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India Legal 25 March 2019


Published on

Should Judges Have a Feminine Side?
This piquant question about women’s sixth sense was
posed by Justice AK Sikri in his farewell speech. An analysis
by Dr Mohan Gopal, former Director, National Judicial
Academy and former V-C of National Law School, Bangalore

Published in: News & Politics
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India Legal 25 March 2019

  1. 1. Nirav Modi: Luxury in exile J&K Offer: Rehabilitating militants Thispiquantquestionabout women’ssixthsensewas posedbyJusticeAKSikriinhis farewellspeech.Ananalysis byDrMohanGopal,former Director,NationalJudicial AcademyandformerV-Cof NationalLawSchool,Bangalore Should JudgesHave aFeminine Side? NDIA EGALL STORIES THAT COUNT ` 100 I March25,2019
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  3. 3. am absolutely delighted that Professor Mohan Gopal, one of the world’s most emi- nent jurists, has written India Legal’s cover story this week. Not only is he an intellectu- al to reckon with but is also amongst the most original minds of our time—a person with passion, academic finesse and a flair for original, authoritative prose. Consider the way he opens his piece: “Judges don’t normally make confessions.” The reader gets immediately pulled headlong into his essay. The subject matter is compelling, relevant and provocative: “Should judges have a feminine approach?” He chose to write on the subject because Supreme Court Justice AK Sikri had raised it during his farewell speech in which he described part of himself as “feminine: …It is the attribute of femininity which instills the desired sensitivity, that is required in varied types of cases and in various circumstances….” Asks Gopal: What do we make of the signifi- cance of Justice Sikri—at his retirement, the third most senior judge in our country—volun- tarily claiming the derided and derogatory label of femininity in a misogynist legal profession? Do these remarks, coming from one of India’s most senior and scholarly judges, have any larger significance for gender equality? “Misogyny” may be too harsh a word, if I may differ with the professor. My choice would have been “male-oriented”, “discriminatory”, perhaps even “patriarchal” or “macho”. But Gopal’s head and heart are affirmatively in the right place as you continue to read his compelling piece. I am reminded of Ruth Bader Ginsburg, the iconic US Supreme Court Justice who, at age 86, having lived through and beaten two cancers and the attendant debilitating chemotherapy, continues to be a jurisprudential powerhouse, a role model for judges and students across the world, and a bastion for liberalism and the con- stitutional value systems of the republic created by America’s founding fathers. “I will do this job as long as I believe I can do it full steam,” she says after having served her 26th year in the Supreme Court. In fact, Gins- burg is a prime example of the male mindset in the judicial system which is really not that dif- ferent from other socio-political eco systems in the world. To quote from one of countless biographies about her incredible life, while at Harvard University Law School, the world’s premier law institution, Ginsburg learned to balance life as a mother and her new role as a law student. “She also encountered a very male-dominated, hostile environment, with only eight females in her class of 500. “The women were chided by the law school’s dean for taking the places of qualified males. But Ruth pressed on and excelled academically,” eventually becoming the first female member of the prestigious legal journal, Harvard Law Review. On June 27, 2010, Ginsburg’s husband, Martin, died of cancer. She described Martin as her biggest booster and “the only young man I dated who cared that I had a brain”. Some of my favourite quotes from Ginsburg’s thousands of already immortal thoughts on life, society and law include: “If you just needed the skills to pass the bar, two years would be enough. But if you think of law as a learned pro- IS FEMININITY THE MAGIC WAND? Inderjit Badhwar Letter from the Editor I Religiousleader, authorandlawyer JamesEFaustwho diedin1987atage 87,onceintoned: “Feminityisnotjust lipstick,stylish hairdosandtrendy clothes.Itisthe divineadornmentof humanity.Itfinds expressioninyour qualitiesofyour capacitytolove, yourspiritualities, delicacy,radiance, sensitivity,creativi- ty,charm,gracious- ness,gentleness, dignityand quietstrength.” 4 March 25, 2019
  4. 4. Ginsburg,theiconic USSupremeCourt Justice,86,isa jurisprudential powerhouse,arole modelforjudgesand studentsacross theworld.She encounteredmale dominatedhostility withonlyeight femalesinherclass of500. Twitter: @indialegalmedia Website: Contact: fession, then a third year is an opportunity, for, on the one hand, public service and practice experience, but on the other, also to take courses that round out the law that you didn’t have time to do.” “My mother told me to be a lady. And for her that meant, be your own person. Be independent.” I n America, even as older role models like Ginsburg continue as inspirational figures, younger ones exist side by side. One of them is the newly-elected firebrand Democrat from New York, Congresswoman Alexandria Ocasio- Cortez, popularly known by her initials AOC. To quote her: “Mentors of mine were under a big pressure to minimize their femininity to make it. I’m not going to do that. That takes away my power. I’m not going to compromise who I am.” On the same subject, religious leader, author and lawyer James E Faust who died in 1987 at age 87, once intoned: “Feminity is not just lip- stick, stylish hairdos and trendy clothes. It is the divine adornment of humanity. It finds expres- sion in your qualities of your capacity to love, your spiritualities, delicacy, radiance, sensitivity, creativity, charm, graciousness, gentleness, dig- nity and quiet strength.” In his current article on the subject, Gopal says that Justice Sikri was not being “epicene in saying that a part of him is feminine. His pur- pose in doing so appears to have been to extol four qualities that he considers essential for a judge: sensitivity, mercy, compassion and a sense of justice, a so-called ‘sixth sense.’ Highlighting these values signifies Justice Sikri’s judgment that they are currently in short supply. A corol- lary of his proposition would be that, in their absence, their antonyms are at large—insensitiv- ity, mercilessness, injustice and cruelty. If true, this would have a deeply corrosive impact on faith and confidence in the Republic itself as well as in our courts.” Why are these extolled values in short sup- ply? Or are they? Or will the greater “feminisa- tion” of men, an evolution of consciousness as it were, have a practical impact on job discrimina- tion, gender biases, exploitation and the hard- ships that women as well as men face in every- day life? Gopal’s conclusions and observations are fas- cinating. His is a must-read piece in this issue. | INDIA LEGAL | March 25, 2019 5 TWO POWERHOUSES (Left) Justice AK Sikri: Are his comments valid?; Ruth Bader Ginsburg (centre) and US Congresswoman Alexandria Ocasio-Cortez: Living life full size their own way
  5. 5. ContentsVOLUME XII ISSUE19 MARCH25,2019 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: website: MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 March 25, 2019 12 Should Judges Have a Feminine Approach? This piquant question about women's “sixth sense” was posed by Justice AK Sikri in his farewell speech. An analysis by Prof G Mohan Gopal, former director, National Judicial Academy, and former V-C, National Law School, Bangalore LEAD 17Live-in OK, Custody Not The Punjab and Haryana High Court has declined to hand over a minor girl to her father who did not get a divorce from his wife but was staying with a live-in partner COURTS 18Serial Offender In an order with societal implications, the Madras HC has asked the centre and states numerous questions about whether certain TV shows have stimulated an increase in extramarital relationships 20Unjustified Denial An archaic provision in the Representation of the People Act, which denies voting rights to prisoners, is being challenged in the Delhi High Court on the ground that it violates equality
  6. 6. Involve the People Heritage bylaws will not be effective unless proper relocation plans are put in place with people being compensated adequately and made the centre of all legal processes Courting Chaos Donald Trump’s paroxysms will ensure that the 20 months between now and the 2020 election will be a political soap opera 28 35 GLOBALTRENDS | INDIA LEGAL | March 25, 2019 7 Colour Code REGULARS Followuson Twitter:@indialegalmedia Cover Design ANTHONY LAWRENCE Ringside............................8 Courts ...............................9 Is That Legal...................10 46 Big Leap Forward A new ordinance for micro, small and medium enterprises in Rajasthan is expected to promote growth and investment by removing red tape 42 In an attempt to promote the sale of generic drugs over branded ones, the centre has laid down guidelines to ensure that they are prominently displayed in pharmacies COLUMN Cracks Show Up 44 By choosing to sit on a government recommendation for months, the Madhya Pradesh governor may be signalling that the assembly has seen its last Anglo-Indian member 50Breathless No More Taking cognisance of the massive pollution caused by mining around the Chittorgarh Fort and city, as well as the Bassi Wildlife Sanctuary, the National Green Tribunal has banned mining in the area A Peace Offering Though the J&K government has for the third time framed a draft rehabilitation policy for militants, it is by no means enough to rid the state of the scourge of militancy 24 MYSPACE Plug the Loopholes Although the current Consumer Protection Bill has lapsed, it needs thorough tweaking in several areas before it is introduced in Parliament again 32 Brazen Pursuits After billionaire fraudster Nirav Modi was found living life king size in the UK, India is scrambling to save face and fight off allegations that the UK Serious Frauds Office got little cooperation from it 36 Unceremonious Ouster Justice (Retd) Sajjan Singh Kothari, whose tenure as the Lokayukta of Rajasthan was abruptly curtailed by the Congress government, has never been swayed by political colours 40 STATES A Salve for Wounds The centre's decision to reduce the prices of 42 non-scheduled cancer drugs will help patients save around `800 crore annually 38 HEALTH SPOTLIGHT Sound and Fury While the formula for making environment-friendly crackers has been successfully tested in labs, many feel that it may not be easy to replicate it in the factories 48 ENVIRONMENT CONSERVATION
  7. 7. 8 March 25, 2019 “ RINGSIDE “Chief Minister, I have not understood. Please tell us what ‘cock a snook’ means in Hindi us how it is done....” —SP chief Akhilesh Yadav on UP CM Yogi Adityanath’s tweet that UP will “cock a snook” at SP-BSP pact “...there is no possibil- ity ever. We are a Bahujan samaj. And we will support their cause. We are not natural allies….For now, the strategy is that we will... fight.... Our main thing is that we won’t let Modi win.” —Bhim Army chief Chandrashekhar Azad, refuting claims of an alliance with the Congress after meet- ing Priyanka Gandhi “I am not with- drawing due to any fear. I have contest- ed 14 elections and never lost.... I am not contesting Lok Sabha elections as I don’t want many people from one family contesting the elections.” —NCP chief Sharad Pawar on his deci- sion not to contest the Lok Sabha polls “First time since 1996 Assembly elections in J&K are not being held on time. Rem- ember this the next time you are praising PM Modi for his strong leadership.” —NC leader Omar Abdullah on Twitter after the EC did not declare assembly polls in J&K on March 11 “The women of Odi- sha will lead the way in women’s empo- werment in India. If India is to lead the world... women’s empowerment is the only answer.” —Odisha CM Naveen Patnaik, announcing that BJD will field women in at least 33 percent of the Lok Sabha seats in Odisha “All this talk of Ramzan affecting Muslim voting, thereby leading to less voting percentage, is rubbish. Muslims don’t stop working during Ramzan. They will fast and do other spiritual things, but they will definitely vote.... the EC has to complete the election process before June 3....” —AIMIM leader Asaduddin Owaisi on cries that the Ramzan period will deter Muslims from voting in the Lok Sabha polls “...The Election Commission should act impartially.... Why is the BJP so scared of us?.... They are disrespec- ting the state and the people who live here....” —West Bengal CM Mamata Banerjee on the BJP seeking super sensitive sta- tus for the state in the Lok Sabha polls “BJP wanted to crack down on Jamaat-e-Islami, a crackdown on moulvis. I didn’t let them do it. BJP wanted to carry out NIA raids on Mirwaiz Umar Farooq, Syed Ali Shah Geelani and others. But I didn’t let them do it.” —Former J&K CM Mehbooba Mufti CEC Sunil Arora Anthony Lawrence
  8. 8. Life ban on Sreesanth set aside by SC ASupreme Court bench com- prising Justices Ashok Bhushan and KM Joseph revoked the lifetime ban on cricketer S Sreesanth, and told the Board of Control for Cricket in India (BCCI) to decide afresh the quantum of punishment that should be imposed on the cricketer. The BCCI had imposed a lifetime ban on Sreesanth along with fellow cricketers Ajit Chandila and Ankeet Chavan for their alleged involvement in match fixing dur- ing the 2013 Indian Premier League (IPL). This ban had been upheld by the Kerala High Court following which Sreesanth had filed an appeal before the Supreme Court. Courts | INDIA LEGAL | March 25, 2019 9 Twitter: @indialegalmedia Website: Contact: —Compiled by India Legal Team The Supreme Court has reserved its order on whether certain documents submitted by the petitioners, who sought a review of its December 2014 verdict on the purchase of 36 Rafale fighter jets, should be examined or not. Appearing for the centre, Attorney General KK Venugopal argued that the docu- ments are privileged and cannot be produced in court without permis- sion, while the petitioners argued that national securi- ty cannot be touted as a reason for brushing them aside. The AG also urged the Court to remove the “leaked” documents from the review petitions since the government is claiming privilege over them. It may be recalled that during the last hearing, on March 7, Venugopal had argued that the Rafale deal documents were stolen from the office of the ministry of defence and those publishing them were guilty under the Official Secrets Act. However, a day later, he took a U-turn and said that the petitioners had used “pho- tocopies of the original” papers deemed secret by the government. SC reserves order on Rafale papers The Supreme Court directed state govern- ments to consider those IPS officers for the post of Director General of Police (DGP) who have at least six months residual period of service. The Court also said the recom- mendation for the post of DGP by the Union Public Service Commission (UPSC) and preparation of the panel for the same should be done purely on the basis of merit. A bench headed by Chief Justice Ranjan Gogoi issued these directions while hearing a plea filed by former Uttar Pradesh DGP Prakash Singh. Singh had alleged that the July 3, 2018, order of the Supreme Court was being misused by state governments who were ignoring competent senior officers for appointment as DGPs. In that order, the Court had decreed that state governments should henceforth send their proposals for DGPs to the UPSC three months before the incumbent is due to retire. Consider officers with six months’ tenure: SC The Supreme Court asked the Bar Council of India (BCI) to reconsider its decision to impose an upper age limit for admission in the five-year and three-year law degree courses. The bench, compris- ing Justices SA Bobde, SK Kaul and S Abdul Nazeer, was acting on a plea filed by law aspirant Rishabh Duggal and others challenging a 2016 circular by which the BCI had fixed an upper age limit of 20 years for taking admission in the five-year integrated bachelor of law degree pro- gramme and 30 years for the three-year programme. The bench unanimously expressed the view that there is no specific age to acquire education. Reconsider age limit for LLB courses: SC to BCI 26 judges elevated to 3 High Courts The Supreme Court collegium approved the elevation of 26 additional judges as permanent judges of the High Courts of Bombay, Madras and Patna. The collegium, comprising Chief Jus- tice Ranjan Gogoi and Justices SA Bobde and NV Ramana, clea- red six names each for the Mad- ras and Patna High Courts and 14 for the Bombay High Court. The collegium noted that it had carefully scrutinised the material placed on record while doing so.
  9. 9. 10 March 25, 2019 ISTHAT What is a Special Leave Petition or an SLP? A Special Leave Petition (SLP) refers to the power of the Supreme Court under Article 136 of the Constitution which empowers it to grant special leave or permission to a party aggrieved by an order of a high court or tribunal. Under this provision, the party does not file an appeal but seeks permission to file an appeal. There- fore, when a special leave petition is filed in the Supreme Court, the Court hears the matter and if it considers fit, it may grant leave pursuant to which the petition is converted into an appeal. An SLP must be filed within 90 days from the date of judgment of a high court or a tribunal. It can also be filed in cases where a high court refuses to grant a certificate of fitness for appeal to the Supreme Court. In such cases the SLP must be filed within 60 days from the date of refusal of the high court to grant the certifi- cate of fitness. What is the doctrine of res judicata? Res judicata is a Latin term meaning “the thing has been judged”. The con- cept evolved to avoid multiplicity of pro- ceedings in a court. It means that no court will have the power to try a fresh suit or issue pertaining to an issue which has been already settled in a for- mer suit between the same parties. When a court finds that a suit or issue on the same matter has already been decided by the court and there is no appeal pending before any court, then the court has the power to dispose of the case by granting a decree of res judicata. Res Judicata Evolved to Avoid Multiple Court Cases —Compiled by Sankalan Pal SLPs Must be Filed Within Prescribed Time Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis What is the principle of judicial review? Judicial review is a process under which executive and legislative actions are subject to review by the judiciary. Judicial review is one of the checks and balances in the separation of pow- ers, forming a part of its basic struc- ture as laid down in the case of SR Bommai. However, many a time the matter has been a subject of discus- sion among legal luminaries. Judicial review is a tool which assures that the administrative, executive and legislative action is in consonance with the law of the land. Through this tool, the judici- ary reviews what has been done by the other organs of the government. The apex court, being the guardian of the Constitution and the highest court of interpretation as to the provisions of the Constitution, is dutybound to pro- tect the Constitution. JudicialReviewisa PartofBasicStructure ? Twitter: @indialegalmedia Website: Contact: Who can file a complaint against an incident of domestic violence? A complaint against a domestic violence inci- dent can be filed by any person, whether related to the victim or not. However, to file a complaint against an incident of domestic vio- lence one must have reason to believe that an act of domestic violence has taken place in the past, or is taking place, or is likely to take place in the future. The law exempts such persons from any criminal or civil liability if such information is given in good faith in the absence of bad intentions. Anyone Can Complain Against Domestic Violence
  10. 10. Lead/ Gender Confession 12 March 25, 2019 Should Judges Have a Feminine Approach? Inamale-dominatedlegalprofession,theclaimingofthederidedandderogatorylabelof femininitybyjust-retiredSupremeCourtJusticeAKSikriissignificant,andyetproblematic By Prof G Mohan Gopal GENDER BIAS Senior advocate Indira Jaising has stated that there are different standards for judging male and female advocates Photo: Anil Shakya
  11. 11. | INDIA LEGAL | March 25, 2019 13 UDGES don’t normally make confessions. They only hear them. Justice Arjan Sikri broke this convention. He made two confessions in his farewell speech to the Bench and the Bar on March 6, 2019, his final day in office as a judge of the Supreme Court of India. The first was mundane. The second, quite startling: “Let me make (a) confession today,” he said. “By nature, a part of me is feminine.” The judge explained: “It is the attrib- ute of femininity which instills the desi- red sensitivity, that is required in varied types of cases and in various circum- stances…After all, the symbol of justice is a goddess, i.e. a female form. No doubt, she is shown blindfolded. How- ever, her heart is not shut from where emanate the qualities imparting jus- tice…It helps inhering the qualities of doing justice which is pregnated with mercy, justice which has the attribute of compassion.” (sic) He added: “It is well- known that women have sixth sense. I told earlier that while discharging judi- cial function, with the passage of time, judges acquire a sense of justice, which is their sixth sense. However, there is a pre-condition to that, namely, you have to have feminine approach to justice.” (sic) Justice Sikri also said: “I am of the firm opinion that every male, in order to be a complete human being, should pos- sess some elements of femininity.” The extremely misogynistic and macho environment in which Justice Sikri dared to say that a part of him is feminine is captured in an open letter written by senior advocate Indira Jaising to the chief justice of India two days later—on International Women’s Day, March 8. In this letter, Jaising described the derogatory sexist language still used in courts. She said she had been called “shrill while my male colleagues are val- ourised for being totally aggressive in the court”. She spoke about how she has been “sexually harassed in the corridors of the Supreme Court of India, notwith- standing my grey hair and notwith- standing that the corridors are under CCTV surveillance”. She added: “In over 50 years of practice, I have not found any improvement in the culture of the courts which is predominantly male. Women, though present, in larger num- bers are invisible from public discourse, unless they are someone’s wife, sister, daughter, or politically connected to the powers that be.” Jaising also refers to judicial language still using “words and phrases which perpetuate patriarchy, endorse stereotypes of women’s per- ceived roles and behaviour and entrench biases that are detrimental to the status of women in our society”. She said: “The symbol of justice may be a blindfolded woman, but none of us will settle for tokenism or symbols.” What do we make of the significance of Justice Sikri—at his retirement, the third most senior judge in our country— voluntarily claiming the derided J “Itistheattributeoffemininity whichinstillsthedesiredsen- sitivity,thatisrequiredinvar- iedtypesofcasesandinvari- ouscircumstances…judges acquirea...sixthsense...thereis apre-conditiontothat,namely, youhavetohavefeminine approachtojustice.” —JusticeAKSikriinhisfarewell speechonMarch 6,2019 Bhavana Gaur
  12. 12. 14 March 25, 2019 and derogatory label of femininity in a misogynist legal profession? Do these remarks, coming from one of India’s most senior and scholarly judges, have any larger significance for gender equality? Read as a whole, it is clear that the core theme of Justice Sikri’s farewell speech was quality of judges, not equal- ity in society. Indeed, the speech was confined to law—legal education, practice of law and judg- ing. There was no discus- sion of larger issues, internal or external, including, for example, the flaming controversies that have raged around him over the last few months over the inde- pendence of the judiciary. J ustice Sikri was not being epicene in saying that a part of him is feminine. His purpose in this claiming appears to have been to extol four qualities that he considers essential for a judge: sensitivity, mercy, compassion and a sense of justice, a so- called “sixth sense”. Highlighting these values implicitly signifies Justice Sikri’s judgment that they are currently in short supply. A corollary of his proposi- tion would be that their antonyms are at large—insensitivity, mercilessness, injus- tice and cruelty. If true, this would have a deeply corrosive impact on faith and confidence in our courts and in the Republic itself. Why are these extolled values in short supply? Justice Sikri’s comments show that values such as sensitivity, mercy and compassion are seen in the legal domain as “effeminate” (He says: “It is the attribute of femininity which instils the desired sensitivity, that is required in varied types of cases and in various circumstances”). In turn, the macho legal culture in our country asso- ciates the feminine with weakness. For example, the Supreme Court of India said in one of its judgments—State of UP vs Chatur Singh in 2005: “Woman by its feminine nature and with a feeble body, ordinarily would not pose threat or danger to life of a well bodied man with a lathi.” If sensitivity, mercy and compassion are to be strengthened, the stigma asso- ciated with their being seen as “attribut- es of femininity” should be eliminated. One way to do this is to advance an idea, accepted religiously by many sections of Indians, that, like ardhanariswara, hu- mans may also have in them both the feminine and the masculine. Such an approach would, in Justice Sikri’s line of argument, strengthen the status of these exalted values even though they are seen as attributes of femininity. A fifth quality, lack of malice, was suggested in the other, more mundane “confession” Justice Sikri made in the same speech: “Even at this age of 65, there is a child in me. It has kept intact some kind of ‘innocence’. This innocence ensures that there is no malice for any- one, and that helps in doing justice.” Notwithstanding his laudable inten- tions of improving the quality of judges, Justice Sikri’s remarks on femininity and feminine values are problematic at many levels. First, the theory of femi- ninity and gender that Justice Sikri uses in this speech reflects a segregated, binary understanding of gender, packed with stereotypes, that, in the words of Judith Butler, “being a man or a woman is actually an internal reality, something that is true about us”. French feminist theorist and author Monique Wittig said 40 years ago (as Justice Sikri was starting his forensic career): “A materialist feminist approach to women's oppression destroys the idea that women are a ‘natural group’. A les- bian society pragmatically reveals that the division from men of which women have been the object is a political one and shows that we have been ideologi- cally rebuilt into a ‘natural group’. In the case of women, ideology goes far since our bodies as well as our minds are the product of this manipulation. We have been compelled in our bodies and in our minds to correspond, feature by feature, with the idea of nature that has been established for us. Distorted to such an extent that our deformed body is what they call ‘natural’, what is supposed to exist as such before oppression. Distor- ted to such an extent that in the end oppression seems to be a consequence of InalettertotheCJIonMarch 8,senioradvocateIndira Jaisingwrotethat“inover50 yearsofpractice,Ihavenot foundanyimprovementinthe cultureofthecourtswhichis predominantlymale”.She referstojudiciallanguagestill using“wordswhichperpetu- atepatriarchy....” Lead/ Gender Confession
  13. 13. that, paraphrasing Siomone de Beau- voir, one is not born as, but is made into, one or other gender. A persistent confusion between “fem- inine” (characteristic of or appropriate or unique to women) and “feminism” (theory of the political, economic, and social equality of the sexes and organ- ised activity on behalf of women’s | INDIA LEGAL | March 25, 2019 15 this ‘nature’ within ourselves (a nature which is only an idea). What a material- ist analysis does by reasoning, a lesbian society accomplishes practically: not only is there no natural group ‘women’ (we lesbians are living proof of it), but as individuals as well we question ‘woman’, which for us, as for Simone de Beauvoir, is only a myth. She said: ‘One is not born, but becomes a woman. No biological, psychological, or economic fate determines the figure that the human female presents in society: it is civilisation as a whole that produces this creature, intermediate between male and eunuch, which is described as femi- nine.” (Monique Wittig, One is Not Born a Woman). Famously, Judith Butler said gender is “performative”, a “phenomenon that is being produced and reproduced all the time” and that “nobody is really of a gender from the start”. T he Supreme Court fully under- stands this contemporary under- standing of gender, but seems not to have accepted it. Even while recognis- ing the social and political construction of gender, it largely holds on to the tra- ditional construction of gender. A detailed analysis of gender theory by the Supreme Court is available in its land- mark 2014 “Transgender” judgment (National Legal Services Authority vs. Union of India, dated April 15, 2014). Justice Sikri was a party to the judg- ment. Even though the Court took a welcome and progressive view and re- cognised transgender as a “third gender” (enlarging the binary to a trinary), it failed to fully accept that gender is merely “performative”, a false social and political construction, and to appreciate Frenchfeministtheoristand authorMoniqueWittigsaid40 yearsago(asJusticeSikriwas startinghisforensiccareer):“A materialistfeministapproach towomen'soppression destroystheideathatwomen area‘naturalgroup’...oneis notbornbutbecomesa woman....itiscivilisation...that producesthiscreature...” DEBATABLE VERDICT An analysis of the gender theory by the SC is incorporated in its 2014 transgender verdict UNI
  14. 14. 16 March 25, 2019 rights and interests to that end) contin- ues to bedevil our jurisprudence. This confusion shows through in the evidence that Justice Sikri offers in his speech for his proposition that as a nec- essary pre-condition, male judges “have to have feminine approach to justice” “if they are to acquire sense of justice”, “which is their sixth sense”, because “it is well-known that women have sixth sense”. (sic) The evidence offered by Justice Sikri is the United States Fe- minist Judgments Project, a collabora- tive effort of more than 100 feminist law professors to rewrite US (and later other) court decisions from a feminist perspective. Justice Sikri says that the rewriting of the judgments from a femi- nist perspective “demonstrated that feminist reasoning increases the judicial capacity for justice, not only for women but for many other oppressed groups.” T he point that Justice Sikri may be overlooking is that the authors who rewrote judgments from a feminist perspective under that project are not all women—they include men as well. He also overlooks the possibility that not all women will have a feminist approach either. This is because he appears to be of the view that a feminine perspective is a natural, biological attribute of women. It’s clear that our courts are yet to accept the full force of feminist legal theory, described succinctly as “a body of scholarship produced over the last half of the twentieth century and the first quarter of this one that proffers expla- nations of law’s complicity in the ongo- ing subordination of women and sexual minorities, while also pursuing the pos- sibilities within law for achieving lasting gender and sex equality. Its purpose is thus both descriptive and critical on the one hand, and normative and aspira- tional on the other.” (Robin West, Introduction to the Research Handbook on Feminist Jurisprudence). In the absence of theoretical clarity on gender, gender equality and legal theory on gender, men being “feminine” (a la Justice Sikri) instead of becoming feminist is likely to be counter-produc- tive. It will do little more than entrench the gender binary (or trinary), reinforce stereotypes, attaching “strong” qualities to the male and “weak” qualities to the female and the transgender, and lull judges into a false comfort that their judicial methods do not suffer from gen- der bias. This is an approach fraught with danger. Men becoming feminine cannot be a substitute for the due representation of women as an oppressed class. If and when our courts recognise that gender is a system of subjugation and exploitation, and that women con- stitute a class of people deprived of free- dom and equality because of the unique social and political construction of the idea of gender, our jurisprudence will align more closely with our Constitu- tional struggle for establishing a new social order based on equality and free- dom for all. Finally, it is important to place the feminist struggle in our country in a broader social context. Why wasn’t someone as sensitive as Justice Sikri also able to proclaim: “By nature, a part of me is Dalit/avarna/a landless labourer”? Is it because he lacks the same sense of shared heritage with the avarna/Dalit labourer as he does with women of his own family, caste and religion? Is it because the prejudice against the Dalit/avarna/working class is so strong that there is as yet no lore of exalted val- ues associated with them (such as sensi- tivity, sense of justice, mercy and com- passion)? Is it because there is no reli- gious tradition of worship of the Dalit or the worker as there is of women? This underscores the importance of inter-sec- tionality in our approach to issues of gender jurisprudence and gender justice. Some 90 percent of Indian women are avarna/Dalit who are triply victimised— as women, as low caste and as working class and poor. Diversity and representa- tion in the judiciary is essential so that we can have in the Supreme Court a due share of Dalits/avarna women who will be able to have, as part of their nature, the feminist as well as the Dalit/avarna and the poor. —The writer was former Director, National Judicial Academy and former VC, National Law School of India, Bangalore Diversityandrepresentationinthejudici- aryareessentialsothatwecanhaveinthe SCadueshareofDalits/avarnawomen whowillbeabletohavethefeminineas wellastheDalit/avarnaandthepoor. Lead/ Gender Confession UNI Twitter: @indialegalmedia Website: Contact:
  15. 15. | INDIA LEGAL | March 25, 2019 17 Courts/ Child Custody HILDREN ARE, undoubt- edly, the worst sufferers when their parents get divorced or decide to live separately. However, with the trend of one of the sep- arated parents opting for a live-in rela- tionship gaining momentum, the courts are faced with the issue of providing custody of the affected child. In deciding such cases, courts are increasingly keeping the child’s interest in mind. This was witnessed recently in the Punjab and Haryana High Court when a division bench decided against giving the custody of a minor girl to her father, who was in a live-in relationship without the dissolution of his marriage. The bench held that “there are chances that the child would learn that live-in relationships are the way of life”. The bench, comprising Justice Ra- kesh Kumar Jain and Justice Harnaresh Singh Gill, dismissed an appeal filed by a Hisar resident, challenging the deci- sion of a family court on child custody. The family court had favoured custody to her mother. The bench said it cannot approve this kind of a social set-up “because it would give a wrong signal to the society at large and would create an adverse impact on the tender mind of the minor child, especially a girl child”. The couple had got married in 2005 and had two daughters. The wife was later allegedly harassed and humiliated for bringing inadequate dowry and thrown out of her matrimonial home by the appellant. Without obtaining a decree of divorce, he started living with another woman with whom he had another daughter. The husband got custody of one of the two daughters through an order from the subdivisional magistrate, Hisar. The wife then approached the Hisar family court to seek custody of the girl on the ground that she was being humiliated by her husband’s live- in partner. The family court found that it would not be in the welfare of the child to remain in the custody of the husband because he was stated to be a habitual drunkard, living an immoral life. The husband, however, argued that since he had admitted his daughter to a good school in Hisar and the welfare of the child was of paramount considera- tion, he should be allowed to retain cus- tody because his wife did not have any source of income. Declining to give custody of the dau- ghter to the husband, the family court held that the custody of a child could not be given to a person who had fathered a child through a live-in rela- tionship without even divorcing his wife. The husband then approached the High Court which dismissed his appeal. The Supreme Court had in a judg- ment in 1978 considered live-in rela- tionships valid for the first time. Ajay Malhotra, a lawyer who spe- cialises in cases pertaining to custody of children, welcomed the High Court’s judgment, pointing out that the hus- band had not obtained a divorce from his wife before getting into a live-in relationship and it could have had a lasting impact on the child’s personali- ty and growth. Another senior lawyer said that while the circumstances in this particular case could be peculiar, society and the courts should reconcile with the growing trend of live-in rela- tionships. C Live-inOK,CustodyNot Twitter: @indialegalmedia Website: Contact: ThePunjabandHaryanaHighCourtdeclinestohandoveraminor girltoherfatherwhodidnotgetadivorcefromhiswifebutwas stayingwithalive-inpartner By Vipin Pubby in Chandigarh Amitava Sen
  16. 16. notices to both the central and state governments, and posted the case for further hearing to June. A division bench of the Court headed by Justice N Kirubakaran and compris- ing Justice Abdul Quddhose passed these orders. This was done after quash- ing a detention order passed under the “much misused Goondas Act by the authorities of Tamil Nadu” against a person who was allegedly connected with a murder case which, in turn, was related to an extramarital affair. The bench said: “Extramarital rela- tionships have become a dangerous social evil nowadays. Many heinous crimes including ghastly murders, Courts/ Extramarital Relationships 18 March 25, 2019 N an interesting development with deeper consequences, the Madras High Court has asked both the central and state govern- ments to find out if exposure to television mega serials, among other things, is responsible for the inc- rease in extramarital relationships and the resultant spurt in murders, attempt- ed murders, abductions, assaults, and the like. The Court also wanted to know whether economic independence of cou- ples, the internet, sexual dysfunction, social media, westernisation and lack of quality time for the family were also responsible for the increase in extramar- ital relationships. The Court ordered assaults and kidnappings are committed because of clandestine relationships and they are alarmingly increasing day-by- day. Most of the killings are either by husbands or wives to eliminate his or her cheating life partner, the paramour, and shockingly, even children. Moreover murders are being committed either by husband or wife to continue the rela- tionship with the paramour.” It further said: “Marriage in India was based on love, faith, trust and legiti- mate expectations. The marital relation- ship was considered to be sacred. How- ever, what were to be sacred were dan- gerously fast becoming scary and shat- tering families due to outside conjugal relationship, and therefore to adjudicate the said issue of extramarital relation- ships between men and women, this court suo motu impleads the Union of India, represented by its Secretary, Ministry of Family Welfare, New Delhi, and the state of Tamil Nadu, represent- ed by its Secretary, Ministry of Home Department as respondents.” The bench then framed 20 questions for both the central and state governments to respond to. Inanorderwithsocietalimplications,theMadrasHChasaskedthe centreandstatesnumerousquestionsaboutwhethercertainTV showshavestimulatedanincreaseinextramaritalrelationships By R Ramasubramanian in Chennai I Serial Offender?
  17. 17. | INDIA LEGAL | March 25, 2019 19 The bench seemed cautious about the whole exercise when it said: “In view of the spurt in offences, especially mur- ders due to extramarital affairs, it was the bounden duty of this court to add- ress the issue. In an effort to find out the reasons and find ways and means to address the extramarital relationship and to prevent/reduce the related offen- ces, queries are being raised by this court. Therefore, the queries are neither opinion nor the findings or conclusions of this court.” Among the 20 queries the Court asked were the following: (a) How many murders took place in Chennai as well as Tamil Nadu and India in the past 10 years due to extra- marital affairs? (b) How many offences like suicide, kidnapping and assault, other than mur- der, were committed due to illicit inti- macy in Chennai, Tamil Nadu and in India in the past 10 years? (c) Is it a fact that television mega serials and cinemas are major reasons for the increase in scandalous relation- ships in our country? (d) Do TV serials and cinemas in- variably give a clue to the people invol- ved in a clandestine relationship to commit offences, such as murder and kidnapping? (e) Are spouses increasingly engag- ing paid killers to get rid of their life partners? (f) Does the spurt in scandalous affairs due to the internet, which offers platforms like Facebook, WhatsApp and Instagram, give many opportunities for strangers to get connected? (g) Is the increase in clandestine relationships due to westernisation of our culture and way of life? (h) Is the breaking up of the joint family system and formation of the nucleus family responsible for the increase in extramarital relationships? (i) Why are central and state govern- ments not constituting an expert com- mittee headed by a retired Supreme Court judge/High Court judge, consist- ing of psychologists, psychiatrists, andrologists, neurologists, physicians, social activists and NGOs working for safeguarding the families to study and analyse the reasons for this menace? (j) Why are the concerned authori- ties not constituting family counselling centres to give counselling to spouses in every district? S urprisingly, the reactions to the bench’s orders were varied. P Sun- dararajan, an advocate and a psy- chologist, told India Legal: “In my view, this is judicial overreach. The high courts and the Supreme Court are sup- posed to give correct interpretations of written legislation. They cannot and should not create legislation. The con- cept and practice of counselling is a sci- ence and not magic. Through counsel- ling, you cannot solve all issues. We have to understand that the existing social structure is one of the major reasons for the present-day problems. As for extra- marital affairs, this is an issue existing in all societies since time immemorial.” He added: “This tendency of devel- oping relationships outside the institu- tion of marriage is individualistic and psychological. So the judiciary should keep away from it and allow the existing social structure to solve the problem, if at all it is a major problem. The motives of the bench are noble, but it cannot overstretch itself.” BJ Ajitha, an advocate practising in the Madras High Court, told India Legal: “Though the motives are noble, courts can only speak through their orders. So we have to wait and watch how the questions and answers that will be given will be used for the betterment of society. Courts should also under- stand the position of women and their rights. The basic structure of our society must also be taken into cognisance while dealing with such matters. A retired family court judge who did not want to be named said: “The apex court’s ruling decriminalising adultery has also become an added factor for extramarital affairs. Its decision in abrogating a British legacy law like adultery was mainly on the point that the said law punishes only a man and not a woman. So it was on the ground that an over 100-year-old law was gen- der-specific and discriminatory and thus the Supreme Court quashed it. But that has become one of the reasons for adultery growing. Also, the bench raised 20 queries. But there is another query: Is the Supreme Court’s decision to decriminalise adultery one of the reasons for extramarital affairs growing these days?” JusticeNKirubakaran(right)andJusticeAbdulQuddhoseoftheMadrasHCsaidthat extramaritalrelationshipshavebecomeadangeroussocialevilnowadaysandarethe causeofmanyheinouscrimesincludingmurder,assaultandkidnapping. Twitter: @indialegalmedia Website: Contact:
  18. 18. T is not unusual to find legal provi- sions which, on the face of it, lack justification, and continue in the statute books simply because they have not been successfully chal- lenged in courts. Section 62(5) of the Representation of the People Act, 1951, is one such provision, which has so far evaded scrutiny by activists, who are inclined to use PILs to bring legal aber- rations under challenge. It is to the credit of three law students of Galgotias University, Greater Noida—Praveen K Chaudhary, Atul K Dubey and Prerna Singh—that they mounted a challenge concerning prisoners before the Delhi High Court so that its repeal is consid- Courts/ Prisoners 20 March 25, 2019 ered by the judiciary at the earliest. Section 62(5) of the RPA says: “No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or trans- portation or otherwise, or is in the law- ful custody of the police; Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force; Provided further that by reason of the prohibition to vote under this sub-section, a person whose name has been entered in the electoral roll shall not cease to be an elector.” General Elections 2014 – Reference Handbook published by the Election Anarchaicprovisioninthe RepresentationofthePeople Act,whichdeniesfranchiseto prisoners,isbeingchallengedin theDelhiHighCourtasitviolates theconceptofequalityand freedomofexpression By Venkatasubramanian I Give Voting Rights A FEELING OF REJECTION Prisoners making organic pickles at the district jail in Udhampur, Jammu. Although they can work and earn money legally they can’t vote
  19. 19. | INDIA LEGAL | March 25, 2019 21 Commission excludes prisoners from participating in elections even if their names are on the electoral rolls. The first proviso to Section 62(5), however, does not deny voting rights to detainees, while the second proviso safeguards the right to vote of a prisoner who has been deprived of it by reason of prohibition under this sub-section. This was insert- ed through an amendment in 2013. This amendment was the result of a Supreme Court order on July 10, 2013, in the case of Chief Election Commi- ssioner v Jan Chaukidar and Others upholding an order of the Patna High Court declaring that a person who has no right to vote by virtue of sub-section attributes of dignity and personhood, which they are entitled to as citizens and human beings. The petitioners said that Section 8(3) of the RPA, 1951, does not disqualify a person from contesting an election if he has been convicted and sentenced to imprisonment for less than two years for an offence. Denying the same persons their right to vote when they are under imprisonment, therefore, makes no sense. Besides, there is no bar on persons who manage to secure bail from exercising their franchise, even though those who are in prison, and denied franchise, are considered a sepa- rate class only on the ground of their inability to secure bail. The nexus between securing bail and franchise is again unreasonable, and strikes at the root of equality. In support of their petition, the stu- dents invoked Article 51 of the Constitu- tion which requires the State to endeav- our to foster respect for international law and treaty obligations. Thus, they point out that Article 21 of the Universal Declaration of Human Rights (UDHR) provides for the equivalent free voting procedures and which shall be by uni- versal and equal suffrage. Further, Arti- cle 3 of the UDHR provides an equal right of men and women to the enjoy- ment of all civil and political rights. Article 25 of the International Covenant on Civil and Political Rights guarantees the right to vote and free expression of the will of the electors. Under Sections 34, 35 and 36 of Chapter VII of the Prisons Act, 1894, prisoners can work and follow any trade or profession with the prison superin- tendent’s permission. “It is irrational and unjustifiable to deny them the right to vote within the jail itself,” say the petitioners. Australia, Canada, Ireland, New Zealand, and South Africa are among the few countries, according to the peti- tioners, which have granted the right to vote to their prisoners. Therefore, the petitioners have argued that Section 62(5) of the RPA violates the concept of equality, and Photos: UNI Thepetitionerssubmittedthatifprison- ersenjoyvotingrights,moreandmore politicianswillconsiderreformingthe criminaljusticesystem,andthiswould helpthemidentifyneededchanges. (5) of Section 62 of the RPA, is not an elector and is, therefore, not qualified to contest the election to either House of Parliament or the Legislative Assembly of a state. The then UPA government filed a review petition and without waiting for its outcome, felt the law should be am- ended for suitably addressing the situa- tion arising out of the order. It is clear that the purpose of the 2013 amend- ment is not to enable a prisoner to exer- cise his franchise, but to enable him to contest an election. Enabling prisoners to contest an election, but denying them the right to vote is both inexplicable and indefensible. A s per the 2015 report of the Na- tional Crime Records Bureau, the total number of jails in India is 1,401. The total number of prisoners as on December 31, 2015, is 4,19,623, of which 2,82,076 are undertrials (67.2 percent). The petitioners argue that giving prisoners the right to vote will serve as “natural defenders” of their own interest. They also contend that providing franchise to prisoners will make prisons a part of a constituency and help improve prison and jail conditions and make whom they vote for accountable. They further submit that if prisoners enjoy voting rights, more and more politicians will consider reforming our criminal justice system, and this would be a commonsense way to help them identify needed changes. While the reform of prisons across the country is an immediate objective of granting franchise to the prisoners, it will make adult franchise truly univer- sal, as it would make the vote of each and every citizen count, besides en- abling prisoners to enjoy the human
  20. 20. 22 March 25, 2019 freedom of expression, and hence is in breach of the basic structure of the Constitution. The impugned Section, according to them, fails to consider that Articles 14, 19(1)(a) and 21 of the Constitution constitute the golden trian- gle, and the three together protect an individual from falling into the abyss of unrestrained exercise of power by the State. T he petitioners rely on the Sup- reme Court’s observations in Jyoti Basu v Debi Ghosal (1982) that freedom of voting, as distinct from the right to vote, is a species of freedom of expression. In this case, the Supreme Court held: “Initially, right to vote can- not be placed on the pedestal of a fun- damental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and prefer- ence and that final stage in the exercise of voting right marks the accomplish- ment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted.” In People’s Union for Civil Liberties v Union of India (2009), the Supreme Court held: “Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter’s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote.” In C Narayanaswamy v CK Jaffer Sharief, the Supreme Court held in 1994 that democracy based on adult franchise is part of the basic structure of the Constitution. In Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981), the Supreme Court had held that the prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. The Supreme Court’s landmark judgment in 2017 declaring the right to privacy as a fundamental right has also been used by the petitioners to contend that prisoners, under Article 21 of the Constitution, have the right to live with dignity, and therefore, should have access to all the rights available to a free person, which add meaning to his dignity, which is a facet of the right to privacy. Chief Justice Rajendra Menon and Justice V Kameshwar Rao, who heard the petitioners on February 20, have directed issue of notice to the respon- dents, the Union of India and others, and posted it for further hearing on May 9. As it is not an adversarial litigation, the respondents, it is hoped, will not oppose the striking down of Section 62(5), to ensure justice to prisoners. Twitter: @indialegalmedia Website: Contact: TIME TO RETHINK Giving prisoners voting rights like other citizens will also ensure prison reform Courts/ Prisoners Australia,Canada,Ireland,NewZealand, andSouthAfricaareamongthe fewcountries,accordingtothe petitioners,whichhavegrantedthe righttovotetoprisoners.
  21. 21. Sheikh Abdullah accord had achieved in 1974. Yet, it is recognised as an important part of an overall strategy to get rid of the scourge of militancy lock, stock and barrel. Its two essential components have all along been monetary relief and a training regime. The present administrative dispensa- tion headed by Governor Satya Pal Malik has said that the new policy would have a “fresh focus” on “socio-economic reintegration” of disillusioned youth. Evidently, this serious con- Column/ J&K Rehabilitation Plan Pushp Saraf 24 March 25, 2019 OR the third time, the socio- economic surrender and reha- bilitation policy for militants to return to normal life is being revised in Jammu and Kashmir (J&K) after it was first launched by Governor General KV Krishna Rao on August 15, 1995. That explains its continuing relevance. But by no means is it a panacea. It does not have the political ingredients necessary to win over the main secessionist ele- ments opposed to the state’s accession and the Constitutions of India and J&K, something which the Indira Gandhi- cern is caused by the swelling ranks of young educated persons who have taken up armed militancy. The contours of the new scheme are being finalised before being made public. An indication is that a militant giving up arms to join the mainstream would get a monthly stipend of `6,000. That can only be one feature of a plan whose eventual aim is to enable people to acquire skills enough Thoughthestategovernmenthasforthethirdtimecomeupwithadraftpolicytoencouragemilitants tojointhemainstream,itisfarfromaremedytowinoversecessionistelements F PANACEA FOR TERRORISM? A 20-year-old footballer-turned-militant surrendering before security forces in South Kashmir's Anantnag district UNI A Peace Offering
  22. 22. | INDIA LEGAL | March 25, 2019 25 to earn their livelihood with the passage of time. Those who have been in charge of the implementation of such measures in the past have noticed the surrenderees’ penchant for government jobs instead of acquiring skills for private enterprise. This is because they want a permanent job which ensures post-retirement pen- sion to perpetually take care of their economic needs. This mindset needs to be changed as the state government is already overburdened. Writer-academi- cian-bureaucrat Sudhir S Bloeria, a for- mer chief secretary, told India Legal that it might help to expand training pro- grammes with the involvement of effi- cient NGOs so that there is a large vari- ety of skills to be taught. T he steps being taken now are in tune with the governor’s own assertion at the beginning of 2019: “Terrorism is not in the barrel of a gun, but it is in the brain. We want to cure that by offering them something in the form of rehabilitation so that they return to the mainstream. A policy for their rehabilitation is under considera- tion...I feel bad even if there is loss of a regard identified two “categories of ter- rorists from amongst residents of Jammu and Kashmir” eligible for reha- bilitation after surrender: “(a) known militants who surrender with weapon; and (b) hardcore militants even without weapons”. It was made abundantly clear, among other provisions: “The surren- deree involved in heinous crimes like murder, rape, abduction etc. will be entitled to benefits only when legal action has been completed, court cases decided and the person has been pro- nounced innocent.” The scheme raised the monthly stipend to `2,000 and pro- vided incentives for surrendered weapons as well—`15,000 for each Kalashnikov rifle, for instance. On November 23, 2010, Chief Minister Omar Abdullah initiated the third version of the rehabilitation policy for the homecoming of “those who have gone to PoK/Pakistan between 1.1.1989 and 31.12.2009 and their dependents”. It was intended to “facilitate the return of ex-militants who belong to J&K state and had crossed over to the PoK/ Pakistan for training in insurgency but have given up insurgent activities due to a change of heart and are willing to VIOLENCE UNPLUGGED Youth pelting stones at security forces during a strike called by separatists in Srinagar single life—even if it is that of a terror- ist. We want all (local militants) to come back to the mainstream and (plan to) make a good rehabilitation offer.” Call it allurement or an urgent neces- sity for a jobless person, the offer of money has been inbuilt in all rehabilita- tion policies. Governor Rao had begun with the incentive of a one-time fixed deposit of `1.5 lakh, a monthly stipend of `1,800 and vocational training for each militant to find his feet. The late Mufti Mohammad Sayeed, who had done extremely well as the founder- president of the People’s Democratic Party (PDP), a regional party, rather than as a long-time leader of the Congress, would often say as a champi- on of the rehabilitation policy that it was better to let the people (former mil- itants) come back through normal legal routes than via clandestine passages. In keeping with his vision, his gov- ernment’s rehabilitation policy, as enu- merated on January 31, 2004, was add- ressed “to those terrorists who undergo a change of heart and eschew the path of violence and who also accept the int- egrity of India and Indian Constitution” in order “to encourage them to join the mainstream and lead a normal life and contribute towards prosperity and pro- gress of the state as well as the nation”. The relevant cabinet order in this Thepresentadministrativedispensation headedbyGovernorSatyaPalMalikhas saidthatthenewpolicywouldhavea “freshfocus”on“socio-economic reintegration”ofdisillusionedyouth. UNI
  23. 23. return to the State”. Parents or “close relatives (in case there are no parents)” were made eligible to apply on behalf of “prospective returnees”. The following routes were designated for the return- ees: the Wagah-Attari international bor- der in Punjab, Salamabad (Uri) in the Valley, the Chakan-da-bagh crossing in Poonch district on the Line of Control and the Indira Gandhi International Airport in the national capital. A ll rehabilitation policies specified a detailed procedure involving almost all security agencies, inc- luding the Intelligence Bureau (IB), the Research and Analysis Wing (RAW) and the Army for detailed scrutiny of mili- tants wanting to resume normal life. The reason for identifying routes for their return journey from Pakistan and the occupied territory (“Azad” Kashmir, as locally called) was to eliminate the possibility of infiltrators exploiting a goodwill gesture to gain entry via other places at the behest of forces inimical to the country; Nepal seemed to be a pop- ular transit point. Bhim Singh, a senior advocate and politician, in an article quoted a state government affidavit filed in the Sup- reme Court in August 2013 that 282 for- mer militants had entered J&K via Nepal after the 2010 rehabilitation poli- cy. Naturally, they had disqualified themselves for rehabilitation benefits for choosing a wrong passage. Some com- mentators argue that Nepal should be included among the designated routes. Their plea is that in the absence of prop- er documents, former militants and their families cannot take a sanctioned route from the occupied territory or Pakistan, thus implying that they were compelled to undertake an illegal jour- ney via Nepal with the help of touts. This may be a humanitarian perspec- tive. What is, however, overlooked is that the 2010 policy has a set process under which the ministry of home affairs, on the completion of all screen- ing, would forward “the details of per- mitted returnees to MEA (Ministry of External Affairs) which would in turn communicate the information to the concerned mission so that the action to facilitate the return can be taken. On application, the returnee will be issued an emergency certificate by the High Commission of India, Islamabad. The returnee may also apply for an entry permit as per the existing procedure in order to return by one of the notified entry points”. There is a strong possibility that an unstated fear discourages a prospective returnee from undertaking a designated route: he may invite harm and probably death itself by disclos- ing his purpose of leav- ing militancy and returning home while being still in Pakistan or in the territory under its illegal occupation. After all, he had secured arms training from them, walking into their trap bewitched by the dream of “azadi” (freedom). In 2000, while on a trip to Pakistan and “Azad” Kashmir with separatist leader Abdul Ghani Lone (who was later slain), this writer met many young peo- ple from the Valley who had travelled all the way without their original identity papers and did not get any official docu- ments from Pakistan or the government in the occupied territory which remain- ed suspicious of their loyalty. Such mili- tants have landed in a piquant situation because of a momentary miscalculation because of which they deserted their home and hearth. The rehabilitation policy at present has no flexibility such as throwing open all routes without designating them. Instead, it makes it incumbent upon a militant-applicant to establish his iden- tity by sticking to fixed norms. It will be too much to expect the Union and J&K governments to make any deviation for their sake. The two governments have their hands more than full because of militant strikes in the state. Unless, of course, it turns out that the governor’s administration has something up its sleeve. NOBLE MOVE (From left) The late Governor General KV Krishna Rao, the late Mufti Mohammad Sayeed, and NC Vice-president Omar Abdullah have previously initiated different versions of the rehabilitation policy 26 March 25, 2019 Twitter: @indialegalmedia Website: Contact: Column/ J&K Rehabilitation Plan/ Pushp Saraf Peopleinchargeofrehabilitation measuresinthepastsaymanyamong thosewhosurrenderhaveapenchantfor governmentjobsratherthanacquirethe skillsforprivateenterprise.
  24. 24. BRINGING YOU THE STORIES THAT COUNT An ENC Publication To Stay Abreast With Today, Pick Up Yesterday’s India Legal Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends Forest Rights: A burning issue Triple Talaq: Pakistan shows the way PakistanreleasingthedownedIAFpilothasclearlyputtheballin India’scourt.ButImranKhan,too,willhavetode-escalatethe situationbydismantlingterroristcamps NOW WHAT ?INDO-PAKBRINKMANSHIP NOW NDIA EGALEEL STORIES THAT COUNT ` 100 NI March11,2019 NDIA EGALEEL ` 100 I February18,2019 Angel Tax:Relief at last? 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  25. 25. 28 March 25, 2019 HE National Monuments Authority (NMA) has noti- fied heritage bylaws for 10 monuments inside the Nizamuddin Basti in Delhi, that are on the list of the Archaeological Survey of India (ASI). The bylaws will guide physical, social and economic interventions within 300 metres of the centrally protected monu- ments. Reports said that similar bylaws were notified for 17 monuments in the Sundar Nursery and Humayun’s Tomb complex a few weeks earlier. The notifications were issued by the NMA under the Ancient Monument and Archaeological Sites and Remains Act (AMASR), 1958, as amended in 2010 and allow the framing of heritage bylaws and other functions. As per Section 20 (E) of AMASR Act, 2010, and Rule 18 of the NMA rules, heritage bylaws are req- uired to be prepared in respect of each protected monument/protected site. A draft version of the bylaws is posted on the website of the NMA for informa- tion/ suggestions, which may be sent wi- thin 30 days from the date of uploading. Broadly speaking, there are two que- stions that need to be raised in connec- tion with the notice issued by the NMA. One is whether there is a need for site- specific bylaws and whether it is enough to put them on the NMA website. The answer to the first question is in the affirmative. Yes, there is need for such site-specific bylaws, primarily because no matter how comprehensive a law ABIDING REVERENCE People offer namaz at the tomb of Hazrat Amir Khusrau at the Nizamuddin Dargah complex T Involve the People Alongsidelawsforconservingheritage,itisimportanttodemocratisetheentireprocess, putpeopleatthecentreofalllegalprocessesandcompensatethemforousterfrom monuments’vicinity Conservation/ Heritage Bylaws Sohail Hashmi Photos: Bhavana Gaur
  26. 26. | INDIA LEGAL | March 25, 2019 29 dealing with issues of conservation and protection might be, it can never visu- alise every obstacle that might crop up to obstruct these efforts. So site-specific solutions are required and any authority responsible for protecting our heritage needs to have the leeway to frame site- specific rules. L et us look at the Act as it has pro- gressed from the time when it was framed and the present stip- ulations of the law. Originally, there was a 50-yard prohibition on any construc- tion in all directions from a protected monument. In 2010, the limit was extended to 100 metres, with a further limit of an additional 200 metres that was declared a regulated zone. The implications of this can be seen through a concrete example—the 14th century Begumpur Mosque built by Maqbool Juna Shah Telangani, the vazir of Ferozeshah Tughlaq. When this mosque was placed on the protected list post-Independence, it was found that a large number of people had built their houses inside it. They were told to move out and asked to build their houses be- yond the 50-yard limit. The mosque is now surrounded by houses on three sides; these are houses of those who were asked to vacate the mosque when it became a protected monument. One of the displaced was a little boy, his par- ents and grandparents. His grandpar- ents built a house opposite the mosque, beyond the 50-yard limit and that is where this boy lived with his parents. Let us move forward to 2012. Some of us, led by Prof Narayani Gupta, one of the founders of Delhi Heritage So- ciety and a pioneer of heritage walks in Delhi, visited Begumpur because we had heard that there was some tension bet- ween the villagers and the ASI. Prof Gupta initiated the formation of “Frien- ds of ASI” with a view to facilitating a dialogue between the villagers and the ASI. During our meetings with the vil- lage elders, we discovered that the vil- lagers wanted to make additions to their houses but were not being permitted PRESERVING HISTORY Conservation work on this monument will not escape attention BRISK BUSINESS Markets bustle with activity inside the Nizamuddin Basti AMAZING SIGHT The baoli or stepwell located within the Nizamuddin Dargah complex
  27. 27. 30 March 25, 2019 Conservation/ Heritage Bylaws/ Sohail Hashmi because now the area where construc- tion was a no-no had been increased to 100 metres and they were inside the no-construction zone. One of the people we met was a child of the late 1950s. He had studied, joined the Indian Air Force and was now re- tired. His grandson was to get married soon and he wanted to add a new room to his house for his grandson and his bride. He had been told that he could not do it. He was obviously frustrated and angry. The point of this narration is to underscore the fact that there would be such situations at each step, we need to be sensitive to these human problems and no law or bylaw can solve them unless we democratise the entire process of lawmaking and the people have a say in the process. We need to understand that the orig- inal law for protection of monuments (Act XX of 1863), like all laws prior to 1947, was framed by a colonial adminis- tration which treated the people as sub- jects if not as outright enemies of the state. Our lawmakers and the entire process of lawmaking in most former colonies continues to follow the same approach and unless we change this process, people like Singh (the child born inside the Begumpur Mosque) will continue to be at the receiving end. And there will be many like him in the Basti. T he question is, if there is a need, do we have a relocation plan, will they be given new houses, new occupations and new skills to cope with the new circumstances in their lives? If the bylaws have provided for all these contingencies and if sufficient funds have been earmarked and will be avail- able as and when needed, no one will have any major problem. It may not be easy to convince those who are going to be ousted, but it will not be impossible and it will not be too difficult to mobi- lise public opinion in favour of this much-needed conservation effort. And the last point is that placing the draft bylaws that run into 91 pages in English and Hindi and without a single word in Urdu in a state that has Punjabi and Urdu as its second languages is absolutely inadequate. Many of those who will have to relocate are illiterate or can only read Urdu and hardly anyone in the Basti would even know that there are such bylaws that they need to com- ment on and they will never know unless the NMA goes to them. The inadequacy of the notice can be judged from the fact that from the day it was launched on April 26, 2016, to 15.40 pm on March 10, 2019, only 3,107 people had visited the NMA website. My guess about how many of them visited the site since the Basti bylaws were uploaded is as good as yours. —The writer is a heritage and conservation activist and conducts heritage walks Twitter: @indialegalmedia Website: Contact: PRAYER AND PIETY Preparing to offer namaz at the Nizamuddin Dargah HERITAGE BUILDING The Barakhamba Tomb, near the Nizamuddin Basti
  29. 29. death and has to be introduced in Par- liament once again by the new govern- ment that takes oath after the parlia- mentary elections. Considering that the Bill was first introduced in the Lok Sabha in 2015, the government’s failure to push it thro- ugh both Houses of Parliament during its tenure is indeed disconcerting. How- ever, given my personal involvement in the first draft of the Bill and my disap- pointment with the final version, I feel relieved that it lapsed and there is still an opportunity to improve on it. My Space/ Consumer Protection Bill, 2018 Pushpa Girimaji 32 March 25, 2019 HILE inaugurating a panel discussion on the Consumer Pro- tection (CP) Bill, 2018, organised by a media group on March 1, Union Consumer Affairs Min- ister Ram Vilas Paswan regretted that he could not get the Bill, which was to replace the CP Act of 1986, passed by both Houses of Parliament. With the term of the present Lok Sabha coming to an end, the Bill, passed only by the Lower House, will die a natural But first, let me explain why the Con- sumer Protection Act of 1986, hailed at one time as the panacea for all con- sumer ills, needs to be replaced. In all fairness, I must say that the 1986 law was a milestone in the history of con- sumer protection in India because for the first time, it gave Indian consumers their six basic rights and created an Beforeanewbillisintroducedinthesoontobeelected16thLokSabha,theconsumerdisputes redressalmechanismshouldbeoverhauledtoprovidesimpleresolutionwithoutthepresenceoflawyers W ALL ABOUT RIGHTS An awareness drive launched by the India Consumer Protection and Action Committee in Ahmedabad UNI Need for a Strong Regulatory Regime
  30. 30. DISTANT JUSTICE (Above) The National Consumer Dispute Redressal Commission office, New Delhi | INDIA LEGAL | March 25, 2019 33 alternative system for resolution of con- sumer disputes in the country. When first constituted, these tribunals opened the floodgates of consumer litigation in the country and many landmark judg- ments delivered by the apex consumer court and the Supreme Court further fortified the consumer rights encapsu- lated in the law. But unfortunately, the concept of consumer protection envisaged in the law was erroneous. Even though it listed the rights of consumers, it failed to pro- vide a regulator to enforce those rights and instead, entrusted the “promotion and protection” of consumer rights to toothless, advisory bodies called Consu- mer Protection Councils at the national, state and the district levels (many of whom are not even functioning). T ake, for example, the very first right specified in the 1986 law— the right to safe goods and servic- es. The law did not bestow a mechanism (like the Consumer Product Safety Com- mission in the US or similar machinery in the European Union) to collect data on product or service related injuries and deaths, investigate them, order recall of unsafe goods and protect con- sumers from harm. Instead, the law pro- vided for the enforcement of just one right—the right to redress of grievances and lawmakers hoped that the adjudica- tory body, with its power to award com- their insensitivity to consumer suffering and the miserly computation of com- pensation all took away the promise of “inexpensive, quick and simple justice”. Quick to take advantage of these pit- falls in the system were retailers, manu- facturers and service providers, who fo- und that by routinely appealing against the orders of the consumer courts (Dis- trict Forum to State Commission to National Commission and the Supreme Court), they could prolong the adjudica- tion process for years and effectively discourage consumers from filing com- plaints. A good example of how delays defeated the very essence of the law can be found in the class action suit filed by 130 distressed farmers from Maharashtra against defective hybrid cotton seeds sold to them. They eventu- ally won the case, but it took 14 years and during this time, 10 farmers died (RP no 524 of 1997, RP no 718 to 753 of 1999 and others). To improve the quality of consumer justice, the Union ministry of consumer affairs amended the law several times— in 1991, 1993 and 2002. Its efforts to tweak it further in 2011 failed as the Bill lapsed. But when the basic structure itself is faulty, mere scratching on the surface will not help. As part of the 2002 amendments, the lawmakers made it mandatory for consumer forums to resolve complaints within 90 days. But that came too late because by then, the consumer courts had already imbibed some of the worst features of civil litigation in the country. About a decade after their inception, consumer courts resolved only 32 per- cent of the complaints within 90 days (as per data provided in the agenda note for the 19th CCPC meeting). But a subsequent evaluation of the working of the forums done by the Indian Institute of Public Adminis- tration in 2013 showed that only 10.2 percent of the cases were resolved with- in three months. From the time of their inception, 48,85,877 cases have been filed before these courts and 91.03 The2018Billismoreintunewith modern-dayconceptsofconsumer protection,newmarketdynamicsand developmentsinthedigitalage. However,itneedstobetweakedfurther. pensation, would instil fear of the law, discipline trade and industry, and pre- vent practices inimical to consumer interest. The idea was obviously flawed be- cause an adjudicatory body cannot do the work of a regulator. And consumer courts certainly could not achieve that objective partly because of the lacunae in the law itself and partly because of the way they functioned. Even though the idea behind the creation of con- sumer courts was to provide simple and quick resolution of consumer disputes without lawyers, the law was drafted in such a way that it was an open invita- tion to lawyers. And they did come in large numbers and brought with them all the trappings of a civil court. Soon, the increasing presence of lawyers, repeated adjournments given at their behest, legalese bandied about in the court, complicated procedures adopted by the adjudicating members (particularly the judicial members) and Anil Shakya
  31. 31. 34 March 25, 2019 percent of them disposed of. In 2014, the government constituted a committee to consider the recommen- dations of the Parliamentary Standing Committee submitted in 2013 on the (by then lapsed) Amendment Bill, 2011. As a member of the Committee headed by S Gurucharan, then additional secretary in the ministry of consumer affairs, I argued strongly for a regulatory authori- ty and this was readily accepted by the Chair. Since the government decided that in addition to the regulatory body—the Central Consumer Protection Autho- rity—it would also introduce a chapter on product liability for any injury, death or destruction of property caused on account of a defective product and also provide for mediation as an alternative dispute redress mechanism (ADRM), it was decided to draft a new bill to replace the old. T he first draft underwent several changes following consultations with stakeholders before being introduced in the Lok Sabha in August 2015. The Bill was reintroduced in January 2018 after taking into consider- ation the recommendations of the Standing Committee on Food, Consu- mer Affairs and Public Distribution sub- mitted in April 2016. The Bill was passed by the Lok Sabha on December 20, 2018. Certainly, the Bill is more in tune with modern-day concepts of consumer protection, new market dynamics and developments in the digital age. It deals with unfair contracts and e-commerce issues; it provides for e-filing of com- plaints and product liability suits. It provides for mediation in addition to the earlier system of consumer justice and empowers the Central Consumer Protection Authority or the regulator to recall unsafe goods or services, order reimbursement of their price, put a stop to unfair trade practices including false and misleading advertisements, order investigations into violations of con- sumer rights and in general, promote, protect and enforce the rights of con- sumers as a class. However, the law needs to be twea- ked further so that we are not stuck with a bad law once again. For example, instead of providing mediation cells as an alternative to consumer courts and spending taxpayers’ money on media- tors, lawmakers should completely over- haul the consumer disputes redress mechanism to provide simple resolution of disputes without the presence of lawyers. One must also remember that a strong regulatory regime will consider- ably bring down consumer complaints. It is also extremely important to strengthen the regulatory authority and remove a number of inconsistencies, ambiguities and weaknesses that dilute the regulatory framework in the Bill. For example, there is too much focus on misleading advertise- ments and too little on consumer safety. The Bill, for example, pro- vides for a steep fine and even imprison- ment of two-five years for false or misleading advertisements. For storing, selling, distrib- uting, manufacturing or importing spurious goods or products con- taining adulterants, imprisonment can extend to life. How- ever, for unsafe products and services, which lead to large-scale deaths and injuries in the country, there is no such penalty. In fact, the 2015 Bill provided for a chief commissioner and five commis- sioners dealing with 1) safety of goods and services, 2) Unfair trade practices including false and misleading adver- tisements, 3) quality assurance and standards, 4) preventing consumer detriment and unfair contracts and 5) enforcement of consumer protection laws. The 2018 Bill is, however, ambigu- ous on the number of commissioners or their area of work. Of equal concern is Section 23 which says that the govern- ment may designate any statutory auth- ority or body to exercise the powers and perform the functions of the Central Authority. In short, considerable changes are required in the Bill to make the law work effectively for the good of con- sumers. So I am now drawing up my wish list in the hope that they will be considered when the Bill is re-intro- duced in the new Lok Sabha. —The writer is an author and a pioneer in consumer advocacy journalism in India Twitter: @indialegalmedia Website: Contact: THE MAN IN CHARGE (Above) Consumer Affairs Minister Ram Vilas Paswan; the involvement of lawyers in consumer cases has denied quick and inexpensive justice My Space/ Consumer Protection Bill, 2018/Pushpa Girimaji Anil Shakya
  32. 32. This budget trim- ming is window dressing as the administration bor- rows money from various federal budgets to help pay for any border wall with Mexico. Additionally, the art of the deal is asking for more than $8.6 billion dollars for a Mexican border wall in next year’s feder- al budget. That is unlikely to happen consider- ing that Congress said no to $5.7 billion in Trump’s abortive government shut- down in January. And will again because Democrats in the House of Representatives basically control the level of federal spending. Elections have consequences as Trump voters may realise with this budget. Trump’s projected budget calls for huge reductions for Medicare, claiming this will cut alleged “waste, fraud and abuse” in the federal pro- gramme that gives health insurance to older Americans. Big business and wealthy Americans got a huge tax cut. The resulting deficit means belt-tightening rests on poorer people, many of whom voted for Trump. Campaigning, Trump said that he would “save Medicare, Medicaid and Social Security without cuts” adding it was “not fair” to make cuts to a programme that people had been paying into for years. Besieged by investigations into per- sonal and political behaviour, decisions and scandals, embarrassed by heavy- handed diplomatic failures, polling sug- | INDIA LEGAL | March 25, 2019 35 Global Trends/ US / Donald Trump HE Trump administration eagerly embraces anything that hinders legal immigra- tion to the United States. Some Indians are about to experience that reality as the New Delhi office for US Citizenship and Immigration Services is on a list to be closed. According to an Associated Press dis- patch from Washington, the Homeland Security Department is moving towards closing immigration services offices out- side the United States, saying it is expected to free up millions of dollars a year to better address a backlog in domestic locations. US Citizenship and Immigration Services spokeswoman Jessica Collins said Tuesday that the agency is in pre- liminary discussions to close offices in 20 countries outside the United States. There are about 70 employees in Britain, Mexico, South Africa, Italy, India, the Philippines, China and other countries. She says the agency will work closely with the State Department to avoid any interruptions to services overseas. Organisations including Amnesty International and Human Rights First criticised the move, saying that closing international offices would mean fewer services for refugees. The agency says refugee processing won’t be affected. Folding immigration services into American consulates and embassies seems a showboat effort. USCIS Director L Francis Cissna said closing international field offices “is an effort to maximise our agency’s finite resources”. gests more than half the American vot- ers see President Trump as an increas- ingly irrational leader. The 20 months between now and the 2020 election will be a political soap opera with an international audience and obvious global implications. Because the anti-immigration cuts are a discretionary administrative move, they will happen. The Draconian cuts sought in social security and health pro- gramme won’t happen. Most probably, the Defense Department budget will not get the entire $750 billion budget Trump wants. Some political analysts believe this entire budget is more “guid- ance” than reality and leads to what the president knowingly likes most: chaos. Another no-win situation will give the president another excuse to shut down the government once again. —The writer has worked at The Washington Post, NBC, ABC and CNN. He also consults for Indian channels DonaldTrump’sparoxysmswillensurethatthe20 months betweennowand the2020electionwill beapoliticalsoapoperawithaninternational audienceandobviousglobalimplications By Kenneth Tiven TheTrumpadministrationismoving towardclosingimmigrationservices officesoutsidetheUS,sayingitwillfree millionsofdollarstoaddressbacklogs. UNI Season of Chaos Twitter: @indialegalmedia Website: Contact: T UNI