India Legal - 23 December 2019

NDIA EGALL STORIES THAT COUNT
I
December23, 2019
Hyderabad Encounter: Instant
justice and judicial logjam
CABCoupTheOppositioniscaughtnappingasthecontroversialCitizenship(Amendment)Bill,2019
getsparliamentaryapproval.Theprotestsagainstitsdiscriminatoryclausesexposeitsflawsand
minorityfears.TheSupremeCourtremainstheonlyhopetosalvageIndia’ssecularcredentials
Students protesting
against the Bill
in Guwahati

S expected, the Citizenship (Amend-
ment) Act of 2019 has been challenged
in the Supreme Court by several
groups including the Congress party.
Its leader, Jairam Ramesh, has submit-
ted: “The impugned enactment ex facie violates
the fundamental guarantees under Article 14 as
also Article 21 of the Constitution. Further, the
impugned Act has been enacted disregarding the
Report of the Joint Parliamentary Committee
dated 07.01. 2019 as also the terms of the Accord
between AASU, AAGSP and the Central Govern-
ment on the Foreign National Issue signed on
15.08.1985 (Assam Accord). The impugned Act is
also in the teeth of the law laid down by this
Hon’ble Court in Sarbananda Sonowal vs Union
of India (2005) 5 SCC 665 and breaches the inter-
national obligations approved and agreed by India
through International Covenants.”
This will surely be a seminal case before the
Supreme Court, perhaps more decisive in shaping
the nation’s future than Ayodhya, Shah Bano, or
even the Aadhaar privacy law suits. The approach
taken by the judiciary under the stewardship of
Chief Justice of India (CJI) SA Bobde will test not
only the power of the Kesavananda Bharati case
(a landmark judgment which established the basic
power of the judiciary to review and strike down
amendments to the Constitution enacted by
Parliament which conflicted with or sought to
alter its basic structure) but also the mettle and
sagacity of the judges.
Today, more than ever—with the media’s credi-
bility in question and Parliament in the power grip
of brute majoritarianism—the judiciary’s role as
defender of democracy and the rights of citizens as
laid down in the Constitution of India assumes pri-
mary importance. The Supreme Court often ass-
umes the character of its chief justice. Some time
back, while delivering the annual Ramnath Go-
enka lecture before he rose to the post of chief jus-
tice, Ranjan Gogoi famously said: “We need not
only independent judges and noisy journalists, but
even independent journalists and sometimes noisy
judges” to defend democracy. In a sense, he was
setting the bar for his tenure as CJI. Being a noisy
judge, in his unexplained view, was seen as making
his voice and views heard where it matters—in the
corridors of South Block. Only history will judge
how “noisy” or in-your-face he was in the flurry of
decisions made by the bench he headed during the
last few days of his tenure.
But one thing is certain. During the past three
years, the issue of “constitutional morality” has
dominated much of the debate on matters of
national importance which have dominated the
business of the Supreme Court. There is little
doubt that this matter—should a slugfest begin in
Court on the CAB—will feature prominently as an
argument which will be used by the parties
opposed to the new Act.
India Legal ran a story on remarks made by
Attorney General KK Venugopal warning about
the dangers of spreading the doctrine of “constitu-
tional morality”. Little did we realise that the sub-
ject would give rise to a heated debate—within
the covers of this magazine—between some of
CAB AND
CONSTITUTIONAL MORALITY
Inderjit Badhwar
A
Letter from the Editor
| INDIA LEGAL | December 23, 2019 3
TheCitizenship(Amendment)
Actof2019hasbeen
challengedintheSC.Itwill
surelybeaseminalcase,
perhapsmoredecisivein
shapingthenation’sfuturethan
Ayodhya,ShahBano,oreventhe
Aadhaarprivacylawsuits.The
approachtakenbythejudiciary
underCJISABobdewilltest
thepoweroftheKesavananda
Bharati caseandthemettleand
sagacityofthejudges.

the leading intellectual luminaries of this nation.
The erudite man of letters, Pratap Bhanu Mehta,
has penned a superb essay elsewhere on this subject,
asking simply, what is constitutional morality? He
explains that the phrase “rarely crops up” in discus-
sions within India’s Constituent Assembly. “Of the
three or four scattered uses of the phrase, only one
reference has any intellectual significance. This is, of
course, BR Ambedkar’s famous invocation of the
phrase in his speech, ‘The Draft Constitution’, deliv-
ered on 4 November 1948.” In the context of defend-
ing the decision to include the structure of the admi-
nistration in the Constitution, he quotes at great
length the classicist, George Grote. The quotation is
worth reproducing in full:
“The diffusion of ‘constitutional morality’, not
merely among the majority of any community, but
throughout the whole is the indispensable condition
of a government at once free and peaceable; since
even any powerful and obstinate minority may ren-
der the working of a free institution impracticable,
without being strong enough to conquer ascendance
for themselves.”
What did Grote mean by “con-
stitutional morality”? Ambedkar
quotes Grote again:
By constitutional morality,
Grote meant… a paramount rever-
ence for the forms of the Constitu-
tion, enforcing obedience to autho-
rity and acting under and within
these forms, yet combined with the
habit of open speech, of action sub-
ject only to definite legal control,
and unrestrained censure of those
very authorities as to all their pub-
lic acts combined, too with a per-
fect confidence in the bosom of
every citizen amidst the bitterness of party contest
that the forms of constitution will not be less sacred
in the eyes of his opponents than his own.
Andre Beteille argues in a book that constitu-
tional morality is important for constitutional laws
to be effective. “Without constitutional morality, the
operation of a Constitution tends to become arbi-
trary, erratic, and capricious.” According to a review
in Oxford Scholarship Online, he makes a distinc-
tion between “constitutional democracy” and “pop-
ulist democracy”. He says democracy has survived in
India by moving away from the ideal of a constitu-
tional democracy towards a more populist form. He
looks at the Emergency of 1975-77 to show the con-
nection between anarchy and the abuse of power as
two forces that are both antithetical to constitution-
al morality. He also examines the link between con-
stitutional morality and the principle of civil disobe-
dience, which under the leadership of Mahatma
Gandhi became the cornerstone of India’s national-
ist movement.
I
mmediately before donning the mantle of CJI,
the recently-retired Justice Ranjan Gogoi had
offered some clue as to what the Supreme Court
under him would be like. He too had stressed the
need to revive a national conversation on “constitu-
tional morality”. Stating that people are divided “mo-
re than ever” along the lines of caste, religion and
ideology, Justice Gogoi’s core message was that judi-
cial beliefs must be continuously evaluated on the
touchstone of constitutional morality. He defined
“true patriotism to the Constitution” as adherence to
constitutional morality. For most people inured to
political venality and muscular majoritarianism, that
objective may seem utopian but viewed in the con-
text of recent judgments by the highest court in the
land, it is extremely significant.
Under his predecessor, Chief Justice Dipak
Misra, the Supreme Court had struck down Section
377 of the Indian Penal Code, saying it was uphold-
ing “constitutional morality” and not “majoritarian
morality” while deciding to decriminalise homosexu-
ality. The verdict overruled a previous judgment
which held that only a small number of people were
exercising their rights. As the former CJI said later
at a conference of law students, “it’s not the number
that determines the right. A right permissible under
the Constitution is a right that has to be respected”.
That right was also witnessed in the Supreme
Court ruling on Sabarimala to allow women into the
temple. It was seen as correcting a discriminatory
social and religious practice that was violative of
Letter from the Editor
4 December 23, 2019
A DOCTRINE
TO FOLLOW
Legal luminary,
the late NR
Madhava Menon
(below), political
scientist Pratap
Bhanu Mehta
(bottom left) and
sociologist
Andre Beteille
(bottom right)
have made
significant
observations on
constitutional
morality and its
significance

Part III of the Constitution. Constitutional morality
basically rejects the transactional view of the Consti-
tution or majority opinion which is the key to man-
aging a vast country like India with its diversity of
cultures, communities, castes, religions and customs.
But when Venugopal recently asserted that judi-
cial reliance on this concept could upset the separa-
tion of powers doctrine and sabotage the right of the
legislature to make and enforce laws, Professor
Upendra Baxi, among the tallest in the firmament of
legal luminaries, wrote in India Legal: “Courts are
constitutionally mandated to adjudicate matters
which raise competing contentions regarding core
human rights. Constitutional morality contains a set
of goals and methods by which to address these con-
flicts. The apex court has never said that all public
policy always offends constitutional morality, but
only that the courts must choose the latter when the
two are in visible conflict. The dialectic between
public morality and constitutional morality serves
well the promotion of constitutional good gover-
nance and the production of constitutionally sincere
citizens. I hope that my good friend Venu (KK
Venugopal) finds ample scope for re-examination of
his current expostulations and exhortations.”
W
e also carried another article, posed as a
set of questions by none other than the
late venerable and redoubtable Professor
NR Madhava Menon whose legal scholarship is also
an international phenomenon. I reproduce here his
concluding statement:
“The issue to my mind is not the importance or
relevance of the concept of constitutional morality in
working out the provisions of the Constitution.
Rather, it is about the use and abuse of the doctrine
in constitutional decision-making. No doubt,
democracy as a system of governance may not serve
the constitutional goal always. That is a price society
has to pay for accepting a democratic form of gov-
ernment and polity. The remedy for preventing
majoritarian excesses lies more in cultivating the
natural sentiment of people for maintaining consti-
tutional morality (as Dr Ambedkar seemed to think)
rather than in showing ‘less deference to the legisla-
ture’ in the matter of constitutional values as some
judges seem to think. The ugly consequence which
resulted in forcible enforcement of the Supreme
Court judgment in Sabarimala by a government con-
trolled by a party of ‘non-believers’ cannot be dis-
missed as a conflict between public morality and
constitutional morality. It is indeed a portent of
what the attorney general believed to be the possible
outcome for rule of law and democracy if constitu-
tional morality turns out to be yet another tool be-
yond ‘Basic Structure’ for exercising judicial power.”
Pratap Bhanu Mehta’s brilliant scholarship on
this topic shines as he argues in what could be the
defining statement on the issue—that the Indian
Constitution was made possible by a constitutional
morality that was “liberal at its core”. Not liberal in
the “eviscerated ideological sense”, he continues, but
in the deeper virtues from which it sprang: “An abili-
ty to combine individuality with mutual regard, inte-
llectualism with a democratic sensibility, conviction
with a sense of fallibility, deliberation with decision,
ambition with a commitment to institutions, and
hope for a future with due regard for the past and
present.” In November 1951, Prime Minister Jawa-
harlal Nehru faced an unusual revolt. It was not
from within the Congress party but from six Sup-
reme Court judges. Nehru had wanted to supersede
Justice Patanjali Sastri, the most senior judge of the
apex court, after the sudden death of the first CJI,
Harilal Kania. Nehru was told that all six judges of
the Supreme Court had threatened to resign if
Justice Sastri was superseded, even though he had
only a few months left before retirement. There was,
during the baby steps of the Republic, no set con-
vention regarding the appointment of the chief jus-
tice but after the collective threat, and Nehru’s volte-
face, seniority became the established norm for the
appointment of the CJI. It has also become synony-
mous with the independence of the judiciary.
That independence is now under a litmus test.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
HISTORIC
RULING
The Supreme
Court had struck
down Section
377 of the IPC,
saying it was
upholding
“constitutional
morality” and
not “majoritarian
morality”
Anil Shakya

ContentsVOLUME XIII ISSUE6
DECEMBER23,2019
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Senior Content Writer Punit Mishra
(Web)
6 December 23, 2019
The international community expresses concern over recent initiatives taken by the Indian
government, notably the controversial Citizenship (Amendment) Bill, 2019
Global Criticism of CAB Grows Louder
Petitions in the SC and the Telangana High
Court question whether justice was served by
the killing of the four accused in the alleged
police encounter in Hyderabad. The top court
responds by initiating an inquiry
A Police State?
LEGALEYE
The controversial Citizenship (Amendment) Bill, 2019, gets parliamentary approval but
the violence and protests against its discriminatory clauses expose its flaws and minority
fears. The Supreme Court remains the only hope to salvage India’s secular credentials
Recipe for Chaos 12
16
18
LEAD
Long delays in criminal cases have led to the emergence of retributive justice. While CJI SA
Bobde has said that justice can never be instant, it is time for courts to get their act together
Courting Trouble 22

Removing the limit on
election expenditure by
candidates will not ensure
equity and a level playing
field and cannot alone
bring in electoral integrity
The Big,
Fat Indian
Election 32
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
REGULARS
Ringside............................8
Courts ...............................9
Is That Legal...................10
International Briefs..........35
Media Watch ..................39
Satire ..............................50
Shooting
from the Hip?
In an effort to
reduce pollution
and follow SC
orders, authori-
ties are experi-
menting with anti-
smog guns and
towers. But their
efficacy is still
unproven
48
26
The large-scale absence of MPs from parliamentary standing com-
mittees is disturbing and a remedy has to be found for it. This should
include a proportionate reduction in salary and other allowances
Who Will Bell the Cat?
COLUMN
SPOTLIGHT
OPINION
Despite its constitutional obligation, the centre has lagged behind
in compensating states for their loss of revenue due to GST as it
does not have enough money
Compensation Blues 29
PROBE
After ex-CJI Ranjan Gogoi gave
permission for the prosecution of a
sitting Allahabad HC judge, Justice
SN Shukla, for allegedly taking a
bribe from a medical college in UP,
he was raided, making it the first
such case in India in three decades
In Hot Water 36
FOCUS
The row between actor Shane Nigam and his producers has brought into focus the
increasing incidence of substance abuse in the Malayalam film industry
Tinsel Town in a Fix 42
Rajasthan is famous for its desert
and tiger safaris, but an attempt
to start a cow safari that included
overnight stays at gaushalas has
predictably come a cropper
Moo And
Behold!
Though the Prevention of Sexual Harassment In Workplace Act is a laudable law, much
more needs to be done to make women and even men feel safe at the workplace
Working Towards Change 46
44
STATES
Internet curbs in the
Kashmir Valley have hit
students hard as they
struggle to get study
material, apply to colleges
and appear for competitive
examinations
The Digital
Void 40
SEMINAR
ENVIRONMENT

8 December 23, 2019
Anthony Lawrence
RINGSIDE
Citizenship
(Amendment)
Bill, 2019
Welcome,
Immigrants
(Except Muslims)

In a rare occurrence,
the Supreme Court
recently set aside a
Rajasthan High Court
order that granted bail
to a murder accused.
The apex court said
that the High Court
had failed to furnish
reasons behind its
decision, thus dis-
playing non-applica-
tion of mind to
the seriousness of
the crime.
In a sharply-word-
ed judgment, a two-
judge bench of Jus-
tices DY Chandrachud and Hrishikesh Roy
observed: “It is a fundamental premise of
open justice, to which our judicial system
is committed, that factors which have
weighed on the mind of the judge in the
rejection or the grant of bail are recorded in
the order passed.”
Pointing out that the Supreme Court did
not ordinarily interfere with an order of a
High Court granting bail, the Court said
that merely recording “having perused the
record” and “on the facts and circum-
stances of the case” did not constitute a
reasoned judicial order. Where the discre-
tion of the High Court to grant bail had
been exercised “without due application of
mind,” such an order was liable to be set
aside, the bench noted.
“Questions of grant of bail concern
both liberty of individuals…and the inter-
ests of the criminal justice system. Judges
are duty-bound to explain the basis on
which they have arrived at a conclusion,”
the bench observed.
Courts
—Compiled by India Legal team
Bombay HC seeks
RBI’s response on
Chanda Kochhar
The Bombay High Court sought
the Reserve Bank of India (RBI)’s
response on a plea by former ICICI
boss Chanda Kochhar. She chal-
lenged her sacking as chief exe-
cutive officer and managing director
of India’s second largest private
sector bank on January 30, 2019
and the approval granted to the deci-
sion by the RBI in March 2019.
Kochhar, an iconic banker and
once the poster girl for retail banking
in the country, moved the High
Court against her former employer.
She was asked to leave for her
alleged role in granting out-of-turn
loans worth `3,250 crore to the
Videocon Group, a deal that also
saw her husband, Deepak Kochhar,
making a windfall.
Chanda also claimed that ICICI
denied her remuneration and also
clawed back all the bonuses and
stock options that she received
between April 2009 and March
2018. She also said that her termi-
nation came months after the bank
approved her voluntary resignation
on October 5, 2018, and therefore it
was “illegal, untenable, and unsus-
tainable in law”. The High Court
has asked the RBI to file its reply by
December 16.The Calcutta High Court
commuted the death sen-
tence awarded by a trial court
to a repeat offender under the
Narcotic Drugs and Psycho-
tropic Substances (NDPS)
Act, 1985, on the grounds
that there was no clear, un-
equivocal evidence to show
that the death penalty would
act as deterrence to the com-
mission of a crime.
“...in the absence of clear
and unequivocal evidence
with regard to the deterrent
impact of the death penalty on
crime statistics, I am loath to
impose the extreme penalty
of death...,” a two-judge
bench of Justices Joymalya
Bagchi and Suvra Ghosh
observed and added: “Im-
position of death penalty on
the appellant may or may not
deter others from committing
similar crimes in future. How-
ever, no statistical data or em-
pirical study has been placed
before me on behalf of the
prosecution to conclusively
establish that imposition of
the death penalty would defi-
nitely lead to reduction of
crime committed by others
in society....”
No proof that death penalty is a
deterrent to crime: High Court
Give us the reason: SC to Rajasthan HC
Justice DY Chandrachud Justice Hrishikesh Roy

ISTHAT
What is a floor test in the state
assembly? Why is it held?
A government formed in the state
is asked to take a floor test in the
assembly if there is any doubt
that it does not have the majority
to rule. The modes of casting
votes by elected legislators are
varied. If there is clear indication
of a win, a floor test may take
place through a voice vote or
simply asking the MLAs to raise
their hands. Otherwise, legisla-
tors can be asked to write their
preferences on slips which are
later counted to ascertain majori-
ty. If the majority votes are not in
favour of the government, it falls.
A floor test can also be held
during the tenure of a state gov-
ernment. A chief minister could
be asked to seek a floor test, or a
trust vote to prove his/her majori-
ty in the assembly.
— Compiled by Ishita Purkaystha
A Test Of
Confidence
Is there a difference between an order
and judgment?
Section 2 of the Code of Civil Pro-
cedure, 1908, defines an order, decree
or judgment. An order is the formal
expression of any decision of the
court issued to a party, asking it to
perform a specific action, and can be
issued at any stage of the trial or even
before it. A decree determines the
rights and liabilities of the parties with
regard to the controversy mentioned in
the legal suit. A decree could be pre-
liminary or final. A judgment is the
final decision given by a judge on
a case.
?
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
Who is a pro-tem speaker? What
is his role?
When the newly-elected legisla-
tors assemble in the assembly or
Lok Sabha, a “pro-tem” speaker
is appointed, after agreement
among the elected members of
the assembly/Lok Sabha, to con-
duct business in the assembly or
Lok Sabha till voting takes place
for the post of the speaker and
deputy speaker.
Usually the most senior
member among the legislators is
made the “pro-tem” speaker,
who has a fair understanding of
the proceedings of the assem-
bly/Lok Sabha. The “pro-tem”
speaker administers the oath to
the elected members of the ass-
embly or Lok Sabha, conducts
the floor test and enables the
election of the speaker.
A Temporary
Speaker
10 December 23, 2019
What are the laws that the
speaker can invoke to con-
trol/punish unruly MPs in the
Lok Sabha?
The unruly conduct of mem-
bers poses a challenge for the
speaker to conduct the pro-
ceedings smoothly. However,
he can invoke several rules to
punish the members.
Rule 378 of the Rules for
the Conduct of Business sta-
tes: “The Speaker shall pre-
serve order and shall have all
powers necessary for the pur-
pose of enforcing own deci-
sions.” Rule 373 empowers
the speaker to ask a member
to leave the floor of the House
immediately. Rule 374 enables
him to name an unruly MP,
who disregards his authority,
and on a motion being made,
suspend such a person for the
remainder of the session.
Legal Vocabulary
Uddhav Thackeray after the trust
vote in the Maharashtra assembly
Dilip Walse-Patil was pro-tem
speaker in Maharashtra
Ensuring Discipline

Lead/ Citizenship (Amendment) Bill, 2019
Recipe for Chaos
ThecontroversialCitizenship(Amendment)Bill,2019,getsparliamentaryapprovalbut
theviolenceandprotestsagainstitsdiscriminatoryclausesexposeitsflawsand
minorityfears.TheSCremainstheonlyhopetosalvageIndia’ssecularcredentials
By Neeraj Mishra

T was a fiery debate watched by
millions across the country as the
Opposition led by the Congress and
TMC attacked the BJP government
for one of the most contentious and
divisive bills ever introduced in the
Indian parliament. In the Lok Sabha,
Asaduddin Owaisi tore up a copy of the
Bill, calling it anti-Muslim and the “first
step towards a totalitarian and tyranni-
cal state”. Congress President Sonia
Gandhi termed it a “dark day in the con-
stitutional history of India,” while TMC’s
Derek O’Brien said the Bill was “taken
from the Nazi playbook”.
The Opposition, however, is also to
be blamed for being ill-prepared to take
on the BJP. After CAB 2016 faltered in
the Rajya Sabha, in 2018, the Opposi-
tion could have initiated a nationwide
debate and approached the courts. Un-
ion Home Minister Amit Shah mounted
a stout if unconvincing defence, insist-
ing the Bill was not anti-Muslim and
declaring its passage “historic”.
That it is discriminatory and lacks
constitutional morality was obvious
from the communality of critical opin-
ion in the national newspapers, with
The Indian Express terming it “poiso-
nous” and concluding its lead edit with
these lines: “Now, the judiciary must
rise again to the Constitution’s defence,
as it has done at several turning points
before, and protect the spirit of the
Republic: its very soul.” Shorn of the
I
ANTI-FOREIGNER SENTIMENT?
(Clockwise from left) Assam has witnessed violent protests against the Citizenship
(Amendment) Bill, 2019. More than 20 people have been injured and public property
vandalised; the Union Home Minister defending the Bill during the debate in the Lok Sabha
UNI
UNI

Lead/ Citizenship (Amendment) Bill, 2019
political rhetoric, the Citizenship (Am-
endment) Bill (CAB), 2019, is about the
exclusion of Muslims from those seeking
refuge in India, it’s blatantly about opp-
osing Islamic nations and their policies;
it’s about uniting the Hindu world. Even
as the Northeast and Assam burnt fol-
lowing widespread protests, Prime Min-
ister Narendra Modi went on the offen-
sive before the Bill was introduced in
the Rajya Sabha, saying: “Some people
are talking like Pakistanis.”
Opposition leaders are confident that
the CAB will be stalled or struck down
by the Supreme Court as being uncon-
stitutional. Back in 1981, the Supreme
Court had reiterated lucidly in RK Garg
vs Union of India on an issue involving
Articles 14 and 15. Article 14 is perhaps
the shortest, plainest and most loaded
Article in the Constitution and states
simply: “The State shall not deny to any
person equality before the law or the
equal protection of the laws within the
territory of India....” This covers almost
every act or policy matter where dis-
crimination can be imagined on the
basis of religion, gender, place of birth
or any classification that the State might
seek to create. This became the basis
for caste-based reservation. It has also
become the basis of the Opposition’s
objection to the CAB which says that
by leaving out Muslims—Ahmediyas,
Boras, Baluch Pathans and Rohingyas—
from the definition of “minority”, a rea-
sonable classification has not been
drawn. Second, by ignoring refugees
from Nepal, Myanmar and Sri Lanka, a
classification of “neighbouring coun-
tries” has been conveniently ignored.
F
ormer CJI RM Lodha has already
expressed his opinion, saying the
Bill might fail on the touchstone
of “reasonable classification” as it seeks
to differentiate between minorities even
within the countries that it seeks to add-
ress. The Bill has reduced the waiting
period for refuge-seekers from 11 to six
years of stay in India. It’s obvious that
the claims of Muslims who may have
escaped to India from these countries
years ago don’t stand a chance as a “per-
secuted group”. Others similarly placed
may get that benefit so the test of
“equals cannot be treated unequally”
also fails.
The 2016 CAB had failed and the les-
sons learnt from that have been incorpo-
rated in the new Bill. For instance, the
advisers to the government have clearly
helped it devise what it thinks is a “rea-
sonable classification” by including
Christians. Former Solicitor General
Harish Salve had been taken into confi-
dence and he is of the view that it’s a
reasonable classification to say “perse-
cuted minorities of countries which pro-
fess Islam”. Salve also says that: “To say
that Sri Lanka and Nepal and Myanmar
have not been included is not correct.
The objective of the Act is clear; to help
the persecuted minorities of the three
Islamic countries.” Where the govern-
ment may score over its detractors is
that Articles 15, 21, 26, etc, are applica-
ble only to those who are already citi-
zens of India and have little impact on
deciding who could become a citizen.
Ahmediyas may be a persecuted mi-
nority but they exist within the larger
fold of Islam and if one were to extend
that argument then even Shia-Sunni dif-
ferences may have to be taken into acc-
ount. It may then extend to those Mus-
lims who settled in Pakistan from India
and are called Mohajirs. The govern-
ment may say that it arrived at a reason-
able rational classification, going by the
share in population as well as what
these countries’ data reflects. As for the
Muslims and those who want to come in
as refugees or become citizens, there are
other opportunities such as political asy-
lum and Section 7 of the Act itself.
Whilecriticisingthepassageofthe
Citizenship(Amendment)Bill,2019,in
Parliament,CongressPresidentSonia
Gandhisaiditwasa“darkdayinthe
constitutionalhistoryofIndia”.
DuringthedebateintheLokSabhaonthe
controversialBill,AIMIM’sAsaduddin
OwaisitoreupacopyoftheBill,callingit
anti-Muslimandthe“firststeptowardsa
totalitarianandtyrannicalstate”.
TMC’sDerekO’BriensaidtheBillwas
“takenfromtheNaziplaybook”,adding:
“ThePMsaidthiswillbewritteningold-
enletters.Iwilltellyouwhereitwillbe
written....InKarachi,onJinnah’sgrave.”

The Supreme Court may apply the
test of Article 14 and decide that equals
are not being treated equally. There can-
not be any differentiation amongst those
who are being persecuted and religion
cannot be the only criteria for such clas-
sification. The Bill also fails on the
touchstone of leaving out the Sri Lankan
Tamil Hindus who have been living in
the country for the past 30 years or
more. They had been persecuted by the
Buddhist-majority state. Why the
AIADMK has supported the Bill rem-
ains a mystery as it is likely to lose a
substantial chunk of its support base in
Tamil Nadu. The DMK, of course, has
been vocal in its opposition as it has
been its longstanding demand in favour
of the Sri Lankan Tamils. There is also a
huge number of Tibetan settlers in India
but they are not from the three coun-
tries mentioned in the CAB and so their
status quo remains despite the inclusion
of Buddhists.
The home minister himself pointed
out that on several occasions, Bangla-
deshis, Sikhs, Tibetans, Ugandans, etc,
have been settled by the previous gov-
ernments through an executive order. It
then defeats the very purpose of the
amendment. If people have been settled
in the past without much ado then it
can be done now as well. The CAB and
its sister concern, the NRC, may then
only be an expensive exercise which the
nation can ill-afford. The courts may
also seek answers to why the natural
resources of a local indigenous popula-
tion are shared with people who chose
to stay back then? It will definitely seek
an explanation as to why the amend-
ment does not explain who is a “perse-
cuted person”.
It’s not just the CAB at stake here.
It’s a well-directed message: for more
than 20 crore Muslims in India that In-
dia or Bharat may no longer be a hos-
pitable place. The RSS has always talked
of an Akhand Bharat which spreads
from Afghanistan to the Northeast, in-
cluding Bangladesh. It may not be in a
position to change the geography of
South Asia but it can certainly tamper
with the demography. It wants India to
become an exclusive Hindu homeland.
That suits it both politically as well as
ideologically. After all, the two-nation
theory was first propounded by Savarkar
and the continuous cacophony of “Pak-
istan Bhejo” may become shriller. The
CAB is the weapon that will strike at the
very notion of India and its wounds will
be difficult to heal. The word “secular”
which was added to the Constitution in
1976 may become meaningless.
W
orse still, the CAB may be an
encouragement for neigh-
bouring Islamic countries to
move in a similar direction or be lab-
elled “unable to protect Muslim popula-
tion in south Asia”. Pakistan has already
made it an international issue and with
some influential organisations in the US
and the EU taking a stand against the
CAB and Kashmir (see following story),
the BJP is walking a dangerous path,
but with the confidence that it will earn
electoral dividends. The CAB is only the
latest in a series of moves that expose its
Hindutva agenda. It has reduced the
only Muslim-majority state, Kashmir, to
a Union Territory with a geographically
limited area by deliberately separating
Muslim dominated regions of Ladakh
from it. The National Register of Citi-
zens was the next step and the strong
reactions in Assam and Bengal will
ensure that those areas remain plagued
by constant strife along with Kashmir
and the Northeast. The Northeast has
been on the boil even before the Bill was
passed in both the Houses. What needs
to be appreciated is that each state of
the Northeast has its own concerns.
Three states were protected by the Inner
Line Permit (ILP). It has also been ex-
tended to Manipur by Shah. Now
Tripura and Meghalaya also want the
same regulations.
Shah says that Schedule 6 of the
Constitution also protects three districts
in Assam. The amendment to the Bill of
course does not say all this. It is also
silent on the areas in Chhattisgarh,
Jharkhand and Odisha which come un-
der the same Schedule. Assam’s pros-
pects are even more worrying. Already
reeling under the impact of a botched
NRC, it will now have to deal with the
CAB which will likely force settlers like
Chakmas from out of neighbouring
states into their land. The Assamese are
clear: they don’t want Bangla settlers,
whether Hindu or Muslim. That may be
the position in the rest of India. Already
short on resources, can India afford
more settlers in a country so full of in-
land refugees? Biharis are refugees
everywhere, UP bhaiyas in Mumbai,
Kashmiri Pandits in Delhi and Jammu,
adivasis dispossessed of land in all ur-
ban areas. No one asked Shah to explain
how he proposes to look after their eco-
nomic welfare and what benefits these
supposedly persecuted people will bring
to this country. For the moment, of
course, there is the CAB and only the SC
stands between it and a rude return to
the horrors of Partition.
Oppositionleadersareconfidentthatthe
CABwillbestalled/struckdownbytheSC
asbeingunconstitutional.TheCourtmay
applythetestofArticle14anddecide
thatequalsarenotbeingtreatedequally.

Lead/ Pressure on India
NDIA is on the back foot over a
number of issues that the Modi
government has been pushing in its
second term in office. Foremost
among them are the decision to
amend the 1955 Citizenship Act,
which has been criticised by the influen-
tial US House Foreign Affairs Comm-
ittee, and abrogation of Article 370. The
Citizenship (Amendment) Bill (CAB)
has caused an uproar with the interna-
tional community ringing alarm bells
over making religion the basis of granti-
ng citizenship. For a secular, democratic
nation like India, this is a huge step
backwards, according to liberals in India
and abroad. Add to this the decision to
update the National Register of Citizens
(NRC) in Assam and to replicate this
across the country and a potent potion
is being brewed by the government.
In a recent statement released by the
US State Department on the new citi-
zenship law, the Donald Trump admin-
istration requested the Narendra Modi
government to protect the rights of the
religious minorities in India according
to its “Constitution and democratic val-
ues”. The statement said that respect for
religious freedom and equal treatment
under the law “are fundamental princi-
ples of our two democracies”.
The latest criticism is significant con-
sidering that the relationship between
India and US were on an upward trajec-
tory. “Religious pluralism is central to
the foundations of both India and the
United States and is one of our core
shared values. Any religious test for citi-
zenship undermines this most basic
democratic tenet,’’ the US House
Foreign Affairs Committee had said in a
statement. This Committee is a biparti-
san panel and plays an important role in
foreign policy. Delhi has so far not react-
ed to the statement. The US Commi-
ssion on International Religious Free-
dom (USCIRF) went a step further. It
said that the attempt to change the basis
of citizenship in India is a “dangerous
turn in the wrong direction”. USCIRF
had said that if CAB was passed, it wo-
uld seek to sanction Union Home Min-
ister Amit Shah, the prime mover of the
Bill. USCIRF is the same panel that
ensured that Narendra Modi was not
allowed to set foot on US soil following
the 2002 Gujarat riots when he was
chief minister. It was much later, in fact
Global criticism
of CAB grows louder
Theinternationalcommunityexpressesconcernoverrecentinitiativesbythe
Indiangovernment,notablythecontroversialCitizenship(Amendment)Bill,2019
By Seema Guha
I
UNI
TESTING TIMES
Indo-US relations could be altered adversely

just before the 2014 elections, that these
restrictions were removed by the US.
USCIRF’s demand is unlikely to be
conceded by US President Donald
Trump. USCIRF, a bipartisan federal
government entity, was established by
the US Congress and reports on threats
to religious freedom in countries across
the world. It makes recommendations to
the president, secretary of state and the
Congress. The external affairs ministry
reacted sharply to USCIRF’s criticism,
dubbing it “neither accurate nor war-
ranted”. Its spokesman, Raveesh Kumar,
further said: “The position articulated
by USCIRF is not surprising given its
past record. It is, however, regrettable
that the body has chosen to be guided
only by its prejudices and biases on a
matter on which it clearly has little
knowledge and no locus standi.”
As regards abrogation of Article 370
and the division of Kashmir into two
UTs, while only Pakistan and China
have protested, restrictions on commu-
nication and movement in the Valley are
of concern to the world. Human rights
violations in Kashmir and elsewhere in
India are now a talking point. The gov-
ernment has maintained that scrapping
of Kashmir’s special status is a historical
wrong which is being corrected.
Kashmir, the external affairs ministry
repeatedly says, is an internal matter.
Earlier in the week, Pramila Jayapal,
an Indian American Congresswoman,
introduced a Congressional resolution to
end restrictions on communications in
Kashmir as fast as possible. She advo-
cated the importance of preserving reli-
gious freedom for all residents. The res-
olution was introduced in the US House
of Representatives recently. Republican
Congressman Steve Watkins from Kan-
sas co-sponsored it. It is unlikely that a
resolution like this will persuade the In-
dian government to lift curbs in the Val-
ley considering most Indians have over-
whelmingly supported the abrogation.
It is not just US lawmakers who have
expressed concern over the recent deve-
lopments. EU ambassador to India Ugo
Astuto said: “We are concerned about
the situation in Kashmir...It is impor-
tant to restore freedom of movement
and normalcy in Kashmir.” He clarified
that the October visit of a group of
right-wing Members of the European
Parliament (MEPs) to the Valley was not
“an expression of EU policy decision”.
The group was invited to Srinagar as
guests of an NGO and was flown first
class and put up in five-star luxury. They
had a meeting with Modi. The MEPs
naturally gave the Indian government a
clean chit on Kashmir. On the Citizens-
hip Bill, Astuto hoped that the principle
of equality which is at the core of the
Indian Constitution “will be upheld”.
I
nternational concern over these
issues is growing, and Indian diplo-
mats are working overtime to exp-
lain the government’s position on all of
them. Though administrations have not
publicly voiced their concern, be it Tru-
mp, British Prime Minister Boris Joh-
nson, France’s Emmanuel Macron or
Germany’s Angela Merkel, perhaps they
are being raised behind closed doors.
Trump, facing impeachment charges at
home, has his hands full. But the Euro-
peans, with their strong views on hum-
an rights, would certainly be concerned
and speak to the Indian government pri-
vately on these issues.
But can foreign criticism make a dif-
ference to the Modi government? Unli-
kely. Though the House Foreign Affairs
Committee is influential, it cannot force
Trump to take action. So long as Trump
continues to support Modi for strategic
considerations (to balance China’s grow-
ing power in Asia), Delhi will not be
bothered. In a world which is turning
right-wing, India will likely not be aff-
ected by any kind of sanctions or harsh
public statements from the White
House. Unless the Christian right in the
US, which is part of Trump’s base,
demands action, not much will change.
The danger, however, is the economy.
If India’s economy does not revive, for-
eign investors will have little interest
here. A sinking economy followed by
social upheaval is a recipe for disaster.
Another danger that the international
community, especially the Europeans,
will not brook would be the creation of
lakhs of non-citizens in the country.
This is exactly what will happen once
the NRC is replicated across India.
What happens to those dubbed foreign-
ers? Will they forever be consigned to
living in prison? This large section of
non-citizens, without any political rights
will be the target of majoritarian anger
whenever the mood sets in. Can the
world afford a new set of non-citizens,
considering the plight of the Rohingyas
in Myanmar? These are questions that
the government needs to think through
before announcing populist schemes
like extending the NRC across India. If
it goes ahead with this scheme, Delhi
will expose itself to scathing criticism
worldwide. Sanctions from at least some
of the European nations will follow.
“Weareconcernedaboutthesituation
inKashmir...Itisimportantto
restorefreedomofmovement
andnormalcyinKashmir.”
—EUambassadortoIndiaUgoAstuto

Legal Eye/ Hyderabad Encounter
UNI
OLLOWING the nationwide
outrage over the recent gang
rape and murder of a veteri-
narian in Hyderabad, the four
accused were killed in an en-
counter by the state police.
But what is the legality of the police car-
rying out these extra-judicial killings?
The Hyderabad police said they shot the
four accused at the crime spot, where
they had taken them for reconstruction
of events and recovery of evidence. They
had apparently attempted to escape.
Their killing was widely celebrated but
some human rights organisations
have questioned the police for not hav-
ing conformed to the requirement of
due process.
The Telangana High Court, respond-
ing to a petition by 15 women and hu-
man rights activists, ordered that the
bodies of the four accused be preserved
till December 9. It also directed that the
video of the post-mortem independent
forensic examination by experts from
outside the two states be handed over to
the principal district judge, Ma-
habubnagar, and then to the registrar
general of the High Court. The petition
alleged that Supreme Court guidelines
were violated in the encounter.
The Telangana government consti-
tuted a Special Investigation Team (SIT)
headed by Rachakonda Police Commi-
ssioner Mahesh M Bhagwat to investi-
gate the encounter. A government order
was issued in this regard: “The cause
and circumstances leading to the death
of the four persons should be ascer-
tained with reasons and establish truth
and in view of the fact that the case
requires sustained and focused investi-
A Police State?
PetitionsintheSCandtheTelanganaHighCourtquestionwhether
justicewasservedbythekillingofthefouraccusedinthisgruesome
crime.ThepleasarguethatArticle21wasviolated
By Shaan Katari Libby
F
PLANNED ENCOUNTER? The body of one of the accused in the gang rape and murder of a veterinarian in Chatanpally, near Hyderabad
The Supreme Court and the
Telangana High Court took
identical tough stances in dealing
with demands for an impartial
inquiry into the “encounter
deaths” of the four youths who
allegedly committed the dastardly
crime. The top court grilled senior
advocate Mukul Rohatgi, the
counsel for the Telangana govern-
ment, on the role of the state
InTandem

In the US, there is more than one gun
per person. “In a free and democratic
society, there is going to be a balance
between democracy, freedom and open-
ness, and a police state—and none of
us wants to live in a police state,” said
Brian Dillon, former head of the Met’s
firearms command who now runs the
counter-terrorism consultancy Rubicon
Resilience.
So why is it important to follow due
process regardless of the guilt of the
accused? Article 21 of the Constitution
provides that “no person shall be dep-
rived of his life or personal liberty ex-
cept according to procedure established
by law”. So it is a legal requirement that
the state respect all legal rights that are
owed to a person. Due process balances
the power of the law of the land and
protects the individual person from it.
The government has to go through a
series of legal procedures before it can
take away our “life, liberty, or property”.
Thus, the guarantee of due process is a
very important factor in ensuring that
we actually have individual rights that
are promised to us.
Procedural due process refers to the
constitutional requirement that when
the federal government acts in such a
way that denies a citizen of a life, liberty
or property interest, the person must be
given notice, the opportunity to be
heard and a decision by a neutral deci-
sion-maker. Though Article 21 formally
provides that a person’s life and per-
gation, a SIT is constituted to investi-
gate the case,” the order said.
A petition was also moved by two
lawyers in the Supreme Court question-
ing the legality of the Hyderabad en-
counter. The petitioners, GS Mani and
Pradeep Kumar Yadav, wanted it ur-
gently listed and alleged that the Telan-
gana Police intentionally gunned down
the four accused. Even Chief Justice of
India (CJI) SA Bobde voiced apprehen-
sions over the tendency to seek “instant
justice” and “revenge”. He listed the peti-
tion and informed the petitioners and
the Telangana government that the
Court had requested Justice PV Reddi
to take up the assignment but that he
had declined. The CJI said the Court
would approach another retired Sup-
reme Court judge for the job.
The petitioners sought a CBI or a
SIT probe against Cyberabad Police Co-
mmissioner VC Sajjanar, who is a res-
pondent in the petition. They said the
encounter was a red herring, deliberate-
ly done to turn public attention away
from the police’s inability to prevent
such crimes against women. Another
petition was filed by advocate ML
Sharma which made parliamentarian
Jaya Bachchan a party for “appreciating”
the encounter and Delhi Commission of
Women chairperson Swati Maliwal for
publicly seeking a “quick hanging” of
the accused.
This short-circuiting is omitting
something rather important that is
enshrined in Article 21: due process of
law. It is obvious that due process of the
law was not followed—yet celebratory
reactions from various sections of socie-
ty ignored this. Many questions have
been asked about the encounter. Why
were the police armed? Why did they
not have a stun gun or a taser? This
issue of armed police is one that is
prevalent in some countries and dis-
tinctly absent in others. The UK and
India fall in the latter category. It is cru-
cial that the police remain unarmed for
many reasons. Firstly, nobody wants to
live in a police state. Secondly, there are
potential risks to the public and even
officers who can be killed in the line of
duty. Besides, the art of communication
is one of the best tools, and having a gun
can make a police officer over-confident.
F
rom experience in the US and
other countries, it has been seen
that having armed officers does
not mean that they do not end up get-
ting shot. Out of every 100 people in the
UK, fewer than four owns a firearm,
according to GunPolicy.org, a project
run by Australia’s University of Sydney.
CJISABobde,whilerespondingtopeti-
tionsseekingaprobeintotheencounter,
saidthatthereshouldbeaninquiryinto
thefacts.Abenchheadedbyhimappoint-
edathree-membercommissionledby
formerSCjudgeVSSirpurkar.
police while emphasising
the need for an independ-
ent and unbiased inquiry
into the incident.
The response of the
Telangana High Court Chief
Justice RS Chauhan (left)
was similarly tough and
swift. When a group of
human rights activists wrote
to him seeking the Court’s
intervention into what they
called an “alleged extra-
judicial killing,” Justice
Chauhan directed police and
other state authorities to pre-
serve the bodies of the acc-
used in the case for four
days.
The Chief Justice of India,
SA Bobde, acknowledged as
much on December 11 when
he told the Supreme Court
that he was “seized of the
work the Telangana High
Court was doing”.
—By India Legal Bureau

sonal liberty can be deprived so long as
there is merely a “procedure established
by law”, the doctrine of procedural due
process mandates that this procedural
law must be “fair, just and reasonable”.
To be absolutely certain that the four
accused were, in fact, the rapists/mur-
derers of the vet, a trial should have
been conducted and this would have
happened in a court of law and not by
the police. The police, being an arm of
the civil services, has to be entirely neu-
tral. Substantive due process refers to
the Supreme Court’s examination of the
reasons why the government passed a
law or otherwise acted in a manner
denying a citizen or a group of citizens
life, liberty, or property (regardless of
the procedure the law provides).
The big question here is whether we
in India want to go down the route of
becoming a police state. Do we want
armed policemen amongst us who will-
ingly do the bidding of their superiors?
Originally an Austrian construct, a
police state is a regime which exercises
its powers arbitrarily through the power
of the police force. People living in a
police state may experience restrictions
on fundamental freedoms like free mo-
vement and on freedom to express or
assemble. It refers to regimes that deny
fundamental freedoms to their people,
especially a free press, freedom of ex-
pression and assembly. Such states con-
trol the actions and movements of their
people with the help of repressive police
and security forces that act in an arbi-
trary way.
In a police state, the following are
commonly seen: raids, harassment and
intimidation of dissidents by police, mil-
itarisation of domestic law enforcement,
disproportionate prison sentences for
political activists, creation of new laws
for people because of their political
beliefs, creation of special prison units,
pervasive use of surveillance and crimi-
nalisation of ideology. The US, though
originally modelled on the UK, has cer-
tainly become somewhat of a police
state for many, including legal immi-
grants. So also for African Americans,
Hispanics, and Native Americans. One
does not define a police state as a place
that represses all; it is a place that app-
lies the tools of repression on those who
challenge it. The US legal system has
permitted virtually unlimited and un-
checked police power, including repres-
sive actions against the supposedly con-
stitutionally protected free press.
T
here are several examples of
police states. North Korea has
mass surveillance routinely
employed, including a vast network of
informants who report to the authorities
citizens they suspect of criminal or
abnormal behaviour. China’s construc-
tion of a vast, all-seeing police state in
its fractious far west has triggered a gov-
ernment spending spree worth billions
to firms providing a hi-tech network of
cameras and “re-education” centres. A
country’s responsibility to protect its cit-
izens from attacks that target the gener-
al population and that genuinely endan-
ger public order and the survival of the
state must be proportionate and as nar-
row and targeted as needed to address
the specific threat. What we see in
China, as elsewhere, are overreactions
and vilification of entire ethnic or reli-
gious groups rather than efforts tar-
geting individuals who commit crimes.
The Saudi government’s murder of
Jamal Khashoggi also portrays a police
state action. The Saudis brutally sup-
press women’s rights activists too, espe-
cially after the alleged reforms, and
reform leaders are known to have disap-
peared. More liberal-minded people like
Khashoggi often left the country.
Finally, US studies have shown that
racial profiling means that police with
weapons end up hurting or killing far
more African-American people than
Caucasians. “Hurricane”, a protest song
by Bob Dylan and co-written with Jac-
ques Levy, is about Rubin “Hurricane”
Carter, an American-Canadian boxer
who was wrongfully convicted of mur-
der and released after serving almost 20
years in prison. The song illustrates acts
of racism and profiling against Carter,
which Dylan describes as leading to a
false trial and conviction:
While Rubin sits like Buddha in
a ten-foot cell
An innocent man in a living hell
That's the story of the Hurricane.
We need our Indian police force to
remain unarmed and clearly on the side
of civilians—not kowtowing to the pow-
ers that be. A police force that protects
us and does not intimidate us. Is that
asking for too much?
—The writer is Barrister-at-Law,
Honourable Society of Lincoln’s Inn,
UK, and a leading advocate in Chennai.
With research assistance from Kabilan P
Oneofthepetitions
filedintheSCagainst
theallegedencounter
madeparliamentarian
JayaBachchan(left)a
partyfor“appreciat-
ing”theencounter
andDelhiCommission
ofWomenchairperson
SwatiMaliwalfor
seekinga“quickhang-
ing”oftheaccused.
Legal Eye/ Hyderabad Encounter

Legal Eye/ Hurdles in Justice Delivery
ONG delays in the criminal
justice system are increasing-
ly leading to horrific insta-
nces of society taking the law
into its own hands. The
recent killing in an “enco-
unter” of all the four accused in the rape
and murder of a 25-year-old veterinari-
an in Hyderabad is the latest example of
this and has divided the nation on the
question of justice. What made it more
unpalatable was the kind of voices
raised in favour of the killing, now
under investigation.
Rajya Sabha MP Jaya Bachchan
demanded lynching of the accused in
Parliament and added: “Der aaye,
durust aye (better late than never).”
Former Uttar Pradesh CM Mayawati
praised the Hyderabad police while bad-
minton champions PV Sindhu and
Saina Nehwal tweeted about justice
being served. Those who cautioned
against vigilante justice were drowned
out. The reactions raised serious ques-
tions about faith in the judiciary.
Chief Justice SA Bobde went to the
heart of the issue when he said: “Justice
can never be instant. I believe justice
loses its character as justice if it
becomes revenge.” He added: “Recent
events in the country have sparked off
the old debate with new vigour. There
is no doubt that the criminal justice
system must reconsider its position,
must reconsider its attitudes, towards
time, towards laxity, and towards the
eventual time it takes to dispose of a
criminal matter.”
Former Supreme Court justice
Madan Lokur, in a hard-hitting column
in a national newspaper, wrote: “Can we
Courting
Trouble
Longdelaysincriminalcaseshaveledtotheemergenceof
retributivejustice.WhiletheCJIhassaidthatjusticecan
neverbeinstant,itistimeforcourtstogettheiracttogether
By Nupur Dogra
“Justicecanneverbeinstant.Ibelievejusticelosesits
characterasjusticeifitbecomesrevenge.Recenteve-
ntsinthecountryhavesparkedofftheolddebate...”
—ChiefJusticeofIndiaSABobde
L
Photos: Anil Shakya

be brutally frank and admit that the
criminal justice system (not the entire
judicial system) has collapsed, or is it
still on the precipice?” adding: “Delays
are endemic and go to such an extent
that in a criminal case, the trial court
granted a staggering 94 adjournments!”
He also asked readers not to forget
that “our society is governed by the rule
of law and a progressive Constitution
where everyone is presumed innocent
till proven guilty through a fair trial”.
A glaring example of justice delayed
and denied is the infamous Nirbhaya
case. It has been seven years since that
brutal incident and her parents are still
fighting for justice. Is it any wonder
then that her mother, Asha Devi, said
after the Hyderabad encounter: “I am
extremely happy with this punish-
ment...I demand that no action should
be taken against the police personnel.”
Her angst is understandable.
According to the National Judicial
Data Grid, there are over 3.53 crore
pending cases in our courts. District and
subordinate courts account for 87.54
percent of these. In High Courts, there
are 49 lakh pending cases.
This huge backlog is primarily due to
shortage of judicial personnel.
According to the India Justice
Report: “At an all-India level, in 27
states and UTs there is just one subordi-
nate court judge for over 50,000 people.
This includes 17 of the 18 large and mid-
sized states, where 90 percent of the
country’s population resides. But in five
of these states, the ratio exceeds one
judge per lakh population at the subor-
dinate court level.”
The report states that not a single
high court or subordinate court is work-
ing at its full capacity. Under Articles
233 and 235 of the Constitution, high
courts have absolute control over dis-
trict and subordinate courts’ adminis-
tration and are vested with powers to
appoint judges. According to All India
Judges Association vs Union of India
(2010) which came up before the apex
court, 10 percent of all posts are filled by
competitive examinations, 25 percent
through direct recruitments from the
Bar Council of India and 65 percent
through promotion from the cadre of
civil judges. None of the three are work-
ing efficiently and the recruitment
process is often marred by corruption
cases and other malpractices.
I
n 2013, the UP Public Service
Commission (UPPSC) asked 15 fac-
tually incorrect questions in the
Provincial Civil Service-Judicial exam.
In the last six years, the UPPSC has
postponed, cancelled or reviewed 16
examinations. Recently, the examination
controller at the UPPSC was arrested
for conniving with the printing press
and leaking papers. In Haryana, the
recruitment process has not been done
for the last three years. In 2017, the
Haryana High Court had to scrap the
preliminary exam due to a paper leak.
In 2018, the High Court again came out
with an advertisement for vacancies but
only nine candidates qualified in the
mains examination for 107 posts. These
delays have led to the piling up of vacan-
cies and cases. There is also no unifor-
mity across states in their recruitment
process. Age, qualifications, syllabus and
exam patterns differ in every state. In
Rajasthan, a 21-year-old who never
represented a client has become a
PAINFUL DELAYS
Litigants waiting at a district court

Legal Eye/ Hurdles in Justice Delivery
judge. In Punjab, the minimum age to
become a judge is 23 years, while in
Karnataka it is 25 years. The process of
recruitment too varies. While in Kerala
a written exam is followed by an inter-
view, in UP there is a preliminary exam,
a mains exam and an interview. This
results in the varying quality of judges
in the states.
A
nother hurdle in attracting
young talent to high courts is
the age barrier for appearing in
exams. Currently, an advocate who has
practised for a minimum of seven years
is eligible to appear for the examination
for the post of district judge. Former
CJI PB Gajendragadkar had observed
that mostly unsuccessful lawyers opt to
try for the post of a district judge. A
lawyer with a successful practice of
seven to 10 years won’t find the idea of
being a subordinate judge and getting
transferred from time to time attractive,
he said. Justice Jasti Chelameswar,
while giving his dissenting statement in
the five-judge bench Supreme Court
judgment that struck down the NJAC
Bill, argued: “This provision, could have
acted ‘as a check on unwholesome
trade-offs within the collegiums and
incestuous accommodations between
Judicial and Executive branches’.” He
went on to quote Ruma Pal, a former
Supreme Court judge: “Consensus
within the collegiums is sometimes
resolved through a trade-off resulting
in dubious appointments with disas-
trous consequences for the litigants
and the credibility of the judicial sys-
tem. Besides, institutional independ-
ence has also been compromised by
growing sycophancy and ‘lobbying’
within the system.”
The idea of an All India Judicial
Services (AIJS) has been discussed fre-
quently in India yet no concrete action
has been taken. A centralised recruit-
ment process is seen as a threat to the
independence of high courts and the
federal structure of the country. But is
the AIJS really such a big threat? Justice
Chelameswar, in the same NJAC judg-
ment, had said: “We the members of the
judiciary exult and frolic in our emanci-
pation from the other two organs of the
State. But have we developed an alter-
nate constitutional morality to emanci-
pate us from the theory of checks and
balances, robust enough to keep us in
control from abusing such independ-
ence? Have we acquired independence
greater than our intelligence, maturity
and nature could digest?”
His observations raise serious con-
cerns. In the name of independence of
the judiciary, can we allow inefficiency
to plague the rule of law? Keeping the
quasi-federal structure of our Cons-
titution in mind, the 116th Law Comm-
ission report explains that a centralised
recruitment system won't affect the con-
trol of high courts in the administration
of subordinate judiciary. It adds that an
AIJS would not only help to conduct the
selection process in a fair and transpar-
ent manner but also unburden the
already overworked high courts.
Malpractices, inefficiency, lack of trans-
parency and, above all, inordinate delays
in concluding a case, corrode confidence
in the judiciary. Rule of law as a deter-
rent to crime loses its credibility if the
delivery of justice takes so long. The
Hyderabad encounter will serve as a
constant reminder of that truism.
Pendencyin
lowercourts
Source: National Judicial Data Grid
Bihar| 39.5
Odisha| 38.0
UttarPradesh| 37.8
WestBengal| 32.1
Gujarat| 27.2
Maharashtra|23.1
Rajasthan|22.0
Jharkhand|21.3
Uttarakhand|11.0
Chhattisgarh|10.3
AndhraPradesh| 9.2Telangana| 9.2
MP| 8.1
Kerala| 7.0
Punjab| 2.7
Haryana| 1.1
Sikkim|0.4
Mizoram|10.1HimachalPradesh|11.0
14.1|Goa
21.9|TripuraMeghalaya|26.0
TamilNadu|16.8
Karnataka|13.9
Cases pending in
subordinate courts
for over 5 years
(%, 23 August
2018)
Small states
Large and
mid-sized
states
Aglaringexampleofjusticedelayed
anddeniedistheinfamousNirbhaya
case. Ithasbeensevenyears
sincethatbrutalincidentandher
parentsarestillfightingforjustice.
Rajender Kumar

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November18, 2019
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December16, 2019
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patriarchallawandurbananomie,sucheventswillrecurtocompoundthehollownessof
governanceandrightsinIndia

N December 5, M Venkai-
ah Naidu, chairman of
the Rajya Sabha, con-
vened a meeting of the
chairpersons of all the
standing committees ad-
ministered by the Rajya Sabha Secre-
tariat. This was against the backdrop
of reports of large-scale absence of MPs
from the sittings of these committees.
There was a general consensus at the
meeting that members who were per-
sistently absent from these committees
should be dropped from them after
being duly cautioned.
This action of the chairman, Rajya
Sabha, was predicated by the fact that a
few days ago, there were adverse reports
in the media about MPs and bureau-
crats skipping the meeting of the Dep-
artment-Related Parliamentary Stan-
ding Committee (DRPSC) on Urban
Development on November 15 to discuss
the worsening air quality in the national
capital. As only four out of 29 members
of the Committee drawn from the Lok
Sabha as well as the Rajya Sabha were
present, the meeting had to be called off.
As far as DRPSCs are concerned,
there are 24 of them to oversee all the
ministries and departments of the gov-
ernment of India. Each committee has
21 members from the Lok Sabha and 10
from the Rajya Sabha. Excluding minis-
ters, all the members of both Houses, by
and large, are accommodated on one or
more of these committees.
Who Will Bell the Cat?
Thelarge-scaleabsenceofMPsfromstandingcommitteesisdisturbingandaremedyhastobe
foundforit.Thisshouldincludeaproportionatereductioninsalaryandotherallowances
Column/ Absenteeism in Parliamentary Panels Vivek K Agnihotri
O
PLAYING TRUANT
MPs outside Parliament. They tend to be
lackadaisical in attending meetings of
DRPSCs to discuss important issues
UNI

Out of the 24 committees, eight are
serviced by the Rajya Sabha secretariat
and 16 by the Lok Sabha secretariat.
Accordingly, eight committees are chai-
red by members of the Rajya Sabha and
16 by those of the Lok Sabha. The chair-
persons of these committees are appoin-
ted by the chairman, Rajya Sabha and
the speaker, Lok Sabha, as the case
may be.
However, the committee system of
the Indian Parliament does not begin or
end with the DRPSCs. There are a large
number of other standing committees,
some of them joint, while others are
identical but function independently in
the two Houses. In addition, there are
ad hoc committees too.
The chairman of the Rajya Sabha
had convened a meeting of chairpersons
of all the standing committees within
his purview. In addition to the eight
DRPSCs, these included 10 Rajya Sabha
committees.
Apparently, the situation relating to
absenteeism of the MPs from the com-
mittees is as “severe” as the air quality in
the National Capital Region. According
to the data reported, at the macro level,
28 MPs (of the Lok Sabha and
the Rajya Sabha) out of 248
nominated on the eight
DRPSCs serviced by the Rajya
Sabha secretariat, had not att-
ended even a single meeting
since their constitution in Sep-
tember 2019. A hundred MPs
had skipped two or more suc-
cessive meetings of their res-
pective committees. On the po-
sitive side, 18 MPs (including
eight chairpersons) attended all
the meetings of their committees.
T
he issue of members attending
the meetings of committees, par-
ticularly DRPSCs, has come to
the fore against the backdrop of the
opposition parties’ constant criticism
that the government was bypassing all
parliamentary scrutiny of bills by not
routing them via the DRPSCs, which are
regarded as mini-parliaments. Here,
members are able to deliberate on issues
without the constraint of the party whip
as well as the prying scrutiny of the
media. Very often, the recommendations
of these committees, by way of amend-
ments to legislative proposals, are acc-
epted by the government. Hence the
need for the members to attend these
meetings and make collective contribu-
tion to improve the quality of parlia-
mentary legislation. In the meeting of
chairpersons of the committees con-
vened by the chairman, Rajya Sabha, he
made an important observation. He said
that since not all MPs are represented in
each of these mini-parliaments, every
member of a committee represents the
voice of 25 MPs.
As far as imposing of sanctions on
MPs who wilfully default in attending
the meetings of the committees, is con-
cerned, the rules of the two Houses have
very specific provisions. Omnibus Rule
260 of the Rules of Procedure and Con-
duct of Business in the Lok Sabha says
that if a member who is elected to the
committee is absent from two or more
consecutive sittings without the permis-
sion of the chairperson, a motion may
be moved in the House for his “dis-
charge” from that committee. This rule
is applicable to all committees in which
the members of the House participate.
However, if a member is nominated to
the committee by the speaker, he may be
discharged by him too.
As far as the Rajya Sabha is con-
cerned, a similar rule (75) in the Rules
of Procedure and Conduct of Business
in the Council of States (Rajya Sabha)
provides for “discharge” of a member
of a Select Committee on Bills, with
the approval of the Rajya Sabha. This
provision is applicable to the members
of DRPSCs administered by the
Rajya Sabha.
Prima facie, the rules appear to be
very strict, but there are escape routes.
A member can avoid discharge if he is
absent with the permission of the chair-
person. Secondly, in case of appoint-
ment to a committee though election
(e.g. Public Accounts Committee and
Select Committees), a motion has to be
moved in the House; but who would
like to move that motion and annoy
the member?
The malaise of absenteeism is, how-
ever, not confined to the committees of
Parliament only; it goes much deeper as
two recent occurrences have highlight-
ed. Delivering the first Arun Jaitley
Memorial Lecture instituted by Delhi
University on October 29, 2019, Ven-
kaiah Naidu had expressed concern over
poor attendance of lawmakers in the
House. He urged that political parties
need to evolve a “roster system” for
ensuring attendance of at least 50 per-
cent of their members in the legislatures
all through the proceedings of the
“Hon’blemembers,Iamsorry,Ihavetomake
anobservation.Thisishappeningtimeand
again…Afterhavingaskedthequestionifthey
areabsent,itisasorrystateofaffairs.”
—MVenkaiahNaidu,whenMPswantedduring
QuestionHourintheRajyaSabhawereabsent

Column/ Absenteeism in Parliamentary Panels/ Vivek K Agnihotri
House every day to address the issue of
lack of quorum. Again on December 2,
2019, as many as six out of 15 MPs,
against whose names questions for oral
answer were listed in the Rajya Sabha,
were found absent during Question Ho-
ur. Venkaiah Naidu observed: “Hon’ble
members, I am sorry, I have to make an
observation. This is happening time and
again…After having asked the question
if they are absent, it is a sorry state
of affairs.”
In a study (The Parliamentary Man-
date) conducted by the Inter-Parliamen-
tary Union in 2000, it was found that
forfeiture of part of a member’s salary
(or supplementary allowances) is un-
doubtedly the most common penalty for
absence without a valid reason. This was
done in Costa Rica, Cyprus, France, Ga-
bon, Germany, Guatemala, Hungary,
Jordan, Luxembourg, Paraguay, Poland,
Republic of Korea, Spain and Uruguay.
In India too, the defaulting member
loses his sitting fee, but not any part of
his salary or other allowances. Deputies
in the French National Assembly who
participate in less than two-thirds of
open votes during a session have one-
third of their salary docked for a period
equal to that of the session. Failure to
attend more than one-third of commit-
tee meetings during a session may also
entail financial penalties.
Absence without a valid reason also
invites disciplinary action in some coun-
tries (e.g. Lao People’s Democratic Rep-
ublic and Gabonese Senate). In Benin,
in the event of repeated absence for one-
third of the meetings held during a ses-
sion, members may be suspended for
one year. Definitive forfeiture of a man-
date is less frequent but nevertheless
quite common, particularly in countries
with a British parliamentary tradition,
including India (Article 101 (4) of the
Constitution). It also exists in Armenia,
Austria, Japan, Thailand and Turkey.
Turkish members who have been absent
without a valid reason for five sittings
during a one-month period may be
expelled by the assembly.
What then is the remedy for the
Indian malady? Naming and shaming,
as Venkaiah Naidu did by sharing the
data with the media, is only the begin-
ning. Moreover, in addition to non-pay-
ment of sitting fee for the days of ab-
sence, a proportionate deduction from
the salary and other allowances should
automatically follow. Absence, with or
without permission, from more than five
consecutive sittings should entail dis-
charge from the committee. Absence
from the sittings of the House for more
than one year continuously, with/with-
out permission, should result in the seat
of the member being declared vacant.
Perhaps that is the only way to tackle
such truancy.
—The writer is a former
Secretary-General, Rajya Sabha
Whatistheremedyforabsenteeismby
MPsinIndia?Besidesnamingandsham-
ing,thelawmakerscouldbedischarged
fromcommitteesiftheyarefoundabsent
formorethanfiveconsecutivesittings.

Opinion/ GST Sumit Dutt Majumder
HE non-payment of a sub-
stantial amount of the
promised compensation
cess by the centre to the
states has taken away the
sheen from the much-
acclaimed spirit of cooperative federal-
ism in the context of the Goods and
Services Tax (GST).
It was in 2006 that negotiations
started between the centre and the
states for finalising the form and struc-
ture of GST under the auspices of the
Empowered Committee of State Finance
Ministers. It was headed by Dr Asim
Dasgupta, then West Bengal finance
minister. From the beginning of the
negotiations, a bone of contention was
payment of compensation to the states
by the centre on account of the appre-
hended loss of revenue due to GST.
During the UPA rule, when the nego-
tiations started, the government was
appreciative of the apprehensions of the
states and was ready to compensate
them through a suitable means to be
determined later. But the states
demanded that the promise of compen-
sation be put in the Constitution. The
UPA government refused and the nego-
tiations suffered. In order to break the
stalemate, a Constitution Amendment
Bill for introduction of GST sans the
clause for compensation was presented
in Parliament in March 2011 by Pranab
Mukherjee, then Union finance minis-
ter. However, it could not be passed due
to strong opposition, led by the BJP.
After the NDA government led
by the BJP came to power in 2014, it
agreed to put the states’ demands for
compensation in the Constitution.
Thus, Parliament passed the amend-
ment Bill and it became the 101st Const-
itution Amendment Act, 2016. It dealt
with the introduction of GST and clearly
covered compensation by the centre to
the states.
Section 18 of this Act that dealt with
“Compensation to States for loss of rev-
enue on account of introduction of
goods and services tax” says: “Parlia-
ment shall, by law, on the recommen-
CompensationBlues
Despiteitsconstitutionalobligation,thecentrehaslaggedbehindincompensatingstatesfortheirlossof
revenueduetoGSTasitdoesnothaveenoughmoney.Thewayoutistoinduceconsumption
T
FIXING THE BUGS
Union Finance Minister Nirmala Sitharaman at
the GST Council meeting in Goa
gstcouncil.gov.in

Opinion/ GST/ Sumit Dutt Majumder
and Refunds”, “Crediting Proceeds of
Cess to Fund” and other issues related to
cess. The Schedule attached to the Act
specifies the list of items with their tariff
headings and the maximum rates at
which GST compensation cess may be
collected. The Schedule includes items
like pan masala, tobacco and cigarettes,
coal, aerated water and motor cars.
Section 7 of the GST Compensation
Act that deals with “Calculation and
Release of Compensation” says: “The
compensation payable to a state shall be
provisionally calculated and released at
the end of every two months period, and
shall be finally calculated for every
financial year after the receipt of final
revenue figures, as audited by the
Comptroller and Auditor-General of
India”. Section 8 authorises the levy
and collection of cess “for the purposes
of providing compensation to the states
for loss of revenue”. Section 10 provides
for crediting the proceeds of compensa-
tion cess to the non-lapsable GST Com-
pensation Fund which will be utilised
for the purpose of payment of compen-
sation to the states.
GST Compensation Cess Rules, 2017
have also been notified for adaptation of
Central GST Rules, subject to certain
modifications. Thus, a bridge was built
between two sets of rules. It is, there-
fore, clear that it is the constitutional
obligation of the centre to compensate
dation of the Goods and Services Tax
Council, provide for compensation to
the States for loss of revenue arising
on account of implementation of the
Goods and Services Tax for a period of
five years.”
Subsequently, Parliament passed the
GST (Compensation to States) Act,
2017. Its broad features are that the cen-
tre would compensate the states fully for
the loss of revenue for five years a day
after the GST was introduced.
In order to fund this, the centre
would levy a cess on demerit goods and
luxury goods that attract a GST rate of
28 percent, in addition to the revenue
collected through the laid down GST
rates. The entire cess amount was meant
to be utilised by the centre to compen-
sate the states.
T
his Act has 14 sections on sub-
jects such as “Projected Growth
Rate” of revenue, “Base Year” for
calculation of the compensation
amount, “Base Year Revenue”, “Projected
Revenue for Any Year”, “Calculation and
Release of Compensation”, “Levy and
Collection of Cess”, “Returns, Payments
“Ifnecessary,theKeralagovernmentwillapproachthe
SupremeCourtunderthearticle131.”
KeralaFinanceMinisterThomasIsaac,inatweet
“ShockingthattheCentreisdelaying
theGSTcompensationamountingto
`4,100croreascompensation&
arrearstoPunjab.UrgePM@naren-
dramodiji&FM@nsitharamanjito
intervene&solvetheproblemwhich
hasthepotentialtobringgovernance
ofthestatetoagrindinghalt.”
PunjabCMAmarinderSingh,inatweet
Photos: UNI

the states every two months. But the
problem is that the centre has not been
able to collect adequate amount of com-
pensation cess which was to be reim-
bursed to the states. In fact, the collec-
tion of GST itself has been significantly
below the target. After the lowest dip of
`91,916 crore in September 2019, GST
collections rose to `1,03,492 crore, but
that was mainly due to the festive
demands of Diwali. It has to be seen
whether this rise can be sustained.
E
conomic slowdown and tax eva-
sion are the two main reasons for
less collection of GST. The first
one led to less consumption and hence,
less supply and less collection of GST.
Substantial evasion of GST, as recently
revealed by the scale of detection of
the evaded taxes, has also dented the
GST kitty significantly. As compensation
cess is also a levy on the “supply” of
goods and services, its collection too has
been hit.
The net result is that the centre does
not have enough money to pay compen-
sation to the states. Seven opposition-
ruled states, including Punjab and
Kerala, recently demanded immediate
payment of pending cess of `50,000
crore lying unutilised with the centre in
the GST Compensation Fund. The states
have said that in addition to the com-
pensation for August-September, that of
October-November is also due. This,
they said, has impacted their public
expenditure as well.
The centre reportedly told the states
that while it will honour the commit-
ment of GST compensation, there will
be a delay due to inadequate collection
of compensation cess.
This is bad news, not only for the
states but also for the economy. There is
no dispute that currently, it is public
expenditure that is driving growth.
Delay in payment or cut-back of the
compensation cess will lead to a cut in
development expenditure by the states.
In fact, states account for a greater share
of total government expenditure.
So a cutback on the compensation
amount will hit the development of
states more and intensify the slowdown
across the country.
The centre seems to be aware of this
critical situation and hence is planning
to discuss ways and means to revive the
economy in the next GST Council meet-
ing, tentatively slated for December, 18.
There is talk of increasing the rate of
compensation cess. There is even a pos-
sibility of rejigging the tax structure by
increasing the GST rates of a few final
products. This has been suggested in
order to avoid the inverted duty rate
structure where the finished product is
exempted or it attracts a lower rate of
GST as compared to the higher rates for
the inputs. In such a situation, the
unutilised input tax credit gets accumu-
lated and becomes a “cost” to the suppli-
er. This sounds good so long as the ben-
efits of credit utilisation are truthfully
passed on to the consumers and there is
no price rise. Otherwise, it will cause
more consumption worries.
The need of the hour is to facilitate
revival of consumption. No step should
be taken where it makes goods and serv-
ices dearer, causing consumption wor-
ries which will, in turn, hit supply and
result in less collection of GST as well as
compensation cess. Keeping this in
mind, any further increase in the rates
of GST or compensation cess would
have its own risks.
The solution will have to be found in
reducing the income tax rate for the
lower and middle income group in order
to give a spurt to consumption. It is uni-
versally known that the moment extra
money is available to both groups they
spend it in purchasing goods and servic-
es. This is unlike those at the upper end
who do not generally invest the extra
money during bad times and prefer to
save it for better times.
As for the demand for extending the
compensation period beyond five years,
i.e. 2022, it’s too early to take a view on
this. This decision can wait till 2021.
—The writer is former Chairman,
Central Board of Excise & Customs, and
author of “GST–Explained for the
Common Man”
Theneedofthehouristofacilitate
consumption.Nostepshouldbetakento
makegoodsandservicesdearer,causing
consumptionworrieswhichwillhit
supplyandresultinlessGSTcollection.
1,20,000
1,15,000
1,10,000
1,05,000
1,00,000
95,000
90,000
85,000
80,000
Apr May Jun AugJul Sep Oct Nov Dec Jan Feb Mar
GSTcollectionsareshortofexpectations
2017-18 2018-19 2019-20
Figures in `Crores
Rajender Kumar

Spotlight/ Electoral Expenses
HE Representation of the
People (Amendment) Bill,
2014, was introduced by
Congress MP Rajeev
Gowda on the ground that
the ceiling on election ex-
penses ends up being counterproductive
and encourages candidates to under-
report their expenditure. The Rajya
Sabha discussed this private member’s
Bill recently. The amendment sought to
remove the limit on expenditure by can-
didates during an election. There was
both support and opposition to it in the
Rajya Sabha.
As of now, a candidate contesting
polls in major states can spend up to
`70 lakh in the Lok Sabha election and
`28 lakh in an assembly election. In Ma-
nipur, Meghalaya, Mizoram, Nagaland
and Tripura, it is `70 lakh and `20 lakh,
respectively, while in Arunachal Pra-
desh, Goa, Sikkim, Andaman & Nicobar
Islands, Chandigarh, Dadra & Nagar
Haveli, Daman & Diu, Lakshadweep
and Puducherry, it is `54 lakh and `20
lakh, respectively. The consensus is that
the limit of `70 lakh is adequate. But
the question is: “Where can an ordinary
person bring `70 lakh from?”
This issue becomes important in the
context of the 2019 Lok Sabha election
being seen as the world’s costliest. Ar-
ound `55,000 crore or $8 billion was
spent during this election, according to
a report by the Centre for Media Studies
(CMS). This is more than the US presi-
dential election of 2016 that, according
to the Centre for Responsive Politics,
saw an expenditure of about $6.5 bil-
lion. India’s polling exercise, involving
over 90 crore voters, spanned 75 days
and involved extravagant rallies, wide-
The Big, Fat
Indian Election
Removingthelimitonexpenditurebycandidateswillnot
ensureequityandalevelplayingfieldandcannotalonebringin
electoralintegrity.Theneedofthehourismajorreforms
By MG Devasahayam
SPENDING BINGE
(Right) The amount of money spent during
the 2019 Lok Sabha polls by political parties
was unprecedented; (below) the quantity of
cash and other items seized was also historic
T
Photos: UNI

spread advertising and social media
campaigns. All of which comes at a
huge cost.
The report suggests that the maxi-
mum amount—roughly a third of the
total expense—was spent on campaign-
ing and publicity. The second big expen-
diture head was putting money directly
in the hands of the voter. CMS estimates
that roughly 25 percent (about `15,000
crore), was distributed among voters, ill-
egally. “This practice is not new, but the
extent it happened in 2019 was signifi-
cant and has become part of the overall
strategy of most parties,” says the report.
The New Delhi-based research orga-
nisation admits that this is only a frac-
tion of what actually would’ve been sp-
ent. CMS criticised the Election Commi-
ssion (EC) for its inaction despite the
exorbitant election expenditure. “Huge
rallies and fanfare” seen during cam-
paigning indicated high expenditure
which were “in violation of codes and
ceilings”, the report said. “And yet, no-
where anyone was issued notice or rep-
rimanded.” CMS recommended that the
EC should take an open review of elec-
tion expenditure across states and put
the data out in public.
The catch here is that while individ-
ual candidates have their expenditure
limits, political parties have none. This
is what Section 77 of the Representation
of the People Act, 1951 (RP Act) says:
“Account of election expenses and maxi-
mum thereof: (1) Every candidate at an
election shall, either by himself or by his
election agent, keep a separate and cor-
rect account of all expenditure in con-
nection with the election incurred or
authorised by him or by his election
agent between the date on which he has
been nominated and the date of declara-
tion of the result thereof, both dates
inclusive…. (3) The total of the said
expenditure shall not exceed such
amount as may be prescribed.”
P
olitical parties get exempted from
the ceiling by default. As is kn-
own, any expenditure by the par-
ty is meant for the candidate it has field-
ed in that election. With electoral bonds
adding to their coffers, the ruling BJP is
supposed to have spent over `25,000
crore in the last parliamentary elections
where it contested 383 seats. That
means that the party spent about `64
crore on each candidate. Even 50 per-
cent of this amount seems scandalous.
However, in the 2014 election, the
BJP is stated to have spent `30,000
crore. Under these circumstances, what
is the meaning of an expenditure ceiling
of `70 lakh per Lok Sabha candidate?
Be that as it may, election expendi-
ture can broadly be divided into two cat-
egories. First is the legal expenditure,
which is allowed under the law for elec-
tioneering, subject to it being within the
permissible limit. This would include
expenditure connected with campaign-
ing, which is spent on public meetings,
public rallies, posters, banners, vehicles,
advertisements in print or electronic
media and such variables.
The second is on items which are not
permitted under the law, e.g., distribu-
tion of money, liquor, or any other item
given to the electors with the intent to
influence them. This expenditure comes
under the definition of “bribery” which
is an offence under the IPC and RP Act.
Under this category also comes surro-
gate advertisement, paid news and
social media. Expenditure on such items
is illegal.
For the first category, it must be en-
sured that all election expenditure on
permitted items is truthfully reported
and considered while scrutinising the
expenditure account submitted by the

Spotlight/ Electoral Expenses
candidates. The second category of
expenses will never be sincerely report-
ed by political parties/candidates. Social
media expenditure tends to be underre-
ported, if at all, especially by candidates.
The system should be robust enough to
catch such expenditure as well and initi-
ate penal action.
R
egarding excess election expen-
diture being treated as a corrupt
practice, the Supreme Court said
in Kanwar Lal Gupta vs Amar Nath
Chawla: “The object of the provision li-
miting the expenditure is twofold. In the
first place, it should be open to any indi-
vidual or any political party, howsoever
small, to be able to contest an election
on a footing of equality with any other
individual or political party, howsoever
rich and well financed it may be, and no
individual or political party should be
able to secure an advantage over others
by virtue of its superior financial
strength….The other objective of limit-
ing the expenditure is to eliminate, as
far as possible, the influence of big mo-
ney in the electoral process. If there was
no limit on expenditure… the pernicious
influence of big money would play a
decisive role in controlling the demo-
cratic process in the country….”
According to Section 78 of the RP
Act, every contesting candidate is req-
uired to lodge a true copy of the account
of his election expenses with the district
election officer within 30 days of the
declaration of the election result. Failure
to do this without good reason or justifi-
cation may result in disqualification of
the candidate concerned by the EC un-
der Section 10A of the Act.
In LR Shivaramagowde vs TM
Chandrashekar, the Supreme Court
held that the EC can go into the correct-
ness of the account of election expenses
filed by the candidate and disqualify
him under Section 10A of the Act in
case the account is found to be incorrect
or untrue. Exceeding the prescribed
ceiling of expenditure can be a ground
for an election petition against a win-
ning candidate.
How does the EC check poll expens-
es? Expenditure observers appointed by
the EC have been tasked with ensuring
constant vigilance of the campaign
expenses of candidates. Flying squads
are deployed in various places and
static surveillance teams have been post-
ed at inter-district checkposts for sur-
prise inspections. A video surveillance
team is also in place to record footage of
meetings, processions and other
programmes.
The EC also directs candidates
to get permission from the district
administration prior to holding cam-
paign programmes and to submit
expenditure plans in advance. Every sin-
gle item to be used in electioneering by
a candidate has a price fixed by the EC
to check abuse of money power. Even
the price of a candle has been fixed at
`10 per piece.
Despite such procedures, provisions
of law and Supreme Court judgments,
the EC has not been able to rein in vul-
gar election spending by candidates and
political parties.
On July 13, 2014, a full coram of
Chief Election Commissioner VS
Sampath and Election Commissioners
HS Brahma and SNA Zaidi did attempt
this in Dr Madhavrao Kinhalkar &
Ors Vs Ashok Shankarao Chavan in
which a show cause notice was ordered
in terms of Rule-89(5) of 1961 to dis-
qualify Chavan under Section 10A of the
RP Act.
But within weeks, on September 12,
2014, this order was set aside by the
Delhi High Court on some technical
grounds. With one stroke, the EC was
rendered ineffective in enforcing provi-
sions of the RP Act which had been
upheld by the Supreme Court.
So the ravaging of the electoral
process goes on unabated, with equity
and a level playing field remaining elu-
sive. Removing the ceiling on a candi-
date’s election expenses alone cannot
bring about electoral integrity. The rem-
edy lies in stringent holistic measures
like countermanding elections and re-
moving appeal provisions in High
Courts. The need of the hour is major
electoral reforms and severe restriction
of expenses by political parties.
—The writer is a former
Army and IAS officer
In2014,ChiefElectionCommissioner
VSSampath(centre)andElection
CommissionersHSBrahmaandSNAZaidi
(right)didtrytodisqualifyacandidate
undertheRPActbutcouldnotsucceed.

International Briefs
I
t’s a unique, even historic moment in
global politics and for women and
the proverbial glass ceiling. Finland
last week elected Sanna Marin, 34, as
prime minister, making her the youngest
head of state in the world. New Zealand
prime minister Jacinda Ardern is 39,
while Ukrainian premier Oleksiy Hon-
charuk is 35. More remarkably, Ms Marin
heads a left-wing coalition whose five
parties are all led by women, three of
whom are under 35. Her cabinet will
contain 12 women and seven men—at 63
percent, the female component is the
highest in the European Union.
Thanks to the historic vote, Finns are
literally lapping up the global attention as
the world’s media hails this incredible
empowering moment.
No less inspiring is the uncovering of
Marin’s backstory. She was raised in what
is called a “rainbow family”, living in a
rented apartment with her mother and
her mother’s female partner. She told a
local website that as a child she felt “in-
visible” because she was unable to talk
openly about her family. She was the first
person in her family to go to a university
and also the first to get into politics.
She joined the Social Democrats, be-
coming an MP in 2015 when she was
just 30. Last June, she joined the cabinet
under her predecessor, as transport and
communications minister. Marin has
a 22-month-old daughter and is now
the proud symbol of gender equality
in politics.
Power Shift
It seems an absurd example of art.
Italian artist Maurizio Cattelan
taped a banana to a wall, titled it
“Comedian” and priced it at
$120,000. It was an ordinary bana-
na, not sculpted, but it resurrected an
age-old question: What constitutes
art? Cattelan is known for stretching
the definition. In 2016, he created a
functioning, 18-karat gold toilet, an
expensive counterpoint to Marcel
Duchamp’s store-bought urinal which
he put on a pedestal.
Yoko Ono, better known as John
Lennon’s widow, put an apple in a
glass case and exhibited it at a price
of $200. More controversial was
Tracey Emin’s “My Bed” which con-
sisted of her unmade bed strewn with
body fluids and surrounded with con-
doms and unwashed underwear. “My
Bed” went under the hammer for
$4.3 million at Christie’s in 2014.
When it comes to art, there’s no
accounting for tastes. Or taste, as was
the case with Cattelan’s banana.
Going Bananas
This is the time when
tech magazines and de-
dicated websites bring out
their annual list of the best
tech products of the year.
Based on their evaluation,
the mobile phones that
earned the most marks was
the Motorola Moto G7 in
the budget category and the
Samsung Galaxy Note 10 in
the high-end one while
Apple’s iPhone 11 got great
marks for its upgrades and
price drop. Others that
made the cut were OnePlus
7 Pro, Samsung Galaxy A50
and Google Pixel 3A. Other
tech products that experts
were raving about were
Apple watch series 5, Fitbit
Versa 2, Apple AirPods Pro,
and Jabra Elite 75t earbuds,
while in the laptop category,
the HP Spectre x 360 13
and the Microsoft Surface
Pro 7 were the top two
models for 2019.
Best Technology of 2019
Apple iPhone 11
HP Spectre x 360
Samsung
Galaxy Note 10

India Legal - 23 December 2019

India Legal - 23 December 2019

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