India Legal - 23 September 2019

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
September23, 2019
TheLegendLivesOnApoignanttributetothelateRamJethmalanibyasenioradvocatewhoknewhimwell
revealsexactlywhyhewassoreveredandrespected.Plus,anexplosiveinterviewhegave
toIndia Legalin2016.
Ayodhya Hearings:
Twists and turns
UK Crisis: 10
Drowning Street

4 September 23, 2019
NCREASINGLY, it has become the norm for
Bar Associations to issue resolutions urging
lawyers not to appear for the accused in cer-
tain cases, forcing high courts and the Sup-
reme Court to intervene. The latest was the
Uttarakhand High Court having to reiterate the
age-old judicial axiom that every accused has a
fundamental right to legal representation, regard-
less of the offence he is accused of. The Court
quoted Article 22(1) of the Constitution of India,
which lays down this right, and added: “Any fetter
placed on the fundamental right of the accused to
be defended by a lawyer of his choice, be it for eco-
nomic or other reasons, is illegal and unconstitu-
tional.” What was being underlined was the pro-
fessional duty of lawyers to represent an accused,
regardless of personal views as to the guilt of the
client. In fact, clause 15 of the Bar Council of India
Rules, says exactly that.
In the latest case, the Uttarakhand bench set
aside a resolution of the Kotdwar Bar Association,
which had barred lawyers from appearing on be-
half of the accused in a case involving the murder
of a local advocate. The Bench opined that,“...we
face a situation today where the minuscule few,
who dare to tread the solitary path of taking up
the cause of the damned, are threatened with dire
consequences, for nothing more than the dis-
charge of their duties as an Advocate…such reso-
lutions are wholly illegal, against all traditions of
the Bar, and against professional ethics.”
The original notification had threatened
Association members with membership termina-
tion if they appeared for the accused in the case.
However, after the High Court castigated the
Kotdwar Bar Association, a clarification was
issued that there would be no such termination.
The provocation was a complaint by advocate
Kuldeep Agarwal, that he had been harassed by
Association members for taking up the case of
Vinod Kumar, one of three persons arrested for the
shooting of a member of the Kotdwar Bar
Association, Sushil Raghuvanshi, in 2017. Many of
these resolutions and stands adopted by Bar
Associations and individual lawyers are also
fuelled by public opinion and political expediency.
The decision to prevent lawyers from defending
the five men accused of brutally raping a young
girl, Jyoti Singh, in a running bus in Saket in Delhi
was an example of that. Public anger was visible as
was the condemnation by political parties which
jumped on the bandwagon. The Saket District Bar
Council ordered the 2,500 advocates registered at
the court to avoid representing the accused.
In 2008, Indian lawyers also refused to defend
Ajmal Kasab, the Pakistani jihadist who was cap-
tured alive while taking part in attacks on
Mumbai which killed 166 people. He was repre-
sented by a government-appointed lawyer and
eventually executed after due process of law. More
recently, the Supreme Court had to step in when
the District Bar Association of Gurugram passed a
similar resolution in the case of sexual abuse of a
student in Ryan International School which had
also attracted a lot of media attention. The apex
court said, “It is necessary to state without any
hesitation that an accused, whatever the offence
may be, has the inherent right to be represented
by a counsel of his choice (as the apex court had
laid down in the Hussianara Khatoon case in
1979). The tradition of the bar and the fundamen-
tal conception pertaining to access to justice does
not permit any bar association to pass a resolution
of the nature that had been done”. In 2010, the
Supreme Court had ruled that lawyers or their
associations cannot refuse to appear for accused
whether they were terrorist, rapists, murderers or
any others as such refusal would be a violation of
BARRINGTHEBAR
“Idecide
accordingtomy
consciencewhoto
defend.Alawyer
whorefusesto
defendapersonon
thegroundsthat
peoplebelievehim
tobeguiltyis
himselfguiltyof
professional
misconduct.”
—thelateRam
Jethmalani
Letter from the Editor
I

the Constitution, Bar Council norms and tenets of
the Bhagavad Gita.
Lawyers however, are human beings first and
often, personal feelings and public pressure can
interfere in cases that are seen as being overly
heinous—the bus rape—or anti-national as in the
case of Kasab and the Mumbai blasts allegedly
masterminded by fugitive Dawood Ibrahim. Afzal
Guru, accused of masterminding the terrorist
attack on the Indian parliament, was deprived of
his right to effective legal aid. Afzal, with no train-
ing in the law, had to cross-examine 80 prosecu-
tion witnesses by himself, against a battery of the
country’s top lawyers. The two legal-aid lawyers
appointed to defend him, not only left him to fend
for himself, but actually argued against him in
court. The Madras High Court recently discharged
a lawyer from a criminal case and ruled that
appearing for a Maoist is not a crime… “If a
Maoist accused of an offence seeks the profession-
al assistance of a lawyer, it is the lawyer’s duty to
defend,” said the court. It would be pertinent to
recall the words of the late Ram Jethmalani when
he was interviewed by a TV channel about such
cases. “I decide according to my conscience who to
defend. A lawyer who refuses to defend a person
on the grounds that people believe him to be
guilty is himself guilty of professional misconduct.”
Jethmalani famously defended those accused of
assassinating Indira Gandhi and the killers of
Rajiv Gandhi, as well as representing underworld
don Haji Mastan in court. He also defended,
unsuccessfully, the death sentence handed down
to Afzal Guru.
The rule generally followed in Indian courts is
what is called the “Cab Rank rule”. This simply put
states that a lawyer cannot deny any person legal
assistance who approaches him or her. The logic is
that the services of a lawyer should be akin to that
of a cab driver at the head of a queue of taxi-cabs
who is supposed to take the first passenger
requesting a ride. The “Cab Rank Rule” finds men-
tion in the Bar Council of India rules. The inher-
ent logic behind providing representation to every
person is based on the standard rule of thumb that
every person is presumed innocent until proven
guilty. If a person is not provided with legal repre-
sentation and is not allowed to present his case in
the court of law, then his right to fair hearing is
impeded and the entire judicial system suffers as
a result.
This tendency of Bar Associations to pass such
resolutions preventing their members from repre-
senting a particular accused is a fairly recent phe-
nomenon. India, in fact, has a sterling history of
lawyers defending those accused of the most
heinous crimes, including Nathuram Godse who
was given fair representation for the assassination
of Mahatma Gandhi, and those accused of killing
former prime ministers Indira Gandhi and her
son, Rajiv. The dilemma facing lawyers is that
despite the Supreme Court and various high
courts striking down such resolutions, lawyers
who agree to represent the accused in high-profile
cases are generally treated shabbily by their Bar
colleagues as if they were criminals themselves.
The classic case was legendary American lawyer
Clarence Darrow who was strongly of the view
that every accused, no matter how wicked, loath-
some, vile or repulsive he may be regarded by soci-
ety had the right to be defended in court and cor-
respondingly it was the duty of the lawyer to
defend. His defence in various trials of mass mur-
derers and serial rapists made him known in
America as the “Attorney for the Damned”.
| INDIA LEGAL | September 23, 2019 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
RIGHT TO
DEFENCE
(Left) Jethmalani had
appeared for the
accused in the Indira
Gandhi assassina-
tion case; (below,
left) Afzal Guru was
deprived of his right
to effective legal aid;
lawyers in India had
also refused to
defend Ajmal Kasab

SUPREMECOURT
16Inscriptions Throw New Light
The arguments in the Ayodhya case got a new twist with the finding of two inscriptions at the
mosque. These are now a bone of contention between the presiding deity and the Sunni Waqf Board
ContentsVOLUME XII ISSUE45
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LEAD
10The Legend Lives On
Senior advocate, Supreme Court, Pradeep Rai, shares his personal experience of the late
Ram Jethmalani. We also republish an exclusive interview with India Legal in 2016
The judges in Patna
High Court have been
at the centre of some
outlandish judicial
orders, to the extent
that 11 judges had to
take on a single judge
who passed a
controversial judgment
COURTS
20New Lows

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Cover Design:
ANTHONY LAWRENCE
Courts ...............................8
Is that legal ......................9
International Briefs..........37
Media Watch ..................43
Satire ..............................50
The recent amendments to the Right to Information Act restrict citizens
from taking power into their own hands and curb the independence of
Information Commissioners. Is it time to wake up and smell the coffee?
Rendered Redundant 28
A new book suggests the time has come to
make a law which will make protection of
monuments a way of protecting fundamental
democratic rights, writes Prof Upendra Baxi
Monumental
Reform 24
GLOBALTRENDS
10 Drowning
Street
The British parliament has been
suspended for five weeks as MPs
reject Prime Minister Boris
Johnson’s calls for a snap election
40
BOOKREVIEW
Disorder: The Order Of The Day
Though there are rules to
deal with parliamentary
disruptions, Rajya Sabha
Chairman M Venkaiah Naidu
has called on political parties
to put in place a code of
conduct for legislators
34
COLUMN
Dry Coffers
Over the last five years, the RBI has transferred all its profits to the
Modi government. Nothing was added to its contingency reserves.
But the RBI Act is clear that reserve capital cannot be used up
30
FOCUS
Ambitious
Target
The centre has announced its plans to
phase out disposable plastic by 2022
but the current lack of alternatives
suggests the task may be daunting
38
STATES
Jumbo Woes
Absence of proper veterinary care and lack of enforcement of the Wildlife
Protection Act have seen the deaths of 16 captive elephants in Kerala, leading
to festivals doing away with their caparisoned glamour
44
Second House
Seven states already have Legislative Councils in addition to Legislative
Assemblies. Madhya Pradesh could join them soon in a bid to get in people
who could not get elected in the assembly polls
46
Cash Tag
In an effort to stem the growing number of
bovines left to roam the streets after they have
been milked, Madhya Pradesh has decided
to tag them for quick identification and
impose fines on their owners
48
With J&K in a socio-political flux, it is an attractive rallying point for
militants. This has led to increased radicalisation of youth and the
emergence of new terror outfits
Paradise Lost 22
SPOTLIGHT ENVIRONMENT

Courts
—Compiled by India Legal Team
While hearing a case involving a Muslim
man who married a Hindu woman after
converting to Hinduism, a bench of Justices
Arun Mishra and MR Shah said: “We are only
concerned about her (the woman’s) future.
We are not against inter-faith or inter-caste
marriage.” The bench also told the man to
“be a great lover and loyal husband” and
queried him on whether he had taken proper
legal steps to change his name. The bench
also asked him to file an affidavit to prove his
bone fides if he wanted to live with his Hindu
wife, and issued notices to the woman and
the Chhattisgarh government, seeking their
replies by September 24. The couple got
married in 2018 after the man converted to
Hinduism to be accepted by the woman’s
family, according to her parents. They also
claim that the man later reconverted to Islam,
after which they approached the Chhattisgarh
High Court which allowed the woman to live
with her husband if she wanted to. The
woman’s parents challenged this order in
the Supreme Court where they alleged that
their 24-year-old daughter was lured into the
inter-faith marriage and that the man’s con-
version to Hinduism was a “sham”.
Demand for bank
details a privacy
breach: Kerala HC
The Kerala High Court has
ruled that details of a per-
son’s bank account constitute
personal information and any
demand to disclose such details
without “passing the tests of
legality, need and necessity, and
proportionality’’ amounts to vio-
lation of a citizen’s right to priva-
cy provided in the Constitution.
A division bench of Justices CK
Abdul Rahim and RN Pisharadi
was hearing a clutch of petitions
by retail fuel dealers who had
challenged the demand of public
sector oil marketing firms that
dealers furnish sales tax returns,
bank account statements and
income tax returns pertaining to
their dealership. Finding no merit
in the argument that the dealers
have an obligation to furnish
such details, the bench said:
“On the basis of a contract bet-
ween an individual and a body
corporate, right to privacy of that
individual cannot be infringed.”
The dealers had appealed to the
division bench after a single
judge held that the details
sought are with respect to the
dealership and not any personal
matter of the dealers.
The apex court has given four more
months to Punjab, Haryana and the centre
to find an amicable solution to the deadlock
between the two states over the Sutlej-
Yamuna Link (SYL) Canal. A bench headed
by Justice Arun Mishra extended the time-
frame for talks after Attorney General KK
Venugopal asked for three months for dis-
cussions towards an amicable solution.
However, the bench said it was ready to give
four months. The apex court had earlier told
the centre, Punjab and Haryana to conclude
their talks “as soon as it can be” and warned
that it would decide the matter if negotiations
remained unresolved. The dispute relates to
the controversial 1981 water-sharing agree-
ment signed after Haryana was carved out of
Punjab in 1966. For effective allocation of
waters, the SYL Canal was to be constructed
and the two states were required to construct
their respective portions within their territo-
ries. While Haryana constructed its portion of
the canal, after the initial phase, Punjab
stopped the work, leading to multiple cases.
SC gives 4-month ultimatum for SYL dispute
The Supreme Court will
take up on September 16
the pleas filed by the Kashmir
Times editor and several oth-
ers challenging the communi-
cation blockade in J&K.
Anuradha Bhasin, executive
editor of Kashmir Times, told
the Court that even a month
after the abolition of Article
370, journalists were not
allowed to move freely in the
state. Solicitor General Tushar
Mehta, however, refuted her
claims and told the Court that
editors of Kashmir Times
chose not to publish their
newspaper. Mehta also said
that, contrary to what Bhasin
claims, a large number of
newspapers were being pub-
lished from Srinagar. Attorney
General KK Venugopal added
that the restrictions imposed
in J&K were being relaxed in
a gradual manner.
SC to hear J&K
editors’ pleas
on Sept 16
Not against
inter-faith
marriages: SC

ISTHAT
When can a doctor be accused of
medical negligence?
The “medical standard of care” deter-
mines whether a doctor can be held
liable for medical negligence. It is defined
as “the type and level of care an ordi-
nary, prudent, healthcare professional,
with the same training and experience,
would provide under similar circum-
stances in the same community”. There-
fore, the issue is: Would a similarly
skilled healthcare professional have gone
for the same treatment under the same,
or similar, circumstances? If not and the
concerned patient has been harmed as a
result of the sub-standard treatment, the
incident becomes a case of medical
malpractice.
The element of criminality can be
introduced not merely by a stray incident
of “wrong diagnosis” by the medical
practitioner but when he/she has done
something with gross recklessness and
indifference to the consequences. A cri-
minal case can be slapped under Section
304A of the IPC for a negligent or rash
act amounting to death of the patient.
— Compiled by India Legal team
A Case for Medical
Malpractice
Is it necessary to register a
trademark? What could be the
fallout if there is no registration?
A trademark, whether a sign,
design or anything else, identi-
fies a product or service owned
by a particular individual or
organisation and distinguishes it
from others. It is a tag of exclu-
sivity attached to a product or
service and customers identify a
product of their choice only
through its trademark. The reg-
istration of a trademark is not
mandatory in India, but it is
advisable to do so as it protects
a brand from unwanted use and
infringement. If the trademark is
registered, the owner can claim
compensation or seek punitive
action legally if there has been a
violation of copyright.
Right of
Exclusivity
?
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
What is the legal remedy for a Muslim woman
divorced through triple talaq?
Under the Muslim Women (Protection of Rights
on Marriage) Act, 2019, triple talaq given by a
husband to his wife for instant divorce is a crimi-
nal offence. If a married woman or any of her rel-
atives by blood or marriage files a complaint
against the husband, the police can arrest him
without a warrant. The offence can be made com-
poundable only if the aggrieved wife wants and
the magistrate agrees. Bail can be granted by a
magistrate only after hearing the wife. The punish-
ment is three years maximum jail term and fine.
A Criminal Offence
What are the criteria for adopting a
child in India?
A couple must be married for at least
two years before it decides to adopt a
child in India. Same-sex couples are
prohibited from adopting a child. A sin-
gle male is also not allowed to adopt a
female child in India.
The couple willing to adopt must be
25 years old and not more than 45 years for a
child under four years. If the child is between four
and eight years, the couple must be at least 29
years old and not more than 50 years, with a
combined age of not more than 100 years. If the
child is over eight years old, the couple must be
at least 33 years and not more than 55 years,
with a combined age of not more than 110 years.
Rules for Adopting
a Child

Lead/ Tribute/ Ram Jethmalani
E was a doyen, a stalwart,
a brilliant criminal law-
yer and more important-
ly, a generous and loving
friend. He was the only
person who wore the
black robe for almost all important per-
sonalities of India. I was a teetotaller
but had the privilege to spend many
evenings with the one and only Ram
Jethmalani. Anyone who spent their
evenings with him had to hold a glass
even if he was a non-drinker, but I was
an exception. I also got many opportuni-
ties to appear and travel with him. I
used to call him Ram Uncle, and rem-
ember with poignancy and fondness
how he would take care of all his staff
and badminton partners.
He was a veteran legal eagle and a
polished senior advocate known for his
sharp acumen and argument in court,
but in real life, he was as innocent as a
child. He used to talk about anything
and everything if it was not related to
litigation. At the same time, despite
being a much respected and revered
advocate whom even judges listened to,
he had very personal relations with most
of his clients too.
Jethmalani was the youngest lawyer
and taxpayer in the country. His sharp
intellect was seen early in school where
he got double promotions and this was a
sign of things to come. He entered the
legal fraternity much earlier than every-
body else and represented many VVIPs
(some controversial) and ordinary peo-
ple and left a mark with his incisive
arguments.
SEEKING APOLOGY
Though Jethmalani secured bail for
actor Sanjay Dutt in the TADA case re-
lated to the Mumbai riots of 1993, he
was not on good terms with him. At one
point, he had even given a press release
saying: “He (Dutt) does not deserve to
be a Member of Parliament and any
political party that sets him as its candi-
date is totally impervious to the security
to the nation.” However, one day, both of
them met accidentally in a lounge in
Delhi airport as they were waiting for
their respective flights. Suddenly, Jeth-
malani went to Sanjay and started cry-
ing, holding his hand. He said: “Beta, I
have caused a lot of injustice to you. I
want to apologise to you and your father
too, but I am doing this after his death.
Please forgive me.” Nobody present
there could understand the context he
was referring to but it left Sanjay also in
tears and he told him: “That was my
Thebrilliantandfeistylawyerlivedlifeonhisownterms.Whilehewascombativeandcontroversial,
hewasalsowarmandgenerousandwillbemissedbythelegalfraternity,friendsandclients
By Pradeep Rai
H
ramjethmalanimp.in
ZEST FOR LIFE
Playing badminton daily was the secret
behind Ram Jethmalani’s longevity
“God Will Have a Tough
Time After My Death...”

A BIG HEART
Jethmalani was the defence lawyer for
Lalu Prasad Yadav in the fodder scam but
never charged a penny
destiny. I have no malice towards you.”
Sanjay then touched his feet. Such was
the greatness of Jethmalani that he
could ask for forgiveness if he felt that
he was in the wrong.
FREE SERVICE
Jethmalani was the defence lawyer for
RJD chief Lalu Prasad Yadav in the fod-
der scam but he never charged a single
penny from him. His primary condition
for appearing for him in court was that
he should be able to spend some time
with him over a drink. Lalu Yadav fond-
ly used to tell him “Chacha” and would
say: “Chacha khilate hain, jabardasti
pilate hain, aur case bhi jeetate hain
(Uncle makes me eat, forces me to drink
and then wins the case too.)”
MULAYAM SINGH’S CASE
Jethmalani was convinced by then law
minister HR Bhardwaj to appear in a
PIL against Mulayam Singh Yadav which
was filed by a local Congress worker.
After his first appearance in the matter,
Amar Singh, a Rajya Sabha MP and SP
leader, requested him not to appear in
the matter. This was honoured by him.
Interestingly, Jethmalani disclosed the
entire conspiracy to Mulayam Singh in
the presence of more than 15 people.
Besides all his superlative qualities,
Ram loved playing badminton and his
drink. He was a lady’s man and would
also take care of his staff. Such a man
comes but once in a lifetime. He will be
missed sorely.
PHILOSOPHY OF LIFE
Despite appearing for all kinds of
people—politicians, businessmen, film
stars and ordinary people—in an
array of cases varying from criminal
to constitutional matters, Jethmalani
had a philosophical bent of mind. He
would say: “If the God exists, then
the day I die, God will have very tough
time because I would like to cross-
examine him and question him on
many issues such as the death of inno-
cent people and children, the reason for
accidents, etc.” He will now have all the
time to ask God these questions.
RESIGNATION FROM CABINET
When Jethmalani was the law minister
in the Vajpayee cabinet from 1999, he
would say that there is a law minister
who knows more law than the chief jus-
tice of India. The then Chief Justice of
India AS Anand would often feel offend-
ed by Jethmalani’s remarks. One eve-
ning, Brijesh Mishra, the principal sec-
retary, called Jethmalani and asked him
to resign or talk to the PM. The cele-
brated lawyer was then travelling from
Mumbai to Pune by car. He told Mishra
that there was no point talking to PM
and “if this message is being communi-
cated by you, tell him I will resign the
moment I find a PCO”. Within 20 min-
utes, he happily faxed his resignation to
the PMO. Thereafter, he did not forgive
Justice Anand and wrote a book, Big
Egos, Small Men, where he used most of
the rediff.com stories which had been
written by India Legal’s contributing
editor Ramesh Menon.
GENEROSITY
Although Jethmalani lost the Supreme
Court Bar Association election at one
time to PH Parekh by a narrow margin,
he didn’t forget the people who worked
for him. Two lawyers who worked for his
election were recommended by him to
the BJP president for appointment as
Additional Advocate Generals of Har-
yana despite their close association with
the Samajwadi Party.
Parekh, who was six-time president
of SCBA also has fond remembrances of
Jethmalani. Once when he had gone to
the US, he ran out of dollars and called
him to borrow a few hundred dollars
from him. Jethmalani not only gave him
two times the amount he needed, but
refused his offer to return the money.
Such was his generosity.
ETHICAL
When Jethmalani was the law minister
during Vajpayee’s tenure, he could have
easily recommended his associate Latha
Krishnamoorthy for better positions, but
he always refrained from doing so bec-
ause she was closely associated with him.
RAJYA SABHA
Jethmalani used to say that he cannot
change at this age. He was fond of his
Akbar Road house because he had con-
structed a nice indoor badminton court
which was the secret to his fitness. He
used to say that for the sake of this
house and the badminton court, he has
to be in the Rajya Sabha and to remain
in the Rajya Sabha, every sixth year he
needs to be polite to someone. He would
then laugh heartily.
The nation will miss the person who
used to address every man as “beta” and
every woman as “darling”.
—The writer is a Senior Advocate of the
Supreme Court
UNI

Lead/ Interview/ Ram Jethmalani
Is the government subtly attempting to
tell judges what to do?
Judges are experts in their field. They
also need to know more things other
than law. Judges must move. They can-
not anymore afford to live in an ivory
tower. They need exposure to other sub-
jects. I have so much respect for judges
despite some examples which make us
lose our confidence. But compared to
other branches of public life, judges are
angels. This is my honest opinion of the
Judiciary. The Executive has its own way
of working so judges should know the
other side.
There has been much talk about black
money. Do you think the government is
really serious about bringing it back or
was it just an election time slogan?
You can get black money back into India
only if you are serious. You are shielding
the culprits. This fact has been con-
cealed from the people of India: The
Germans paid $475 million bribe to an
employee of a bank who gave 1,400
names of those who had stolen national
media which has not publicised the
1,400 names. I am ashamed that I sup-
ported Modi during his election cam-
paign. I am ashamed that Amit Shah
said that all talk about black money was
an election joke. I am an expelled mem-
ber of the BJP, not that I care.
Using a Supreme Court order, I
demanded to see the correspondence
between India and the German govern-
ment. They did not respond for a year.
Then I found that the Indian govern-
wealth and put it in a bank. The Swiss
Bankers Association said that the ma-
jority of the names are from India and
are prepared to disclose it. The German
government in 2008 said that it was
ready to give the names to any govern-
ment without a cost. Why didn’t the BJP
or the Congress governments ask for it?
They did not want anyone to know who
the thieves were. Germany said that
some prominent person from India
must ask for it. I went to Germany and
met officials there who told me that
there was no request from India to re-
veal the names. I came back and wrote a
two-line letter to LK Advani saying that
India needed to send a letter to the
German government and ask for the
names. Two weeks later, I called him
and asked why he had not sent the let-
ter. He just said that he forgot. I cannot
believe that excuse.
The BJP is as corrupt as the Cong-
ress. I am ashamed that I helped Naren-
dra Modi become the prime minister. I
am ashamed that Modi made Amit Shah
the BJP president. I am ashamed of the
In September 2016, India Legal’s Managing Editor
RAMESH MENON interviewed Ram Jethmalani for the
magazine. The ageless gadfly spoke on a range of issues
to do with the judiciary and the political system, which
he was once a part of as a minister and an MP. However,
after falling out with the prime minister and his team,
he had turned exceedingly cynical and bitter as was in
evidence during this interview. Excerpts:
“Be Prepared
to Suffer for a
Greater Cause”

wrote in The Sunday Guardian: ‘Dear
Mr. Modi, Congratulations on your suc-
cess. I am now living in the departure
lounge of God’s airport so now fulfill the
promise you have made.’ I am now ash-
amed to say that this man was unworthy
of my friendship and confidence.
How can one really bring back
black money?
The Indian nation is battling corruption.
It is really a difficult task. I am 93 and
short of time. If I have another three to
four years, I may be able to show you
something. I have had 75 years in the
Bar. Modi succeeded in cheating me on
the black money issue. He said that he
would get `15 lakh into the account of
every Indian as he would bring back
black money.
You campaigned for Nitish Kumar in
the Bihar elections.
When Nitish requested me to campaign
ment had only corresponded with a tax
office there that deals only with honest
taxpayers who pay taxes in two coun-
tries—where they belong to and where
they work! This is the only correspon-
dence they had. They had scored out the
names of the authors and the addresses
of the letter they sent with indelible ink.
People must see that those responsible
should go to jail. Their only hope is that
Ram Jethmalani will die.
When the election results came in, I
Photos: Anil Shakya

for his party, I told him that I was 93
and could not do that. But I said that if
he called two meetings, I could come
and address them and then he could see
the result. I went to Bihar and told the
people that I would vote for Nitish. I
told them that I was an educated man
with 75 years in the Bar dealing with all
kinds of rogues and rascals but Modi
had succeeded in cheating me on the
black money issue. I begged for their
forgiveness for having worked to make
Modi win the Lok Sabha elections.
What happened in Bihar to the BJP will
now happen in every state. I challenge
Modi to prosecute me for defamation. I
will answer him in court.
What is the ideal system of justice that
you would want to see?
There is no ideal system. We have a fair-
ly good system. There should be better
emoluments. There should be a better
Bar. What we need is a better govern-
ment and better politicians. Politicians
are the poison of our system. There are
honest politicians, but they are an
insignificant minority.
India desperately needs judicial reforms.
What do you think needs to be done on
a priority basis?
India needs to increase the number of
courts and judges by 16 times. But, the
government does not want to spend
money on the judiciary and its infra-
structure. That is why cases go on for so
many years. It is a scandal. We do not
have sufficient judges.
Just look at how our subordinate
judges are functioning. Look at their
salaries. Look at their living conditions
and despite all temptations, they are
working and I think they are doing a
wonderful job. Judicial reform is not
required. What is required is the reform
of our politicians. Then everything
will improve.
Pendency has been a serious issue. What
do you think is the solution?
We can see how many have died in the
course of a case. Witnesses die as the
men who need to be stopped. What is
the meaning of stopping women from
entering a temple?
You are much more than a lawyer.
During reflective moments, what is the
kind of India that you want to see?
I want to see India in the comity of
nations getting the respect of the world
for the integrity of its politicians. That
will happen only if there are honest peo-
ple in power. This is all that is required.
We have everything but we have neu-
tralised everything with the wrong peo-
ple being in power. We had great hopes
from Modi. But he did not turn out to
be a shining star as we thought.
How do you have so much of energy
every day?
Every morning I do yogic exercises. I
daily spend an hour playing badminton
doubles. I play four sets and usually win
all of them. I eat very little. For the last
12 years, I am a complete vegetarian. I
do not have lunch. I enjoy two drinks in
the evening. I sleep well. More than any-
thing, I enjoy good company.
Is there anything you would like to say
that I have not asked?
Stick to the truth and proclaim it. Be
prepared to suffer for this great cause.
case drags on for years. I am now defen-
ding a Kashmiri who has been languish-
ing in jail for five years. There are 119
witnesses. But only 25 of them have
been examined till now. I requested the
home minister to ask the public prose-
cutor to ensure bail for this client as he
is innocent and is rotting in jail. I am
waiting for the case to come up for hear-
ing. Our problem is paucity of judges.
How do you think the NJAC will
work out?
It was Modi’s bill and it was declared
ultra vires. They wanted a minister to
be involved in the appointment of jud-
ges. Why should a minister be involved?
The biggest litigant in India is the gov-
ernment. How can a minister decide
who should be the judge?
Women not being allowed into temples
violate a fundamental right. In this age,
how can we discriminate on the grounds
of sex? Is it not contempt of court as
women are still being prevented in spite
of the Bombay High Court judgment?
It is stupid. Women are purer than men.
If you have to prohibit anyone, it is the
“Indianeedstoincreasethenum-
berofcourtsandjudgesby16
times.Butthegovernmentdoes
notwanttospendmoneyonthe
judiciaryanditsinfrastructure.”
Lead/ Interview/ Ram Jethmalani

Supreme Court/ Ayodhya Arguments
WO stone inscriptions
found at the time of demo-
lition of the Babri mosque
in 1992 have now become
important points of argu-
ment in the title suit bet-
ween Ram Lalla Virajman, the presiding
deity, and the Sunni Waqf Board. Mus-
lims are heavily relying on these inscrip-
tions—one at the entrance and the other
at the pulpit of the mosque—to bolster
their claim.
However, during a hearing in the last
week of August, senior advocate PN
Mishra, who is representing Ram Man-
dir Punaruddhar Samiti (Revitalising
Committee) said that the inscriptions
were either badly damaged or destroyed
during riots in 1934. He said: “I have
proved in high court that the stone
inscriptions were forged” as the two
inscriptions had a different time for the
mosque’s construction.
One of these inscriptions has been
quoted having the words: “By the order
of Shah Babar, Amir Mir Baki built the
Inscriptions Throw
New Light
Theargumentsacquiredanotheranglewiththefindingoftwoinscriptionsatthemosqueand
havebecomeasourceofcontentionbetweenthepresidingdeityandtheSunniWaqfBoard
By Atul Chandra in Lucknow
T
READY WITH THE BRICKS
Vishwa Hindu Parishad workers at the
disputed site in Ayodhya
UNI

resting place of angles (sic) in 923 AH,
i.e. 1516-17”. The inscription at the
entrance refers to Mir Baki of Isphahan
in 935 AH, i.e. 1528-29 AD.
The inscription being considered
important by the Hindus is named the
Vishnu Hari inscription. It is on a 1.10
x.56 m slab and has 20 lines inscribed
on it. Dated 1140, it says that the temple
was dedicated to “Vishnu, slayer of
Bali and the ten-headed one”, the
Ravana. Ram was said to be an incarna-
tion of Vishnu.
A
ccording to Ajay Mitra Shastri,
then Chairman of Epigraphical
Society of India and an expert in
numismatics and epigraphy, who exam-
ined the inscription: “It is composed in
high-flown Sanskrit verse, except for a
small portion in prose, and is engraved
in the chaste Nagari script of the elev-
enth-twelfth century AD. It was evident-
ly put up on the wall of the temple, the
construction of which is inscribed on it.”
According to a Muslim lawyer, it is
this inscription, which is broken into
two parts, that the Hindus are using as
evidence to prove their claim but the
Muslims don’t consider it significant.
Another inscription, a 1901 stone
one, which specially caught the atten-
tion of the Supreme Court bench, com-
prising Chief Justice Ranjan Gogoi and
Justices SA Bobde, DY Chandrachud,
Ashok Bhushan and S Abdul Nazeer,
bears the words “Sri Ram Janmabhoomi
Nitya Yatra”, in Devanagari script. The
word Janmabhumi is engraved in
English also. The Court was reportedly
shown a photograph of the inscription
which is part of a report dated January
30, 1992. On seeing the words, the
bench felt that the “evidence, if accept-
ed, will be crucial to hold the place to be
the birth place of Lord Ram”. At this,
Mishra explained that the inscription
“was ordered by then magistrate
Edward to mark out important places to
visit in Ayodhya”. The inscription is said
to be at the entrance leading to the
sanctum sanctorum. Mishra said this
inscription supported the claim of the
Hindus that this place was associated
with their faith and belief and that
Ayodhya was Lord Ram’s birth place.
The Allahabad High Court judgment
also records this inscription.
There is another stone inscription
with the words Sita Koop. It dates to the
British period.
In 2003, the Archaeological Survey
of India (ASI) told the Allahabad High
Court that it had found sufficient evi-
dence of a 10th century BC onwards
temple below the disputed structure
which was demolished on December 6,
1992. Human activity at the site dates
back to the 13th century BC. The ASI’s
574-page report submitted to the High
Court stated that there was proof of a
“massive and monumental” structure of
50x30 m dimension that existed just
below the disputed structure. The report
said that deep penetration radar imag-
ing showed pillar bases with brickbat
foundation, while damaged sculptures
of a “divine couple”, decorated bricks
and stones, lotus motifs, images of ani-
mal and birds et cetera were among the
excavation’s finds which, the Hindus
argue, have no place in a mosque.
Raising these archaeological findings
during the ongoing hearing in the
Supreme Court in the Ram Janmabh-
oomi-Babri Masjid case, CS Vaidy-
anathan, the counsel for Ram Lalla
Virajman, said that as per the Shariat,
the ASI’s findings were “contrary to
mosque”. Vaidyanathan argued that this
crucial evidence suggested that “even
though the mosque was built over a pre-
existing temple or ruins of it, presence
of human and animal images proved it
was never used as a mosque”. Even if
Muslims offered prayers at the place “it
will not classify to be a mosque”, he said
and gave the example of Muslims offer-
ing prayers on public roads without the
place being designated as a mosque. On
the basis of archaeological findings, he
argued that before the construction of
the mosque, there stood a massive struc-
ture which was open to the public. This
structure, he said, belonged to the
2nd century BC.
While Vaidyanathan said that the
evidence was important to prove that
the mosque was not built on a vacant
piece of land and the archaeologists
showed that a temple pre-existed there,
the Supreme Court wanted to know if
the massive structure was a place of
worship.
Arguing for the Akhil Bhartiya Shri
Ram Janmabhoomi Revitalisation
Committee, Mishra referred to a map to
prove the birth place of Ram. However,
senior advocate Rajeev Dhawan repre-
senting the Sunni Waqf Board pointed
out discrepancies in the map, which is
part of the Court’s records. Mishra
Theinscriptionconsideredimportantby
theHindusistheVishnuHariinscription.
Dated1140,itsaysthatthetemplewas
dedicatedto“Vishnu,slayerofBaliand
theten-headedone”,theRavana.

Supreme Court/ Ayodhya Arguments
said that at the time of excavation, the
ASI found seven rows of pillars, and in
keeping with the Hindu traditions, there
were 85 pillars in all.
Away from the court room, another
battle seems to be in the making
between those claiming to be Ram’s
descendants and their numbers are ris-
ing by the day. Around 1,000 people
from Madhya Pradesh recently reached
the pilgrim city claiming to be descen-
dants of the Ikshvaku dynasty to which
Ram belonged. The rally, organised by
the Akhand Raghuvanshi Samaj Kalyan
Mahaparishad, had originated from
Bhopal. Its leaders, which included
Birendra Raghuvanshi, a BJP MLA
from Madhya Pradesh’s Shivpuri, sub-
mitted a memorandum to the district
administration demanding early con-
struction of the Ram temple at the dis-
puted site.
The memorandum was addressed to
the prime minister and the president of
India. Harishankar Singh Raghuvanshi,
the national president of the organisa-
tion, said that the rally was in response
to the Supreme Court’s query whether
anyone from the Raghuvansh dynasty
was still living in Ayodhya.
K
shatriyas are not the only ones
laying claim to the mythological
king’s legacy. Hanuman Prasad
Agarwal, an advocate in Chhattisgarh,
has also filed an affidavit in the Supreme
Court claiming to be Ram’s descendant.
Basing his claim on Agar Bhagwat,
Agarwal told reporters that as sons and
grandsons of Maharaj Agrasen, Agar-
wals were descendants of Lord Ram. “It
is written in Agar Bhagwat that Maha-
raja Agrasen, who is the ancestor of
Agarwal community, is the 34th genera-
tion of Kush, Ram’s son,” he is reported
to have said.
Also joining the list of claimants was
the founder of Rajasthan’s Karni Sena,
Lokendra Singh Kalvi, who said: “I am
the descendant of Luv, Lord Ram’s elder
son. I am a Sisodiya Rajput, considered
to be the descendant of Lord Ram.”
Kalvi now wants to be a party in the
Ayodhya case. Earlier, two Rajasthan
royals and a lawyer had staked claim to
the haloed legacy.
First, it was Diya Kumari, BJP MP
from Rajsamand in Rajasthan and a
descendant of Jaipur’s royal family who
said that her family was the descendant
of Lord Ram. Her father, she said, was
the 309th descendant of Vishnu’s incar-
nation. “We belong to the Kushwaha or
Kachhawa clan,” she said and offered
proof to support her claim. Kushwahas
claim to be descendants of Kush, Lord
Ram’s younger son. Kalvi, interestingly,
backed her claim.
In a Facebook post, Rajasthan
Congress leader Satyendra Singh
Raghav dismissed Diya Kumari’s claim
and said that Raghav Rajputs were the
real descendants of Lord Ram. As per
Valmiki Ramayan, the post said, Kush
and Luv were made kings of Dakshin
(south) and Uttar (north) Kaushal,
respectively.
Not to be left behind in the race were
the Mewar royals. Lakshyaraj Singh of
the erstwhile royal family of Mewar
claimed that they were the descendants
of Luv. According to him, Luv’s descen-
dants moved to Ahad (Mewar) and
established the Sisodiya dynasty.
According to Kalidas, Raghav said:
“Ram ordained Luv as the ruler of
Sharavati and Kush as ruler of
Kushavati.” While Sharavati is modern-
day Shravasti in Uttar Pradesh, Dakshin
Kaushal, of which Kushavati was the
capital, is in the present-day
Chhattisgarh, where lawyer Agarwal
wants a piece of the legacy pie.
All these “descendants” eventually
may not merit much importance by the
Supreme Court or make any difference
to the outcome of the long-drawn legal
battle, as the apex court only enquired
about “Raghuvanshi” descendants in
Ayodhya. But there’s no stopping anyone
from making a claim.
SenioradvocatePNMishrasaidthe
“SriRamJanmabhoomiNityaYatra”
inscriptionsupportedtheclaim
oftheHindusthatAyodhya
wasLordRam’sbirthplace.
SenioradvocateRajeevDhawan,
representingtheSunniWaqf
Board,pointedoutdiscrepancies
inthemap,whichispartof
theCourt’srecords.

Court/ Controversial Order
VEN by the standards of the
Patna High Court, not gener-
ally known for sobriety and
introspection, events of the
recent past have registered
new lows for judicial con-
duct. For the first time in its 100-year-
old history, a full bench of the court was
convened, not to discuss some serious
constitutional matter but to respond to
an order of another judge who had lev-
elled charges of corruption and favouri-
tism in the judiciary in Bihar. The judge
who raised the issue, even sending co-
pies of his order to the Prime Minister’s
Office and the chief justice of India, is
Justice Rakesh Kumar, the seniormost
judge after Chief Justice of the High
Court AP Sahi.
Justice Kumar’s judicial bomb
exploded when he said in an order on
August 28: “In Patna judgeship, things
are not going in its right perspective.
Senior judges have been buttressing the
chief justice to get their favourites or
caste men elevated as judges or do some
favour to corrupt judicial officers. The
corrupt judicial officers are having pro-
tection from High Court.” He also
named five additional sessions judges
who, he claimed, deserved termination
from their services.
Within 24 hours, Chief Justice Sahi
convened an 11-member full bench to
decide on the response to the order by
Justice Kumar, terming the develop-
ments an “institutional crisis”. The chief
justice and 10 other judges collectively
issued an order on August 29 which
observed: “The tenor and terminology of
the expressions may not be literally abu-
sive, but are certainly defamatory,
uncouth and uncivil.” The chief justice
went one step further and described
Justice Kumar’s judicial pronounce-
ments on corruption as those of a “street
sloganeering revolutionary”, and with-
drew all judicial assignments from him
for the next two days. They were reas-
signed to him from September 2.
The bench wrote in its order: “The
learned single bench judge committed
the gravest of error by assuming a juris-
diction which was not available to him
under any law for the time being in
force, not even by any administrative
order of the chief justice. The judge used
a language (against other judges) that is
not only brine, but is malicious, contu-
macious, demeaning and completely
Storm in the
Courtroom
ThejudgesinthePatnaHighCourthavebeenatthecentreofsomeoutlandish
judicialorderstotheextentthat11ofthemhadtotakeonasinglejudgewhopassed
an“objectionable”judgment
By Law Kumar Mishra in Patna
E
NEEDLESS CONTROVERSY?
The recent developments in the Patna High
Court attracted media attention

insensitive to the living and dead alike.”
Describing the situation, the chief
justice wrote: “The atmosphere of the
Court is engulfed in a pall of gloom,”
adding “aspersions have been cast on
the Institution and judges in particular
that can be imagined in a free society
these days, but certainly not from a
judge of the same Court through an
unwarranted judicial order.”
What caused the chief justice to use
such stern language was the question-
able conduct of Justice Kumar in using
a judicial order to highlight his claims of
rampant corruption in the judiciary in
Bihar. As the chief justice further com-
mented in his order: “The Judge
(Rakesh Kumar) has set an inglorious
benchmark in the history of Patna
High Court by wielding his pen like an
unmerciful sword as that of a commit-
ted revolutionary who has set out to
change the course of history by flouting
settled standards of judicial propriety
and the sobriety expected of a High
Court Judge.”
A
former cricketer, Justice Kumar
refused to be cowed down by the
judicial bouncers bowled by his
brother judges. He said, in his order,
that he was compelled to take action
when he saw a news telecast on corrup-
tion in the Patna Civil Court and Dana-
pur Civil Court. “After noticing the sad
programme, I was shocked, perturbed
and very much agitated. I had requested
the chief justice that an FIR may be
filed without any further delay… I was
given an impression that I had commit-
ted a serious mistake.” He added: “I had
taken an oath to bear true faith and alle-
giance to the Constitution and promised
to uphold the Constitution and the laws.
Since I had taken oath to do justice and
if I fail to take any action to such cor-
ruption, I may not justify myself.”
Justice Kumar was the CBI counsel
in the infamous multi-crore fodder scam
in which two former chief ministers—
Lalu Prasad Yadav and Jagannath
Mishra—and over a dozen IAS officers
were jailed. In the past, he questioned
the granting of bail to bureaucrats
accused of corruption and speaks openly
about the greed among his fellow judges
for the perks and privileges of judicial
office. “It has been noticed that instead
of discharging our duty, we are more
indulged in enjoying privileges.” He
specifically referred to bungalow allot-
ments and renovation costs claimed,
going on to allege in his controversial
order how “wards of Judges are practic-
ing in Patna High Court and the son of a
judge, during the short period of his
advocacy, became a teacher in judicial
academy and got honorarium,” adding:
“Corruption in this High Court is open
secret.”
However, the chief justice wrote in
his retaliatory order: “The learned Judge
himself got a bungalow allotted with
expenditures made during his stay
between 2010 and 2011. The bungalows
are maintained by the state government
out of its own exchequer and it is for the
state government to prepare the budget
and spend money thereon.”
The fallout of this unsavoury episode
was the chief justice issuing directions
on September 2, reminding all judges
and the registry that he was the only
authority to distribute and allocate
cases and that no judge can ask for files
from the registry. Whether that puts a
lid on the controversial clash between
Justice Kumar and his 11 brother judges
is still to be seen, but it appears that
the “pall of gloom” could linger for
some time.
“InPatnajudgeship,thingsarenot
goinginitsrightperspective.Senior
judgeshavebeenbuttressingthe
chiefjusticetogettheirfavouritesor
castemenelevatedasjudgesordo
somefavourtocorruptjudicialoffi-
cers.Thecorruptjudicialofficersare
havingprotectionfromHighCourt.”
—JusticeRakeshKumar,PatnaHC,
inhisorder
“TheJudge(RakeshKumar)hasset
aningloriousbenchmarkinthehistory
ofPatnaHighCourtbywieldinghis
penlikeanunmercifulswordasthat
ofacommittedrevolutionary...setout
tochangethecourseofhistoryby
floutingsettledstandardsofjudicial
proprietyandthesobriety...”
—APSahi,chiefjusticeofthePatnaHC,
inhisorder

Spotlight/ De-radicalisation in J&K 2.0
&K has morphed into J&K 2.0
after Parliament passed a resolu-
tion abolishing Articles 370 and
35(a) of the Constitution in Aug-
ust. It not only deprived J&K of
its special status, but downgrad-
ed it to a Union Territory. This was a
watershed moment in India’s seven-
decade-long quest to fully integrate J&K
with the rest of India on equal terms.
Unfortunately, the abolition of Art-
icle 370 provides an attractive rallying
point for militants, particularly when
there is a socio-political flux. In other
words, J&K 2.0 can bloom into a “Para-
dise on Earth” only if jihadi terrorism
and separatism cease to be extra-consti-
tutional agents interfering with the so-
cio-political life of the average Kashmiri.
Islamist militancy and separatism
are not new to J&K. However, when the
J&K Liberation Front gave a call for
azadi, Nizam-e-Mustafa (Rule of Muha-
mmad) became the call of Hizbul Muja-
hideen and Jamaat-e-Islami militants
supported by Pakistan’s ISI and ginger-
ed up by Afghan militants. This led to
escalated violence in 1989-90 and resul-
ted in the coercive eviction of Kashmiri
Pandits from the Valley with the state
government soft-pedalling the situation.
Since then, though separatism has
taken a backseat, Islamic radicalism
continues to condition the socio-politi-
cal discourse in the state. This has been
taken advantage of by PoK-based jihadi
groups like the Lashkar-e-Taiba (LeT)
and Jaish-e-Mohammed (JeM) to create
a climate of fear as well as to attract
young people to their fold.
Globally, there has been a qualitative
change in Islamist terrorism after the
advent of the Islamic State (IS), a clone
of Al Qaeda. With its ruthless tactics
and superior net-based propaganda
technique, the IS dethroned Al Qaeda
from the leadership of jihadi terrorism.
Though it was defeated in Iraq and
Syria over 2018-19, it still remains a
potent force attracting educated Muslim
youth from all over the world. Its succe-
ssful lone wolf attacks and use of social
media for propaganda and recruitment
have set new standards in refining jihadi
terrorist operations, particularly in J&K.
According to Shadi Hamid, Senior
Fellow, Foreign Policy, Centre for Mid-
dle East Policy, the IS “draws on, and
draws strength from, ideas that have
broad resonance among Muslim-majori-
ty populations. They may not agree with
its interpretation of the caliphate, but
the notion of a caliphate—a historical,
political entity governed by Islamic law
and tradition—is a powerful one, even
among more secular-minded Muslims”.
Pakistan had been using AQ affiliates
like the LeT and JeM operating from
sanctuaries on the Pakistan side of the
LoC to carry out attacks in J&K. This is
part of the Pakistan Army’s strategy to
“bleed India” to compensate for limita-
tions of its security forces. Pakistan PM
Imran Khan had admitted recently that
there were 40,000 jihadi terrorists in
the country, while claiming that his
country too is a victim of terrorism.
It is not surprising that in the charg-
ed environment, radicalisation of young
people, including some well-educated
and employed youth, has been taking
place for quite some time now. Their
numbers had gone up from 131 youths
who joined terrorist outfits in 2017 to
over 200 in 2018. Some new terrorist
outfits such as ISIS–Kashmir and Ansar
Ghazwat-ul-Hind, aligned respectively
with the IS and Al Qaeda, have come up
in the past few years.
Unfang
the
Terrorists
Withthestateinasocio-
politicalflux,itisanattractive
rallyingpointformilitants.
Thishasledtoincreased
radicalisationofyouth
By Col R Hariharan
J
CLIMATE OF FEAR
Youths displaying IS flags during a shutdown
observed in Srinagar

So any master plan for J&K 2.0 must
have de-radicalisation (DR) at its core.
It should be holistic and not merely con-
fined to militants in captivity. DR
should not be confused with the Army’s
Operation Sadbhavana carried out since
1998. Under this programme, the Army
has tried to improve the quality of life of
people in five focus areas: education,
infrastructure development, health and
sanitation, women and youth empower-
ment and community development.
During the last decade, the Army has
spent over `550 crore in J&K under the
programme and runs 50 Army Goodwill
Schools and health clinics and improved
communication in remote areas.
But DR goes beyond this to remove
the effects of radicalisation. Radicalisa-
tion is a product of protracted psycho-
logical conditioning of minds. It is car-
ried out through madrassas, mosques,
political propaganda, and print and
social media. Such venues of radicalisa-
tion need to be sanitised vigorously. DR
requires an enduring strategy that focu-
ses not just on targeting the external
and internal actors who fuel radicalisa-
tion, but also on the processes through
which it is carried out. The Internation-
al Centre for the Study of Islamic Radi-
calisation and Political Violence of
King’s College, London, studied DR pro-
grammes in eight Muslim majority
states. It covered Algeria, Bangladesh,
Egypt, Jordan, Malaysia, Morocco,
Saudi Arabia and Yemen. Radicalisation
of the population in these countries and
the techniques adopted varied from soft
to hybrid to hard approaches. Though
the study was done in January 2012,
just before the advent of the IS, the six
“general lessons” it provides are useful
while designing the DR effort in J&K.
The need for a national consensus for
such policies is the first priority. So in
J&K, a national consensus will have to
be evolved for undertaking DR, which
has to be sustained over a period of
time. Building a consensus is likely to
take time but it is a must. Saudi Arabia’s
success with DR is attributed to the
national consensus.
Secondly, successful DR policies need
committed and charismatic leadership
for initiating a change of approach to
violent extremism. The study recom-
mends “soft” policies to build confidence
and trust to create and maintain a con-
sensus around them. Bangladesh and
Egypt carried out DR with the support
of the government.
The State alone does not have all the
tools necessary to counter violent extre-
mism. Engagement with society through
civil society organisations with wide
experience and resources is likely to pro-
vide new ideas and reinforce the State’s
efforts. The Bangladesh DR relies heavi-
ly on NGOs to get in touch with vulner-
able groups in local communities.
Violent extremists in prison require “a
professional, comprehensive and finan-
cially sustainable” DR programme. It
should be designed as part of prison pol-
icy to prevent hardening of radicals and
attempts to radicalise other prisoners.
Without an environment of gover-
nance, successful DR cannot be carried
out. Such an environment requires the
ability to sustain high growth rate, check
corruption and inequity. Any deficien-
cies and grievances, particularly in
socio-economic conditions, are usually
exploited by extremists.
A
ccording to the study, religious
dialogue and counselling alone
will not curb violent extremism.
Other non-ideological, social, economic
and political factors also may contribute
to radicalisation. In an increasingly
globalised world, national DR pro-
grammes cannot be framed in isolation.
This is very much relevant in J&K as
Pakistan continues to be an external
source of support for radicalisation.
With the US-Taliban talks in the final
stage, we can expect the US to withdraw
its troops from Afghanistan, legitimising
the role of the Taliban in the power-
sharing arrangement. Its fallout on jiha-
di terrorism is not known; however, this
will have to be factored in in India’s
overall plans for J&K.
Successful DR has to be consistent
with J&K’s culture and be sensitive to
“what is acceptable and not acceptable
in their societies” as the study says. In
tandem with DR, a counter narrative
has to be developed for countering radi-
cal and extremist propaganda, particu-
larly through social media.
—The writer is a military intelligence
specialist on South Asia, associated with
the Chennai Centre for China Studies
and the International Law and Strategic
Studies Institute
CHARGED ENVIRONMENT
The frequent stone pelting incidents are a
sign of the growing frustration in the state
Photos: UNI

ULTURAL property is an
orphan area of Indian law,
although some attention is now
accorded to traditional knowl-
edge in teaching, research, and
the policy of intellectual property rights.
Dr Kabir Sanjay Bavkiatte and Professor
Thomas Bennett have now proposed a
new set of biocultural (human) rights
which signify “a community’s long estab-
Book Review/ Legally Victimising National Monuments
lished right, in accordance with its cus-
tomary laws, to steward its lands, waters
and resources”. Such rights “are not sim-
ply claims to property, in the typical
market sense of property being a univer-
sally commensurable, commodifiable
and alienable resource”. Rather, “biocul-
tural rights are collective rights of com-
munities to carry out traditional stew-
ardship roles vis-à-vis nature, as con-
When Monuments
Become DocumentsThe book by DR KRISHAN MAHAJAN, a professor of law, suggests that the time has
come to amend or make a law which will make protection of monuments a way of
protecting fundamental democratic rights
BY PROF UPENDRA BAXI
CCOLOSSAL NEGLECT
The book gives a lot of
attention to the Taj
Corridor case where the
SC saved the Taj Mahal
from further degradation
UNI

value and preserve the “composite cul-
ture” of India. But this shift has not
been normatively considered even by the
apex court. Instead, the Court broadly
adopted a third approach—the environ-
mental protection approach in passing
orders and directions to save the Taj
Mahal from further degradation. Chap-
ter XI of the book recounts five Taj
“assault” cases during 1993-2003. These
show the complete callousness with
which State officials have approached
the vandalistic assaults on the monu-
ment. It was declared as a UNESCO
World Heritage Site in 1983 for being
“the jewel of Muslim art in India and
one of the universally admired master-
pieces of the world’s heritage” and
hailed by Rabindranath Tagore as “the
teardrop on the cheek of time”. Regar-
ded as a symbol of India’s rich compos-
ite culture and history, it attracts at least
seven to eight million visitors a year.
The aesthetic features of the Taj seemed
not to matter to the State and its offi-
cials who were more bothered about
commercial tourism that they mindless-
ly sought to promote. The Court had to
cancel both a concert and a hotel con-
struction near the Taj. The apex court
has done the job of protection of monu-
ments that were statutory and adminis-
trative duties such as “closure of found-
ries using coal as fuel, relocation of
shops, battery driven buses to the Taj,
replacement of Uttar Pradesh police by
the Central Industrial Security Force,
ceived of by indigenous ontologies”. In
this sense, biocultural rights belong to
(what is now called by the UN) a world
of “post development”.
Whether protection of monuments
belongs to this set is an interesting
question but cognate remains Dr
Krishan Mahajan’s recent work, Legally
Victimising National Monuments,
which addresses the collective ways in
which Parliament, the Union govern-
ment and the Supreme Court together
may be said to have “legally victimised
monuments” (Chennai, Notion Press,
2018.) This is a brave and bold indict-
ment, based on a triple assertion of
rights and duties under the Constitu-
tion. First, the right to protection of
monuments is an integral aspect of the
rights guaranteed under Articles 25, 26
and 29. Second, Article 49 casts a con-
stitutional duty to protect national mon-
uments, but has been read by the politi-
cal executive as merely conferring
power. Third, the fundamental duty of
all citizens under Article 51(f) requires
them to “value and preserve the rich
heritage of our composite culture”. Why
may not the State managers and instru-
mentalities, the apex court and citizens
take a “holistic” interpretation of the
Constitution?
There seem to be two implications
arising from this approach. Dr Mahajan
maintains that the fundamental duty to
“value” and “preserve” composite culture
entails that the Indian State should so
act as to ensure that “the composite cul-
ture of all such monuments put together
does not get defined by only one religi-
on”. No more principled advice may be
soundly offered. But as underscored
fully by the author himself, the nature
and number of protected monuments in
India is yet to be fully ascertained and a
“culture of illegality” prevails where the
local villagers have no say in deciding
what, why, and how national monu-
ments are declared and maintained.
And this culture also engulfs forced nec-
essitous migration to cities. This ensures
that they become slum dwellers and
informal labourers, scarcely consulted or
concerned with national monuments’
policy, law, administration and interpre-
tation. Thus, the entire field is dominat-
ed by a colonial and not constitutional
approach. Indeed, the Ancient Monu-
ments Act, 1958, is broadly a replica of
a 1904 British India Act which merely
gives the power to make law or regula-
tion but is unconcerned with people’s
rights, freedoms, participation and
justice.
D
r Mahajan urges us to move
away from this “monuments as
objects” approach to a funda-
mental right to culture approach that
can be read into Article 29 and further
the fundamental duties of citizens to
ProfBaxisaysthe national
monuments’policy,law,admin-
istrationandinterpretationis
dominatedbyacolonialandnot
constitutionalapproach.
AuthorDrMahajan(right)urges
ustomoveawayfromthe
“monumentsasobjects”
approachtoafundamentalright
tocultureapproach.

developed in the first place (and some
would say vigorously so) by the Supreme
Court itself. Dr Mahajan finds a telling
instance in a decision headed by Justice
Ruma Pal to suo motu hive off the “dis-
proportionate assets case… from her Taj
Case bench”. But if the two were not
integrally connected, was the Court jus-
tified in the first place to proceed with
an entire Taj Heritage matter? Surely,
Dr Mahajan is right to flag off this
important concern: the Taj Heritage
Project was integrally related with the
Taj Mahal monument. One has to await
autobiographies or biographies of the
concerned Justices to fully understand
the factors which animated such a fate-
ful decision.
This work highlights the fundamen-
tal shift from the “mere monuments”
approach to a right to culture approach
for the protection of monuments. To this
end, Dr Mahajan suggests an outline for
and stopping of the construction of a
police station by the UP police opposite
to the Taj Mahal entrance”. Apart from
the callousness of officials, the state of
UP “contributed its own share towards
legally allowing industries to pollute
freely”.
B
ut it was the Taj Corridor case
that has received probably the
largest attention in the book. It
was for “the first time” that the Supreme
Court became the complainant for regis-
tering an FIR through its Assistant
Registrar (Public Interest). And the Taj
Mahal was saved of a “fun city” at the
“immediate rear… in the bed of River
Yamuna”. Critics rarely pay attention to
these developments of social action liti-
gation: the Court, as well as counsel and
amicus have played a heroic role in the
unfolding saga of a threatened Taj. The
Court could have done better to take
“the entire documentary evidence”
under its jurisdiction and kept a contin-
uing vigil on the litigation in process as
requested by the amicus. But, sadly, and
mysteriously, it preferred not to. And so
great was the “fascination” with the env-
ironmental route that in ordering prose-
cution under the Prevention of Corrup-
tion Act and the Water Pollution Act,
the Court missed highlighting offences
allegedly committed under “Sections 30,
31 and 32 of the Ancient Monuments
Act… even though these sections make
it a cognizable offence to imperil an
ancient national heritage monument”.
The book also notes the waning of
environmental protection approach
a new law and some interim steps,
which should command everyone’s
attention. In sum, he proposes a restora-
tion of a human right to culture as its
basis, which as a first step would pro-
vide the “detailed documentation of the
various monuments of various sections
of citizens in terms of their history,
geography, religion, livelihood, and the
mores of that time”. These labours of
oral historiography will also contribute
to “remodelling” and reinvigorating the
Archaeological Survey of India. The
power and obligation to protect ancient
monuments was in furtherance of
human rights, freedoms and justice and
if the old law does not meet the protec-
tion of fundamental democratic rights of
the people to a culture of their own
(must mean a greening of law), the time
has come to amend the law or make an
altogether new law.
Of course, the book has two wider
messages: the first is that the practice of
“unconstitutional economics” as State
policy and the lack therefore of a data-
base to implement Article 29 funda-
mental right which makes victimisation
of monuments inevitable. And second,
the judicial environmental approach of
the Supreme Court which did not con-
tribute to the fostering of consistency of
environmental jurisprudence. Both
these claims are weighty and deserve the
dignity of theoretical reflection.
Michel Foucault, in a random obser-
vation, wondered how it came to pass
that monuments of yesterday became
documents of today! We now know
what documents have meant to monu-
ments. We need to re-explore the rela-
tionships between the two and find ways
of recrafting institutional desires and
designs towards the end of the first
quarter of the 21st century.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
Legally
Victimising
National
Monuments
Author: Dr Krishan
Mahajan
Published by:
Notion Press, Inc
Pages: 380
Price: `400
Book Review/ Legally Victimising National Monuments
Anil Shakya
Oneofthebook’stwowider
messagesisthattheSC’sjudi-
cialenvironmentalapproachdid
notcontributetoaconsistency
ofenvironmentaljurisprudence.

NDIA EGALEEL STORIES THAT COUNT
` 100
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August12, 2019
VALLEYOF
FEARWiththeCentrecancellingtheAmarnathYatra
andrushingahugenumberofparamilitary
forcestoKashmir,fearsarisethatitisaprelude
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POCSO Act:
The courts step in
Lynch Mobs: Ignoring
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NDIA EGALL STORIES THAT COUNT
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August19, 2019
THELEGAL
QUESTIONThreePILshavebeenfiledintheSupremeCourtchallenging
theCentre’smovetoabrogateArticles370and35Arelating
to J&K and reducing the state to a Union Territory. Since
there are other states in India which enjoy special rights,
howcredibleisthelegalchallenge?
Car Thefts: The
Microdot answer
CSR and India Inc:
Threat of imprisonment
GALGAL
E
TTSSu
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to
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` 100
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ARoyalChallengeAquestionasked“justoutofcuriosity”bytheSupremeCourthasledtoseveralpeoplestaking
claimtoLordRam’slineage.Theseclaimshavebrieflyovershadowedthelanddisputecasein
whichthelegalargumentshaveraisedsomeotherintriguingquestions.
PlusBookExtract:Canreligionbeseparatedfrompolitics?
J&K: Winning global
support
Real Estate: Amendments
to Insolvency Act
BABRI MASJID-RAM JANMBHOOMI DISPUTE
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edtdtdt
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September2, 2019
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Legal Leadership Conclave
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nowthenorm,nottheexception
Patna High Court: Eleven
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UK: 10 Drowning
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P Chidambaram

Column/ RTI/ Shivanand Pandit
HE Right to Information
(RTI) Act bestows on citi-
zens the right to own and
retrieve information from
government organisations.
It says that in a democracy,
the government belongs to its citizens
who are the potentates. The fundamen-
tal aim of the Act is to embolden citi-
zens, ensure transparency and make the
government liable for better governance.
It has helped unearth many scams since
2005. Thus, the Act has helped citizens
act as vigilance inspectors in discovering
the dishonest deeds of the government.
In 2004, the first draft of the RTI
Act was presented in Parliament. It
recommended the appointment of
Information Commissioners (ICs) to
protect citizens’ right to information.
The Bill was discussed by a parliamen-
tary committee over six meetings. In it,
the chief commissioners were given the
same status as secretaries to the govern-
ment and other commissioners with
joint secretaries. The RTI Act, 2005,
had its origins in the apex court verdict
which was pronounced in 1981.
However, amendments made to the
Act in July 2019 were unfortunate. The
Lok Sabha passed the RTI Amendment
Bill, 2019, within three days of its
introduction. Initially, the Telangana
Rashtra Samithi, the YSR Congress
Party and the Biju Janata Dal opposed
it. However, in the Rajya Sabha, they
joined strength with the NDA. The
Opposition parties failed to put up a
united front and this gave rise to
numerous questions.
The amendments announced placed
ICs under the thumb of the government.
Thus, one more autonomous institution
will become an enslaved parrot.
The most controversial amendments
are that the terms of office of the central
and state Information Commissioners
will be decided by the central govern-
ment and their remuneration and
allowances, along with the terms and
conditions of service, will be regulated
by the central government (see box).
Such void and spurious proposals
indicate the underhand motive of the
government and place the Information
Commissioners under the capricious
regulation of the government. The gov-
ernment also proposes to consider the
Chief Information Commissioner (CIC)
and Chief Election Commissioner and
Election Commissioners differently on
the grounds that they have dissimilar
mandates.
The RTI was employed by citizens to
get information right from the village
ration shop to the RBI. Numerous ques-
tions were raised on demonetisation,
non-performing assets, defence deals,
electoral bonds, unemployment issues,
the appointment of various judicious
authorities, namely, Central Vigilance
Commissioner, Election Commissioners,
and so on. Now the government wants
to amend this.
Prime stakeholders, the CIC and the
ICs were kept in the dark and not con-
sulted before introducing the Bill. The
draft of the Bill was not made available
to the members in advance and no time
was allotted to them to study the pros
and cons. Enough time was also not
given to parliamentarians between the
introduction and discussion of the Bill.
Thus, the Bill’s introduction undermines
the provision of the Pre-Legislative
Consultation Policy which stipulates
Enslaved
Parrot
Theamendmentstothis
sunshinelawrestrictcitizens
fromtakingpowerinto
theirhandsandcurbthe
independenceofInformation
Commissioners.Is
ittimetowakeup
andsmellthecoffee?
T
DEMAND FOR DISCLOSURE
A protest march against the proposed
changes in the RTI Act, in New Delhi
Anil Shakya

public revelation and discussion on
draft legislation. Due to this, MPs, citi-
zens and the media did not know the
contents of the Bill. All this raises ques-
tions about transparency.
T
he government’s contention that
the RTI is not a constitutional
right cannot be upheld.
Numerous judicial pronouncements of
the Supreme Court have conferred this
right on the citizens of the country. The
ruling government is also of the opin-
ion that the RTI Act was passed in a
hurry in 2005. According to sources, all
the provisions were critically evaluated
by the Parliamentary Standing
Committee after consulting govern-
mental, non-governmental and related
stakeholders in 2005. While the gov-
ernment argues that amendments to
the Act are routine streamlining and
rationalisation of procedures, the haste
and mystery should not undercut citi-
zens’ right and obstruct itchy questions.
Many concerned citizens exhibited
their discontent regarding the amend-
ments and felt it was a bid to hijack
democracy. It is sad that the govern-
ment wants to weaken the strong legis-
lation which gives power to citizens to
raise the flag against the government in
various spheres.
Citizens should wake up to save the
RTI. They must write to the president,
asking him not to sign the Bill. It is the
responsibility of the citizens to safe-
guard the Constitution. In addition, we
can force the government to focus on
the real challenges faced by independent
organisations and send the Bill to a
Parliamentary Select Committee for
in-depth verification. The government
may amend a law but cannot
stop a united movement. If we fail to
save the RTI, this sunshine law will lose
its gleam.
Sadly, there has not been sufficient
public pressure on the government to
abstain from murdering the true spirit
of the original decree. Poor people need
food and not transparency and freedom.
They are aware that they have been
deprived of their basic rights through a
net of false promises based on docu-
ments that are mentioned, but never
publicised. But as per the RTI, these
documents were made available to all.
This is the main reason why we must
oppose any law which makes the RTI
misleading and deceptive.
Although the UPA government gave
a huge gift to the country in the form of
RTI, it failed to market it properly. The
BJP, on the other hand, grabbed the RTI
as a golden opportunity to expose cor-
ruption and other cracks in the UPA
government. However, the hasty amend-
ments to the Act make us ask valid
questions: Why is the government
scared of RTI? Does it want to continue
the autocratic style of governance? Is the
government worried that the RTI is
strong enough to topple it from power?
There are many questions to be
answered.
—The writer is a Goa-based financial
and tax specialist
ChangesandrevisionsmadeintheRTIAct
Provision RTI Act, 2005 RTI (Amendment) Bill, 2019
Term of office At the central and state level, Chief Information
Commissioner (CIC) and Information Commissioners
(ICs) are eligible to hold office for five years, or up to 65
years of age.
The Bill removes this provision and confers
the power on the central government to noti-
fy the term of office for the CIC and ICs.
Amount of Salary At the central level, the salary of the CIC and ICs will be
equivalent to the salary paid to the Chief Election
Commissioner and Election Commissioners, respective-
ly. At the state level, the salary of the CIC and ICs will be
equal to the salary paid to the election commissioners
and chief secretary, respectively.
The Bill removes these provisions and
confers the power on the central govern-
ment to decide salaries, allowances and
other terms and conditions of service of
central and state CICs and ICs.
Reductions in
Salary
At the central and state level, if the CIC and ICs, at the
time of appointment are in receipt of pension or any
other superannuation benefits for previous government
service, their salaries will be lessened by an amount
equal to the pension.
The Bill removes these provisions.
Thegovernment’scontentionthatthe
RTIisnotaconstitutionalright
cannotbeupheld.Numerousjudicial
pronouncementsoftheSupremeCourt
haveconferredthisright.

Column/ RBI Sanjiv Bhatia
HE Reserve Bank of India
(RBI) has three main
areas of responsibility. It
is a banker of banks and is
responsible for maintain-
ing public confidence in
the banking system. It is also the gov-
ernment’s banker, responsible for man-
aging the country’s money supply—
printing new money, destroying old
bills, and so on. In this role, it helps to
fund the government’s fiscal deficits by
buying government bonds (G-secs).
Finally, it protects the citizens’ wealth by
keeping inflation in check and main-
taining the external value of the rupee.
But the most crucial role of the RBI
is as a lender of last resort during times
of weakness in the financial system. In
the event of a loss of confidence in the
country’s banking system, and a run on
banks, it is the responsibility of the RBI
to provide the necessary liquidity to save
the financial system. In the 2008 eco-
nomic crisis, the central banks of the
US, European Union and Japan played
crucial roles by providing liquidity and
staving off a global disaster.
It is vital, therefore, for a country to
have an independent and financially sta-
ble central bank. But with the recent
rise of populist and autocratic leaders,
central bank independence is under
threat. Populist leaders are pressing for
more direct oversight and control over
monetary policy. Trump has demanded
that interest rates be slashed, Brexiteers
rubbish the competence and motives of
the Bank of England, Erdogan has been
in a tug-of-war with the Turkish central
bank and Modi replaced two capable
economists with a pliant insider who cut
rates ahead of an election and has
now overseen the largest capture of cen-
tral bank reserves by a government.
At a time when there is a need for seri-
ous debate and reflection on the objec-
tives, tools and limitations of central
banks there are dangerous forces afoot
that could undermine the world’s eco-
nomic stability.
There is an inherent conflict between
the objectives of a government and the
central bank due to the different time
frames under which the two operate.
The government consists of elected
politicians whose vision is short-term,
limited by the timing of the next elec-
tions. In India’s complicated electoral
process, there is always an election
around the corner. This means a con-
stant slew of new promises and hand-
outs to political groups and new welfare
Emptying India’s Piggy Bank
Overthelastfiveyears,theRBIhastransferreditsprofitstotheModigovernment.Nothingwas
addedtoitscontingencyreserves.ButtheRBIActstaesthatreservecapitalcannotbeusedup
T
TESTING TIMES
The Reserve Bank of
India is dealing with severe
fiscal pressures; (inset)
Governor Shaktikanta Das
Anil Shakya

schemes. When there is not enough
money to pay for all these schemes,
politicians head to the central bank bec-
ause that’s where the money is printed.
But a central bank needs a long-term
vision. It cannot merely be a piggy bank
for irresponsible government spending.
It must, at all cost, maintain financial
stability in the credit and equity mar-
kets. These markets are easily spooked
by inconsistent policies, and we saw in
2008 the havoc nervous financial mar-
kets can create. So, unlike politicians
whose survival depends on chameleon-
like adaptability, the central bank needs
clear, long-term and consistent policies.
Foreign investors and credit agencies
are also extremely sensitive to govern-
ment attempts to influence the central
bank. A country where politicians can
overrule the central bank to promote
excessive credit or to print too much cur-
rency is not a good place to invest bec-
ause debasing the currency and ignoring
the central bank disciplines have proved
ruinous for residents and investors.
The evidence over the last three
decades shows that an independent cen-
tral bank charged with a clear and
defined policy provides the basis for
strong monetary policy, low inflation
and stable financial conditions. On the
contrary, countries with weak central
banks have seen hyperinflation and
great economic devastation resulting in
a significant loss in national wealth.
Zimbabwe, Argentina, Turkey and
Greece are just recent examples of coun-
tries with weak central banks that have
faced serious economic crisis.
Every stable central bank must main-
tain a contingency reserve to provide
liquidity to the financial system. The
Basel norms suggest contingency
reserves of around 8 percent of assets.
For countries with more volatile curren-
cies, reserves need to be around 12 per-
cent. RBI’s internal research, based on
simulated risk models, suggests that
contingency reserves be maintained
between 9 percent and 12 percent of
assets. But the Jalan committee, set up
by the RBI last year to examine the issue
of reserve transfers to the government,
has surprisingly suggested a number
between 5.5 percent and 6.5 percent
(and preferably at the lower end of 5.5
percent).
I believe this is a serious mis-estima-
tion by the committee given the twin
reality of a deep banking crisis (com-
pounded by a significant slowdown in
the non-banking financial sector) and a
steady increase in the volatility of the
rupee since 2013. The committee should
have examined history to understand
the importance of central bank reserves
to financial stability. The Asian financial
crisis of 1997 which caused severe eco-
nomic devastation in several East Asian
countries, including Thailand, Indonesia
and South Korea was largely the result
of inadequate reserves. Argentina’s
recent debt default was triggered by
insufficient reserves at its central bank.
The graph (left) show’s RBI’s contin-
gency reserves as a percent of assets.
The RBI prudently maintained a ratio of
around 10 percent till 2013 after which
the reserve ratio started to decline quite
dramatically. By June 2019, the ratio
had fallen to 5.34 percent. This is dan-
gerously low and sends a loud negative
signal to global investors.
T
he drop in RBI’s reserves is
symptomatic of the clash
between policymakers whose
interests are entirely short-term, and the
RBI whose focus is the long-term stabil-
ity of the Indian rupee. The Modi gov-
ernment has an aggressive social agen-
da, but it hasn’t figured out how to
increase tax revenues to pay for all its
programmes. It tried demonetisation to
scare away black money and increase
the tax base—the results were disas-
trous. The resulting destruction of
wealth and business failures further
compounded the tax revenue problem.
The government then hurriedly intro-
duced a half-baked and complicated
GST tax regime with unrealistically high
tax rates. Predictably, this slowed
demand further and NPAs started to
rise. In a panic, the government raised
tax rates on the wealthy, but the market
responded with a dramatic sell-off, wip-
ing almost `15 lakh crore in wealth.
Now caught between a rock and a
hard place, the government has again
been misadvised to inject liquidity
14
12
10
8
6
4
2
0
2005 2007 2009 2011 2013 2015 2017 2019
RBI’sdecliningcapitalreserves(%ofassets)
Source: RBI
TheRBI’scontingencyreservesare
meanttoprotectthecountry’scurrency
anditsbankingsystem.Theyarenot
meanttopaysubsidiesthatpoliticians
promiseinordertogetelected.

Column/ RBI/ Sanjiv Bhatia
into the system by grabbing the contin-
gency reserves from the RBI. This
comes on top of the substantial amount
of money that the government has
already taken from the RBI over the
years. The RBI is required by law
(Chapter 4, Section 47 of the RBI Act)
to transfer the profits from its opera-
tions to the centre in the form of a divi-
dend after provisioning for reserves.
The RBI Act requires ONLY that the
central bank transfer its profits to the
government and not the reserve capital
built up over time. The government can
insist on capturing 100 percent of the
RBI’s profits, but no provision in the
original RBI Act allows the government
to pull money from the contingency
reserve fund.
In just five years, the Modi govern-
ment has taken almost twice of what the
Singh government took from the RBI in
ten years—`3,884 billion (`3.84 lakh
crore) versus `2,007 billion. Over the
last five years, the RBI has transferred
100 percent of its profits to the govern-
ment, compared to an average payout of
only 46.5 percent during the Singh gov-
ernment. Not a single rupee has been
added to the central bank’s contingency
reserves over the past five years, as a
result of which RBI reserves today are
lower than when the Modi government
took over in 2014.
The graph (above) shows the growth
in RBI reserves from 2005 to 2014, and
the subsequent drop from 2014 to 2019.
The Singh government can be blamed
for a lot of things, but when it came to
managing the people’s money, it acted
with prudence. Modi should thank
Singh for building up the RBI reserves
so he can now tap into that money and
bolster his credentials as a great welfare
provider. It is unlikely that the Modi
government would have been able to
support all the new schemes it has start-
ed had it not been for the fiscal pru-
dence of the previous government.
T
he RBI’s contingency reserves are
meant to protect the country’s
currency and its banking system.
They are not meant to pay for subsidies
that politicians promise in order to get
elected. It would have been more pru-
dent to use the `1.76 lakh crore from the
RBI’s reserves to buy NPAs (at face
value) from the commercial banks. This
would have shifted the bad loans to the
RBI’s balance sheet (where they matter
less) and allowed the commercial banks
to start lending again. This would have
immediately increased the amount of
credit available to the economy and
helped jumpstart stalled projects.
This would have also solved the hair-
cut problem that plagues the current
settlement of bad loans. Commercial
banks are under tremendous time pres-
sure to get rid of bad loans from their
books and have been settling them at
huge discounts. But as the RBI does not
deal directly with consumers, its balance
sheet does not have to meet the same
capital adequacy constraints.
The absence of time pressure would
have enabled better loan recovery rates.
The `1.76 lakh crore on the balance
sheet of commercial banks could then
have been lent to the government at
zero interest rates. Having the govern-
ment as a borrower would have further
improved the risk profile of commercial
bank loan portfolios.
Had the government given the pro-
cess more careful consideration, instead
of using its power to coercively grab the
RBI’s reserves, several problems could
have been solved simultaneously. The
NPA problem could have been mitigat-
ed, the balance sheet of commercial
banks would have improved, allowing
them to restart the credit cycle, the
recovery rates on bad loans would have
improved and the government would
have had access to funds at zero cost.
Grabbing contingency reserves from
the RBI was not a prudent step, given
the state of the country’s banking sys-
tem. Not using the money to reduce the
pressure of bad loans was thoughtless.
This government prides itself on its abil-
ity to make quick decisions.
When it comes to matters of the econ-
omy, however, a little more thought, ana-
lysis and debate is more appropriate.
—The writer is a financial economist
and founder, contractwithindia.com
2500
2000
1500
1000
500
0
2005 2007 2009 2011 2013 2015 2017 2019
RBI’scontingencyreserves(` billion)
Source: RBI
Injustfiveyears,theModigovernment
hastakenalmosttwiceofwhattheSingh
governmenttookfromtheRBIinten
years—`3,884billion(`3.84lakh
crore)versus`2,007billion.

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is unfortunate that despite discharging
its responsibilities to a great extent, the
august House ends up losing some deg-
ree of the esteem of the people on acc-
ount of disruptions and substantial loss
of functional time. Intense and passion-
ate submissions and debates are the
order of democracy, but disruptions are
certainly not.”
The frustration was palpable in the
Valedictory Remarks on April 6, 2018,
at the end of the 245th Session, when
Naidu said: “I am pained to note that it
turned out to be an eminently forget-
table one on account of utter disregard
of the mandate of this important parlia-
mentary institution and its responsibili-
ties and missed opportunities.”
By the end of the 248th Session
(February 13, 2019), the travails and
tribulations came to a boil: “With a
heavy heart, I have to say that this short
but important Budget session of Rajya
Sabha turned out to be another wasted
opportunity. This only reinforces the
‘dysfunctional pattern’ that has been evi-
dent over the last few years which is a
matter of serious concern and it will be
a big challenge to democracy.... So,
each one of us must seriously think if
Focus/ Behaviour of MPs
RDER, Order!!! The sig-
nature cry of the presid-
ing officers along with the
sounding of the gavel are
being so increasingly
heard in both Houses of
Parliament in recent times. Shortly after
the monsoon session of the twin Houses
ended in mid-August, the Chairman of
the Rajya Sabha, M Venkaiah Naidu,
exhorted political parties to put in place
a “code of conduct” for their legislators,
including MPs and MLAs, to ensure
that they do not disrupt the proceedings
of the House or resort to unruly behav-
iour, such as sloganeering or entering
the well of the House.
That this observation came at the
end of a “functional and productive”
249th Session of the Rajya Sabha “with
substantially reduced disruptions”, in his
own words, is not at all surprising. It is
perhaps an expression of anguish and
angst accumulated over his two-year
tenure or even before. In his valedictory
remarks on January 5, 2018, at the end
of the 244th Session, his very first after
assuming office, Naidu had observed: “It
Thoughtherearerulestodealwithparliamentarydisruptions,
RajyaSabhaChairmanMVenkaiahNaiduhascalledonpolitical
partiestoputinplaceacodeofconductforlegislators
By Vivek K Agnihotri
O
Disorder: The
Order Of The Day

Hour, to refrain from transgressing into
the well of the House or from shouting,
and to desist from any effort at interrup-
tions in or interference with the address
of the president.
Reverting to the opening exhortation
of Naidu, it is interesting to note that
more than 27 years ago, the All India
Conference of Presiding Officers, Lea-
ders of Parties, Ministers of Parliamen-
tary Affairs, Whips, Parliamentarians
and Legislators (a more inclusive con-
gregation of responsible authorities can-
not perhaps be imagined) on the topic
of “Discipline and Decorum in the
Parliament and State Legislatures”, held
on September 23-24, 1992, inter alia,
resolved “that the political parties
[should] evolve a code of conduct for
their Legislators and ensure its obser-
vance by them”.
Nor is this phenomenon unique. In
the 19th Conference of Speakers and
Presiding Officers of the Commonwealth
held in the United Kingdom (January
2-6, 2008), inter alia, the following dis-
cussion papers and documents were
presented and deliberated upon:
Keeping Order and Fostering Deco-
rum—A New Zealand Perspective; and
Parliamentary procedure for expulsion
and disciplining of Members.
Thus, across the board, there has
been dialogue on the need for a code
we can collectively enhance the quality
of debates, discussions and, most impor-
tantly, the demeanour...If cacophony
and disruptive spectacles become our
House’s defining characteristic, we
would have betrayed people’s trust in
each one of us.”
This saga of disruptions and distur-
bances is neither peculiar to the Rajya
Sabha nor a phenomenon of current ori-
gin. In the annual Conferences of Presi-
ding Officers of the Parliament and the
State Legislators, spread over more than
25 years, this subject has been discussed
and debated, with increasing concern.
In the conference held in Gandhina-
gar in 1992, the first item on the agenda
read: “Disorder and disturbances in the
House at the time of Address by Pre-
sident/Governors and measures to curb
them.” In Chandigarh (2001), the agen-
da had expanded and crystallised into:
“Need to evolve a Code of Conduct for
legislators and steps to contain frequent
adjournment of the legislatures on acc-
ount of interruptions/disturbances.” In
Thiruvananthapuram (2007) it was
even more stringent: “Indiscipline inclu-
ding disregard of Presiding Officers, dis-
turbances, disruptions and other serious
acts of misconduct in legislatures—Fut-
ure strategies to improve the situation.”
Back in Chandigarh (2008), there
was no respite: “Need to evolve proce-
dural devices and frame rules to control
unruly behaviour of the Members, their
entry in the well of the House, obstruc-
tion in the business of the House and
ensure improved management”. By the
time we come full circle to Gandhinagar
(2016), the situation is somewhat face-
tious: “Measures to be taken for ensur-
ing attendance of the Members during
the sittings of the House and for impro-
ving quality of debate....”
O
n the occasion of the Golden
Jubilee of Independence, politi-
cal parties represented in Par-
liament expressed their concern over the
breach of discipline and decorum in our
legislatures. A resolution was adopted
unanimously on September 1, 1997, in
the Houses of Parliament whereby the
members committed themselves to ma-
intaining the inviolability of Question
ThesagaofdisruptionsbyMPsisneither
peculiartotheRajyaSabhanora
phenomenonofcurrentorigin.Ithas
beendebatedanddiscussedovermore
than25yearsatseveralconferences.
VIOLATING RULES
Rajya Sabha Chairman M Venkaiah Naidu has
had to pull up members many tiimes for
unruly behaviour, causing disruptions

India Legal - 23 September 2019

India Legal - 23 September 2019

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