),
a top staffer at
the US Embassy
in Ukraine,
testified during
the impeachment
hearings of US
President Donald
Trump

ContentsVOLUME XIII ISSUE3
DECEMBER2,2019
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Senior Content Writer Punit Mishra
(Web)
6 December 2, 2019
If we look at the journey of the Indian judiciary and parliament over the past 69
years, it has lived up to the aspirations of the Constitution-makers
Directive Principles and the Courts
The ruling that the office of the chief justice comes under the RTI Act should be hailed.
At the same time, transparency in judicial appointments should be juxtaposed with
confidentiality of deliberations. An analysis of the verdict by Prof Upendra Baxi
Law in Books Versus Law in Action
SUPREMECOURT
COURTS
When a live-in relationship sours, leading to allegations of rape, should the law
distinguish it from marital rape and deny legal protection to the accused?
A Question of Consent
Since it came into being, the Constitution of India has been amended more than 100 times
but the basic structure of the “holy book” remains intact, largely due to judicial vigilance
103 and Counting 12
14
20
24
LEAD

Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
REGULARS
Ringside............................8
Courts ...............................9
Is That Legal...................10
Media Watch ..................31
International Briefs..........37
“Gujarat Day” for
Women Lawyers
Last week, Delhi’s top women lawyers
gathered at the Ladies Bar at the Supreme
Court for a typical delectable Gujarati lunch
hosted by senior advocate PH Parekh
50
Spying, the Name of the Game
The Chhattisgarh government wants to pin down Israeli spyware firm NSO as
five activists from the state were among the 1,400 individuals spied on by it,
but that will be easier said than done
32
48
STATES
OFFBEAT
Unceremonious Exit
In an unprecedented
case, the Speaker of the
J&K Assembly has been
removed without any
warning after the state
became a UT. Is this
executive interference in
legislature’s domain?
45
Making the
Right Moves
The victory of Gotabaya
Rajapaksa as Sri Lankan
president has made both the
Tamils and the Muslims
nervous. But India has
started its innings with him
on a positive note
42Many urban households have installed RO water purification systems
to ensure potable water. But the NGT has questioned the efficacy of
some systems and taken note of water wastage
The RO Question 26
With doctors at the receiving end of violence, their skills
should also extend to knowing three languages so that there
is no miscommunication about their diagnosis
Language Barriers
COLUMN
The centre had changed the composition and qualification of the
Armed Forces Tribunal by introducing a part in the Finance Act.
Will this help it provide effective justice to the armed forces?
Toothless and in Limbo 28
Madhya Pradesh will be the first state to ensure that access to
adequate water and proper health services become fundamental
rights for its people
Applicable, Legally
FOCUS
GLOBALTRENDS
34
With the Lahore High Court allowing former PM Nawaz Sharif to trav-
el abroad for medical treatment, the government has been caught by
surprise and doesn’t want another martyr to undermine its interests
On Slippery Ground 38

8 December 2, 2019
Anthony Lawrence
RINGSIDE
Maharashtra

The Supreme Court expressed its dis-
pleasure over the Kerala government’s
failure to come up with a separate law to
manage the Sabarimala Temple despite giv-
ing an undertaking to this effect in August. A
three-judge bench asked the government to
frame a law in this regard and submit the
draft legislation by the third week of January.
The observations were made by the Court
on a plea that sought a separate law for the
temple's administration.
Earlier, a five-judge Constitution bench
had referred its September 28, 2018, verdict,
allowing women of menstruating age to visit
the temple, to a seven-judge bench, consid-
ering the verdict could impact other religions
and therefore the issue needed thorough
examination. This was after review petitions
were filed against the verdict. The top court,
however, did not stay its 2018 order.
The Court also directed the government
to look into the recommendations made by
the Justice Chandrasekhara Menon Commi-
ssion while framing the law. The panel
formed after the January 14, 1999, stam-
pede at the Pamba Hill Top, in Sabarimala,
had held the state government responsible
for the tragedy and recommended an inde-
pendent administrative body to manage the
hill shrine.
Referring to the amendment bill—The
Travancore-Cochin Hindu Religious Insti-
tutions (Amendment) Bill, 2019—that pro-
posed a common law for all temples falling
under the Travancore Devasom Board, the
bench said it was not enough considering
the number of pilgrims visiting the shrine,
and Sabarimala needed a separate law.
The bench also expressed reservations
on an amendment bill by the state proposing
that one-third of the members of the temple
advisory board be women.
Courts
—Compiled by India Legal team
Gauhati HC
summons Super
30’s Anand Kumar
The Gauhati High Court directed
Anand Kumar, the founder of
the popular Super 30 teaching pro-
gramme, to appear in person be-
fore it on November 26 in connec-
tion with a PIL filed by four IIT Gu-
wahati students. The Court said
that if Kumar fails to appear, a bail-
able warrant will be issued against
him. The students alleged that
Kumar did not disclose the names
of the 26 students who he claimed
had qualified in the IIT entrance
examination in 2018 from his
Super 30 institute. They alleged
that Kumar was giving manipulated
and false results, thus misusing the
simplicity of innocent IIT aspirants
and their guardians.
While questioning the centre’s move to
offer permanent commission to only
those women officers who will join the Army
from April 2020, and leaving out the existing
women on Short Service Commission, the
Supreme Court asked the centre to review its
policy in this regard.
The observation from the top court came
on a plea from the centre objecting to the
Delhi High Court’s order in 2010 asking it to
award permanent commission to women
who were on Short Service Commission in
the Army. It refrained from staying the order
and wanted the centre to file its response on
November 28.
The counsel on behalf of the women offi-
cers in the Army brought to the Court’s
attention the centre’s affidavit filed in May
which had no indication whatsoever of
awarding permanent commission to women
in the Army who had completed 14 years.
She said the centre wanted to do it only for
future recruits and pointed out that the Air
Force and the Navy had no issues in granting
permanent commission to women.
Review policy for
women in Army, says SC
SC asks Kerala
govt to frame
separate law for
Sabarimala
No hot chase: HC
tells Kerala cops
The Kerala High Court has asked
the state police not to chase
two-wheeler riders without helmets
and instead use equipment like
traffic surveillance cameras, mobile
phone cameras or even hand-held
video cameras to detect all traffic
offences.
The Court made the observation
while granting bail to an 18-year-
old petitioner from Malappuram.
The police alleged that the accused
and his friend were riding a bike
without wearing helmets. When a
police team signalled to them to
stop, the youths drove the bike
onto the left leg of a policeman in
an attempt to escape.

ISTHAT
What is the difference between
police custody and judicial
custody?
Police custody means that an
accused stays in the lock-up of
a police station or at least in
the physical custody of the
investigating agency probing
the concerned matter. On the
other hand, judicial custody
implies that the accused is lod-
ged in a jail and is under the
custody of a magistrate.
Soon after arrest, an accused
can be kept in police custody
for up to 24 hours. Beyond
that, it is the magistrate who
decides whether he/she should
stay in police custody or be re-
manded to judicial custody.
Police custody can be ex-
tended for a maximum period
of 15 days. Judicial custody
can be extended to a maximum
period of 90 days for offences
punishable with more than 10
years of imprisonment, and 60
days for all other offences.
— Compiled by Ishita Purkaystha
Custody Laws
Can a religious place be considered a
“juristic personality” as per law?
Courts in India have held that Hindu
idols are legal entities. However, a
birthplace or any holy land is not con-
sidered a legal entity. An idol is the
physical manifestation of a deity, but
the apex court has held that a piece of
land, in the absence of any physical
manifestation of the religious deity it is
supposedly tied to, cannot be consid-
ered a juristic person.
?
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 is the difference bet-
ween Doctrine of Adverse
Possession and the Doctrine
of Lost Grant?
The Doctrine of Adverse Po-
ssession allows a person to
claim ownership of a property
in case he/she has been in
possession of that property
for a minimum of 12 years
and there was no legal effort
during that period from the
real owner to oust him/her
from the property.
The Doctrine of Lost Grant
implies that a long, continu-
ous use or possession points
to a legal presumption that the
right to use was previously
conveyed to the user and that
the physical instrument of
conveyance has been lost.
While the Doctrine of
Adverse Possession is applied
in case of the title vesting in a
separate person, the Doctrine
of Lost Grant presumes the
existence of the title with the
user. Each doctrine prevents
the other’s application on a
disputed property. Recently,
these two concepts were
looked into by the Supreme
Court while adjudicating on
the Ram Janmabhoomi-Babri
Masjid title dispute.
All About
Ownership
10 December 2, 2019
Many popular reality shows
on TV exude bias against
dark-skinned, fat and other
categories of people. Even
community typecasting is
rampant. Some of the jokes
are scandalous and racist.
Can legal action be initiated?
According to Article 19(1)(a),
all citizens of India have the
right to freedom of speech
and expression but subject to
Article 19(2) that puts restric-
tions regarding public morali-
ty, decency, contempt of
court, defamation or incite-
ment to an offence. There is
some disclaimer shown
before the show and it is a
must if there are scurrilous
comments. It reads: “All char-
acters appearing in this work
are fictitious. Any resemblan-
ce to real persons, living or
dead, is purely coincidental.”
The disclaimer may be word-
ed differently depending on
the show, and is issued as a
bulwark against legal action.
Play It Safe
Juristic Person
Can the government be held liable
under the Doctrine of Public Trust?
According to the doctrine, the trustee-
ship of natural resources, such as
seashores, forests, running water, air
and ecologically-fragile lands for free
and unimpeded use by the public,
rests with the government. It is legally
bound to protect them and is respon-
sible for any mismanagement.
Liable By Law

Lead/ Constitution Day
12 December 2, 2019
NDIA celebrates 70 years of the
existence of its Constitution on
November 26, 2019. The Consti-
tuent Assembly for drafting the
Constitution held its first sitting on
December 9, 1946. On November
26, 1949, the final version of the Consti-
tution received the signature of the pres-
ident of the assembly and was declared
as passed. The provisions relating to cit-
izenship, elections, provisional parlia-
ment, temporary and transitional provi-
sions were given immediate effect from
November 26, 1949. The rest of the
Constitution came into force on January
26, 1950, and that date is referred to
in the Constitution as the Date of its
Commencement.
The Constitution of India has the
distinction of being the most lengthy
and detailed constitutional document in
the world. Even though the original text
of the Constitution had 395 Articles,
that number has reached 466 due to
several amendments. In addition, there
are 13 Schedules.
Typically, a constitution places res-
trictions on the exercise of political au-
thority. However, it can’t remain static
and, hence, normally, also makes provi-
sion for amendments, as and when the
need arises, to deal with emerging situa-
tions. In the past 70 years, the Constitu-
tion has been amended 103 times but it
has stood the test of time, largely due to
judicial vigilance.
The procedure to amend the Consti-
tution in India is not as rigid as, for ins-
tance, in Australia, Switzerland and the
US. In Australia and Switzerland, any
amendment has to be submitted for the
approval of electors through a referen-
dum. In the US, the constitutional am-
endments must go through the House of
Representatives and the Senate and re-
quire ratification by three-fourths of
the states.
The amending powers of the Indian
103 and Counting
Sinceitcameintobeing,theConstitutionofIndiahasbeenamendedmorethan100timesbut
the“holybook”hasstoodthetestoftime,largelyduetojudicialvigilance
By Vivek K Agnihotri
I
SOVEREIGN BODY
Dr BR Ambedkar
(seated, centre),
chairman of the
drafting committee
of the Constitution,
with other members

Constitution are enshrined in Article
368. For the purpose of amendment, va-
rious Articles of the Constitution are
divided into three categories. First, there
are Articles (5, 169, 239-A, and the con-
sequential changes to the Schedules, if
any) that can be amended by Parliament
through a simple majority and are ex-
cluded from the rigour of Article 368.
Amendments to other Articles must be
effected by a special majority of the total
membership of each House as well as by
a majority of not less than two-thirds of
the members of that House, present and
voting. There is no provision for a joint
sitting of the two Houses in case of a
disagreement on a proposed amend-
ment, as is the case in respect of routine
legislation, except the Money Bills. The
Amendment Bill must be passed by the
two Houses independently, or else it
will fail.
In the second category, there is a
sub-set which requires ratification by
not less than half of the state legisla-
tures. These relate to election of the
president (Articles 54 and 55), extent of
the executive powers of the Union and
states (Articles 73, 162, and 241), distri-
bution of legislative powers between the
centre and states (Articles 245 and 255),
and Articles dealing with the judiciary,
and Article 368 itself, among others.
A
re there any limits to Parlia-
ment’s power to amend the Con-
stitution? Constitutions often
provide the power of judicial review.
Courts can strike down a law on the
ground that it violates the Constitution.
The matter regarding Parliament’s po-
wer to amend the Constitution assumed
significance in Golak Nath vs State of
Punjab (1967) in which the Court held
that a constitutional amendment could
not infringe upon fundamental rights.
Parliament struck back and sought to
assert its supremacy through the 24th
Constitutional Amendment Act (1971)
by inserting Clause (4) in Article 13,
which provided that “nothing in this
article shall apply to any amendment of
this Constitution made under Article
368”. Article 368 was also amended and
now expressly permits Parliament to
amend or repeal “any provision” of the
Constitution. Alongside, Parliament also
enacted the 25th Constitutional
Amendment Act (1971) and limited the
applicability of certain fundamental
rights to land reform laws.
However, in the Kesavananda
Bharati vs State of Kerala (1973), the
Supreme Court had an opportunity to
revisit the issue of limits to amending
the Constitution. A 13-judge bench set
forth the famous “basic structure doc-
trine”. An amendment to the Constitu-
tion can amend its provisions, but no
change can destroy its character. How-
ever, Parliament, through the 42nd
Constitutional Amendment Act (1976),
added two new Clauses, (4) and (5), to
Article 368 to ensure that “no constitu-
tional amendment shall be called in
question in any court on any ground”.
The Supreme Court responded in Min-
erva Mills vs Union of India (1980) and
these clauses were struck down on the
grounds that they sought to destroy the
basic structure of the Constitution.
In Kesavananda Bharati (supra), the
apex court had enumerated certain ess-
entials of the basic structure, such as
supremacy of the Constitution, demo-
cratic form of government, secularism,
federal character and separation of pow-
ers. Over the years, through several
other judgments, many other shades
have been added—rule of law, judicial
review, harmony and balance between
fundamental rights and directive princi-
ples of state policy and so on.
The saga of amendments to the
Constitution has had its highs and lows.
Some of the periodic amendments relate
to extending reservation of seats in the
legislatures for Scheduled Castes and
Scheduled Tribes (Article 334) every 10
years, creation of states and UTs and
their legislatures, three amendments on
setting up and bifurcation of the Na-
tional SC and ST Commission, and the
102nd (2018) which set up the National
Backward Classes Commission.
Some of the landmark constitutional
amendments include the 52nd (1985),
which added the Tenth Schedule (anti-
defection law); 61st (1989) that reduced
the voting age to 18; 73rd and 74th
(1993) that gave constitutional status to
rural and urban local bodies; 91st
(2003) that limited the number of min-
isters in the council of ministers; 101st
(2016) that introduced the GST; and
103rd (2019), which introduced 10
percent reservation in jobs and educa-
tional institutions for the economically
weaker sections.
What stands out is a movement
away from liberal values towards affir-
mative action, social and economic
progress, balancing action between
Parliament and the judiciary, as well as
a certain amount of hurry and ad
hocism, at times.
—The writer is a former
Secretary-General of the Rajya Sabha
TheConstitutionofIndiaisthemost
lengthyanddetailedconstitutional
documentintheworld.Theoriginaltext
had395Articles,butthenumberhas
reached466duetomanyamendments.

INCE Constitutional law is
not only one of the most
important and fastest-gro-
wing branches of jurispru-
dence in the country but
also a limb of law compre-
hensively encompassing problems and
issues confronting citizens, I thought it
imperative to share some of my views on
the subject of the significance of the
Directive Principles of State Policy in
the Constitution of India. I have res-
tricted myself to the judgments of the
apex court.
Our country has various diversities.
We have many religions—Hinduism,
Islam, Christianity, Buddhism, Jainism,
etc—and our society is classified into
various castes. We have had a society
with a caste system wherein some castes
are at a high level while some at the low
level. The country also has various lan-
guages with geographical differences.
On the one hand, we have the Himala-
yas and on the other, we have various
stretches of states adjoining the sea.
On a social plane, we also have had a
system, which discriminated amongst
men and women. Dr BR Ambedkar had
said that women in India were consid-
ered lower, even than the Shudras. We
also had economic inequalities. Vast
Lead/ Constitution Day/ Column Justice BR Gavai
Ifwelookatthejourneyof
theIndianjudiciaryand
Parliamentoverthepast69
years,ithaslivedupto
theaspirationsofthe
Constitution-makers
Directive Principles
and the Courts
14 December 2, 2019
S
PROUD POSSESSION Copies of the Constitution on display at the Parliament Museum
BECOMING PART OF HISTORY Jawaharlal Nehru signing the Constitution of India

liberty, equality and fraternity as the
principles of life. These principles of lib-
erty, equality and fraternity are not to be
treated as separate items but a trinity.
They form a union of trinity in the sense
that to divorce one from the other is to
defeat the very purpose of democracy.
Liberty cannot be divorced from equali-
ty; equality cannot be divorced from lib-
erty. Nor can liberty and equality be
divorced from fraternity. Without equal-
ity, liberty would produce the supremacy
of the few over the many. Equality with-
out liberty would kill individual initia-
tive. Without fraternity, liberty and
equality could not become a natural
course of things...”
And, therefore, in order to achieve
social and economic equality or justice,
the Constituent Assembly found it nec-
essary to incorporate Part-IV in the
Constitution which deals with the Direc-
tive Principles of State Policy. As all of
us know, various rights which can be
said to be basic rights or human rights
or primordial rights, considered neces-
sary for the development of human per-
sonality, were brought in Part-III, i.e.,
Fundamental Rights. The Constitution-
makers found that the Fundamental
Rights were not sufficient enough to
bring in social and economic democracy
in India and, therefore, the Directive
Principles were brought in Part-IV.
Fundamental Rights are justiciable.
For infringement of Fundamental
Rights, anybody can knock the doors of
the court, even directly the Supreme
Court under Article 32. However, the
Directive Principles of State Policy are
not justiciable in a court of law, though
the Constitution-makers by incorporat-
ing Article 37 have made them funda-
mental in the governance of the country
and duty is cast upon the legislature
as well as the executive to give effect
to the Directive Principles, while mak-
ing the laws and discharging its execu-
tive function.
JUDICIAL APPROACH
Immediately after the Constitution was
enacted, a conflict arose between the
Fundamental Rights and the Directive
Principles. In Romesh Thapar vs State
of Madras, the Supreme Court found
that the guarantee under Article 19(1)(a)
of freedom of speech and expression was
so vast that it protected everything
except what pertains to the security of
the country and even if a person incites
others to commit murder or wage a
war against foreign nationals, the
same was not saved by the exception
and in AK Gopalan vs State of Madras
where an issue regarding preventive
detention arose.
Then in the third case of State of
Madras vs Champakam Dorairajan, the
Constitution bench of seven judges took
a view that the Fundamental Rights
under Articles 14 and 15, read with
Article 29(2), did not permit reserva-
tions in favour of Scheduled Castes,
Scheduled Tribes and Other Backward
Classes. In that case, the State of Mad-
ras had issued a government order pro-
viding reservations for the Scheduled
Castes, the Scheduled Tribes and Other
Backward Classes. The same was set
aside by the Madras High Court. A chal-
lenge came before the apex court and
stretches of land vested with zamindars
and crores of people lived below the po-
verty line. Therefore, we also witnessed
along with the freedom struggle, the
fight for social and economic equality.
All these factors weighed in while mak-
ing the Constitution between 1947 and
1950 and giving it a final shape on Nov-
ember 26, 1950.
As we know that with one vote, one
value, one person, the country could
achieve or at least attempt to achieve
political democracy. But insofar as the
economic and social democracy are con-
cerned, the words of warning were given
by Dr Ambedkar while speaking in the
Constituent Assembly on November 25,
1949, a day prior to the adoption of the
Constitution. The entire speech of
Ambedkar itself makes an impressive
reading, but one paragraph from it is
significant: “The third thing we must do
is not to be content with mere political
democracy. We must make our political
democracy a social democracy as well.
Political democracy cannot last unless
there lies at the base of it social democ-
racy. What does social democracy mean?
It means a way of life which recognises
IntheKesavanandaBharati case,Justice
HRKhannaheldthattheargument
thattherewereinherentorimplied
limitationsontheamendingpowerofthe
Constitutionisnotacorrectview.
InBandhuaMuktiMorchavsUnionof
India&Ors,JusticePNBhagwatisaidthe
Statewasunderconstitutionalobligation
toseetherewasnoviolationofthefunda-
mentalrightsoftheweakersections.

the Constitution bench upheld the view
of the Madras High Court holding that
the chapter of Fundamental Rights
was sacrosanct.
I quote Justice SR Das who was
speaking on behalf of the Constitution
bench: “The chapter of Fundamental
Rights is sacrosanct and not liable to
be abridged by any Legislative or Exe-
cutive Act or order, except to the extent
provided in the appropriate Article in
Part-III. The Directive Principles of
State Policy have to conform to and run
as subsidiary to the Chapter of Funda-
mental Rights”.
SELECTED AMENDMENTS
This led to the first amendment to the
Constitution in 1951. The statement of
objects and reasons of the Constitution
(First Amendment) Act was signed by
none other than Jawaharlal Nehru. The
perusal of the statement of objects
would reveal that it was found that the
citizen’s right to freedom of speech and
expression guaranteed by Article
19(1)(a) was held by some courts to be
so comprehensive as not to render a
person culpable even if he advocated
murder and other crimes of violence. As
such, it was found necessary to amend
Article 19 so as to save the laws which
impose reasonable restrictions on the
exercise of the right conferred by sub-
clause (a) of Clause (1) in the interests of
the security of the State, friendly rela-
tions with foreign states, public order,
decency or morality or in relation to
contempt of court, defamation or incite-
ment to an offence from the rigour of
the said sub-clause.
It would further reveal that in spite
of the provisions of Clause (2) of Article
31, the validity of various enactments
enacted to bring agrarian reform meas-
ures passed by state legislatures in the
preceding three years had formed the
subject matter of dilatory litigation. As a
result of this, the implementation of
those important measures, affecting
large numbers of people, had been held
up. As such, it was found necessary to
make certain amendments to Article 19
to insert provisions fully securing the
constitutional validity of the zamindari
abolition laws, in general, and certain
specified state acts, in particular.
To overcome the judgment of the
apex court in the Champakam case
and in order to take further the man-
date of Article 46, Clause (4) in Article
15 was inserted, which provided that
nothing in the said Article or in Clause
(2) of Article 29 shall prevent the State
from making any special provisions for
the advancement of any socially and
educationally backward classes of citi-
zens or for Scheduled Castes and
Scheduled Tribes.
Later, in the case of Sajjan Singh vs
State of Rajasthan before the Constitu-
tion bench of five judges, the majority
upheld the amendment to the Constitu-
tion. Justice PB Gajendragadkar, speak-
ing for the majority, observed that “It is
legitimate to assume that the Constitu-
tion-makers know that Parliament
should be competent to make amend-
ments in these rights so as to meet the
challenge of the problems which may
arise in the course of socio-economic
progress and development of the coun-
try. That is why we think that even on
principle, it would not be reasonable to
proceed on the basis that the Funda-
mental Rights enshrined in Part-III
were intended to be finally and immu-
tably settled and determined once & for
all and were beyond the reach of any
future amendment”.
The seeds of dissent could be found
in the two judgments, delivered sepa-
rately, expressing the minority view. In
his judgment, Justice M Hidayatullah
stated: “I would require stronger rea-
sons than those given in Shankari
Prasad’s case to make me accept the
view that Fundamental Rights were not
really fundamental but were intended to
be within the powers of amendment in
common with the other parts of the
Constitution and without the concur-
rence of the States”.
Justice JR Mudholkar, in the minori-
ty view states: “Can it not be said that
these are indication of the intention of
the Constituent Assembly to give a per-
manency to the basic features of the
Constitution? It is also a matter for con-
sideration whether making a change in
a basic feature of the Constitution can
be regarded merely as an amendment or
would it be, in effect, rewriting a part of
the Constitution; and if the latter, would
it be within the purview of Art. 368?”
Therefore, we find that the concept
of basic feature of the Constitution for
the first time is found in the minority
judgment of JR Mudholkar, which has
been expanded by Justice HR Khanna
in the Kesavananda Bharati case.
In the meantime, by the Constitution
Amendment Act, two Acts, i.e., Mysore
and Punjab Land Reforms Act, were in-
cluded in the IXth Schedule. The validi-
ty of these enactments came to be chal-
lenged in the case of IC Golaknath vs
State of Punjab to which we popularly
refer as the Golaknath case. The
Constitution bench consisted of 11 jud-
ges, and by a majority of six to five, the
Constitutional amendment was held to
be invalid.
Following a series of judgments and
16 December 2, 2019
Lead/ Constitution Day/ Column/ Justice BR Gavai
InManekaGandhivsUnionofIndia,the
apexcourtagainexpandedthescopeof
Article21andheldthattherighttolife
includesallthoseaspectsoflifewhichgo
tomakeaman’slifemeaningful.

parliamentary debates, the 25th Am-
endment Act, Article 31C, came to be
inserted in the Constitution after Article
31B. It is the most important Article for
giving effect to the mandate of the
Directive Principles. It provided that
notwithstanding anything contained in
Article 13, no law-giving effect to the
policy of the State towards securing the
principles specified in Clause (b) or
Clause (c) of Article 39 shall be deemed
to be void on the ground that it is incon-
sistent with, or takes away or abridges
any of the rights conferred by Article 14,
Article 19 or Article 31. It also provided
that no law containing a declaration
that it is for giving effect to such policy
shall be called in question in any court
on the ground that it does not give effect
to such policy.
Then on December 28, 1971, by the
26th Amendment, Article 363-A came
to be inserted which provided cessation
of recognition granted to rulers of In-
dian states and abolition of privy purses,
etc. By the 29th Amendment, which
came into effect on June 9, 1972, two
more enactments enacted by the Kerala
legislature, which provided for amend-
ment to Kerala Land Reforms Act, came
to be inserted in IXth Schedule.
These amendments led to the cele-
brated case of Kesavananda Bharati vs
State of Kerala. There were a bunch of
petitions, since Kesavananda Bharati’s
case, i.e. , His Holiness Shri Shri Kesa-
vananda Bharati’s case was at serial
No.1, the case came to be named as
Kesavananda Bharati. He was one of
the religious priests in Kerala. The
said case had attracted the attention of
the entire country and the name of
Kesavananda Bharati became known
throughout the country as it used to reg-
ularly appear in newspapers and radio.
In the case of Kesavananda Bharati,
by a thin majority of seven to six, the
amendments to Article 13 and Article
368 were upheld. Insofar as Article 31-C
is concerned, the first part, which pro-
vided that no law shall be held to be vo-
id on the ground that it is violative of
the Fundamental Rights, if it is enacted
for furtherance of Directive Principles of
State Policy was held to be valid. How-
ever, the second part was held to be un-
constitutional on the ground that it ta-
kes away the powers of judicial review.
However, the view of Justice HR
Khanna, which was a singular view, is
now the view of the majority. Justice
Khanna took a view that the argument
that there were inherent or implied lim-
itations on the amending power of the
Constitution is not a correct view.
He held that the power was plenary
in nature; however, the word “amend-
ment” postulated that it was necessary
to retain the basic structure or frame of
the Constitution. He held that the power
to amend the Constitution is not restric-
ted by Clause (2) of Article 13 of the
Constitution. He held that there are no
restrictions to amend the articles relat-
ing to Fundamental Rights. He further
held that the right to property does not
form part of the basic structure of the
Constitution.
It is the view of Justice Khanna
which was partly supported by six on
one side and six on the other, the ratio
in the Kesavananda Bharati case.
The conclusion, as signed by the nine
judges and which is now considered to
be a ratio of the Kesavananda Bharati
case, is that:
(i) Golaknath’s case is overruled;
(ii) 24th Amendment is valid;
(iii) Section 2(a) and 2(b) of the 25th
Amendment is valid; and
(iv) The first part of Section 3 of the
25th Amendment is valid whereas the
second part is invalid.
IMPORTANCE OF DIRECTIVE
PRINCIPLES
Though the Kesavananda Bharati case
was popularly known for laying down
the “Basic Structure” doctrine, the land-
mark judgment also played a vital role
in recognising the importance of the
Directive Principles of State Policy. The
earlier conflict between the Fundamen-
tal Rights and the Directive Principles
and the concept of the supremacy of the
Fundamental Rights qua the Directive
Principles of State Policy has been wa-
tered down to a great extent in the judg-
ments of almost all the judges, though
their views were conflicting, insofar as
the amending power of the Constitution
was concerned.
The said judgment recognised that
both the Fundamental Rights and the
Directive Principles of State Policy are
equally important and there is no con-
flict between them. It recognises that
they are supplementary to each other
and they together are the conscience of
the Constitution.
SIGNIFICANCE OF ARTICLE 21
Nobody would doubt that there is no
other Article in the Constitution which
has received such a widest interpreta-
tion. In Bandhua Mukti Morcha vs
Union of India & Ors, the plight of
bonded labourers in Haryana, who
migrated from various states, came up
for consideration before the Supreme
Court. Justice Bhagwati, speaking for
the bench observed: “The State is under
a constitutional obligation to see that
there is no violation of the funda-
InvariouscasesofMCMehtavsUnionof
India,theSupremeCourtheldthatthe
righttogoodhealthandrighttolivein
apollution-freeenvironmentare
FundamentalRightsunderArticle21.

18 December 2, 2019
mental right of any person, particularly
when he belongs to the weaker sections
of the community and is unable to wage
a legal battle against a strong and pow-
erful opponent who is exploiting him.
The Central Government is, therefore,
bound to ensure observance of various
social welfare and labour laws enacted
by Parliament for the purpose of secur-
ing to the workmen a life of basic
human dignity in compliance with the
Directive Principles of State Policy.
“The State of Haryana must there-
fore ensure that the mine-lessees or con-
tractors, to whom it is giving its mines
for stone quarrying operations, observe
various social welfare and labour laws
enacted for the benefit of the workmen.
This is a constitutional obligation which
can be enforced against the central gov-
ernment and the State of Haryana by a
writ petition under Article 32 of the
Constitution.”
In the case of Maneka Gandhi vs
Union of India, the apex court again
expanded the scope of Article 21. It was
held that the right to life includes all
those aspects of life which go to make a
man’s life meaningful and worth living.
In the case of Olga Tellis vs Bombay
Municipal Corporation, it was held that
the right under Article 21 includes right
to live with human dignity. Further, in
Sheela Barse vs State of Maharashtra,
various directions were issued on the
basis of the Directive Principles of State
Policy and Article 21 so as to make the
life of women in custody liveable.
In various cases of MC Mehta vs
Union of India, the highest court of the
country held that the right to good heal-
th and right to live in a pollution-free
environment are Fundamental Rights
under Article 21. We find that on acc-
ount of various directions issued by the
apex court, polluting buses from Delhi
were made to leave this territorial area.
FRUITFUL JOURNEY
Therefore, we find that in the journey of
last 69 years, the Parliament as well as
the highest court of the country had
been progressing forward.
When the Directive Principles of
State Policy were sought to be incorpo-
rated in the Constitution, a criticism
was made by some of the members ag-
ainst Dr Ambedkar that these were
nothing but a post-dated cheque on a
bankrupt bank. It was said that this
was nothing else but an election mani-
festo. Dr Ambedkar always considered
the Constitution to be a weapon for
achieving bloodless, social and economic
revolution.
Answering the criticism, he said: “I
am willing to accept the criticism that it
is a post-dated cheque but I am not will-
ing to accept the criticism that it is on a
bankrupt bank. I am sure that one day
the Bank of my country would be so
able that this post-dated cheque would
be encashed.”
He further added: “Though these
principles are not justiciable in Court
but at the end of each term, those per-
sons seeking votes will have to answer
as to how they have followed the man-
date of Directive Principles of State
Policy or not.”
The period of 69 years for a democ-
racy, cannot be said to be too long. The
United States took decades and centu-
ries to recognise human rights. We find
that in the last 69 years, millions of
landless labourers have been distributed
lands seized under ceiling enactments.
Millions of tenants of the landlords have
now become owners of the lands. Va-
rious labour laws for the protection and
welfare of the labour have been enacted
and upheld.
A woman could become the presi-
dent of India, a prime minister, and a
Speaker of the Lok Sabha. Recently, the
present prime minister while speaking
at Surat, said that it is only because of
the Constitution that a person, who was
selling tea at a railway station, could be-
come the prime minster of the country.
Therefore, if we look at the journey
of the Indian Parliament and the Indian
judiciary over the last 69 years, it could
be seen that the journey is towards liv-
ing up to the aspirations of the Const-
itution-makers, be it Jawaharlal Nehru
or Dr Ambedkar. The Constitution
should be used as a weapon for achiev-
ing social and economic justice.
No doubt, a lot needs to be done and,
therefore, as a citizen, lawyer or judge,
we have a duty to follow the mandate of
the Constitution. We must pledge that
we will strive to take this journey of
social and economic justice forward.
—The author is Judge, Supreme Court
of India. This is the edited text of a lec-
ture delivered by him at the Supreme
Court Bar Association, Delhi, on October
21, 2019
Lead/ Constitution Day/ Column/ Justice BR Gavai
Theperiodof69yearsforademocracy
cannotbesaidtobetoolongaperiod.But
Indiahasdoneexceedinglywell.Awoman
couldbecomethepresidentofIndia
(above),aprimeministerandaSpeakerof
theLokSabha.However,alotneedstobe
doneand,therefore,asacitizen,lawyeror
judge,wehaveadutytofollowthe
mandateoftheConstitution.

Supreme Court/ Office of CJI Under RTI Act
20 December 2, 2019
HIS is a moment of natio-
nal rejoicing. The Right to
Information (RTI) has
received a parting gift fro-
m outgoing Chief Justice
of India Ranjan Gogoi and
a grateful nation must applaud him and
his brethren—Justices NV Ramana, DY
Chandrachud, Deepak Gupta and Sanjiv
Khanna—who ruled that the office of
the CJI comes under the transparency
law. The principal decision, authored by
Justice Sanjiv Khanna (and signed by all
the Justices), makes for compelling
reading as an authoritative judicial pre-
mier on the RTI Act.
The clarification and systematisation
of the conflicting provisions of the RTI
Act are very valuable. Equally so is the
show of judicial unanimity, although
Justices Ramana and Chandrachud
issued separate concurring opinions.
Most welcome is the iteration of the
apex court’s wisdom (in an observation
made in 2002): “The right to…informa-
tion in democracy is recognised all
throughout and it is a natural right
flowing from the concept of democracy.”
The contrary view that believes that gov-
ernance is best promoted by weakening
the RTI regime (or none at all) over-
looks the fact that about four to six mil-
lion people file RTI applications annual-
ly and the number is on the rise. Recent
amendments to the RTI Act have caused
much public concern among some past
Information Commissioners and civil
society actors. Justice Madan Lokur has
made some caustic remarks about “reg-
ressive” changes in the RTI law regime.
It would be churlish to practice fancy
equine dentistry by looking a gift horse
in the mouth! But clearly, there is some-
thing amiss with a judicial system that
on the one hand resoundingly affirms
the organic linkages between
Therulingthattheofficeofthechiefjusticecomes
undertheActshouldbehailed.Atthesametime,
transparencyinjudicialappointmentsshouldbe
juxtaposedwithconfidentialityofdeliberations
By Prof Upendra Baxi
Law in Books
Versus
Law in Action?
T
RecentamendmentstotheRTIAct
havecausedmuchpublicconcernamong
somepastInformationCommissioners
andcivilsocietyactors.JusticeMadan
Lokurhasmadesomecaustic
remarksabout“regressive”changes
intheRTIlawregime.

the RTI and national democratic devel-
opment, and on the other, takes nearly
a decade to adjudicate specific
conventions.
Even now, proceedings in two crucial
appeals are referred back to the infor-
mation officer concerning matters per-
taining to the elevation and transfer of
Justices made by the Collegium. Final
disposal occurs merely on the concern-
ing information on assets declared by
Justices to the CJI. This is henceforth to
count as public information and doing
so will not entail any breach of the fidu-
ciary relationship and privacy (leading
to a chilling effect on would-be elevates
or transferees).
But a single Justice of the Delhi High
Court (recently elevated to the Supreme
Court) in a plea filed by veteran RTI
activist Subhash Chandra Agrawal had
already held so in 2009. What is more,
rejecting the ground that the office of
the CJI was not covered under the RTI
Act, Justice Ravindra Bhat memorably
ruled that “all power—judicial power
being no exception—is held accountable
in a modern Constitution”. It is not
unbecoming, even as the apex court
decision is celebrated, to ask why citi-
zens should be subjected to a decade-
long delay in reiteration of this simple
basic principle.
The two other appeals, no doubt,
raised certain complicated issues con-
cerning transparency and efficiency of
the workings of the judicial collegiums.
One appeal based on a report in an
English newspaper involved allegations
that a minister had approached a Justice
of the Madras High Court through a
lawyer to influence his judicial deci-
sions. The appeal asked for disclosure of
the complete correspondence with the
then CJI. The other related to detailed
information about Justices HL Dattu,
AK Ganguly and RM Lodha supersed-
ing the seniority of Justices AP Shah,
AK Patnaik and VK Gupta. We hasten
to add that the same issues would arise
in other methods of judicial elevations
and transfers too.
Is there prima facie evidence to show
that any disclosure of information im-
pairs instructional efficacy? Should it be
protected always in the public interest?
Then there is concern about the inde-
pendence of the judiciary. Then CJI
Gogoi had reportedly observed on the
concluding day of the hearings that
while nobody “wants a system of
opaqueness” we “cannot destroy the
institution of the judiciary… in the name
of transparency”.
Justice Sanjiv Khanna had
UNI
NO DILUTION
A protest against changes to Right to
Information Act in New Delhi

Supreme Court/ Office of CJI Under RTI Act
22 December 2, 2019
described the questions of judicial
appointments, as “one of the most deli-
cate and complex areas”. He pointedly
referred to a conflict between “[t]rans-
parency and openness in judicial
appointments juxtaposed with confiden-
tiality of deliberations”. He noted some
steps “have been taken to make the
selection and appointment process more
transparent and open” and hoped that
the “position will keep forging new
paths by taking into consideration the
experiences of the past and the aspira-
tions of the future”.
Justice Chandrachud added that
future steps should include enunciation
of crucial norms such as (a) experience
“as reflected in the quantum and nature
of the practice”; (b) domain specialisa-
tion in “areas which are geared to the
evolving nature of litigation and the
requirements of each court; (c) income
requirements, if any, “having regard to
the nature of the practice and the cir-
cumstances prevailing in the court or
region concerned”; (d) the “commitment
demonstrated by a candidate…to the
development of the law” (in terms of
written work, research and academic
qualifications)”; (e) the “social orienta-
tion of the candidate” (whose measure
may not be only pro bono work), and (f)
social inclusivity in the process of mak-
ing judicial appointments. He added
that such criteria should be placed “in
the public domain” which will “fulfil the
purpose and mandate of Section 4 of the
RTI Act, engender public confidence in
the process and provides a safeguard
against extraneous considerations enter-
ing into the process”.
This is, indeed, an inaugural dis-
course of a Constitution bench which
the judicial collegium has now to fully
consider and adopt. Though acute dif-
ference of opinion on some criteria
(such as social “inclusivity”, commitment
to the development of law) may arise,
the desirability and do-ability of such
enunciation cannot be gainsaid. How far
all this will satisfy critics of the colleg-
ium system (fully noted in the judg-
ment) remains to be seen because ulti-
mately, even creative acts of discretion
will always leave a residue of disappoint-
ment in a highly competent pool of aspi-
rants to elevation.
We must note that primary con-
stituencies of this verdict are Public
Information Officers in whom the RTI
vests the tasks of balancing “informa-
tion” with “privacy”. Justice Chandr-
achud repeatedly tells them that a “bal-
ance” has to be struck “creatively”, and
with reason because reason “forms the
heart of the law”. Information officers
“must provide cogent and articulate rea-
sons for the factors considered and con-
clusions arrived at in balancing the two
interests”. And the principal function of
the apex court is to set out an “analytical
approach” that they must follow in “bal-
ancing the interests in disclosure with
the countervailing privacy interests”.
The Supreme Court decision is only sec-
ondarily addressed to the RTI appellate
authorities. Justice Chandrachud is
most categorical in saying that what
Justices have declared as their assets
“does not constitute the personal infor-
mation of the judges and does not
engage the right to privacy”. But Civil
Appeals Nos 1044 and 1045 of 2010
stand remanded to CPIOs (Central
Public Information Officers), who have
now to examine and apply “the princi-
ples set out in the present judgment”.
Here lies the rub. A 2016 study by
Research, Analysis and Commu-
nications Group and Satark Nagrik
Sangathan demonstrates a situation of
“illegal orders” by RTI Commissions.
Such orders are often found based on:
“inappropriately interpreting the law”
“in violation of specific binding legal
precedents”
“in violation of applicable general
directions given by the Supreme Court
and High Courts”
“exceeding statutory and constitution-
al powers”
“incomprehensible or internally con-
tradictory orders… making it impossible
to either assess the basis of the order, or
sometimes even what has been ordered”.
This is an alarming situation, espe-
cially if true nationwide, and calls for
concerted action by the apex court, RTI
adjudicators and activists.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
JusticeChandrachud(above)saysthata“balance”hastobestruck“creatively”,as
reason“formstheheartofthelaw”.JusticeSanjivKhannadescribedthequestionof
judicialappointments as“oneofthemostdelicateandcomplexareas”.

jaquarlighting.com
CO M M E R C I A L
I N D O O R | O U T D O O R L I G H T I N G
PRICE LIST EFFECTIVE FROM OCTOBER 2018

Courts / Rape Law
24 December 2, 2019
APE cases often involve
complex examination of
facts and evidence to con-
clude whether the accused
is guilty or innocent. Wh-
en rape allegations are ma-
de after a few months of a live-in rela-
tionship between the accused and his
victim, the process of establishing the
guilt of the accused becomes more com-
plicated. After all, the victim had given
her consent for the relationship with her
partner. Therefore, when the live-in rel-
ationship turns sour leading to allega-
tions of rape, should the law distinguish
it from marital rape and deny legal pro-
tection to the accused? Marital rape is
not illegal at present, as the Indian Pe-
nal Code exempts it from the offence of
rape, if the victim is not a minor, as int-
erpreted by the Supreme Court in a
recent case.
Although the facts of the recent case
before the Delhi High Court suggest
that allegations of rape against the
accused followed a consensual live-in
relationship between two adults, Justice
Brijesh Sethi of the High Court refused
to grant relief to the accused and the
complainant, when both reached a com-
promise and married each other after a
few years of the alleged incidents. In
2013, a First Information Report was
registered against the accused under
Sections 376 (punishment for rape) and
380 (theft in dwelling house, etc.) of the
Indian Penal Code. The respondent
admitted that she entered into a live-in
relationship with the petitioner-accused
and moved in with him at his rented
accommodation in Delhi. Within five
months, an altercation took place
between them, and the accused left her.
A complaint was filed by her, resulting
in the FIR and a charge sheet against
the accused.
In her complaint, she mentioned
emotional, physical, mental and sexual
abuse at the hands of the accused. She
also alleged that he stole her valuables
when leaving her. She claimed that she
tried her best to reconcile with him, but
to no avail. During the course of the
trial, the marriage of the petitioner-
accused and the respondent-com-
plainant was solemnised as per Hindu
rituals at a temple in Bengaluru.
However, on account of some differen-
ces and misunderstandings the trial pro-
ceedings continued.
It was submitted before the Delhi
High Court that upon the intervention
A Question of Consent
Whenalive-inrelationshipturnssour,leadingtoallegationsofrape,shouldthelaw
distinguishitfrommaritalrapeanddenylegalprotectiontotheaccused?
By Venkatasubramanian
R
Anthony Lawrence

of friends and well-wishers, both the
parties had resolved the differences and
misunderstanding between them by way
of a settlement deed signed in August
this year. The respondent too had given
her “No Objection” affidavit for quash-
ing of the FIR against the accused and
all proceedings emanating therefrom. It
was submitted before the High Court
that the petitioner and the respondent
had entered into a matrimonial alliance
and their marriage had been duly sol-
emnised and as such no offence under
Section 376, IPC, as alleged had been
committed by the petitioner. It was fur-
ther argued that when the matter had
been amicably settled, the continuation
of proceedings arising out of the FIR
would render the compromise meaning-
less and continuation of the proceedings
would be sheer wastage of precious judi-
cial time and public expenditure.
T
he prosecution submitted that
the quashing of the FIR could
not be allowed in view of the
law laid down by the Supreme Court in
Parbatbhai Aahir @ Parbatbhai
Bhimsinhbhai Karmur v State of
Gujarat, decided in 2017. In this case,
the SC discussed the scope and power of
the High Court under Section 482, Cr
PC, to quash the criminal proceedings
on the basis of settlement in a heinous
or serious offence and laid down the
following law: “In forming an opinion
whether a criminal proceeding or com-
plaint should be quashed in exercise of
its jurisdiction under Section 482, the
High Court must evaluate whether the
ends of justice would justify the exercise
of the inherent power or to prevent an
abuse of the process of any court.”
The Supreme Court held in this case
that the decision as to whether a compl-
aint or FIR should be quashed on the
ground that the offender and victim had
settled the dispute, revolves ultimately
on the facts and circumstances of each
case and no exhaustive elaboration of
principles can be formulated. The Sup-
reme Court held that the High Court
must have due regard for the nature and
gravity of the offence, while dealing with
a plea where the dispute has been set-
tled. “Heinous and serious offences
involving mental depravity, or offences
such as murder, rape and dacoity cannot
appropriately be quashed though the
victim or the family of the victim have
settled the dispute,” the Court observed.
The Supreme Court reasoned that
such offences are, truly speaking, not
private in nature but have a serious
impact upon society. The decision to
continue with the trial in such cases is
founded on the overriding element of
public interest in punishing persons for
serious offences, the Court explained. In
another case decided in 2013, the
Supreme Court had held that in respect
of offences against society, it is the duty
of the State to punish the offender. In
consequence, deterrence provides a
rationale for punishing the offender.
“Hence, even when there is a settlement,
the view of the offender and victim will
not prevail since it is in the interest of
society that the offender should be pun-
ished to deter others from committing a
similar crime,” the Court observed. The
High Court observed that in this case,
the respondent had alleged that she was
deceived by the petitioner and sexual
relations were established between them
on the basis of false promise of marriage
and she was thus subjected to emotion-
al, physical, mental and sexual abuse.
Therefore, the High Court found that
the “offence committed by the petitioner
clearly falls under the category of
heinous and serious one”. The High
Court’s conclusion is premature, as the
trial in this case is not conclusive.
The High Court further made stereo-
typical observations against rape, saying
it “not only causes serious injury to a
woman’s body, her honour and dignity”,
and therefore, “this offence being not
private in nature, but has serious impact
on the society”, cannot be quashed even
if it is settled by the offender and the
victim. The High Court’s conclusions
are, however, debatable. In Baldev Singh
v State of Punjab, the Supreme Court
bench of Justices Markandey Katju and
Gyan Sudha Misra had in 2011 reduced
the period of sentence imposed on three
accused in a gang rape case, taking note
of the fact that the parties had entered
into a compromise, and the accused and
the prosecutrix had subsequently got
married (not to each other), and that the
prosecutrix had two children. The court
took note of the affidavit filed by the
prosecutrix that the accused might be
acquitted and that there was no misun-
derstanding between them. The bench,
however, directed each of the accused to
pay a sum of `50,000 by way of enha-
ncement of fine to the victim, as envis-
aged under Section 376, IPC.
While the facts of Baldev Singh and
the present case before the Delhi High
Court differ, it is clear that in Baldev
Singh, the Supreme Court justified miti-
gating the gravity of the offence, follow-
ing the compromise. On the other hand,
the facts of the case before the Delhi
High Court clearly show that they are
covered under Section 2(f) of the
Protection of Women from Domestic
Violence Act, 2005, which covers live-in
couples as well. As Section 2(f) defines
domestic relationship as one in the
“nature of marriage”, the accused and
the respondent in this case could be
considered to have voluntarily cohabited
and held themselves out to the world as
being akin to spouses for a reasonable
period of time. Besides, the respondent
in this case appears to have had a cha-
nge of mind, and chosen to live with her
former partner, by legally marrying him.
Can the court deny her the right to
marry and live with him again, by apply-
ing the rigours of the IPC?
TheSupremeCourtreasonedthat
suchoffences(likemurder,rapeand
dacoity) are,trulyspeaking,not
privateinnaturebuthavea
seriousimpactuponsociety.

Courts/ NGT/ Drinking Water
OR most urban dwellers,
Reverse Osmosis (RO) puri-
fied water equates with safe
drinking water. However, the
safety bubble is about to
burst. Last May, the National
Green Tribunal (NGT) issued an order
to ban RO purifiers if the total dissolved
solid is less than 500 mg/litre. The
bench headed by Justice Adarsh Kumar
Goel said in its order that the use of RO
systems in areas where the Total Dissol-
ved Solids (TDS) is lower than 500
mg/litre is not only unnecessary but also
harmful.
RO is a water treatment process
which removes contaminants from
water by using pressure to force water
molecules through a semi-permeable
membrane. During this process, the
contaminants present in water are fil-
tered out. RO purifiers are effective in
cleaning contaminants. However essen-
tial minerals like iron, calcium, man-
ganese, fluoride are also removed.
“The use of RO in water where the
TDS is below 500 mg/litre may lead to
weakened bones and related problems
after a certain age, as researchers have
found out,” said Ranjan Panda, convener
of Water Initiatives Odisha (WIO), an
NGO working on water and climate
change issues.
The NGT order also pointed out that
about 80 percent of potable water was
being unnecessarily wasted and directed
the Ministry of Environment, Forest and
Climate Change to prescribe a set of
conditions for RO system manufacturers
to ensure that the recovery of treated
water is at least 60 percent, which
should be eventually enhanced to 75
percent. The green court also impressed
upon the need to use RO wastewater for
cleaning utensils, washing, gardening,
flushing, and so on.
The NGT order was in response to a
case filed in 2015 by Sharad Tiwari, gen-
eral secretary of a Delhi-based NGO. In
his petition, he requested that RO puri-
fier companies should be regulated as
they were responsible for water wastage.
“This is especially alarming in water-
deficient regions and conservation of
potable water is crucial to prevent water
crisis,” he said in his plea.
The NGT order was based on the
recommendations of an expert commit-
tee. The report said that RO technology
is generally not required for places rec-
eiving piped water supply through mu-
nicipalities. As most people are unaware
of the technicalities involved, the NGT
ordered that the government spread
awareness about the ill-effects of water
without essential minerals.
Most experts in the field have sup-
ported the order. “This is a welcome
judgment,” said Panda, adding, “howev-
er, I have my doubts whether it can be
implemented the way it is needed. Es-
pecially because RO filters have got a
huge market push and already entered
into people’s psychology in a big way.
The way water contamination has shot
up, people who can afford RO filters
don’t want to take any risk.”
He added: “But the problem is that
misinformation has been spread by RO
manufacturers and there is absolutely
no counter awareness by the govern-
ment or authorities who supply water.
TheROQuestion
ManyurbanhouseholdshaveinstalledROwaterpurificationsystemstoensureasupplyofpotable
water.Thegreencourthasquestionedtheefficacyofsomesystemsandtakennoteofwaterwastage
By Papia Samajdar
F
Representative Image/ youtube.com
PURIFYING, BUT AT A COST
The demineralisation of water has become a
major issue with RO technology
26 December 2, 2019

required before the notification can be
implemented, the ministry stated.
The Tribunal, however, was in no
mood to relent. It slammed the ministry
for the delay, asking for its reason for
non-compliance. It gave the ministry a
final chance to comply by the end of the
year, failing which officials would be
liable for coercive action.
Dr Suresh Rohilla, director of the
water and Wastewater team at the Cent-
re for Science and Environment, said th-
at the Delhi Jal Board (DJB) carries out
sample water testing at each of its water
treatment plants and also tests 100+
random samples across the city to check
if water quality is being maintained.
“DJB claims to supply water as per
WHO standards,” said Dr Rohilla. The
DJB had collected 545 samples from
across eight zones in Delhi where it sup-
plies piped drinking water. Of those, 27
samples did not meet all the levels, but
518 samples met all the WHO criteria.
“We do have RO purifier in our
home, but I do not mind drinking on
the tap water. We have water supply
from DJB and it is usually safe enough
to drink. The RO purifier came when
we bought the house, I don’t think I
would have bought it separately,” said
Pavitra Goel, vice president at a manu-
facturing firm. Reena Devi, a resident of
Green Park, New Delhi, said, “Until
2017, we were drinking water from the
tap, as water was supplied by DJB.
However, I suffered from recurring
stomach infection, which the doctors
suspected was due to water contamina-
tion. This is when my family installed
the RO. We did a fair amount of
research before buying a water purifier.”
Ramesh Kumar, a technician with
a leading RO purifier manufacturer,
said: “We measure the TDS of the water
supply and set the RO machine accord-
ingly. The technology itself has
advanced. Our latest machines are
equipped to add extra minerals to the
water, to compensate for the loss.”
Panda believes that “boiled water and
simple filters can help but the kind of
contamination our water sources are
exposed to makes it difficult for the co-
mmon people to understand what to do.
Unless we stop water contamination at
the source, things are going to be really
difficult”.
The other problem is wastage of wa-
ter. It is estimated that by 2020, 21 ma-
jor cities will run out of groundwater.
India ranks 120th among 122 countries
in the water quality index. Given the sit-
uation, we need to know that our water
sources are safe and ensure that the
wastage is curbed.
People don’t know about contamination
in a water supply system until a public
health emergency erupts. There is no
way a person can know the water quality
at the point of use unless he has a handy
testing equipment. Currently, we don’t
have any such equipment available at
low cost.” RO manufacturers, represent-
ed by Water Quality Indian Association
(WQIA), without disputing the wastage
issue, claimed that 98 districts in 13
states required these purifiers to ensure
safe drinking water.
T
he implementation of the order
seems questionable as the min-
istry is yet to notify the ban. The
NGT on November 4, 2019, questioned
the ministry’s inaction in carrying out
the order. The ministry had requested
eight months’ time for effective compli-
ance in a September 2019 hearing. This
is procedural time required for any noti-
fication, claimed the ministry in its affi-
davit. The NGT denied the request, call-
ing it unreasonable and detrimental to
public interest.
According to the status report filed
by the ministry, it had asked CPCB to
frame a holistic policy for the use of RO
technology in the country and submit a
draft notification, which is still to see
the light of day. Since issuing a notifica-
tion is a policy-related matter, a detai-
led region-wise consultation would be
TheNGTbenchheadedbyJusticeAdarsh
KumarGoel(above)tooktheenvironment
ministrytotaskfornotimplementingits
orderonROpurifiersandsaiditsattitude
wasdetrimentaltopublicinterest.
Anil Shakya

Column/ Armed Forces Tribunal Maj Gen Nilendra Kumar
28 December 2, 2019
AS the parliament’s effort
to craft a mechanism to
provide speedy and effec-
tive justice to men in uni-
form turned out to be a
flop? In the case of armed
forces, many think it has. And with a
High Court judge being appointed to
head the Armed Forces Tribunal (AFT),
will the scenario be different? Recently,
Justice Rajendra Menon, former chief
justice of the Delhi High Court, was
appointed chairperson of the AFT.
The AFT was set up under the Arm-
ed Forces Tribunal Act, 2007, which ca-
me into force on July 15, 2008. It was
invested with jurisdiction in two areas.
First, it dealt with service matters such
as appointments, enrolments, promo-
tions, seniority, confirmations, suspen-
sions, superannuation, retirement, pen-
sions, summary disposals and trials. The
scope to take up transfer cases is limit-
ed. It also handles disciplinary cases
involving appeals against court martial.
The Tribunal is headed by a chairpe-
rson and has a number of judicial and
administrative members. Former judges
of the Supreme Court and High Court
chief justices are eligible for appointm-
ent as the chairperson. A High Court
judge or a retired one can be appointed
as a judicial member. Serving or former
military officers of the rank not below
major general and equivalent or ex-jud-
ge advocate generals in the army, navy
or air force can be appointed as admin-
istrative members. Members of the Tri-
bunal hold office till age 65 years. Chair-
persons who have been ex-judges of the
Supreme Court hold office till 70 years.
Benches of the Tribunal were initially
set up at only nine locations—Delhi,
Chandigarh, Lucknow, Jaipur, Mumbai,
Chennai, Kolkata, Kochi and Guwahati.
Three more locations were later identi-
fied and hearing of cases was facilitated
at Jabalpur, Jammu and Hyderabad.
The principal bench is located in Delhi.
The AFT Act provides for the Tribunal
ToothlessandinLimbo
ThecentrehadchangedthecompositionandqualificationoftheTribunalbyintroducing
apartintheFinanceAct.Willthishelpitprovideeffectivejusticetothearmedforces?
H
NEW ROLE
Justice Rajendra Menon, ex-chief justice of
Delhi HC, was appointed AFT chairperson
aftdelhi.nic.in

of impending retirements. For a number
of years, the posts of judicial members
remained vacant. High court judges of
good calibre and motivation are reluc-
tant to apply to serve as judicial mem-
bers. The few who do find their appoi-
ntment letters unduly delayed and they
are not called to take up their posts. Due
to non-availability of members, the
authorised number of benches can’t be
constituted to take up pending matters.
The shortage of members is not con-
fined only to the judicial side. Even ad-
ministrative members with the requisite
aptitude and experience are not being
selected. Many among those selected
were found to have no in-service expo-
sure in handling disciplinary cases or
even adjudicating service matters. They
had no notion of what constitutes “per-
sonal interest” or a “speaking order”.
Another hurdle is the performance
and disposal of cases by the benches
even when they are functioning. It was
observed that cases were being taken up
for hearing only till lunch time.
Thereafter, the benches would call it a
day after barely transacting business for
three hours. So, judicial time was not
being fully utilised. There were also
unconfirmed reports of judicial officers
harbouring grudges over the quality of
help received from administrative
members in getting cases marshalled
for inclusion in the judgments.
Another reason was the lack of faith
and confidence among the litigants
about the efficacy of the Tribunal. This
stemmed from non-implementation of
the final orders which could have pro-
vided relief to litigants. A majority of
the cases coming to the Tribunal were
against the Union government, with the
ministry of defence being the respon-
dent. It was observed that the relief and
remedy ordered by the Tribunal to the
aggrieved servicemen and veterans
remained on paper due to lack of
implementation and compliance by the
authorities. Want of adequate contempt
power with the Tribunals rendered
them incapable of getting their deci-
sions implemented. The “toothless
tiger” thus failed to inspire confidence
among the people whose interest it was
expected to judicially serve.
There was also an impression, and
justifiably so, about the defence ministry
exerting undue influence on the mem-
bers to decide matters in a particular
way. The members were subservient as
they were dependent on the government
for all administrative and service sup-
port. It is common knowledge that the
benches have to rely upon the ministry
or the service headquarters for facilities
and support such as orderlies, runners,
vehicles, telephones, etc, and in some
cases, even residential accommodation.
Ad hocism and subjective handling of
the AFT is apparent from the grant of
tenure extension to some members
while denying it to others.
Pendency was also due to poor su-
pport by the panel of lawyers assigned
to represent the central government.
to hold hearings at other stations in the
form of circuit benches.
The need for an AFT arose because
there was no provision for military per-
sonnel to exercise a meaningful right of
appeal. Their complaints and petitions
were decided in-house at the level of
service headquarters or at best by the
defence ministry. Under the previous
regime, they could only submit a peti-
tion which did not afford them a right of
being heard or being represented by a
counsel. There was also frustration due
to the enormous delay in disposal of
cases before various high courts.
H
as the AFT emerged as an
effective justice doer and reme-
dy provider? The aspirations of
service personnel who want to get their
grievances met by a tribunal specially
designed for them have remained
unmet. The number of cases pending
before various benches exceeded 16,000
as on October 1 this year.
There are various reasons for this
sorry state of affairs. The main problem
is shortage of benches. There is only one
bench in Delhi that is available from
mid-December onwards. This is because
TheneedforanAFTarosebecausethere
wasnoprovisionformilitarypersonnelto
exerciseameaningfulrightofappeal.
Theircomplaintsweredecidedin-house
atthelevelofserviceheadquarters.
aftdelhi.nic.in

Most are not conversant with either mil-
itary law provisions or the functioning
of the armed forces. They are usually
selected due to political considerations.
As such, they were of little help to the
benches in the adjudication of disputes.
T
he government had attempted to
change the composition and
qualification of the Tribunal as
also the selection process by way of
introduction of Part XIV of the Finance
Act, 2017, and the rules thereunder.
Part XIV had brought about sweeping
changes to the method of appointment,
terms of office, salaries and allowances
of the members and presiding officers of
a number of tribunals, including AFT.
However, the effort stood negated due to
a recent verdict by a five-judge bench of
the Supreme Court on November 13,
2019, in the Roger Mathew and Kudrat
Sandhu cases (clubbed together in the
Supreme Court and disposed of in one
judgment) which came down heavily
on the attitude and intent of the
government.
The Supreme Court has called upon
the government to constitute a commis-
sion to select members of various spe-
cialised tribunals. The members should
be people with an independent outlook,
integrity, character and good reputation.
Such a commission should be headed by
a retired Supreme Court judge with
another former judge as a member, it
said. Another member could be a retired
chief justice of a high court to be appo-
inted by the chief justice of India. Furt-
her, one member holding the rank of
secretary should be included. He should
also be its ex-officio convener. One
expert member can be co-opted by full-
time members to assist in matters per-
taining to his particular domain.
The judgment in the Roger Mathew
case dealt with the powers of the high
court over AFT verdicts. It had ruled
that “writ jurisdiction under Article 226
does not limit the powers of High Cou-
rts expressly or by implication against
military or armed forces disputes. The
limited ouster made by Article 227(4)
only operates qua administrative super-
vision by the High Court and not judi-
cial review. Article 136(2) prohibits
direct appeals before the Supreme Court
against the judicial review exercised by
the High Court under Article 226”.
Questions have been raised about
this decision. Section 181 of the Finance
Act deals with qualification, terms and
conditions of service of chairpersons
and members of the appellate tribunal.
Its linkage to the AFT was uncalled for
because the AFT has no provision for an
appellate tribunal. Secondly, Section 6
of the AFT Act provides for the qualifi-
cation for appointment of chairperson
and other members. So it is not clear
what was sought to be achieved by intr-
oducing Section 9A in the Finance Act.
The Supreme Court came down
heavily on the executive to strike down
the composition of the search commit-
tees’ scheme. It stated: “The procedure
for selection is fundamentally destruc-
tive of judicial independence. The Union
Government has vital status in the dis-
putes before many tribunals. Even oth-
erwise, conferring upon the government
such a dominating and overwhelming
voice in making appointments is a nega-
tion of judicial independence.”
Will the Roger Mathew judgment
bring solace to aggrieved servicemen
awaiting justice from the AFT?
Hopefully, it will.
—The writer was Judge Advocate
General of the Indian Army and
Director, Amity Law School, Noida
WINDS OF CHANGE
The AFT revision will impact dispute redressal
30 December 2, 2019
Column/ Armed Forces Tribunal/ Maj Gen Nilendra Kumar
UNI

T
ill now, the powers-
that-be seemed un-
concerned about the
virus of fake news, mainly
because a majority of the
opinion targeted those critical
of the Narendra Modi govern-
ment. Now, the shoe is on the
other foot with a letter written and
signed by Modi surfacing in Bang-
ladesh newspapers congratulating
the then Chief Justice of India
Ranjan Gogoi and members of the
Supreme Court bench on the Ayo-
dhya judgment. It was obviously
fake but it forced the government to
issue a clarification and also ask the
I&B ministry to set up a special cell
to track and identify fake news. Post
the Ayodhya verdict, social media
went wild with an image purportedly
on Aaj Tak showing US President
Donald Trump firing gunshots in the
air above the White House and
chanting Jai Shree Ram. No such
footage was aired on the channel
but that is mainly because the fake
news factory has gone unchecked
so far.
N
etwork18, the media group that was
bought over by Mukesh Ambani from
founder Raghav Bahl for integration
with his Jio platform, saw key executives quit-
ting in the last fortnight. They include San-
geetha Aiyer, who was recently elevated as
Head – Marketing, Digital Business. She was
responsible for marketing and brand initia-
tives of Network 18
digital platforms which
include Firstpost,
MoneyControl,
CNBCTV18.com, News18 English and
News18 Vernacular.
Aiyer was followed by Priyanka Kaul, CEO,
Forbes India, and President Marketing, Net-
work18, and Aditi Singh, Executive Vice-
President, Special Projects. The latest casual-
ty is BV Rao, Editor of Firstpost.com. Rao,
who joined Network18 in 2015, is a veteran
journalist and has done a stint as News and
Communication Director at Reliance.
Network Problems
Anchoring the Innings
B
ennett Coleman & Company,
better known as the Times of
India group, is ready for a
makeover…literally. India’s biggest
media group is foraying into the
beauty business with the launch of
its Femina Flaunt salon in Mumbai.
The company says it plans to pro-
vide holistic beauty solutions by ro-
ping in experts from India and ab-
road. The group plans to franchise
100 Flaunt salons in cities across
the country. At the launch last fort-
night, graced by Bollywood star
Kangana Ranaut (below), Times
Group MD Vineet Jain stated: “Our
entry into the beauty segment is in
line with the group’s philosophy of
investing in new and future growth
opportunities.” Earlier, under the
Femina Flaunt brand name, the
group had tied up with Shopper’s
Stop to retail a range of fashion pro-
ducts, from apparel and footwear to
handbags, accessories,
fragrances and eye-
wear.
The Times Group
also entered the educa-
tion sector in 2016 with
the launch of Bennett
University under the
TimesPro banner. The
university, located in
Noida, is modelled on
Ivy League colleges in
the US with the pledge
to make students “life
and career ready”.
Reverse
Swing
Media Watch
Time for Beauty
C
elebrity anchor and owner of India TV
Rajat Sharma is finding himself a
prime candidate to occupy the hot
seat in his popular show, Aap Ki Adalat
where people in the news are grilled on cur-
rent controversies. His alternative career, as
a cricket administrator and president of the
Delhi and District Cricket Association
(DDCA), is now under threat after a full-
blown controversy in full media glare wherein
nine directors of the DDCA apex council took
away his powers to run day-to-day affairs of
the association, leading to his resig-
nation which was withdrawn
shortly after, along with three
professionals he had hired
after coming to power last
year. Despite his closeness to
the power centre, playing
power games on TV and
in the toxic arena
of sports adminis-
tration require dif-
ferent skills.
newspointapp.com

Column/ Doctors/ Communication Dr KK Aggarwal
32 December 2, 2019
ECENTLY, an altercation
took place between acti-
vists of the Karnataka
Rakshana Vedike and a
postgraduate student at
the Minto Ophthalmic
Hospital in Bengaluru over language.
The student did not respond in Kan-
nada to their demand for compensation
for patients blinded during a cataract
camp simply because he did not speak
Kannada. The matter has taken a politi-
cal turn, with doctors going on strike
and demanding enhanced security and
action against the activists. The incident
has sparked a national debate on the
issue of language barriers in medical
education in India.
Admission to medical colleges in
India is based on common admission
tests. The centre allocates seats to stu-
dents in various colleges from an all-In-
dia quota. Unlike Ayurveda where the
medium of education is Sanskrit, in
allopathic medical colleges, it is in Eng-
lish. Even in the Supreme Court, the
language is English. No one should ex-
pect students to learn the local language
as soon as they enter a medical college.
It could be a language they are com-
pletely unfamiliar with.
I did my undergraduation and post-
graduation from the Mahatma Gandhi
Institute of Medical Sciences (MGIMS),
Sevagram, Wardha, in Maharashtra
where the local language was Marathi. I
learnt Marathi during my college days
but only as much as was needed for
patient care. Ward boys and other staff
would be our interpreters if we got
stuck on any word.
However, some European countries
such as Sweden have made it mandatory
for doctors to learn Swedish if they want
to practise there and many Indian doc-
tors have done so by taking a course to
demonstrate that they have reached C1-
level Swedish. In 2010, the Eastern
Mediterranean Health Journal touched
upon the perspectives of students and
staff on language barriers in medical
education in Egypt and their attitude
towards Arabization of the medical cur-
riculum. In a survey of 400 medical stu-
dents and 150 staff members, it was
found that 56.3 percent of students did
Language Barriers
Withdoctorsatthereceivingendofviolence,theirskillsshouldalsoextendtoknowingthree
languagessothatthereisnomiscommunicationabouttheirdiagnosis
R
UNI
PACIFYING PROTESTERS
Police Commissioner, Bengaluru, Bhaskar
Rao asking the doctors to call off their strike

grasp the content.”
In a sign of changing times, the Na-
tional Eligibility Cum Entrance Test
(NEET) 2018 examination was conduct-
ed in 11 languages. While 80 percent of
the students wrote the exam in English,
11 percent did so in Hindi, 4.31 percent
in Gujarati, 3 percent in Bengali and
1.86 percent in Tamil. About 20 percent
of the 1.1 million students who appeared
in NEET wrote in regional languages.
NEET 2019 rules stated that the exam
would be conducted in English, Hindi,
Urdu and eight regional languages
(Bengali, Assamese, Gujarati, Telugu,
Marathi, Tamil, Oriya and Kannada).
The regional language question papers
would be bilingual.
However, it would be a good idea for
all doctors to study one international
language. As medical tourism is on the
rise, that international language should
be English. As it is also the medium in
books and for teaching, they might as
well learn it. To promote medical tour-
ism, the government is also making it
compulsory to have interpreter assis-
tance at all levels. Recently, when I trav-
elled to Japan as president of the Confe-
deration of Medical Associations in Asia
and Oceania, an interpreter was provid-
ed so that I could talk to my Japanese
colleagues. For domestic medical tou-
rism too interpreters should be made
available in the hospital set-up in every
state to facilitate communication bet-
ween doctors and patients.
The second language for doctors to
learn is the one most commonly spoken
in the country. In India, it will be Hindi.
The third language should be the local
language where one is practising. The
students themselves should learn it.
That will be difficult unless the student
devotes a full year to language learning
or there are interpreters in hospitals.
These measures are necessary in
order to stem disputes and arguments
between patients/their families and the
doctor. It is also needed to prevent defi-
ciency in medical treatment due to wro-
ng interpretation of symptoms. This
may lead to wrong diagnosis and wrong
treatment. The National Medical Com-
mission should take these points into
consideration and mandate local inter-
preters in the hospital setting.
Coming back to the violence against
doctors, no one has the right to attack
them for not knowing the local langu-
age. Doctors on duty are akin to pilots
and flight attendants and any distract-
ion from work can affect the pilot and
jeopardise the lives of passengers. Simi-
larly, any distraction in the treatment
provided by doctors because of unlawful
elements should be strictly prohibited
and they should be arrested.
—The writer is President, Heart Care
Foundation of India, and Confederation
of Medical Associations in Asia and
Oceania
Alldoctorsshouldstudyoneinternational
language,English,followedbyHindi,the
mostcommonlyspokenlanguageinIndia.
Thethirdlanguageshouldbethelocal
languagewherethedoctorispractising.
not consider learning medicine in Eng-
lish an obstacle, while 44.5 percent of
the staff considered it an obstacle only
during the first year of medical school.
Some 44.8 percent of students translat-
ed English terms into Arabic to facilitate
studying and 70.6 percent preferred to
learn patient history-taking in Arabic.
While Arabization in general was
strongly declined, teaching in Arabic
was suggested as appropriate in some
specialties.
T
hankfully, India does not have
strict rules on language. Dr OP
Gupta, my Professor of Medicine
at MGIMS narrated what a colleague
had told him. “I was examiner in one of
the colleges of MP where I found that
some students could not communicate
well in English. But when I explained
the questions in Hindi, they answered
them with ease,” he said. So should lan-
guage be a barrier for treatment? No.
Gupta further said: “I had a similar
experience when I used to go as an
examiner for final-year students. Even
when I have a bedside discussion about
a patient with students, sometimes I
have to explain in Hindi. With English
as a medium of instruction in medical
education, a perceptible gap in commu-
nication is noticed. If a learner cannot
understand the language of instruction,
it becomes difficult, if not impossible, to
FOR BETTER SERVICE
Knowing a local language will help doctors
prevent deficiency in medical treatment

Focus/ MP/ New Legislation
ADHYA Pradesh (MP)
Chief Minister Kamal
Nath has proved himself
a canny politician and
someone who knows
how to keep the voters
happy with rights-based initiatives. His
latest offering is the promise of water
and health becoming fundamental ri-
ghts for citizens of the state. His govern-
ment is likely to introduce two pieces of
legislation in the next assembly session
to make this an official policy, thus
becoming the first state to do so.
According to state health minister
Tulsi Silawat, the proposed right to
health scheme will benefit nearly 1.8
crore people. One proposed legislation,
Right to Water, has provisioned a
supply of 55 litres of water per day for
each person.
According to the draft of the other
Bill which will be tabled in the assembly,
the Right to Health will ensure delivery
of basic healthcare services within 3 km,
primary care facilities within 12 km and
treatment of serious illnesses within 50
km (or a one-hour journey) and critical
illnesses with fully skilled specialists
within 150 km. The government will
provide insurance cover to 97 percent of
individuals with a cap of `1.50 lakh. The
remaining three percent will be covered
by a corpus fund. Anyone living in rural
areas will get the same healthcare
facility as his/her urban counterpart.
“We need to increase resources for im-
proving healthcare,” said Additional
Chief Secretary, Finance Department,
Anurag Jain.
Health department sources say once
the Bill on Right to Health is passed in
the assembly and becomes an Act, the
state government will have to put in
place adequate financial and institution-
al arrangements to implement it. The
department is mulling PPP models to
broadbase healthcare expansion.
While fixing the responsibility of the
government regarding healthcare for
citizens of the state, the Bill also speci-
fies the legal consequences if the govern-
ment fails to act. For instance, the next
time there is a dengue or H1N1 out-
break in the state, various departments,
including Health, would be held respon-
sible and face punitive action.
The state government will also set up
forums for grievance redressal with
regard to deficiency in healthcare facili-
ties. “This is a good step. There is a need
to bring a law on the right to health and
healthcare to achieve universal health-
care,” said Amulya Nidhi of Jan Swas-
thya Abhiyan which has been advocat-
ing for the right to health in India. He
said that the organisation had submitted
a draft proposal to the state govern-
ment. Some of the key points proposed
were integration of health guarantee
schemes at the national and state levels,
a separate grievance redressal platform
to cover complaints on denial of servic-
es, negligence and non-implementation
of essential health services, and commu-
nity monitoring of the schemes and
programmes under the National
Health Mission.
The proposed move to legislate on
RighttoHealth
Thestatewillbethefirsttoensurethataccesstoadequatewater
andproperhealthservicesbecomefundamentalrightsforitspeople
By Rakesh Dixit in Bhopal
M
Inarecentmeetingwithseniorofficers,
ChiefMinisterKamalNathexpressed
confidencethattheproposedRightto
WaterBillwillensurerequisitequantity
ofwatertotheurbancitizenry.
34 December 2, 2019

workshop of water scientists, experts
and officials on June 24 to deliberate the
proposed Bill. About 100 water experts,
who have done commendable work in
water conservation, were present,
including Akihiro Natori, a water con-
sultant from Japan, who is working in
Mandsaur and adjoining areas of MP.
Chief Secretary Sudhi Ranjan Mo-
hanty is of the view that there can be no
right without proper legislation, so the
government will soon take steps in this
direction. “MP will become the first
state in India to provide legislated guar-
antee to its citizens on healthcare and
water availability,” he told India Legal.
In a recent meeting with senior offi-
cers, Kamal Nath expressed confidence
that the proposed Right to Water Bill
will be instrumental in ensuring requi-
site quantity of water to urban citizenry.
He said this while reviewing future
plans of the state urban development
department. The proposed Right to
Water Act will also have stringent provi-
sions for preventing wastage of water.
According to a government report,
almost the entire state is facing water
Right to Water is premised on the fun-
damental Right to Life. Minister, Public
Health Engineering, MP, Sukhdeo Panse
said that the Right to Water is a part of
Right to Life enshrined under Article
21 of the Constitution and his state
would be the first in the country to take
this initiative.
H
owever, before enacting the Bill
on Right to Water, the state
government would consult ex-
perts in the field, educationists and get
legal inputs, apart from seeking opin-
ions from beneficiaries. The Public
Health Department had organised a
hindi.indiawaterportal.org
PERENNIAL PROBLEM
Water crisis emerged as a major issue in the
last assembly elections in Madhya Pradesh

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