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India Legal 24 December 2018

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PERILOUS DIRECTION?

In a shocking statement, Attorney General KK Venugopal said the use of Constitutional Morality “can be very, very dangerous”. Considering he represents the government, his dire diagnosis has rung alarm bells. Noted jurist Upendra Baxi counters the argument.

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India Legal 24 December 2018

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com December24, 2018 PERILOUS DIRECTION?Inashockingstatement,Attorney GeneralKKVenugopalsaidtheuseof ConstitutionalMorality“canbevery, verydangerous”.Consideringhe representsthegovernment,hisdire diagnosishasrungalarmbells.Noted juristUpendraBaxicountersthe argument. Assembly Elections: A dress rehearsal Vijay Mallya: Extradition riddle
  2. 2. ELF-SERVING, sanctimonious political punditry was at its most brazen display on the Indian air- waves last week. TV anchors and analysts and print journalists tried desperately to grab at fanci- ful analyses of the unfolding electoral scenario in which the Congress party flipped the BJP in three states which form a major part of the Hindi heartland and con- tribute 65 Members of Parliament. The observations on the political phenomenon ranged from “Congress won by default” to “If Congress wins just one state, it’s the end of Rahul Gandhi” to “this was not a pro-Congress vote but an anti-BJP vote”. But there were some serious observations in the midst of this drivel. One of them being that these inanities were obstructing the real narrative that some 14 crore Indians—90 percent of them Hindu—had rejected the prevailing BJP-ism in the Hindi heartland. But punditry came up with a smarty-pants rationalisa- tion for this development as well: The Congress party under Rahul Gandhi had resorted to the deceptive electoral ploy of playing “soft Hindutva” to woo the electorate. No, nothing else mattered, not hundreds of thousands of farmers march- ing in protest to Mumbai and Delhi, skyrocketing diesel and LPG prices, the indirect tax regime sapping the core eco- nomic vitality of small businesses, demonetisation virtually uprooting the tertiary sector, murderous State-tolerated vig- ilantism on the rise, the implosion of the CBI …. “Soft Hindutva” is an oxymoron. “Hindutva” has nothing soft about it. It is a hard, sharp, multi-edged political weapon which finds no mention in India’s ancient Sanskrit culture or Vedic literature. It has manifested itself in the teachings of Veer Savarkar and MS Golwalkar, the patron saints of the RSS and the BJP, which were excoriated by no less a person than Sardar Vallabhbhai Patel, as extremist, hate-filled and venomous, when he, as India’s first home minister, banned the RSS, a right-wing Hindu organisation, following the assassination of Mahatma Gandhi. Hindutva is a millennial belief in which electoral politics —winning or losing doesn’t matter to the faithful—is an inconvenient stepping stone for the achievement of a Hindu Rashtra, a Reich in which all those who live in India pro- fessing different faiths must genuflect, as second class citi- zens, to the primacy of the Sangh Parivar’s adumbration of its theory and practice of Hinduism. Starting with the Ram Mandir movement in the 1990s, Hindutva practitioners like Yogi Adityanath—theirs is essentially a political faith—have invented and added ingen- ious weapons to their arsenal to spread fear and insecurity: “Love jihad”, “ghar wapsi”, “gau raksha”, “urban Naxals” and so on. If you continue to believe and practise the Hindu faith as your parents or teachers taught it to you, without subscribing to Hindutva dogma as preached by Golwalkar, et al, you are a “soft Hindu”. If you wear a sacred thread blessed by your guru, or visit a temple for blessings from a deity you may believe in, or smear your forehead with vermilion on an auspicious occa- sion without subscribing to the concept of a Hindu Rashtra, which BJP leader Jaswant Singh described as “abominable”, you are committing the sin of practising “soft Hindutva”. The reality is that “Hinduism”, which is a way of life which evolved from the ancient Sanskrit civilisation, has no unified church or episcopacy, is by its very nature “soft”. Hindutva, by contrast, is aggressive and evangelical. Those who posit, for example, that the BJP has re-posi- tioned Rahul Gandhi and the Congress into ditching secu- larism for “soft Hindutva” because he visits temples, under- stand neither Hinduism nor secularism. Religion and secu- larism are not incompatible. Secularism means respecting all religions equally within a country. Gandhiji professed himself a deeply religious Hindu but he was one of the world’s greatest secular leaders, as was Sarvepalli Radhakrishnan who penned the best-selling The Hindu Way of Life. Theocracy, conversely, is incompatible with secularism because it advocates a religious State. So the political debate in India is not between “Hindutva” and “soft Hindutva”. It is between “Hindutva” and “Hinduism.” Hindutva, as preached from the pulpits of the RSS, can never be “soft”. Therefore, those who poke fun at “soft Hindutva” are really taking aim at true Hinduism, which emanated and evolved from the ruminations and poems of Vedic sages and wan- dering minstrels, including Vivekananda and Ramanna Maharishi, as a liberal, tolerant, secular and vibrant philoso- phy of life and living. Hinduism is the search for the truth and enlightenment. Hindutva is the quest for power. HINDUTVA—THE HARD AND THE SOFT OF IT Inderjit Badhwar Letter from the Editor S 4 December 24, 2018 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
  3. 3. ContentsVOLUME XII ISSUE6 DECEMBER24,2018 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 December 24, 2018 14Dangerous Direction Attorney General KK Venugopal’s diatribe against the apex court’s reliance on constitutional morality has raised eyebrows. Legal luminary Prof Upendra Baxi cautions him LEAD 18Still a Hot Potato Although the Supreme Court has given the Modi government a clean chit on the Rafale deal, the issue is unlikely to die as the Opposition will use it as ammunition for the 2019 polls SUPREMECOURT 19Judge under a Cloud The apex court has asked for a consolidated list of corruption charges against Justice Ram Krishna Gautam, who was recently elevated as additional judge of the Allahabad High Court 20A Paradigm Shift Although public opinion on the abolition of the death penalty remains divided, some courts are adopting a more humane approach on this issue and the rights of convicts on death row
  4. 4. | INDIA LEGAL | December 24, 2018 7 Return of the Prodigal REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE Cover Photo: ANIL SHAKYA Ringside............................8 Courts ...............................9 Is That Legal...................10 Delhi Durbar ...................12 Media Watch ..................49 Satire ..............................50 The Westminster Magistrates’ Court has ruled in favour of Vijay Mallya’s extradition to India. However, it could take some time before he is lodged in Arthur Road Jail 46 Jumbo Woes 36 Acting on a Supreme Court order, the Forest and Wildlife Department of Kerala has completed a census on the number of captive elephants in the state. The revelations are far from encouraging Will it Benefit All? 40 The hearing of the two-decade-old petition challenging the Jammu and Kashmir Resettlement Act of 1982 raises many questions Role of Saviour In the second of India Legal’s series on significant judgments by former chief justices, we bring you a verdict by former CJI Dipak Misra on the abortion right of a rape survivor 22 Kake versus Kaka Delhi's famous Kake-Da-Hotel has sued Kaka-Ka Dhaba Pvt Ltd, a Nashik chain, for trademark infringement before the Delhi HC 24 GLOBALTRENDS POLITICS SPECIAL COURTS FM Arun Jaitley wants a federal institution, like the GST Council, for healthcare. Will it lead to a “one India, one health policy”? Kedarnath Controversy Despite the Uttarakhand HC dismissing a plea to ban the film, the state government asked DMs to decide on its screening and seven districts promptly banned it 26 Water of Discontent 34 The fight between Karnataka and Tamil Nadu over the Mekedatu reservoir on the Cauvery has reached the Supreme Court. Karnataka has got relief as of now but the issue remains unresolved STATES On Shaky Ground 44 A bleak future awaits US President Donald Trump as a US special prosecutor probes deeper into alleged election collusion between him and his Russian counterpart COLUMN Tough Battle to the Finish The recent drubbing in the assembly polls is a wake-up call for the BJP before the 2019 polls. The Congress, too, has its task cut out 28 HEALTH Unified Response 32
  5. 5. 8 December 24, 2018 “ RINGSIDE “I think...(the abrupt resignation of Patel) is something that all Indians should be concerned about because the strength of our institutions is...important for our growth, sustainable growth and equity in the economy.” —Former RBI Gover- nor Raghuram Rajan after his successor, Urjit Patel, resigned “...he was handed a massive opportuni- ty...he refused to lis- ten to the heartbeat of the country... Certain amount of arrogance came in ...fatal for a politic- ian....For me the best teachers are the peo- ple of this country.” —Rahul Gandhi after the recent assembly poll results “For 40 years Mallya was regularly paying interest on loans. Af- ter entering the avia- tion sector, he started facing problems, and suddenly he became a thief? If a person repays the interest for 50 years, and if he defaults once, then suddenly every- thing is fraud?...” —Union minister Nitin Gadkari “He was a historian of eminence with deep insight into processes that con- tributed to the mak- ing of the modern Indian progressive mind…. He was a modern and secular Indian....” —Former Vice Presi- dent Hamid Ansari on the death of Mushi- rul Hasan, former V-C of Jamia Millia “The Union Cabinet has been reduced to a mere rubber stamp ...endorsing your decision without any deliberation.... My conscience does not permit me to be a part of a government that has failed to ful- fil its promises....” —HRD minister and RLSP chief Upendra Kushwaha in a letter to PM Modi “I think we would have had significant- ly better outcomes, if we had just thought about simple things. If you are taking out `500 and `1,000 notes, why would you introduce `2,000 notes? —Uday Kotak, execu- tive vice-chairman and MD, Kotak Mahindra Bank “It is not a military problem. The one person who under- stood it was (former Prime Minister Atal Bihari) Vajpayee and his way is the only way. We have to en- gage and talk. We hugely exaggerate the role of Pakistan.” —Former RAW chief AS Dulat on the Kashmir issue “If they can’t function together, they should stop functioning and report to the court.....Can you ride a bicycle that has one truck tyre and other cycle wheel? The SC would have immediately made this a three- or five-member committee, which would work on majority decisions.” —Justice (retd) RM Lodha, on the power struggle between CoA members of BCCI Vinod Rai and Diana Edulji to The Indian Express
  6. 6. While hearing a plea filed by Umadevi, widow of writer MM Kalburgi, who had sought an SIT probe into his death, the Supreme Court asked the CBI if it had come across any “common thr- ead” in the alleged murders of Kalburgi and journalist Gauri Lankesh in Karnataka, and activists Narendra Dabh- olkar and Govind Pansare in Maharashtra. The Court added that in case the CBI established a common link or found any evidence which prima facie suggested so, investigation into all the four cases would be handed over to it. At present, the CBI is probing the Dabholkar mur- der case on the directions of the Bombay High Court and the Supreme Court. The Court has asked the agency to respond to its query by the first week of January. Courts | INDIA LEGAL | December 24, 2018 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal Team SC extends NRC claims deadline Dismissing a petition which raised the question of dis- closure of identity of rape sur- vivors, a Supreme Court bench of Justices MB Lokur (right) and Deepak Gupta (far right) laid down some guidelines for the media to follow while rep- orting sexual assault crimes. The bench asked the print, ele- ctronic and social media to avoid publishing the names of dead rape victims. It added that the victim’s identity should not be revealed even with the consent of the next of kin unless a sessions judge decided that circumstances justifying the disclosure existed. In relation to sex crimes involving children, the bench said the media should avoid sensationalism while reporting such crimes, to avoid damage to its credibility. The bench also directed the media to refrain from talking to rape sur- vivors because it forced the victim to relive the trauma he/she had gone through. The Court said that FIRs relating to rape and re- lated crimes and offences under the POCSO Act should not be in the public domain as they contain details of the survivor or victim. While disposing of a petition filed by a man who was den- ied a domicile certificate by the state government, a Meghalaya High Court judge said India should have been declared a Hindu nation at the time of Partition just like Pakistan was declared an Islamic nation. Justice SR Sen, the lone judge in the Meghalaya High Court, also said that “nobody should try to make India another Islamic country....I am confi- dent that only this government under Narendra Modi Ji will understand the gravity, and will do the needful as requested above”. Probe common link into alleged murders: SC tells CBI The Supreme Court collegium has recom- mended the names of two judges, Justice Rajendra Menon (left) and Justice Pradeep Nandrajog, for elevation to the Supreme Court. Justice Menon has been serving as the chief justice of the Delhi High Court since August this year, after serving as the chief justice of the Patna High Court. Justice Nandrajog has been heading the Rajasthan High Court since March 2017, following a transfer from the Delhi High Court. If their names are cleared by the centre before the impending retirement of Justice MB Lokur, the working strength of the Supreme Court will increase to 29. The sanctioned strength is 31. Following a request from the Assam government, the Supreme Court extended the last date for filing claims and object- ions related to the draft National Register of Citizens (NRC) to December 31. The earlier deadline was December 15. A bench of Chief Justice Ranjan Gogoi and Justice RF Nariman said the exten- sion was necessary “keeping in mind the rate at which the claims are being received”. The Court also said that the process of verifi- cation of claims and objections, which was scheduled to start from February 1, will stand postponed to February 15. Two judges recommended for elevation to SC Media should not identify sexual assault survivors, says SC Meghalaya HC bats for Hindu nation
  7. 7. ISTHAT What is cyber bullying and under which legal provision can it be tackled? Cyber bullying is a form of bully- ing which is done with the aid of electronic technology. The acts include sending intimidating emails or messages to some- one, spreading rumours about someone or sending embarrass- ing pictures, etc. An act of bully- ing in the cyber space is similar to bullying in the real world. It is covered under the Indian Penal Code as well as the Information Technology Act, 2000. Section 66A deals with cyber bullying, and makes it punishable with imprisonment of up to three years and a fine. Is it mandatory for a police officer to wear visible and legible identification (name, rank or badge number) while arresting someone? According to Section 41B of the Code of Criminal Procedure, it is mandatory for the police officer to bear an accurate, visible and clear identification of his name while arrest- ing someone. This helps in easily identifying the concerned officer at the time of probe. Need for Identification —Compiled by Deepankar Malviya Online Harassment is Punishable Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis Are SMS/WhatsApp messages admissi- ble as evidence in a court of law? An SMS/WhatsApp message can be admissible in a court of law under Section 65B of the Indian Evidence Act. The Act states that any electronic record which can be printed on a paper, stored, recorded or copied in optical or magnet- ic media produced by a computer shall be deemed to be a docu- ment. However, before it is admissible, it has to fulfil four conditions: The computer (includ- ing mobile phones) that produced it is in regular use at the time of pro- duction of the said message. The kind of infor- mation contained in the message was regularly fed in the computer in the ordi- nary course of activity. The electronic device should have been working properly at the time of creation of the message. The copy should be a reproduction of the original message. Question of Evidence ? What are the laws for adoption in India? The process of adoption in India is governed by two different laws—The Hindu Adoptions and Maintenance Act and The Guardians and Wards Act. The Hindu Adoption and Maintenance Act governs the Hindus, Buddhists, Jains and Sikhs. According to the Act, any person can adopt a child subject to the follow- ing conditions: If a couple adopts a male child, it should be done with the consent of the spouse and there should not be a male successor in the next three generations at the time of adoption. If a couple adopts a female child, it should be done with the consent of the spouse and there should not be a daughter or son’s daughter at the time of adoption. If a Hindu male adopts a female child, the- re should be an age difference of 21 years. If a Hindu female adopts a male child, there should be an age gap of 21 years. The Guardians and Wards Act allows Muslims, Christians, Parsis and Jews to adopt a child and take over guardianship only till the time the child attains 21 years of age, after which the child is considered to be independent of the guardian. 10 December 24, 2018 Adopting a Child
  8. 8. 12 December 24, 2018 An inside track of happenings in Lutyens’ Delhi The heads of four crucial agencies fell vacant or will fall vacant in the near future, with huge implications for India’s financial stability and its intelligence gathering capabilities. The vacancy in the RBI, prompted by Governor Urjit Patel’s sudden resignation, has been quickly filled by Shaktikanta Das (right), a career bureaucrat who publicly backed demonetisation as secretary in the Department of Economic Affairs and is unlikely to resist pressure from the government on certain policies, like Patel did, preferring to quit rather than give in. The three other heads are all to do with intelligence agencies—the CBI, which is looking for a chief after its cur- rent boss and number two both fought openly like cats and are being grilled in the Supreme Court. Then there is the choice of head of India’s external intelli- gence agency, Research and Analysis Wing (RAW), to replace current incum- bent AK Dhasmana (centre), who retires on December 31, as does the head of the Intelligence Bureau (IB), Rajiv Jain (right). The buzz is that the new director of IB could be Arvind Ku- mar, currently special director and an expert on Kashmir with specialisation in counter-terrorism, while Dhasmana may be given an extension. HEADS AND TAILS Narendra Modi and Amit Shah will officially share the blame for last week’s embarrassing loss in the Hindi heartland to the Congress but the leader who has lost the most—face, stature and star power—is UP Chief Minister Yogi Adityanath. He was handpicked by the Modi-Shah duo, prompted by the RSS, to be the BJP’s star campaigner in the states that went to the polls, especially Madhya Pradesh, Chhattisgarh and Rajasthan, where he held a record 75 rallies, more than the prime minister and Shah combined. The idea behind promoting Yogi was to fuel the hardcore Hindutva agenda, something that comes naturally to the rabble rousing Yogi. At every rally, his language was coarse and divisive, invoking Ram Rajya. “Keep your Ali, Bajrang Bali is enough for us,” was one of his favourite opening lines during his hate-filled speeches. His constant focus through- out the campaign was on construction of a Ram temple, while attacking the Congress for terrorism and for support- ing Pakistan. His key slogan was “Joh Ram ka nahin, woh hamare kisi kaam ka nahin (He who is not with Ram/That which is not Ram, is of no use to us).” He also spoke of changing the names of Faizabad and Allahabad to Ayodhya and Prayagraj, respectively, to uphold “Vedic traditions of India”, adding: “While taking these steps, we did not get scared like the Congress that we would lose a vote bank.” Like Modi and Shah, he failed to see that Hindutva and the Ram temple were not issues in these elections, but agrarian distress and joblessness were. After the poll debacle, clearly, his days as Modi’s favourite chief minister and star campaigner are over. FALLOFAYOGI
  9. 9. | INDIA LEGAL | December 24, 2018 13 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Delhi Durbar THE LUCKY CHARM Was it just a mere coincidence that the man deputed by the CBI to represent the agency in two high-profile extradition cases, one in Dubai, the other a week later in London, ended in rulings in the Indian government’s favour. The man is CBI Joint Director A Sai Manohar, who had flown to Dubai when the Indian embassy sent word that Christian Michel, the AgustaWestland middleman, was likely to be extradited. He flew there on a Bombardier jet which is owned by the Aviation Research Centre, another clandes- tine intelligence agency, and brought Michel back with him. A few days later, he flew to London to attend the extradition trial of embattled liquor baron Vijay Mallya. He was not originally assigned to the Mallya hearings—that role went to Special Director Rakesh Asthana, who had been attending the trial in London’s magistrate court till the government divested him of powers after he and CBI Director Alok Verma engaged in an open feud. Manohar was then sent in his place, for the crucial hea- ring where the court ruled that Mallya would be extradited. Coincidence or lucky charm? PILOT AT MACH-1 There’s little doubt that the Congress’s Rajasthan campaign created the upturn for the party largely because of Sachin Pilot’s cockpit dexterity. What has impressed Congress bigwigs is not just that he has for the first time solidly consolidated the Gujjar vote, which can influence some 14 parlia- mentary seats in the 2019 elections, but also the pace of his non-stop electioneering. Of the Congress’s 600 meetings in the state, Pilot alone conducted 230 rallies. In compari- son, the party’s old warhorse, Ashok Gehlot, managed 100, while all the BJP bigshots, including Yogi Adityanath and the PM, man- aged only 223. The actual wedding was on December 12 in Mumbai but even before that, doting dad Mukesh Ambani spent approximately $100 million on just the pre-wed- ding ceremonies for daughter Isha. The American media has been awestruck by the money spent— singer Beyonce who charges $4 million per show was flown in from New York on a private jet along with hair- dresser, make- up artist and bodyguards just for one night’s perform- ance in Udaipur and flown back the next day. She also, reportedly, charged well over her standard rate. Similarly, the Ambanis also flew in former presidential contender Hillary Clinton and ex-Secretary of State John Kerry by private jet. All other guests were also flown to Udaipur on a fleet of pri- vate aircraft as were the guests who attended two other lavish pre- wedding bashes in Goa and Lake Como in Italy. MONEY NO OBJECT The Modi govern- ment, enthused by the propaganda value of the surgical strikes carried out by the Army across the bor- der, now wants a spe- cial force dedicated solely for this, despite warnings and misgivings by securi- ty experts. The new force, under the direction of National Security Advisor Ajit Doval, will be made up of the most elite and outstanding personnel from various special forces, the Army, the Indian Navy’s Marcos (Marine Commandos), and the Garuds of the Indian Air Force, with a sprinkling from the NSG. The problem is that the empha- sis is on the best trained and most experienced in covert action, means that these forces will be denuded of their best officers and personnel and suffer a leadership vacuum. The other issue is that this special strike force will be under the command of the Army chief, rather than an overall commander. Rivalry between the Army, Navy and Air Force has so far stymied the appointment of a permanent chairman of chief of staff. The bigger problem, of course, is that having a special surgical strike force means that the temptation to use it for political gain or propaganda value is extremely high, dangerously raising the stakes as far as the two nuclear-armed neighbours are concerned. STRIKE FARCE
  10. 10. POLITICALLY MOTIVATED? Attorney General KK Venugopal criticised the SC for giving itself enormous powers Lead/ Constitutional Morality/Column Prof Upendra Baxi Inasurprisingattackon“constitutionalmorality”,AttorneyGeneralKKVenugopalsaiditsuse“canbe very,verydangerous”.DoesthisviewquestionthebasicstructureoftheConstitution? A Dangerous Precedent? TTORNEY General (AG) KK Venugopal, speaking at the Second J Dada- chanji Memorial Debate, had said that the “use of constitutional morality can be very, very dangerous and we can’t be sure where it will lead us to. I hope constitutional morality dies”. He went on to say that “if constitutional morality still breathes, first Prime Minister Jawa- harlal Nehru’s fear that the Supreme Court will become the third chamber of Parliament might come true”. His attack on the very concept of constitutional morality is unprecedented and so also his dire forebodings of constitutional endangerment. This essay, gener- ously invited by India Legal, may be read alongside what I had to say in the centerpiece in The Indian Express. A 14 December 24, 2018
  11. 11. tantrums against any minority…can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate”. Further, the Directive Principles of State Policy articulate solemn human rights obligations, which are declared paramount in making of laws and gover- nance of the nation. And now (since 1976) Part IV-A (Article 51-A) details the fundamental duties of all citizens. To crown it all, the Preamble stipulates the values integral to the constitutionally desired social order; the elaborate con- stitutional text merely constitutes one massive footnote to the Preamble. True, only once did Babasaheb Am- bedkar in Constituent Assembly debates express a concern regarding diffusion of “constitutional morality”, acknowledged all round as a “necessity for the peaceful working of the democratic constitution”. However, two things ought to be recog- nised. One is “the form of administra- tion must be appropriate to and in the same sense as the form of the Consti- tution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the Constitution”. It is all the more important to recall that “constitutional morality is not a natural sentiment. It has to be cultivated.… Our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic”. P ratap Bhanu Mehta valuably reads Ambedkar as suggesting three distinctions: morality of the Constitution, conventions and pro- tocols of discretionary power when the constitutional text is silent and growth of belief (both obedience and loyalty) to constitutionalism by the rulers and the ruled. Ambedkar fondly quoted Grote (the Greek historian), who felt that constitutional morality “is an indispen- sable condition of government at once free and peaceable; since even any powerful and obsti- nate minority may render the working of a free institu- tion impracticable without being strong enough to con- quer the ascendancy for themselves”. The Court has developed the concept large- ly in this third sense with the help of able lawyers. Naz provides one critical component—it holds that moral “indignation, howso- ever strong, is not a valid basis for overriding individ- uals’ fundamental rights of dignity and privacy. In our scheme of things, constitu- tional morality must out- weigh the argument of pub- lic morality, even if it be the majoritarian view”. Is the hermeneutic adju- dicatory leadership concept “dangerous”? Is it like “pub- lic policy”, often described The learned AG is sadly mistaken to think that the concept of constitutional morality is new; in fact, it is as old as the Constitution of India. The adoption of Fundamental Rights (Part III of the Constitution) itself testified to the ethi- cal idea of limited government. And even when Parliament by law may legis- late within reasonable limits, the final curtain on any controversy has to be rung by the Supreme Court. Every per- son has a fundamental right under Article 32 to constitutional remedies and accordingly, it is the judicial pro- vince and function to determine the rea- sonableness of restrictions. Of course, judicial self-restraint deferring to the will and wisdom of democratically com- posed legislatures is an apt posture but (as Justices AP Shah and S Muralidhar said in Naz) when “constitutionally entrenched human rights” are entailed, “considerably less deference to the legis- lature” has to be shown “than would otherwise be the case”. Justice Krishna Iyer inimitably said in Maneka Gandhi: “The compulsion of constitutional humanism and the assumption of full faith in life and liber- ty”, is not “so futile or fragmentary that any transient legislative majority in Judicialself-restraintdeferringtothewillof democraticallycomposedlegislaturesisan aptposturebut(asJusticesAPShah(left) andSMuralidharsaidinNaz)when“consti- tutionallyentrenchedhumanrights”are entailed,“considerablylessdeferencetothe legislature”hastobeshown. | INDIA LEGAL | December 24, 2018 15
  12. 12. as an unruly horse by many a common law judge? Not so because constitutional morality cannot be an individual jus- tice’s patrimony, predilection or predis- position. It has to be a disciplined and collegiate interpretive concept. The Court has precisely tried to evolve such a concept and it has two dimensions. T he first concerns what Justices may do in performing the tasks of interpretation (call this an internal aspect). This comes into play in re-crafting approaches to constitutional construction. The second concerns the external dimension—what Ambedkar named “the diffusion of constitutional morality” among those who govern and those who are governed. If one thinks of a cache of decisions in late 2018 when Chief Justice Dipak Misra was to retire, the impression of judicial adventurism which is dangerous to social and politi- cal order can plausibly be created. But a systematic exploration of the judicial evolution of the concept dispels this view. The internal aspect comes to the foreground with and since the Delhi High Court Naz decision in 2007. It is presumably excites the ire of the AG is the second aspect. In Manoj, the Court (as per Chief Justice Dipak Misra) said that “the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality”. Justice DY Chandrachud in Delhi, Lt Governor portrayed constitutional mo- rality as a “governing ideal” that “high- lights the need to preserve the trust of the people in institutions of democracy, just social cooperation, and coordina- tion of pursuits of constitutional aspira- tions that cannot be achieved single- handedly”. It “encompasses not just the carried forward in Manoj Narula (2014) and later in the cache of deci- sions in 2018. These decisions clearly prescribe adjudicatory ways to construe constitutional provisions, respecting at one and the same time the fundamental rights of individuals and the tasks of constitutional good governance. What FUELLING OBJECTIONS The SC had relied on constitutional morality in its Sabarimala judgment Lead/ Constitutional Morality/Column/ Prof Upendra Baxi JusticeKrishnaIyersaidinManekaGandhi:“Thecom- pulsionofconstitutionalhumanismandtheassump- tionoffullfaithinlifeandliberty”,isnot“sofutile... thatanytransientlegislativemajorityintantrums againstanyminority…can...sterilisethe...mandate.” 16 December 24, 2018
  13. 13. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com forms and procedures of the Consti- tution”, but provides an “enabling frame- work that allows a society the possibili- ties of self-renewal”. Chief Justice Misra in Navtej men- tions as the “overarching ideals of indi- vidual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings as basis for identifying violent social exclusion, dis- crimination and alienation” which is violative of constitutional morality, although tolerated, or even approved by civil society. What can be found “dangerous” in such enunciations except that it disturbs dogmas that preach discrimination and exclusion as public virtues? Was Pro- fessor Ronald Dworkin being dangerous when he felicitously proposed a “moral reading of the Constitution”? What are the other ways of reading where “funda- mental rights” have systemically “eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and big- oted perceptions”? The learned AG seems worried that the Court may begin to act as a “third chamber” if constitutional morality is deployed as a test; but should it, by the same token, leave everything, including the protection of fundamental rights, to the legislative-executive combine? T ake the recent situation brewing over divesting self-help groups of the responsibility of preparing mid-day meals for government schools. One result has been that the Akhsya Patra Foundation (an NGO of Hare Krishna Consciousness—ISKCON) is running very hygienic centralised food kitchens in many states. However, their own religious beliefs and dietary prac- tices have resulted in a change of the menu so as to exclude eggs, garlic and onions from the prepared food. Many school children, parents, teachers unions, central government depart- ments and leading scientific agencies have protested this dietary exclusion saying it deprived the children of minimal nutrition. And yet the divest- ment persists. While there is no right to have a gov- ernment contract, is it still a violation of the right to essential religious prac- tice to enforce a choice of menu that in- cludes these items? If so, does this am- ount to a discriminatory practice mili- tating against religious groups for gov- ernmental contracts? Does the judicially created right to food under Article 21 create also a right to tasty food or will any diet do? Why cannot bland food still be made nutritious? Should sattvic aahaar (spiritually sanctioned food) always be held nutritionally superior to the well-nourished constitutional vichar (thought)? Courts are constitutionally mandated to adjudicate matters which raise com- peting contentions regarding core human rights. Constitutional morality contains a set of goals and methods by which to address these conflicts. The apex court has never said that all public policy always offends constitutional morality, but only that the courts must choose the latter when the two are in visible conflict. The dialectic between public morali- ty and constitutional morality serves well the promotion of constitutional good governance and the production of constitutionally sincere citizens. I hope that my good friend Venu finds ample scope for re-examination of his current expostulations and exhortations. —The author is an international law scholar, an acclaimed teacher and a well-known writer JusticeDYChandrachudinDelhi,Lt Governorportrayedconstitutionalmorali- tyasa“governingideal”that“highlights theneedtopreservethetrustofthepeo- pleininstitutionsofdemocracy...”. | INDIA LEGAL | December 24, 2018 17 UNI
  14. 14. Supreme Court/ Rafale Verdict 18 December 24, 2018 ATTLING a slew of cor- ruption charges and crony capitalism and with its humiliating exit in the recent assembly polls still fresh in the mind, the BJP got a lifeline from the Supreme Court when the latter dismissed several petitions seeking a Court-monitored probe into the Rafale deal with the French government. A three-judge bench of the Supreme Court led by Chief Justice of India Ranjan Gogoi said in its order: “Our country can’t afford to be unprepared in matters of fighter aircrafts. We can’t go into the wisdom of purchasing 36 air- crafts in place of over 100 aircrafts under the last deal…we don’t even need to go into pricing. The decision-making process cannot be reviewed judicially. We do not see any commercial favour- itism in choosing a partner.” The bench had barely finished pro- nouncing the verdict than the BJP pounced on the Congress, especially party president Rahul Gandhi, from whom it sought an apology. BJP presi- dent Amit Shah said in a tweet: “Truth always triumphs! Court’s judgment on the Rafale deal exposes the campaign of misinformation spearheaded by Congress president for political gains. The court didn't find anything wrong with the process, nor did it find any commercial favouritism in the deal.” However, the Congress said that the court ruling is “not a setback at all”. “The verdict of the Supreme Court is a validation of what the Congress party stated months ago that the Supreme Court is not the forum to decide such sensitive defence contracts,” party spokesperson Randeep Surjewala said. “If they have nothing to hide, I challenge Modiji and his government to submit to a JPC probe which will question and go into the corruption in the defence deal.” Congress leader Jyotiraditya Scindia also felt the apex court order was not a setback as the Rafale deal remained an issue in the people’s court and the party would continue to raise it in Parliament. Whether it retains its potency as an election issue remains to be seen, but it will surely be tested as it has been the Opposition’s main political weapon. It was in November last year, nearly two years after then French President Francois Hollande signed the deal with Modi, that the Congress first felt some- thing was fishy in the Rafale deal. Gandhi talked about a “huge scam that was brewing”. In Parliament, the ruling benches responded by mocking him, using their favourite epithets. But Gandhi kept up the pressure and even went to the extent of claiming that the BJP was not allowing Parliament to run only to prevent him from speaking on the deal. “If I am allowed to speak there will be an earthquake,” he once claimed. He had even gone to the extent of call- ing Modi a thief at a rally in Dungarpur, Rajasthan. “Gali gali mein shor hai, Hindustan ka chowkidar chor hai (There is noise everywhere, the country’s guard is a thief),” he had alleged. He took the battle outside Parlia- ment too and some of his antagonists even grudgingly conceded that his unre- lenting attacks on the prime minister with regard to Rafale, demonetisation and the escape of Vijay Mallya, Nirav Modi and Mehul Choksi in his numer- ous rallies struck a chord with the vot- ers. His campaign obviously paid rich dividends in the Hindi heartland as the recent assembly poll results showed. With the Supreme Court verdict on Rafale, the matter should ordinarily be allowed to rest. But if the conduct of leaders on both sides in Parliament, including stalling, is anything to go by, Rafale will remain a political hot potato in May 2019 and even beyond. Still a Hot Potato Theapexcourtverdictonthedefencedealgivesabreather tothebeleagueredgovernment,buttheOppositionissureto useitasammunitioninthe2019polls By India Legal Bureau B NOTHING FISHY The apex court verdict has given a clean chit to the government on the Rafale deal Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com UNI
  15. 15. | INDIA LEGAL | December 24, 2018 19 Supreme Court/ Corruption Charges Against Judge BENCH of the Supreme Court comprising Justices AK Sikri and Abdul Nazeer has asked for a list of allegations against Justice Ram Krishna Gautam, a recently elevated additional judge of the Allahabad High Court, against whom corruption charges were levied in a Special Leave Petition (SLP). The SLP was filed by the Progressive Lawyers Association, an NGO based in Meerut. Justice Gautam was appointed as a civil judge in 1985 and thereafter pro- moted to the Higher Judicial Service in 2001. In 2014, he was elevated as district and sessions judge and on November 22 as additional judge in Allahabad. The petition was filed in 2015 when Justice Gautam was serving as district and sessions judge in Meerut. This is when the complaint came before the High Court, alleging corruption and misconduct by him. The complaint was filed before then chief justice of the High Court DY Chandrachud. The peti- tion alleged that the judge was also sec- retary of the Meerut Bar Association and that he was part of an organised network which received benefits for making an order of acquittal in favour of those alleged to have committed crimes. It also highlighted his associa- tion with people with a criminal back- ground and against whom cases were pending before courts. One of the instances of collusion was when Justice Gautam attended the birthday party of the son of an accused against whom a kidnapping case was pending before him. This incident was widely reported in the media with photos of the party. Chief Justice Chan- drachud in an order dated April 26, 2016, directed vigilance to conduct a discreet inquiry. However, Justice Chandrachud was elevated to the Supreme Court and the petition was dismissed by a division bench of the High Court. The matter then came up before the Supreme Court. In the meantime, the oath-taking ceremony was scheduled to be held and on that day, Vikas Singh appearing on behalf of the petitioner, mentioned the case before Chief Justice Ranjan Gogoi who listed the matter before a bench headed by Justice Madan Lokur. Since Justice Lokur was part of the Collegium which recommended the elevation of Justice Gautam as an addi- tional judge of the High Court of Alla- habad, he recused himself from hearing the matter. Finally, it was listed before a bench headed by Justice Sikri. There have been many instances in lower courts when judges have been dis- missed because of corruption. In Telangana, within a month, three judges were arrested by the Anti-Corruption Bureau (ACB). One of them was Justice Radhakrishna Murthy who was a metro- politan sessions judge in Hyderabad’s Nampalli district. The ACB arrested him for taking a bribe from an engineering student whose case was pending before his court. The other judge was M Gan- dhi of the Labour Court. The ACB rec- overed gold and silver from his house. The third judge was S Madhu who was a junior civil judge in Jagtial district of Telangana. He was accused of taking bribes from persons involved in criminal cases. In 1991, the Supreme Court pro- nounced a landmark judgment in K. Veeraswami vs. Union of India by virtue of which judges of high courts and the Supreme Court can be tried under the Prevention of Corruption Act. In this case, Justice K Veeraswami, a judge of Madras High Court was accused of pos- sessing an income disproportionate to his known sources of income. Thereafter, the CBI filed a case against him under this Act. Justice Veeraswami filed a petition before the Court for quashing the charges. How- ever, the Court dismissed the plea and referred the matter to the Supreme Court. The Supreme Court stated that the term public servant under Section 21 of the Prevention of Corruption Act would include a judge of the High Court and the Supreme Court, and he could be prosecuted for criminal misconduct. Judge under a Cloud Theapexcourthasaskedforaconsolidatedlistof allegationsagainstJusticeRamKrishnaGautamwhowas elevatedasadditionaljudgeoftheAllahabadHighCourt By Shaheen Parween A Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com ThepetitionallegedthatJusticeRam KrishnaGautamwaspartofanorganised networkwhichreceivedbenefitsfor makinganorderofacquittalinfavourof thoseallegedtohavecommittedcrimes.
  16. 16. Supreme Court/ Death Row Inmates 20 December 24, 2018 MONG the last judg- ments that Justice Kurien Joseph delivered before his retirement last month was one that com- muted the death sen- tence of a murder accused to life imprisonment. In a minority judgment delivered on November 28, Justice Joseph noted that it was high time the imposition of death as a punishment, however heinous the crime, be reviewed. The two other judges on the bench agreed with him in commuting the sentence to life imprisonment, but differed on the issue of the constitution- ality of capital punishment. Public opinion in the country on the abolition of the death penalty remains sharply divided but some recent judg- ments of the Supreme Court and High Courts have tended to take a more humane view of not just the issue of capital punishment but even issues relating to convicts on death row. Courts are increasingly attempting to usher in reforms and are prodding the government to review some archaic laws dating back to the British era. The Punjab Jail Manual, for ins- tance, specifies that “every prisoner con- demned to death is to be confined in a cell apart from all other prisoners, and is to be placed by day and by night under the charge of a special guard. No person can communicate with him without the authority of the Superintendent. The prisoner con- demned to death is only permitted to occupy the courtyard of his cell for half an hour each morning and evening”. Taking cognisance of the provision, a division bench of the Punjab and Haryana High Court had earlier this month abolished the practice of keeping death row inmates in solitary confine- ment in Haryana jails. The High Court said that the rule was without authority of law and amounted to additional pun- ishment. In its order, the Court called the provision “anarchic, cruel and insensitive”, reflective of “a colonial mindset”, and violative of Articles 20 (2) Scaling Down Sentences Recentcourtjudgmentshavetendedtotakeamorehumaneviewofnotjusttheissueofcapital punishmentbutevenissuesrelatingtoconvictswaitingondeathrow By Vipin Pubby in Chandigarh A SWANSONG Justice Kurien Joseph revived the death penalty debate in one of his last judgments Anil Shakya
  17. 17. | INDIA LEGAL | December 24, 2018 21 and 21 of the Constitution. In a 111-page judgment, the Court said the practice “amounts to torture and is violative of a person’s basic human rights”. The bench comprising Justices Rajiv Sharma and Gurvinder Singh Gill also said the “convict shall not be segregat- ed/isolated till the sentence of death has become final, conclusive and indefeasi- ble which cannot be annulled or voided by any judicial process. The period to keep a convict sentenced to death in segregation/isolation should be for the shortest possible time, i.e. 2-3 days”. The order came as part of a judg- ment commuting the death sentence of three persons convicted by a Mahender- garh court for the rape and murder of a nine-year-old in 2014 to a mandatory 20-year term without remissions. The court order for “abolishing” the rule is specific to the “practice” adopted by jail authorities in Haryana. However, the bench did not pass any order to re- move the provision from the Punjab Jail Manual, which has been adopted by Haryana. Removal of the provision will require the Punjab government to make amendments to the Jail Manual, or the court, acting on a legal challenge, to quash the provision. The division bench passed the ver- dict in response to appeals filed by three convicts against the death sentence awarded to them and the murder refer- ence sent by the trial court for confir- mation by the High Court. The advo- cates representing them also pointed out that the convicts had been sent to solitary confinement immediately after being sentenced to death. Last month, Justice Joseph along with Justices AM Khanwilkar and DY Chandrachud took up for review a case concerning capital punishment. The review petition related to a case wherein the special leave petition filed against the imposition of capital punishment was dismissed in limine by a bench of the Supreme Court in 2006. The bench had dismissed the case without hearing it. Under the norm, the court need not give any justification for not hearing a case as it is assumed that it has made up its mind before the start of hearings. The three-judge bench deciding to reopen and review the ear- lier decision of the Court in such a case was perhaps unprecedented. E arlier in 2014, a Supreme Court bench of then Chief Justice of India P Sathasivam and Justices RM Lodha, HL Dattu and Sudhansu Jyoti Mukhopadhaya, had commuted the death penalty of 1993 Delhi bomb blast convict Devender Pal Singh Bhullar to life imprisonment. The bench said that because of the “unexplained/inordinate delay” of eight years in disposing of his mercy petition and on the ground of Bhullar’s “insanity”, it was allowing the curative petition to commute his death sentence to life in prison. Bhullar was suffering from severe depression with psychotic features, as per medical reports. Significantly, Justice Sathasivam had also presided over the bench in the Shatrughan Chauhan case in January 2014, and the commutation of the death penalty for Rajiv Gandhi’s assassins ear- lier that year. In the former case, while commuting the death sentence imposed on the petitioners to imprisonment for life, the Supreme Court had validated the estab- lished principle that “unexplained/ unreasonable/inordinate delay in dis- posal of mercy petition is one of the supervening circumstances for commu- tation of death sentence to life impris- onment”. The Supreme Court had fur- ther observed that “insanity/mental illness/schizophrenia is also one of the supervening circumstances for commutation of death sentence to life imprisonment”. Citing that judgment in the Bhullar case, the Supreme Court had said: “We deem it fit to commute the death sen- tence imposed on Devender Pal Singh Bhullar to life imprisonment both on the ground of unexplained/inordinate delay of 8 years in disposal of mercy petition and on the ground of insanity of the accused.” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com A LONG WAIT TILL INSANITY The mercy petition of 1993 Delhi bomb blast case convict Devender Pal Singh Bhullar was pending for eight years In2014,anSCbenchledbythenCJI PSathasivam(above)hadreaffirmedthat inordinatedelayindisposalofamercy petitionisvalidgroundforcommutation ofdeathsentencetolifeimprisonment. Anil Shakya
  18. 18. Special/ Former CJI Dipak Misra’s Judgments/ MTP 22 December 24, 2018 ROCRASTINATION and gross negligence by authori- ties in deciding the plea of a destitute woman to termi- nate her pregnancy after she was raped prompted a three-judge bench of the Supreme Court headed by Chief Justice Dipak Misra to lay down guidelines to avoid such mis- carriage of justice in the future. It took two and a half months from the first con- firmation of pregnancy for the matter to reach the apex court, but by that time it was too late. The Supreme Court, while hearing the rape survivor’s appeal, asserted: “There is no doubt that a woman’s right to make reproductive choices is also a dimension of personal liberty as under- stood under Article 21 of the Consti- tution of India. It is important to recog- nise that reproductive choices can be exercised to procreate as well as to abstain from procreating.” It emphasised that “the element of time is extremely significant in a case of pregnancy”, as every single day matters, and it must be ensured that the rights of the woman concerned are not hindered. “The funda- mental concepts relating to bodily inte- FewwoulddisagreethatformerChiefJusticeofIndiaDipakMisraleft hisstamponthejudiciary.Thiscanbeviewedthroughtheprismofsome ofhismajorjudgmentsthatshowthebreadthoflegaldimensionsa chiefjusticemusttackle.IndiaLegalrunsaseriesonthesejudgments P CASEDETAILS Title: (Z) vs State of Bihar and Ors Bench: CJI Dipak Misra, Justices Amitava Roy and AM Khanwilkar Case no: Civil Appeal no. 10463 of 2017 Date of judgment: August 17, 2017 Acting as a Saviour By Vipin Pubby government shelter—Shanti Kutir—on January 25, 2017. After a medical exami- nation, it was established on February 8 that she was 13 weeks and six days preg- nant. Partly due to her mental instability and trauma, she expressed a desire to terminate the pregnancy on March 4. It was at that stage that she disclosed that she had been raped. There was, however, no end to her trauma. It took another 10 days for the shelter home authorities to take her to Patna Medical College and Hospital for termination of her pregnancy. Her father and estranged husband duly signed a consent form, but the hospital authorities did not proceed to terminate the preg- nancy, presumably due to the absence of an FIR. It took another four days for an FIR to be registered on March 18 under Section 376 (IPC) at Mahila Police Station, Patna. Subsequently, the superintendent of Shanti Kutir wrote to the superintendent of Patna Medical College stating that the pregnancy was already 17 weeks old and that it needed to be terminated as her father and husband had refused to take her away. She was given an appointment for April 3, but by that time her pregnan- cy was 20 weeks old. On that ground it was not terminated. “As the factual nar- grity, personal autonomy and sovereignty over her body have to be given requisite respect while taking a decision on med- ical termination of pregnancy,” the Court said. The 35-year-old rape survivor, who was not mentioned in the judgment and referred to as “Z”, was living on a foot- path in Patna when she was raped by an unidentifiable man. She was taken to a
  19. 19. ration would reveal, the appellant was found to be HIV+,” the Supreme Court noted in its final judgment. The victim moved the Patna High Court which, on April 10, proceeded to determine whether medical termination of the pregnancy could be permitted at that stage and directed constitution of a medical board for the purpose. However, the state government took the stand that the victim was being provided all neces- sary facilities in the rehabilitation centre and the pregnancy could not be termi- nated because the identity of her father had not been established. The High Court accepted the government’s stand on April 26 and declined permission to abort the foetus. The High Court’s orders were challen- ged in the apex court, which took up the matter on May 3 and constituted a med- ical board. The board, in its report dated May 9, said it was too late for medical termination of the pregnancy and that the procedure involved was too risky for the life of the appellant. It further sug- gested that the appellant should be advised to continue therapy and routine ante-natal care to reduce the risk of HIV transmission to the foetus. Vrinda Grover, counsel for the appel- lant, pleaded that the victim was entitled to get compensation from the State under the public law remedy, as the auth- orities of the State had not acted pro- mptly in terminating the pregnancy. She said because of their attitude the appel- lant had been compelled to lead a life of “terrible agony and anguish, and con- stant state of uncertainty”. She also con- tended that the High Court had failed to appreciate the spirit of the Medical Termination of Pregnancy Act and pas- sed the order which was unsustainable in law and projected lack of sensitivity. C oncluding that the approach of the High Court was “completely erroneous”, the apex court said that the report submitted by the Patna hospital had stated that termination of the pregnancy may need major surgical procedure which may lead to bleeding, sepsis and anaesthesia hazards, but there was no opinion that the termination could not be carried out and was risky for the life of the appellant. “There should have been a query in this regard by the High Court which it did not do. That apart, the report shows that the appel- lant, who was a writ petitioner before the High Court, was suffering from mild mental retardation and was on medica- tion and her condition was stable and she would require long term psychiatry treatment,” observed the Court. The Supreme Court also said that the woman had informed the hospital that she was a rape survivor and wanted to abort, yet the pregnancy was not termi- nated. “In such a circumstance, we are obliged to hold that there has been negli- gence in carrying out the statutory duty, as a result of which, the appellant has been constrained to suffer grave mental injury.” While lamenting that her condi- tion cannot be reversed and the situation was unredeemable, the Court said “she has to be compensated so that she can live her life with dignity, and the authori- ties of the State who were negligent would understand that truancy has no space in a situation of the present kind. What was needed was promptitude.” | INDIA LEGAL | December 24, 2018 23 “Having said so, it is necessary to state that the learned single Judge should have been more alive to the provisions of the Act and the necessity of consent only of the appellant in the facts of the case. There was no reason whatsoever to implead the husband and father of the appellant. We say so as it is beyond an iota of doubt that the appellant was a destitute, a victim of rape, and further, she was staying in a shelter home. Ca- lling for a medical report was justified but to delay it further was not at all war- ranted. It needs to be stated that High Courts are required to be more sensitive while dealing with matters of the present nature,” it said. It added that she should get a sum of `10 lakh, keeping in mind her mental injury as well as compensation for the negligence by State authorities. That apart, the Court directed that the child to be born shall be given proper treatment and nutrition by the State, and if any medical aid is necessary, it shall also be provided. If there was any future griev- ance, liberty would be granted to the appellant to approach the High Court under Article 226 of the Constitution after the birth of the child. “It has to be borne in mind that the element of time is extremely significant in a case of pregnancy as every single day matters, and therefore, hospitals should be absolutely careful, and treating physi- cians should be well advised to conduct themselves with accentuated sensitivity so that the right of a woman is not hin- dered. The fundamental concepts relat- ing to bodily integrity, personal autono- my and sovereignty over her body have to be given requisite respect while taking the decision, and the concept of consent by a guardian in the case of a major should not be over emphasised,” the Court said in its concluding remarks. LACKING EMPATHY? Patna Medical College and Hospital Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
  20. 20. HAT’S in a name? Ask this question to the owner of the famed Kake-Da-Hotel in Connaught Place, New Delhi, and he would have much to say about it. After all, he went to court over the name of his eatery being used by another entity. Nothing savoury here for sure. According to the Oxford English Dictionary, the word “Kaka” means a large New Zealand parrot, brownish in colour and often kept as a pet. Closer home, the word boasts of Punjabi ori- gins and means a baby. Its original mea- ning aside, the word seems to occupy a prominent place in the food business, as Kake-Da-Hotel went ahead and sued Kaka-Ka Dhaba Pvt Ltd for trademark infringement. The former alleged that the latter’s trademark sounded deceptively similar to its own. After protracted litigation spanning over four years, the case is up for final adjudication before the Delhi High Court. The court battle is being fought to determine whether the words “Kaka” or “Kake” can be monopo- lised by any one party and given trade- mark protection. The plaintiff, Delhi’s iconic food out- NOTHING ILLEGAL The defendant has claimed that its three outlets in Nashik—Kaka-Ka Dhaba, Kaka-Ka Hotel and Kaka- Ka Garden—were started 17 years ago Courts/ Trademark Infringement 24 December 24, 2018 let, Kake-Da-Hotel, contended that it adopted its trademark in 1931 when it started operating a restaurant in La- hore, Pakistan. Post-Partition, its foun- der shifted to Delhi and opened a res- taurant by the same name at Connaught Place. It further contended that the name “Kake-Da-Hotel” had acquired enormous goodwill and reputation, and the earliest trademark registration dates back to December 14, 1950. It also claimed to have registered the trade- marks “K-D-H Kaku-Da-Hotel” and “K- D-H Kake-Da-Hotel” in its name. However, the defendant said that although it had adopted the trademark “Kaka-Ka Dhaba” in 1997, the family has been operating a food cart by this name since the early 1980s, and its three outlets in Nashik—Kaka-Ka Dhaba, Kaka-Ka Hotel and Kaka-Ka Garden— were started 17 years ago. The Nashik- based company’s defence hinges on the legal argument that the word “Kaka” is generic and no monopoly can be claimed over it. For now, Justice Pratibha M Singh of the Delhi High Court has passed an interim order, directing the defendant to inter alia refrain from opening any new outlet with the name “Kaka-Ka” during the pendency of the suit. The defendant has also been directed to maintain complete accounts of all sales in its three restaurants/outlets. Whether or not the Delhi High Court will accept the generic argument will be known only on December 20, the next date of hearing. However, this case has brought into focus one of the most keenly contested aspects of trademark law—that a trade- mark, in order to qualify for registra- tion, should be sufficiently distinctive and not generic. The Trademarks Act, 1999, defines a trademark as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combina- tion of colours”. The definition, although broad, is qualified by another provision in the Act which allows for registration of only those marks that are sufficiently distinctive in nature. The distinctiveness requirement has been a subject of legal disputes on mul- tiple occasions, especially when manu- facturers have sought to use common or generic words in their trademarks. In July 2018, the Supreme Court dealt with this issue in Nandhini Deluxe vs Karnataka Co-Operative Milk Pro- ducers Federation Ltd. The respondent company, which sold milk and milk products under the name of “Nandini” had argued before the Karnataka High Court that the appellant had infringed upon its trademark by using the decep- tively similar name of “Nandhini” for its chain of restaurants. The High Court had ruled in favour of the respondent. When the matter was taken in appeal before the Supreme Court, it set aside An Unsavoury Suit ThefamousKake-Da-HotelhasfiledacaseagainstKaka-KaDhabaPvtLtdinDelhiHighCourtfor infringingonitstrademark.Is“Kaka”toogenericanameandcanmonopolybeclaimedoverit? By Vrinda Agarwal W
  21. 21. | INDIA LEGAL | December 24, 2018 25 the High Court’s order and ruled in the appellant’s favour, saying that although the words “Nandhini” and “Nandini” were phonetically similar, “a bare perus- al of the two trademarks would show that there is hardly any similarity of the appellant’s trademark with that of the respondent when these trademarks are seen in totality”. The Court further observed that: “Nandhini/Nandini is a generic name, representing a goddess and a cow in Hindu mythology, and it is not an invented or coined word of the respondent”. In December 2013, a similar issue arose before the Madras High Court in AD Padmasingh Isaac and M/s Aachi Masala Foods (P) Ltd vs Aachi Cargo Channels Private Limited. This case involved the use of the word “Aachi” by both appellant (a masala company) and respon- dent (a cargo company). While dismissing the infringement suit filed by the appellant, the Mad- ras High Court observed that the word “Aachi”, which means grandmother in Tamil, is “of general use”, and cannot be the monopoly of any one party. A similar issue came up before the Delhi High Court in 2011, in Bhole Baba Milk Food Industries Ltd vs Parul Food Specialities (P) Ltd. In this case, the High Court had to adju- dicate on whether the word “Krishna” could be monopolised by any one party, as the appellant and the respondent sold dairy products under the names “Krishna” and “Parul’s Lord Krishna”, respectively. While dismissing the appel- lant’s suit, the Delhi High Court observed that the word “Krishna” was of common origin, and thus it could not give exclusive statutory right to the appellant with respect to the use of the word. The Court further said that the appellant could only claim distinctive- ness, if at all, in the way the word was written in its trademark. It will be interesting to see if the Delhi High Court follows its earlier precedent and that of the Supreme Court and the Madras High Court while deciding whether “Kaka” and “Kake” can be used exclusively by any one party in its trademark. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com JusticePratibhaM SinghoftheDelhi HighCourthasasked thedefendantnotto openanynewoutlet withthename “Kaka-Ka”duringthe pendencyofthesuit. DEMANDING MONOPOLY The food outlet said that its earliest trademark registration goes back to December 14, 1950 chandnichowk.rocks
  22. 22. Maharaj’s statement that in future “the state government would consider vet- ting a movie script” before allowing shooting in the state if it pertained to a “sensitive issue”. In other words, for movies to be shot in the hill state, the government intends to make the Central Board of Film Certification (CBFC) redundant. That would be unprecedented as even the Supreme Court respects the censor board’s juris- diction. While dismissing the Rajasthan Karni Sena’s petition seeking a ban on the release of Sanjay Leela Bhansali’s period drama Padmavati, starring Deepika Padukone and Ranveer Singh, HOUGH the Uttarakhand High Court, in a hearten- ing development, had dis- missed a PIL seeking a ban on Kedarnath, the state government issued an order to do just that. Its order to ban the film did not set a new precedent. There’s a long list of movies which have been banned in the past for one reason or another. If in 1996, Fire had to be withdrawn under pressure from Hindu fundamen- talists for showing a lesbian relation- ship, the shooting of Water in Varanasi had to be abandoned after the same fringe groups vandalised its sets in 2005. Jodha Akbar in 2008 and Padmavat in 2017 also faced strong opposition, the former for showing Jodha as Akbar’s wife and the latter for allegedly distorting Rajput history. Hindus alone are not in the van- guard of such protests. The Da Vinci Code was banned in 2006 after Christians protested against the por- trayal of Jesus Christ and Christianity, while the wrath of Muslims saw Vishwaroopam being banned for show- ing the community in a poor light. What is worrisome now is Uttarakhand Tourism Minister Satpal Courts/ Kedarnath 26 December 24, 2018 DespitetheUttarakhandHighCourtdismissingapleatobanthisfilm,thestategovernmentasked districtmagistratestodecideonscreeningthemovieandsevendistrictspromptlybannedit By Atul Chandra in Lucknow Caught in a Whirlpool T RAISING A STORM A poster of Kedarnath, a film set in the background of the 2013 Uttarakhand floods; (below) the state tourism minister, Satpal Maharaj, who has proposed vetting of movie scripts in future
  23. 23. the backdrop of the flash floods of 2013 as an “effort at promoting love jihad”. After the Uttarakhand High Court refused to ban Kedarnath, the state gov- ernment found a way to block its rele- ase, in a move to appease its constitu- ency. A committee headed by Maharaj reviewed the film and found it to be “completely against our beliefs and tradition and has made fun of our emo- tions”. The minister said: “It has all the ingredients to disturb the law and order situation in the state. People living in hills are highly sensitive towards their tradition and culture and have deep- rooted faith in religion.” B ased on the committee’s report, it was left to the district magis- trates to decide on the screening of the movie after assessing the situat- ion. As if on cue, the district magistrates of seven districts—Dehradun, Haridwar, Pauri, Tehri, Nainital, Almora and Udham Singh Nagar—banned the film. The remaining six districts do not have a cinema hall. This committee was formed after the High Court, on December 6, dismissed a petition filed by one Darshan Bharti seeking deletion of certain “objection- able scenes” which “hurt the religious sentiments of Hindus, more particularly the devotees of Lord Shiv”, the presiding deity at the Kedarnath shrine. The High Court asked AS Rawat, the senior counsel representing the petitioner, if it “could don the robe of censor board and cut certain parts of the movie, which accord- ing to the petitioners is objectionable, in the exer- cise of our powers of judi- cial review under Article 226 of the Constitution of India”. The senior counsel then drew the attention of the judges to the Cinematograph Act of 1952 which empowers the central gov- ernment or the local authority to susp- end exhibition of a film if it is likely to cause breach of peace. In response to this, the Court pointed out that the “power conferred under Section 13(1) of the Cinematograph Act, 1952, is on the district magistrate, and the exercise of such power is to be con- fined only to the limits of his jurisdic- tion, which is the district of which he is the district magistrate. Any information or representation could only have been furnished or addressed to the district magistrate, and exalted though the office of the chief minister is, the law (i.e. the Cinematograph Act, 1952) con- fers the power of suspending exhibition of a film, under Section 13(1) of the Cinematograph Act, 1952, only on the district magistrate and not on any other superior authority”. The Court then dismissed the peti- tion and refused to issue any directions to the authorities. The bench of Chief Justice Ramesh Ranganathan and Justice Ramesh Chand Khulbe said: “Don’t see the movie if you don’t like it. We are not the censor board. We are a democracy and everyone is free to exer- cise their rights. State shall ensure law and order is maintained.” Maharaj’s statement, making a case for vetting of scripts before allowing movies to be shot in the state, was found to be “highly condemnable” by former Information Director of Uttar Pradesh Arvind Narain Mishra who is also into filmmaking. The UP government, he said, vetted scripts of only those films which were made with state subsidy. If the Uttarakhand government presses ahead with its decision, it would be against freedom of expression and won’t stand legal scrutiny. “It would be like writing a novel in Uttarakhand and then submitting it to the government for perusal before its release,” he said. in November 2017, the Supreme Court had underlined the role of the CBFC. A bench headed by then Chief Justice Dipak Misra had said: “The cen- sor board has a role to play and the Supreme Court cannot assume that role. Why should the court interfere to stop the release of a movie which has not been cleared by the censor board?” The judges emphasised that it was the pre- rogative of the censor board to review a film and decide if it could be released. Yet, several states did not allow the film to be released as it “distorted Rajput history”, an opinion which was formed even before any of the protesters had seen it. Subsequently, after Padmavati became Padmavat and Bhansali agreed to incorporate some other changes, the film made it to the theatres. If Padmavat was blocked for alleged- ly showing Rajputs in a poor light, Kedarnath, a film in which Sara Ali Khan and Sushant Singh Rajput are starring, hit the roadblocks for hurting the religious sentiments of Hindus and promoting love jihad. The censor board had cleared the film after two cuts, but that obviously did not satisfy a section of the BJP in Uttarakhand, who saw the love story between Sara (a Hindu pil- grim) and Sushant (a Muslim porter) in | INDIA LEGAL | December 24, 2018 27 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Whiledismissingapleatobanthefilm,theUttarakhand HCbenchofChiefJusticeRameshRanganathan(left) andJusticeRameshChandKhulbesaid:“Don’tseethe movieifyoudon’tlikeit.Wearenotthecensorboard....”
  24. 24. Politics/ 2019 Elections 28 December 24, 2018 S Brand Modi losing its sheen? Going by the results of the just concluded assembly polls in five states, the Modi “magic” appears to be waning. On the other hand, the electoral fortunes of the Congress have improved dramatically with a mas- sive mandate in three of the five states— Rajasthan, Madhya Pradesh and Chhattisgarh—in the Hindi heartland, the bastion of the BJP. The euphoria surrounding these elections can be gauged from The New York Times reportage: “It appears that Mr Modi, who seemed so invincible not long ago, may be vulnerable as his brand loses its lustre. At the same time, the leading opposition party, the Indian National Congress, once considered comatose, has suddenly woken up.” The BJP suffered a big jolt as its winning streak was halted just ahead of the 2019 Lok Sabha polls. This isn’t just a wake-up call for the saffron party, but a rude awakening to the ground reali- ties. The poor show in the Gujarat polls in December 2017 was the first warning, while that in Karnataka in May 2018 was the second. The recent results are the third and most crucial and the BJP will suffer if it ignores the warnings any longer. Why did the BJP lose its bastions? The first factor was severe anti-incum- bency in Chhattisgarh and Madhya Pradesh where the chief ministers were bidding for power for the fourth time. In Rajasthan, there was an anti- Vasundhara Raje wave. The state, any- way, follows a traditional pattern of vot- ing out the existing government. These polls show that the BJP had TheassemblyelectionshaveshownaresurgentCongress.ItnowneedstogetreadyfortheLokSabha pollsandstitchagrandalliancewhichwillkeeptheBJPout.That’seasiersaidthandone By Kalyani Shankar Photos: UNI I Role Reversal FOR THEM, WITH THEM: Congress party chief Rahul Gandhi with farmers from Tamil Nadu during a protest demonstration seeking loan waivers in New Delhi in March this year
  25. 25. lost the confidence of the urban middle classes, farmers, SCs/STs and women. The party did not read the signals emanating from the agrarian crisis (the biggest reason for its defeat in MP). There was also dissatisfaction in both urban and rural constituencies due to demonetisation and the introduction of GST. Small traders, the core voters of the BJP, were also disenchanted. The BJP lost 57 of the 170 seats in the three states and the Congress gained from the discontent in the lower castes over the dilution of the Prevention of Atrocities Act, aimed to protect SCs and STs from harassment. M izoram went to regional party MNF and is the only state where the Congress reduced its vote share from nearly 45 percent in 2013 to just about 30 percent, while that of the BJP rose five-fold from 0.4 percent to 8 percent. The Congress lost due to anti-incumbency there. In Telangana, the Telangana Rashtra Samithi (TRS) won with a stunning majority. Chief Minister K Chandra- shekhar Rao’s gamble of advancing the polls worked in his favour. The people of Telangana, fearing Andhra domination once again by the Telugu Desam Party (TDP), rejected the Maha Kootami con- sisting of the Congress, TDP, CPI and the Telangana Jana Samithi. The BJP was a minor player there. The combined vote share of the Kootami decreased from 40.46 percent to 32.69 percent, while the TRS vote share increased from 34.04 percent to 46.86 percent. The results show that the BJP is nowhere near achieving its declared aim of a “Congress-mukt Bharat”. On the contrary, it got a bloody nose in the three Hindi heartland states, whereas the Congress is back in the game. The BJP should be content that the North- east at least is a Congress-free region. After hearing the results, a young Congress worker exultantly cried: “Pappu pass ho gaya (Pappu has passed).” The winner in these polls was indeed Rahul Gandhi. It took him more than five years since he became the party vice-president, a year since he became party chief and seven assembly polls to prove that he is a credible leader in his own right. Gandhi’s hard work, adoption of soft Hindutva strategy, temple-hopping, right mix of social engineering and good ticket distribution seem to have worked for the party. There are several takeaways from the results. The voters have rejected the BJP. Gandhi said the assembly election results were a “clear message” to the | INDIA LEGAL | December 24, 2018 29 POWER PLAYS Leaders of the Congress and various regional parties during a meeting of Opposition parties in New Delhi on December 10; (right) Prime Minister Modi at an election rally in Telangana TheseresultsshowthattheBJPhadlost theconfidenceoftheurbanmiddle classes,farmers,SCs/STsandwomen. Thepartyalsofailedtoreadthesignals emanatingfromtheagrariancrisis.
  26. 26. Modi government that the people were not happy with the party and the time had come for change. He asserted that his party would also win in 2019. Even Shiv Sena chief Uddhav Thackeray, who is the BJP’s ally, commented: “The vot- ers have rejected the unwanted (BJP), congratulations to them.” The obvious fallout of these polls will be on the 2019 Lok Sabha polls. The three states together account for about 65 seats and going by the present vote share, the Congress could gain 30 seats, while the BJP could lose 33 seats. The BJP lost 176 assembly seats that it had won in 2013, and the Congress gained 158 across Rajasthan, MP and Chhattis- garh, according to an India Spend analysis of electoral data. The win could not have come at a better time for the Congress as it was demoralised on losing election after election in the past four-and-a-half years. Gandhi will emerge a key chal- lenger to Prime Minister Modi in 2019 and will position the Congress as a cred- ible alternative to the BJP. The Grand Old Party is back in the reckoning. The win will also give much-needed resources for the 2019 polls as the party is starved of funds now. It will enhance its negotiating capacity with other parties. Above all, this should unite the Opposition and a realign- ment of political forces is likely ahead of the Lok Sabha polls. This win will also enable Gandhi to anchor the Grand Alliance if it is formed before the Lok Sabha polls. The Congress should not become over- confident and arrogant. It should realise that the 2019 polls cannot be won without a larger coalition with regional parties. It has to reach out to them and be flexible in seat- sharing if it wants the BJP to be voted out of power. The party has rightly decided to concentrate on state-specific alliances rather then of national-level ones. The Opposition should also draw up a Common Minimum Programme before the 2019 polls. T hese elections have shown the Congress not only gaining three states, but also improving its vote share in these states. The BJP’s vote share has shrunk considerably as com- pared to the 2013 elections. In Madhya Pradesh, it won 41 percent against 44.88 in 2013. In Chhattisgarh, it came down to 33 percent from 41 percent and in Rajasthan from 38.8 percent to 45.2 percent. This should be a matter of con- cern for BJP strategists. On the other hand, the Congress vote share has gone up to 40.9 percent from 38.3 in Madhya Pradesh, 39.80 percent from 33.1 in Rajasthan and 43 percent from 40 percent in Chhattisgarh. Looking ahead, the fight will be mainly between the UPA and the NDA. The Congress has to keep the UPA in- tact and add more allies, if necessary. It has already tied up state-specific alli- ances in many states such as Jharkhand, Tamil Nadu, Telangana, Andhra Pra- desh, Maharashtra, Karnataka and Bihar. The party is in the process of firming up alliances with the SP and the BSP in UP. If it works out, the BJP will find the fight tough in UP from where it got 71 seats in 2014. The Grand Alliance, even if it materi- alises, will look at a prime ministerial candidate only in a post-poll scenario. The Congress has to get its act to- gether for the 2019 polls. There is no point in just Modi-bashing as it has to reveal what it will offer to the electorate. While the economy and jobs will be major issues, others include corruption, non-delivery of Modi’s poll promises, demonetisation, GST, the Rafale deal, cow vigilantism, the Ram Mandir, rising petrol prices, the agrarian crisis and the widening division of castes. The BJP has a tough job on its hands and may be unable to match its results in 2014—73 out of 80 seats in Uttar Pradesh, 25 out of 25 in Rajasthan, 27 out of 29 in Madhya Pradesh, 26 out of 26 in Gujarat, 7 out of 7 in Delhi, 5 out of 5 in Uttarakhand, 10 out of 11 in Chhattisgarh and 4 out of 4 in Himachal Pradesh. It is likely to lose many seats in 2019 and these have to be compensated for in the Northeast and the south, where the party is weak. A coalition with allies could be one way of getting more seats. The BJP has lost 18 allies since 2014. They include the TDP, MDMK, PMK, Rashtriya Lok Samta Party, Janasena Party, DMDK, Haryana Janhit Congress, NPF and the Gorkha Janmukthi Morcha. Now that the tide has turned against the BJP, it will make the party a less attractive ally as compared to 2014. With hardly three months left for the Lok Sabha polls, time is of the essence. Both sides should get ready to face 900 million voters, including 100 million first-time ones. The strategists in both camps have to work overtime in reach- ing their goal. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com 30 December 24, 2018 TheCongresshastokeeptheUPAintactandaddmore allies,ifnecessary.Ifitseffortstostitchallianceswith theSPandtheBSPworkout,theBJPwillfindthefight toughinUPfromwhereitgot71seatsinthe2014polls. Politics/ 2019 Elections
  27. 27. Health/ GST Council for Healthcare 32 December 24, 2018 VERY citizen in the country has a right to health (under Article 21 of the Constitu- tion) without any discrimi- nation (under Article 14). Article 47 of the State Directive Principles imposes a duty on the State to raise the level of nutrition and standard of living and improve pub- lic health. The government, therefore, has a constitutional responsibility to provide good quality healthcare to all citizens that is available, accessible, aff- ordable and accountable. These are also the basic principles of universal health coverage. India is a federal republic, i.e., it is a union of states. The distribution of leg- islative powers between the Union and state governments has been specified in three lists—Union list, state list and concurrent list. The Union health min- istry implements various national health programmes. It is responsible for the prevention and control of major com- municable diseases, promotion of tradi- tional and indigenous systems of medicines and setting standards and guidelines, which state governments can adapt. Public health, along with sanitation, hospitals and dispensaries, falls under the state list. This means that the pri- mary responsibility to provide health- care lies with the state government, making health a state subject. Other health issues such as food adulteration, drugs and poisons, population control and family planning, medical education and the medical profession have been included in the concurrent list. Both the Union and states can legislate on these subjects. In case of any dispute, the Union law will prevail, though the state can still override this with presidential assent. All public health initiatives and national health programmes need to be routed through the states. The centre has its own health schemes. This year, it implemented Ayushman Bharat (although a few states Aspublichealthisastatesubject,centralwelfareschemescanberunthroughit,makingiteasierto implementaGSTCouncilforhealthcareandespousingthecauseofco-operativefederalism By Dr KK Aggarwal E One India-One Health Policy? Photos: UNI RIGHT TO HEALTH Paramedical staff giving free medicines to patients during a day-long medical camp in Srinagar
  28. 28. The GST was constitutionally provided for. Those areas are not constitutionally provided for, but political maturity can impose on governments to try that experiment. One is healthcare and one is agriculture,” Jaitley said. Both the states and the centre, he said, were spending on healthcare and had their respective schemes. The GST Council makes recommen- dations to the Union and state govern- ments on issues related to GST. As per Article 279A, it is a joint forum of the centre and states. The central govern- ment’s vote in the GST Council is one- third of total votes cast, while the votes of all state governments taken together have a weightage of two-thirds of the total votes cast in that meeting. As far as GST is concerned, many healthcare services are exempted. However, plastic surgery, drugs, devices and disposables have GST imposed on them. The GST Council can be said to be an example of “co-operative federalism”, where the Union and states work to- gether to focus on the common good of opted out—Delhi, Kerala, Odisha, Pun- jab and Telangana). Likewise, states may have their own individual schemes. Even to practise in a different state, a doctor may require a different licence. The assertion of the right to imple- ment legislation as per the distribution of powers has often led to discordance between the states and the centre. Ironically, the sufferer usually is the gen- eral public for whose very benefit the schemes are formulated. N ow, Union Finance Minister Arun Jaitley has made a case for developing a federal institu- tion like the Goods & Services Tax (GST) Council in the healthcare and farm sector. Such a federal body in the healthcare sector, he feels, should face least resistance from states as welfare schemes would be implemented through them with the centre only coordinating it. “The federal institution experiment of the GST having succeeded...there are two other sectors which eminently re- quire federal institutions of this kind. the public instead of formulating separate policies for individual gain. By floating the idea of a federal institu- tion in healthcare, Jaitley has perhaps espoused the cause of “co-operative federalism” as exemplified by the GST Council. This idea is worth exploring and can be conceptualised as a policy in the near future provided all constitutional hur- dles and conflicting interests are tackled harmoniously. How far will such a feder- al institution encroach on the powers of states is one hurdle as public health is a state subject. Should public health be shifted to the concurrent list? This would be a huge hurdle and can be done only through an act of Parliament. All states have to come together for its successful implementation as they did for GST where the idea of “one country, one tax” is slowly being realised. The medical fraternity has been demanding “one drug-one company-one price” for long. India is committed to achieving universal health coverage for all citizens by 2030 as part of the Sustainable Development Goals. As a citizen, one has the right to migrate to any place in the country and still expect uniform healthcare at uniform costs. Only then can we say we have achieved universal health coverage. Just as the government has made the National Eligibility-cum-Entrance Test a uniform examination for admission to medical colleges in India, perhaps the time has come for “one India-one health policy”. —The writer is president, Heart Care Foundation of India, and president- elect, Confederation of Medical Associations of Asia and Oceania | INDIA LEGAL | December 24, 2018 33 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com “Thefederalinstitutionexperimentof theGSThavingsucceeded...there aretwoothersectorswhicheminently requirefederalinstitutionsofthis kind...Oneishealthcareandone isagriculture.” —UnionFinanceMinisterArunJaitley WELL-ROUNDED SCHEME The inauguration of the Pradhan Mantri Jan Arogya Yojana in Lucknow on Sept 23, 2018
  29. 29. States/ Karnataka-Tamil Nadu/ Cauvery 34 December 24, 2018 EKEDATU, in Kannada, means “goat’s leap”. Ironically, a place by the same name in Ramanagaram, 100 km east of Bengaluru, and in chief minister HD Kumaraswamy’s con- stituency, has got Tamil Nadu’s goat as Karnataka plans to build a balancing reservoir and drinking water project there across the Cauvery river. So irked is Tamil Nadu that it has gone to the Supreme Court over this issue. with the rider that the DPR be submit- ted to it for approval. Tamil Nadu Chief Minister Edappadi K Palaniswamy has sought Prime Minister Narendra Modi’s help to stop Karnataka from going ahead with the DPR study. However, the Supreme Court has declined to stay the CWC’s decision to allow Karnataka to prepare a DPR. It asked the centre and Karnataka to file their replies against Tamil Nadu’s plea within four weeks, starting from December 12. The centre assured the Court that no decision would be arrived at without consulting Tamil Nadu. On November 29, in a special session of the Tamil Nadu legislative assembly, all parties came together to oppose Kar- nataka’s move. The state fears it will get short shrift from the Mekedatu reservoir project, aimed to slake the thirst of Bengaluru’s 10 million citizens, apart from irrigating farm lands in the Cau- very catchment areas in the region. Another fear is that if Karnataka holds on to so much water in this region, it may lead to a drought in Tamil Nadu. The Puducherry CM, V. Narayana- samy, will convene a special assembly on December 14 to condemn Karnataka and the centre on the Mekedatu project. The Cauvery and its tributaries flow through Puducherry and Kerala. In fact, the Tamil Nadu assembly had in March 2015 and December 2015 ad- opted unanimous resolutions against Karnataka that it should not construct a new dam at Mekedatu. Then Chief Min- ister J Jayalalithaa had also met Nar- endra Modi, demanding that Karnataka halt the Mekedatu project. She had ur- ged Modi to quickly form a Cauvery Management Board (CMB). But the apex court had upbraided Tamil Nadu for its aggressive pace to have the CMB after the Cauvery Water Disputes Tribu- nal’s (CWDT) final award. Part of the Tamil Nadu resolution said that “despite the Supreme Court judgment that the upper riparian states should not implement any projects without the consent of the lower ripari- an states, as well as the resolution TamilNaduhasobjectedtoKarnataka’splanstobuildabalancing reservoiratMekedatuacrosstheCauveryriverandhas approachedtheSupremeCourttopouroilontroubledwater By Stephen David in Bengaluru M BRIMMING ENTHUSIASM Karnataka's water resources minister DK Shivakumar (right) indicates the site of the Mekedatu project on the Cauvery river Rumble in the Reservoir What stirred matters was the Central Water Commission’s (CWC) green signal to Karnataka on November 27 to pre- pare a detailed project report (DPR) for the 67 tmcft project costing `6,000 crore across 6,000 hectares. The Commission’s green signal is merely an in-principle approval for the project Photo source: CM’s Office, Karnataka
  30. 30. passed by the assembly, the Karnataka government has proposed to commence preliminary works to construct a dam at Mekedatu”. Meanwhile, Karnataka BJP leader BS Yeddyurappa thanked Modi and the CWC, a premier technical organisation in the ministry of water resources which oversees river management and water planning across the country. Yeddyu- rappa wants Karnataka to allocate spe- cial funds and complete the project quickly. “It would be a big relief to more than a million people living in villages located in the water-starved areas in Kolar and Bengaluru districts,” he said. K umaraswamy, who had also con- vened an all-party meeting of his state’s MPs and former CMs, assured his Tamil Nadu counterpart that there was no need to panic as the Mekedatu project would be a win-win situation for both states. The Cauvery, which originates in the Brahmagiri hill range in the Western Ghats in Karna- taka, snakes its way across 800 km via Tamil Nadu before emptying into the Bay of Bengal. “This has been a proj- ect pending for a long time… we will work within the framework of law,” he assured. In fact, while speaking to reporters in Hassan, Kumaraswamy had said that Mekedatu would be more beneficial to Tamil Nadu than Karnataka. Going by the orders of the CWDT, Karnataka is expected to release 172 tmcft of water to Tamil Nadu from the river. But this year, as much as 300 tmcft of water flowed into it owing to heavy rainfall. Kumaraswamy added that Mekedatu would only help store the excess water which, if not harvested as is happening now, drains away into the Bay of Bengal via Tamil Nadu. He and Water Resour- ces minister DK Shivakumar (the proj- ect falls in his brother and Kanakapura Lok Sabha MP DK Suresh’s constituen- cy) have been wanting a dialogue with the Tamil Nadu team to find solutions out of court. The project, first mooted in 2013 with the aim to store an additional 66 tmcft of water, has been stuck due to objections from Tamil Nadu. Shivakumar even landed in Chennai hoping to reach out to his counterparts, but had to return without doing so. “We are brothers. With folded hands, I re- quest the people and the chief minister of Tamil Nadu to give us an opportunity to explain Mekedatu benefits to you. We will take you to the site.” However, there were no takers from Tamil Nadu for his humble offer. Reports say that the CWC followed all the procedures before giving the nod to Karnataka to call experts to do its Mekedatu DPR. Karnataka officials also maintain that the CWC’s in-principle approval was mainly for implementing the CWDT award as modified by the Supreme Court on February 18, 2018. But as there was no irrigation compo- nent, the Guidelines for Submission, Appraisal and Acceptance of Irrigation and Multipurpose Projects, 2017, of the CWC were not applicable. If it was so, a copy of the in-principle CWC approval would have to be sent to the stakeholders, co-basin states like Tamil Nadu in this case, by the project author- ity. The CWC or CWMA will give a final go-ahead only after the DPR is submitted, which will be a few months away even if Karnataka engages top- notch experts. There are other bends in the river that Karnataka must ford—as Mekedatu also involves a plan to generate 400 megawatts of power, the project should also get a nod from the Central Electri- city Authority (CEA). All projects above `2,500 crore must obtain a CEA clear- ance under the Electricity Act, 2003, as notified by the ministry of power. Meanwhile, cities like Bengaluru (11 million population) continue to be un- der water stress as piped drinking water from the Cauvery is fast drying up. In the periphery of the city, water tankers do roaring business, thanks to the parched state of affairs. Even borewells are not yielding water unless one digs quite deep. Surveys from time to time, including from the Bangalore Water Supply and Sewerage Board, show that the city is on the verge of becoming another Cape Town. The port city in South Africa too is running out of water. Karnataka is hoping that its first step—even a goat’s leap —across the Cauvery will give the Kumaraswamy-led JD(S)-Congress coalition much-needed water to not only slake the thirst of the southern parts of the state but to cool tempers on both sides of the border. | INDIA LEGAL | December 24, 2018 35 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com DECISION-MAKING TIME Karnataka CM (second from right) HD Kumaraswamy at a meeting in the Vidhana Soudha to discuss the Mekedatu project Photo source: CM’s Office, Karnataka
  31. 31. States/ Kerala/ Captive Elephants 36 December 24, 2018 Wildlife Department and conducted as per an order of the Supreme Court. As per this enumeration, 87-year-old Dakshayani is the grandmother and nine-month-old Kannan the baby am- ong these captive elephants. This mas- sive exercise included 401 male ele- phants, 98 female ones and 22 makhna (tuskless male elephants). In the mean- time, one elephant, Cherusserimatom Devidasan, a 32-year-old tusker, died. AsperaSupremeCourtorder,thestateisconductingadetailedcensusofthesepachydermsinan attempttopreventtheirexploitationandhasfoundthatmanydon’thaveproperdocumentation By NV Ravindranathan Nair in Thiruvananthapuram HUMAN TOUCH A young elephant being given a bath by his trainer at the Konni Elephant Training Centre in Pathanamthitta, Kerala Jumbo Task UNI or believers, the elephant is a symbol of Lord Ganapathy and meant to be revered and worshipped. But often, their treatment does not match the faith people attach to the pachyderms. As their exploitation and torture continues to hurt animal lovers, the number of captive elephants in Kerala stands at 520, according to an enumeration led by the Forest and F

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