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India Legal 26 November 2018

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Their numbers are abysmal. While there
has never been a woman chief justice, they
form just nine percent of Justices in High
Courts. What can be done to make the
Judiciary more egalitarian?
By Professor Upendra Baxi

Published in: News & Politics
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India Legal 26 November 2018

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com November26, 2018 WOMENIN JUDICIARYTheirnumbersareabysmal.Whilethere hasneverbeenawomanchiefjustice,they formjustninepercentofJusticesinHigh Courts.Whatcanbedonetomakethe Judiciarymoreegalitarian? ByProfessorUpendraBaxi Frivolous PILs: Cracking down
  2. 2. HE issue of nationalism versus patriot- ism jumped centre-stage last week when French President Emmanuel Macron, in what is widely recognised as a jab at America First Trumpism, stated in Paris: “Patriotism is the exact opposite of nation- alism…Nationalism is a betrayal of patriotism.” He added: “In saying, ‘Our interests first, whatev- er happens to the others’, you erase the most pre- cious thing a nation can have, that which makes it live, that which causes it to be great, and that which is most important: its moral values.” Macron’s illustrious predecessor Charles de Gaulle, The New Yorker reminded us recently, had drawn that distinction, at the risk of his own life: “De Gaulle knew that the patriot loves his place and its people and its idiosyncrasies; while the nationalist, of whom, for him, Adolf Hitler was the clearest and worst example, has no particular sense of affection for the place he advocates for (he is often an outsider to it, as Hitler, an Aus- trian, was to Germany) but channels his obsessive grievances into acts of ethnic vengeance.” As India inches closer to its next general elec- tion in the coming year, competitive nationalism appears to be the emerging stage on which politi- cal battle will be waged. The BJP, positioning it- self as India’s only “nationalist” party (it does not differentiate between the term and its version of “Hinduism”) has long been and continues to be the first responder. The latest weapon in its inventive armamentarium of nationalist-Hinduist firepower is name-changing: rechristening Islamic-sounding names of roads and cities to restore the glory of the Hindu millennium. The purpose is to block any history that does not conform to the binary narrative of the ruling dispensation. One of the most distressing exam- ples of this ideological blitzkrieg was narrated in a recent article by the famous scholar, Audrey Truschke, Assistant Professor of South Asian History at Rutgers University. She is the author of two books, Culture of Encounters: Sanskrit at the Mughal Court (Columbia University Press, 2016) and Aurangzeb: The Life and Legacy of India’s Most Controversial King. Headlined, “Hindu nationalists increasingly use anti-Semitic slurs to target me,” she writes: “I awoke to the following tweet, ‘I hope another Hitler comes back and fin- ishes off your people’, accompanied by a picture from 1945 of the bodies of dead Jews piled out- side a liberated concentration camp. Since then, I have been regularly attacked with anti-Semitic language and tropes on social media, especially on Twitter.” The professor, even though her last name sug- gests it, is not Jewish. But her works often run counter to the new “nationalist” historical narra- tives. She writes in Scroll: “I have personally received dozens of anti-Semitic messages over the last few years from Hindu nationalists and those sympathetic to their cause. These ugly attacks use vicious anti-Semitic slurs, frequently invoke the Holocaust, and draw on crude anti-Semitic tropes such as that I am somehow pursuing my academic research for the money foundational to his understanding of twentieth- century history.” Given the rapid rise of this toxic environment in India, it is not hard to understand why the author of the country’s national anthem, the pre- scient Nobel Laureate Rabindranath Tagore decried nationalism as a scourge on humanity. The philosopher-poet believed that India sur- vived as a country because it has never had a real sense of nationalism. He admits that even though from childhood he had been “taught that the idol- atry of Nation is almost better than reverence for God and humanity”, he had later outgrown that teaching, “and it is my conviction that my coun- trymen will gain truly their India by fighting against that education which teaches them that a country is greater than the ideals of humanity”. He wrote this in 1917. INDIFFERENCE TO REALITY Inderjit Badhwar Letter from the Editor T AsIndianspreparefor thepolitical battlesthatloom orarealreadyupon them,theywouldbe wisetoponder, again,thethoughts ofprescient NobelLaureate RabindranathTagore, orfollow theprincipal characteristicsof nationalistthought asdefinedand writtenby Britishessayist GerogeOrwell. | INDIA LEGAL | November 26, 2018 3
  3. 3. “Europe has her past,” Tagore said. “Europe's strength therefore lies in her history. We, in India, must make up our minds that we cannot borrow other people's history, and that if we stifle our own, we are committing suicide. When you bor- row things that do not belong to your life, they only serve to crush your life. “Nationalism is a great menace. It is the par- ticular thing which for years has been at the bot- tom of India's troubles. And inasmuch as we have been ruled and dominated by a nation that is strictly political in its attitude, we have tried to develop within ourselves, despite our inheri- tance from the past, a belief in our eventual polit- ical destiny. “When our nationalists talk about ideals, they forget that the basis of nationalism is wanting. The very people who are upholding these ideals are themselves the most conservative in their social practice. …Our social restrictions are still tyrannical, so much so as to make men cowards. If a man tells me he has heterodox ideas, but that he cannot follow them because he would be so- cially ostracized, I excuse him for having to live a life of untruth, in order to live at all. The social habit of mind which impels us to make the life of our fellow-beings a burden to them where they differ from us even in such a thing as their choice of food is sure to persist in our political organiza- tion and result in creating engines of coercion to crush every rational difference which is the sign of life. And tyranny will only add to the inevitable lies and hypocrisy in our political life. Is the mere name of freedom so valuable that we should be willing to sacrifice for its sake our moral freedom?” N early a quarter of a century later, George Orwell, the British essayist and author of 1984 decried “nationalism” as, first of all, “the habit of assuming that human beings can be classified like insects and that whole blocks of mi- llions or tens of millions of people can be confi- dently labelled ‘good’ or ‘bad’. But secondly – and this is much more important – I mean the habit of identifying oneself with a single nation or other unit, placing it beyond good and evil and recognizing no other duty than that of advancing its interests.” He, too, stressed that nationalism must not be confused with patriotism. Both words are nor- mally used in so vague a way, he observed, “that any definition is liable to be challenged, but one must draw a distinction between them, since two different and even opposing ideas are involved. By ‘patriotism’ I mean devotion to a particular place and a particular way of life, which one believes to be the best in the world but has no wish to force on other people. Patriotism is of its nature defensive, both militarily and culturally. 4 November 26, 2018 Letter from the Editor FrenchPresident EmmanuelMacron (right), recently statedinParis: “Patriotismisthe exactoppositeof nationalism… Nationalismisa betrayalof patriotism.”He added:“Insaying, ‘Ourinterestsfirst, whateverhappensto theothers’,you erasethemost preciousthinga nationcanhave...” UNI
  4. 4. Nationalism, on the other hand, is inseparable from the desire for power. The abiding purpose of every nationalist is to secure more power and more prestige, not for himself but for the nation or other unit in which he has chosen to sink his own individuality. “Every nationalist is haunted by the belief that the past can be altered. He spends part of his time in a fantasy world in which things happen as they should – in which, for example, the Spanish Armada was a success or the Russian Revolution was crushed in 1918 – and he will transfer frag- ments of this world to the history books whenever possible. Much of the propagandist writing of our time amounts to plain forgery. Material facts are suppressed, dates altered, quotations removed from their context and doctored so as to change their meaning. Events which, it is felt, ought not to have happened are left unmentioned and ulti- mately denied.” A s Indians prepare for the political battles that loom or are already upon them, they would be wise to ponder, again, the thoughts of Tagore or follow the principal char- acteristics of nationalist thought as defined and written by Orwell which are summarised below: Obsession. As nearly as possible, no nationalist ever thinks, talks, or writes about anything except the superiority of his own power unit. It is diffi- cult if not impossible for any nationalist to con- ceal his allegiance. The smallest slur upon his own unit, or any implied praise of a rival organi- zation, fills him with uneasiness which he can only relieve by making some sharp retort. Instability. The intensity with which they are held does not prevent nationalist loyalties from being transferable. To begin with, as I have point- ed out already, they can be and often are fastened upon some foreign country. One quite commonly finds that great national leaders, or the founders of nationalist movements, do not even belong to the country they have glorified. Indifference to Reality. All nationalists have the power of not seeing resemblances between simi- lar sets of facts. A British Tory will defend self- determination in Europe and oppose it in India with no feeling of inconsistency. Actions are held to be good or bad, not on their own merits, but according to who does them, and there is almost no kind of outrage—torture, the use of hostages, forced labour, mass deportations, imprisonment without trial, forgery, assassination, the bombing of civilians—which does not change its moral colour when it is committed by “our” side. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com | INDIA LEGAL | November 26, 2018 5 MAKING A POINT (L-R) British essayist George Orwell stressed that “nationalism” and "patriotism" are two different and opposing ideas; Rabindranath Tagore decried nationalism as a scourge on humanity
  5. 5. ContentsVOLUME XII ISSUE2 NOVEMBER26,2018 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 Associate Editor Sucheta Dasgupta 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 November 26, 2018 Women in the Judiciary While there has never been a woman chief justice of India, women constitute just nine percent of the benches in High Courts. Given such abysmal statistics, Upendra Baxi ponders on ways to make the judiciary more egalitarian LEAD 12 Bitter Pil The apex court has taken a stand against frivolous public interest litigations (PILs) and even threatened to ban BJP leader Ashwini Upadhyay. Other examples abound, causing delays SUPREMECOURT 16 Food for Thought Under Chief Justice Ranjan Gogoi, the top court is making institutional changes and the setting up of an in-house think tank is a step in this direction, though it raises questions about the efficacy of similar institutions 20
  6. 6. Hit by More Frauds REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com | INDIA LEGAL | November 26, 2018 7 Cover Design: ANTHONY LAWRENCE Ringside............................8 Courts ...............................9 Delhi Durbar ...................10 International Briefs..........43 Media Watch ..................48 Satire ..............................50 In another case of lack of due diligence, Punjab National Bank has gone to the British High Court against five Indians and an American who made off with `271 crore 46 Punjab’s Legal Troubles Even as the Badals are being indicted by an inquiry commission for incidents of sacrilege, CM Amarinder Singh is being entangled in a web of legal tangles 32 STATES Even though India is not a principle player, by participating in peace talks which includes the Taliban, it is ensuring it has a role in ending 17 years of civil war in Afghanistan 44Bowing to the Inevitable Imperfect Health Though Delhi is yet to participate in the Ayushman Bharat scheme, the centre plans to directly empanel private hospitals so that patients from neighbour- ing states can benefit 30 Scissors of Sarkar 40 The Tamil blockbuster was a box office hit only after its producers were arm-twisted by the ruling AIADMK to chop off scenes Price of Communalism The Kerala High Court disqualifies legislator KM Shaji and bars him from contesting for six years for breaking the electoral code 22 Kicking the Butt The Himachal Pradesh High Court takes suo motu notice of a letter and asks the authorities to see that anti-smoking laws are enforced 24 Outside Its Mandate The top court pulled up the Gujarat High Court for ordering lie-detector, brain-mapping and narcoanalysis tests on an accused for deciding his bail application 28 COLUMN A Child’s Concurrence The Kerala High Court has said before seeking a direction to conduct DNA test, the petitioner must make the affected a party to the application filed to prove paternity 26 Water Woes The National Green Tribunal has asked the Tamil Nadu government to pay `2 crore for not removing encroachments along the Adyar and Cooum rivers 34 GLOBALTRENDS COURTS Like Uttar Pradesh, Gujarat, too, is on a renaming spree to curry favour with votebanks. But will its efforts pay off when there are more pressing issues? The Name Changers 38
  7. 7. 8 November 26, 2018 “ RINGSIDE “I was the presi- dent and premier, so this prime min- ister’s post is not important. I urge all 225 members to join me in calling for fresh election.” —Prime Minister of Sri Lanka Mahinda Rajapak- sa after he was voted out recently by the Sri Lankan parliament “Bihar CM’s residence is surrounded by main roads from three sides and Leader of Oppo- sition’s residence from the fourth side. But CM felt the need for CCTV only on the wall bordering his political adversary’s resi- dence....” —Tejashwi Prasad Yadav blaming Nitish Kumar for snooping “I believe that Pakistan does not want Kash- mir, and India too should not be given the state. Kashmir should be an indepen- dent country. Pakistan can’t even manage its four provinces. At least humanity will be alive. Let people not die.” —Pakistani cricketer Shahid Afridi in a video while speaking to stu- dents at London “I don’t lie. The truth I declared before and the statements I made are true. I don’t have a reputation of lying. In my posi- tion as CEO, you don’t lie.” —Dassault Aviation CEO Eric Trappier insisting that his company chose Anil Ambani in the Rafale deal “These have been challenging times for my family and me...I am concerned that this may become a distraction for the company, for which I am deeply sorry.” —Flipkart’s co-foun- der & group CEO, Binny Bansal in an email to his employ- ees after a probe into allegations of sexual misconduct “If all the opposition parties think the BJP is dangerous and that’s why they are all com- ing together to form an anti-BJP alliance, then that party should be so.” —Tamil superstar Raji- nikanth on efforts by the Opposition to form an alliance against the BJP in the 2019 polls “BJP is trying to put words in our mouth. The RSS is free to hold its shakhas (classes) except in government premises. People will decide whether the RSS is a cultural or political organisation. We do not want to get into it.” —Madhya Pradesh Congress chief Kamal Nath on its state elec- tion manifesto putting restrictions on the RSS “In 1990, when such a huge crowd had gathered, gunshots were fired. In 1992, too, houses of Muslims were destroyed and looted and Muslims were killed....When both the parties are ready to accept the judgment of the court, what is the need for such road shows or religious meetings in Ayodhya?” — Iqbal Ansari, a litigant in the Babri Masjid case, on proposed rallies by the VHP and Shiv Sena in Ayodhya
  8. 8. The Supreme Court reserved its order on pleas seeking a court-monitored probe into the procurement of 36 Rafale fighter jets from France. During the last hearing, the cen- tre reiterated that the pricing details could not be made public due to security concerns. Attorney General KK Venugopal, arguing for the centre, even questioned the Court’s com- petence to judicially review the fighter deal and said that it was for experts to deal with it. A three-judge bench headed by Chief Justice Ranjan Gogoi observed that it was yet to take a decision on whether the infor- mation should be made public or not, and called in senior IAF officials to answer some questions. Earlier this week, the government had submitted details of how it decided to purchase 36 fighter jets from French defence maker Dassault at `59,000 crore, to the top court and the petitioners who have sought an investigation into the deal. The pricing details were also submitted by the centre to the Court in a sealed cover. Courts | INDIA LEGAL | November 26, 2018 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal Team Plea on judges’ recusal nixed On the occasion of National Legal Services Day, Supreme Court judge and executive chair- man of the National Legal Servic- es Authority (NALSA), Justice MB Lokur identified illiteracy as one of the main challenges to access to justice as envisaged under Article 39A of the Constitution. Justice Lokur mentioned NALSA’s future plans, such as starting a “refresh- er programme” to re-train its law- yers and paralegals, adopting vi- deo conferencing and using social media to spread awareness on the right to free legal aid. He also talked about the pilot project start- ed in Leh and Kargil, in Jammu and Kashmir, to provide adequate legal representation to the people. Free legal aid is your right: Justice MB Lokur The Supreme Court ordered that ousted CBI Director Alok Verma should be given the report of the inquiry conducted by the Chief Vigilance Commission (CVC)—under the supervision of retired judge Justice AK Patnaik. These pertain to various complaints made against Verma by CBI’s Special Director Rakesh Asthana. A bench of Chief Justice Ranjan Gogoi and Justices SK Kaul and KM Joseph observed that the CVC report had categorised the charges against Verma under four heads and underlined the need for further investigation into some charges. The bench asked Verma to file his detailed response to the Court by November 19. The bench also directed that copies of the report be shared with Attorney General KK Venugopal and Solicitor General Tushar Mehta and stressed that the recipients main- tain confidentiality of its contents. These directions were issued by the apex court while hearing a petition filed by Verma, chal- lenging an October 23 government order by which he was divested of his charge, follow- ing differences with Asthana. The matter will be heard next on November 20. The Supreme Court dismissed the applications of some Manipur police personnel who had sought recusal of two judges hearing a PIL for an inquiry into alleged extra-judicial killings in the state. The petitioners contended that during an earlier hearing, the Court had referred to some of the accused as “murderers”, and this was likely to affect their case. Cal- ling the apprehensions “unjusti- fied”, a bench of Justices MB Lokur and UU Lalit said the SIT will not be “swayed by any obser- vations made by this court...” Share CVC inquiry report with Alok Verma, says SC SC reserves order on Rafale fighter deal Even as vacancies are being filled up in the Supreme Court, more are in the off- ing. By March 2019, there will be three more vacancies as Justice Kurian Joseph (extreme left) will retire on November 29, 2018, Justice Madan B Lokur (centre) on Dec- ember 30, 2018 and Justice AK Sikri on March 6, 2019. With their retirement, the working strength of the Supreme Court will be reduced to 25 judges unless new judges are appointed prior to their respective retirement dates. Earlier this month, four new judges were appointed to the apex court, increasing its working strength to 28 judges, as against the sanctioned strength of 31. Three SC judges due to retire in next four months
  9. 9. 10 November 26, 2018 An inside track of happenings in Lutyens’ Delhi The death of BJP leader Ananth Kumar elicited a flood of tributes to his personali- ty and contribution to public life, except for legal eagle RK Anand (right) who reprinted extracts from his book on the controversial Niira Radia. The extracts made for juicy reading, as in the following: “At that time I had no idea that she would spread her wings into the political arena to satisfy her craving for business and power. So it came as a shock to me when I discovered her, one day, when visiting her farmhouse, danc- ing closely with NDA minister Ananth Kumar to western ballroom music… Her ultimate ambition was to start her own air- line. To achieve this target she needed the help of the new aviation minister, Ananth Kumar, who was a Member of Parliament from Karnataka...Niira had wasted no time in getting on the inside track with Ananth Kumar from his early days as minister... She knew more about the aviation industry than half of Ananth Kumar’s own top bureaucrats. Ananth Kumar, himself a neophyte, found in Niira a good teacher about the intricacies, pit- falls and vicissitudes of the powerful avia- tion sector…she did not hide her close- ness to him. Friends often saw them together at Sudesh Farm, Asola, in Delhi, where Niira was still living with Rao Dheeraj Singh—a former Sahara execu- tive. She wanted to sell helicopters to the governments of Maharashtra and Karnataka, Ananth Kumar’s home-state. With his help, she managed to clinch the deal for the two state governments... She knew from her deep knowledge of gov- ernmental decision-making in this area that a new acquisition policy for fleet enhancement and acquisition for Indian Airlines and Air India was in the offing. From Ananth Kumar she learned that the process would be fast-tracked for both the flagship domestic and international carriers… So persistent was her interfer- ence in the affairs of Indian Airlines, that the managing director P.C. Sen objected to her meddling. Niira’s benefactor, Ananth Kumar, responded by removing Sen from that post. During the time that the aircraft acquisition policy was being changed Niira was a frequent visitor to Ananth Kumar’s official residence at 10, Prithviraj Road…his association with Niira had taken the colour of a scandal, and Ananth Kumar’s wife Tejaswini made a personal complaint to prime minister Vajpayee. The PM promptly reassigned Ananth Kumar to the culture and youth affairs and sports ministry.” Sensational stuff, but lost amid the fawning eulogies. All eyes are on Madhya Pradesh where state elections are around the corner and the fight too close to call. Eyes are also on Indore district which has been a saf- fron citadel. The Lok Sabha Speaker and its longest serving woman member, Sumitra Mahajan, has remained undefeat- ed from the Indore constituency for eight consecutive terms. The party’s national general secretary and Hindutva mascot in MP, Kailash Vijayvargiya (below right), is a former Mayor of Indore and was elected to the state assembly for six consecutive terms from different seats that fall in the Indore district. As the BJP seeks a fourth straight win in the assembly polls, the party’s corridors are filled with speculation that Indore might ditch its love for saffron this time. Candidate selection within the BJP has left both Mahajan and Vijay- vargiya fuming. Both satraps were lobbying for tickets for their sons— Mahajan for her son Mandar and Vijayvargiya for his son Akash. Vijayvargiya had hoped that his confi- dante Ramesh Mendola who had won from the Indore 2 constituency in 2013 would willingly vacate his seat for Akash and move to the Indore 3 constituency which Mahajan wanted for Mandar by sending sitting MLA Usha Thakur to the Mhow seat, won by Vijayvargiya in 2013. The party obliged Mahajan by giving the Mhow seat to Thakur but it favoured field- ing Akash from Indore 3 after Mendola refused to switch. Mandar was denied a ticket. Now, a close confidante of Mahajan’s has joined the electoral fray as an independent against Akash. BJP insid- ers say that the fight between Sumitra ‘Tai’ and Kailash ‘Bhai’ could end in the BJP losing both Mhow and Indore 3 seats to the Congress. BHAI VERSUS TAI THE OTHER ANANTH
  10. 10. | INDIA LEGAL | November 26, 2018 11 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Delhi Durbar Reporters who cover business and economic affairs were looking forward to the press conference they had been invited to by the government last week since it involved the release of GDP numbers for previous years using a new methodology. The PC, a day before it was scheduled, was abruptly postponed, with no reasons given. It was, the media had been told, to be jointly addressed by the Ministry of Statistics and Programme Implementation and NITI Aayog. However, it appears that at a high- level meeting, which included some non-official economic experts, ques- tions were raised about the figures as well as the methodology. It was decid- ed that more consultations would be required, but the main issue seems to be that the back series figures shows the UPA government doing better than the NDA in terms of growth numbers. The nervousness is understandable considering it has just emerged from a bruising public battle with the RBI. Additionally, over 60 former civil ser- vants, most with impeccable creden- tials, have written an open letter to the Comptroller and Auditor General about the delay in the audit reports on demonetisation and the Rafale deal. A copy of the letter has been sent to the President of India. The civil servants point out that the status of the audit “is unclear”. The letter mentions: “...an impression is gaining ground that the CAG is deliberately delaying its audit reports on demonetisation and the Rafale deal till after the May 2019 elections so as not to embarrass the present government.” NERVOUS ON NUMBERS TIME FOR TURNCOATSAt the height of the unseemly public spat between RBI Governor Urjit Patel and the Centre, it appeared that the former would be asked to resign. Thanks to a confluence of external factors, that issue seems to have been resolved after Patel’s one-on- one meeting with the prime minister last week. At an earlier meeting with finance minister Arun Jaitley, it was agreed that the RBI would release some liquidity into the markets, one of the sticking points between the two sides, based on similar interventions by the Federal Reserve in the US and the Bank of England in the past. The more realistic issue that stayed the Centre’s hand was that sacking a RBI governor would send the wrong sig- nals to the market, and the electorate in the run up to the general elections. Right now, the biggest negative for the government is its economic poli- cies. There are rumours that Mukesh Ambani had a word with Jaitley—Patel worked for Reliance as president of business development and was highly regarded. His credentials for the job are impeccable—his education CV includes the London School of Economics, Oxford University and Yale after which he joined the IMF. This is his second stint at the central bank—he was sent to the RBI on dep- utation from the IMF in 1996 to look into banking reforms and the debt market. He was made consultant to the govern- ment of India in the Finance Ministry bet- ween 1998 and 2000 and was hired by Rel- iance. He actually had a Kenyan passport till 2013—he was born in Nairobi—but is now an Indian citizen. An earlier snippet carried in Durbar had pointed out that the upcoming assembly polls in five states would test Rahul Gandhi’s publicly declared resolve of denying tickets to paradropped candi- dates who had joined the Congress ahead of the polls. The list of candidates declared by the party for Madhya Pra- desh shows that Rahul has failed in living up to the promise, bogged down by arguments of political necessity pushed by state unit chief Kamal Nath and chief ministerial hopeful Jyotiraditya Scindia. Nath orchestrated the induction of chief minister Shivraj Singh Chouhan’s brother-in-law, Sanjay Singh Masani (below left), into the Congress. Funnily enough, Masani said that he was quitting the BJP because Shivraj was giving tick- ets to dynasts but denying them to “dedi- cated workers like me”. The Congress obliged Masani by fielding him from the Waraseoni seat. Another high-profile turn- coat in the Congress list is Sartaj Singh (below right) who the BJP refused to renominate from the Seoni Malwa seat which he had won in 2013. A former min- ister in the Shivraj cabinet, Singh cried publicly after being denied a BJP ticket and announced to quit the party. Just 15 minutes later, he had joined the Cong- ress and, later in the day, made a candi- date from Hoshangabad. The Congress’s list also includes a former BSP MLA and another who had quit the SP. PATCHING UP
  11. 11. Lead/ Women in Judiciary 12 November 26, 2018 Theirnumbersareabysmal.Whiletherehasneverbeenawomanchiefjustice,thefairergenderformjust From Raw Deal OMEN have got a raw deal when it comes to top legal appointments or judi- cial elevations—this much stands recog- nised by constitutional elites. The sculpting of a New Deal for Indian women is an uphill task and occurs at a slow and meandering pace. How to fast- administrative and statutory tribunals. Here, I am not even touching upon the equally dismal experience in various states in India. This, despite the fact that we had a woman president, prime minister, president of the Congress Party and many powerful women chief ministers. The question “Why so?” has not even been raised. There has been no woman chief jus- tice of India (CJI) among the 46 CJIs that we were fortunate to have. And only eight women have been elevated to the Supreme Court from October 1998 till August 2014. The current constella- tion of Justices—R Bhanumathi (who retires on July 19, 2020), Indu Malhotra (on March 13, 2021) and Indira Banerjee (on September 23, 2022)—is W forward this pace is an integral aspect of “constitutional renaissance” which former Chief Justice Dipak Misra recently affirmed for the Court. Even when the appointment is in hands of the Executive, the legal caste is all-male. All Union law ministers (from Bhimrao Ramji Ambedkar to Ravi Shankar Prasad) have been male. Not a single woman has adorned the office of the Chair of the National Law Comm- ission and the Bar Council of India (though it is an elective post). No wo- man has been appointed to the consti- tutional position of attorney general (though two—Indira Jaising and Pinky Anand have been recently appointed as additional solicitor general). Very few women are the Chairs of national Fathima Beevi, the first woman judge of SC Sujata V Manohar, the second woman judge of the SC, was on the Vishakha Bench that dealt with guidelines on sexual harassment Ruma Pal, longest-serving woman judge of SC (six years) Gyan Sudha Misra, formerly chief justice of Jharkhand HC ONLYEIGHTWOMENJUSTICESINSCSOFAR By Upendra Baxi
  12. 12. | INDIA LEGAL | November 26, 2018 13 indeed welcome, though exceptional. Incidentally, Justice Malhotra is the only and first woman lawyer to be directly appointed. Justice Ruma Pal, with near- ly six years in office, was the longest serving woman justice of the Supreme Court, though Justice Bhanumati comes close to her. The judicial contributions of these Justices, and women Justices as a whole, need to be studied. For example, Justice Sujata Manohar, the second woman Justice of the Supreme Court, was on the Vishakha Bench that innovated the momentous guidelines on sexual harass- ment. Off-bench, she has suggested that these guidelines need to be revised in view of recent developments (The Indian Express, October 22, 2018). And the fourth woman Justice, Gyan Sudha Mishra, had publically meditated on how the experience of being a woman on the judgment seat had made her extra sensitive to women’s issues (India Legal, February 19, 2018). Justice Ruma Pal has been sensitively articulate on issues of social and gender justice on and off the bench. A comparative study of male and female Justices speaking on issues of justice will make a com- pelling reading. We learn from statistics that: (1) rank patriarchy prevailed till October 6, 1989, when Justice Fathima Beevi was elevated as the first woman judge (a CJI publically said later that he had only appointed her because she would be too junior to be appointed as head of a bench given the short tenure she had!); (2) two years passed before the elevation of Justice Sujata Manohar on November 8, 1994; and nearly four years when Justice Gyan Sudha Misra was elevated on April 30, 2010 (3) overall, the Colle- gium system appears more women- judge-friendly than Executive-dominat- ed appointments. But still, the national statistics are discomforting. In High Courts, out of the sanctioned strength of 1,221 judges (of whom only 891 Justices are appoint- ed), 81 are women. That amounts to just nine percent of the working strength or 6.6 percent of the sanctioned strength. However, in the subordinate judiciary, there is relative good news—there are 4,704 women judges out of a total of ninepercentofJusticesinHighCourts.WhatcanbedonetomaketheJudiciarymoreegalitarian? to New Deal? Ranjana Prakash Desai, former Bombay HC judge Indu Malhotra, retires on March 13, 2021 R Bhanumathi, retires on July 19, 2020 Indira Banerjee, retires on September 23, 2022
  13. 13. 14 November 26, 2018 16,443 judges, which is 28 percent of the total. However, this compares unfav- ourably when we recall that many High Courts are still awaiting their first woman judge. Out of 107 elevations in the J&K High Court, (established in 1928), it is only now that Justice Gita Mittal was elevated as the first woman chief justice and Justice Sindhu Sharma (at 46 years) became the first woman Justice there. A fter Justice Leila Seth became the first woman judge of the Delhi High Court on July 25, 1978 and the first woman chief justice of a High Court (Himachal Pradesh in 1991), many more women Justices have presided over courts. Recently, Justices Manjula Chellur, G Rohini, Nishita Nirmala Mhatre and Indira Banerjee headed the High Courts of Bombay, Delhi, Calcutta and Madras respectively. It is estimated that seven women Justices may become chief justices in the next decade. They are Justices Sangeeta Chandra (Allahabad), Bharati H Dangre (Bombay), Shampa Sarkar (Calcutta) and Pratibha M Singh (Delhi), all of whom retire in 2030. Then, there are Justices Amrita Sinha (Calcutta, retires in 2031), Justice Anita Sumanth (Madras, retires in 2032) and the youngest, Justice Sindu Sharma and juridical/constitutional plurality. But any attempt at feminising the Indian Judiciary should begin with con- fronting the power of slander and gos- sip. Pernicious rumours travel to chief justices of High Courts and even mem- bers of the Collegiums, CJI and law ministers. Unmarried women (more than males) are most susceptible to such gossip and almost always lose their prospective judicial elevation. No single woman has adorned the High Bench. And it will take a long time before other sexual minorities, now promised consti- tutional rights, may find a place on the bench. How far courts and constitutions go in displacing the sovereignty of het- erosexual normativity remains a huge imponderable globally. Broadly, on the question of judicial elevations of women, four positions emerge: utilitarian, pragmatic, ontologi- cal and deontological. The utilitarian approach stresses experience and then the skills that women Justices bring to the job that male Justices may not nec- essarily bring. The pragmatic position argues the virtues (of social advantage) of women elevations or appointments on grounds wider than the utilitarian. The ontological perspective celebrates the maxim of citizen equality: an equal number of women ought to be appoint- ed as judges; neither the maximisation (retires in 2034) who, other things being equal, is likely to become the first woman CJI. It is clear that determined steps were recently taken to redress under- representation of women and data exists to show that women legal profes- sionals have done as well as their male counterparts, if not better. Many, in fact, have outperformed their male counterparts in judicial services exami- nations. It is also evident that the pres- ence of women Justices on courts is a constitutional good as it helps promote new types of creativity and fosters social Nowomanhasbeenappointedtotheconstitutionalpositionofattorney general,thoughtwo—IndiraJaising(left)andPinkyAnand—havebeen recentlyappointedasadditionalsolicitorgenerals. Lead/ Women in Judiciary GenderImbalanceinJudiciary Supreme Court Female 10.7 9 28 89.3 91 72 High Courts Lower Courts Figures in percentMale In the SC out of 28 judges (including the CJI), only three are female judges. In High Courts, out of 891 Justices appointed, only 81 are women, amounting to nine percent. In the subordinate judiciary, there are 4,704 women judges out of 16,443 judges, which is 28 percent of the total.
  14. 14. | INDIA LEGAL | November 26, 2018 15 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com of utility nor social advantage matters. The deontological perspective stresses the priority of good over right and what matters is not the right course of action but a just one; on this view, the repre- sentation of women constitutes an unqualified human good. Debates about judicial elevations may flicker on these perspectives but they should never alto- gether be allowed to fade. Many constitutional conventions about “representation” have slowly but conscientiously evolved and these should be carefully understood as well as respected. Among this, the most stur- dy has been the principle of federal diversity which ought to inform the composition of the Supreme Court. The second is the sheer compulsion of merit in judicial work and worth which should prevail over all other grounds. Ethnic pluralism is a third convention that jus- tifies elevations of minorities, the sched- uled castes and tribes and women, though it must be observed that women as a group or class do not constitute a numerical minority. Fourth, mechanical quotas are regarded as inappropriate for judicial elevations given the small num- bers of the appellate judiciary; instead, respect for plurality is better served by a constant vigil over constitutional con- ventions for elevations and transfers. It may be noted that none of the above militates against elevation of more women justices; their elevation can be so arranged as also to result in fulfill- ment of these conventions. I ndia does not seem to have articu- late procedures for taking gender into consideration in the recruit- ment and appointment process. A 2018 Council of Europe study report on judi- ciary indicates that Armenia, Austria, Bosnia and Herzegovina, Denmark, Georgia, Germany, Iceland, Monten- egro, Norway, Serbia, Spain, UK-Eng- land and Wales, UK-Scotland and Israel apply specific rules in this regard. For example, in Armenia, the list of judge candidates must contain “not less than 25% of representatives of one gender”. In Bosnia and Herzegovina, the Law on the High Judicial and Prosecutorial Council is also pursuing the goal of pari- ty; the Judicial Council of Montenegro is bound by a legal obligation to ensure parity between men and women as part of the appointment procedure and in UK, there is a statutory responsibility of the Lord Chancellor and the Lord Chief Justice to ensure such parity. The study, however, notes that “very few States and entities have started building a policy that would effectively take gender into acc- ount, either in the form of binding quo- tas or incentives to recruit persons of the under-represented gender with equal skills”. All the same, the Supreme Court of India and the High Courts have become increasingly sensitive to principles of social inclusion and have, consistent with the principle of diversity, adopted a seniority-cum-merit approach. No longer, thus, monocultures of the judicial mind may be fostered. True, often the political Executive may find it expedient to differ with the Supreme Court, but the Collegium’s insistence that merit may trump sen- iority shows a careful affirmation of constitutional plurality. —The author is an international law scholar, an acclaimed teacher and a well-known writer ThoughtheJ&KHighCourtwas establishedin1928,itwasonlythis yearthatJusticeGitaMittalwas elevatedasthefirstwomanchief justicethere. JusticeLeilaSethbecamethefirst womanjudgeoftheDelhiHighCourton July25,1978,andthefirstwomanchief justiceofaHighCourt(Himachal Pradeshin1991). JusticeSindhuSharma,at46years, became thefirstwomanjusticeofJ&K HighCourt,andisamongtheseven justiceswhomaybecome chiefjustices inthenextdecade.
  15. 15. Supreme Court/ PILs 16 November 26, 2018 HE Supreme Court made its position clear on the issue of filing of frivolous public interest litigations (PILs). In an unprecedent- ed move, the Court warned Ashwini Upadhyay, a BJP leader, of fac- ing a ban on filing PILs in future. Upadhyay, who has been behind many focal changes in law, has also raised unreasonable issues before the apex court, and consequently, wasted its time. Recently, the CJI-led bench dis- missed Upadhyay’s petition seeking a direction to the centre to impose an upper limit of `2,000 per person per year on political donations in cash. The bench mentioned how PILs are a boon also agreed that the prayers were not drafted properly. Upadhyay has filed innumerable PILs in the Supreme Court—some have been concluded, some dismissed and some are still pending. PILs are an exception to the principle that only an aggrieved person can file a suit; they are based on the notion that anyone can approach the court if there is public interest involved. But, this process should be used with great caution. Upadhyay has about 35 petitions to his name. These include making Yoga and the study of Hindi compulsory in schools for children aged 6-14 years. Another petition prayed for making the singing of the national anthem and national song compulsory in schools. Such frivolous PILs are looked down upon not only by judges, but advocates as well. Mukul Rohatgi, when he was the attorney general, had argued that PILs filed by Yogendra Yadav and advo- cate Prashant Bhushan seeking relief for drought-affected regions must not be T UsewithCaution TheCourttookasternstandagainstfrivolousPILswhenit threatenedtoban“PILveteran”andBJPleaderAshwini Upadhyayfromfilingsuchfrivolouscasesinfuture By Naved Ahmed to society and the person filing them should exercise responsibility and cau- tion while bringing them to court. He had also prayed that tax exemption under Section 13A of the Income Tax Act, 1961, be granted only to those par- ties which contest and win parliamen- tary or state assembly elections. Section 13A of the Act exempts political parties from paying any tax on donations received by them. The CJI, while observing that these issues are better suited for Parliament, said: “With all sense of responsibility, why should we get into it? Is it our domain? Just look at your prayers!” Senior advocate Sajan Poovayya, appearing on behalf of the petitioner, YOU HAVE BEEN WARNED! (L-R) BJP leader Ashwini Upadhyay, advocate Prashant Bhushan and former navy chief Admiral L Ramdas are among those who have been chastised by the SC for filing frivolous PILs
  16. 16. entertained as their organisation, Swaraj Abhiyan, went from being a non-profit to a political organisation. The argu- ment against these PILs was that people try to fulfil their political agenda in the name of “public interest”. The inception of PILs gave a new impetus to the idea of India as a “wel- fare state” under the Constitution. Keeping in mind the welfare and gener- al interest of the people, the Court allows the pedantic nature of procedural law to be relaxed. It has happened many a time that the Court has addressed issues brought to its notice by letters and telegrams. The effect of such PILs has been huge such as the famous case of Hussainara Khatoon v State of Bihar, which led to the release of many under- trials who had spent the maximum sen- tence prescribed for their offence even though their trial had not started. The concept of PILs is also prevalent in the West where they are known as “class action suits”. This means that there is no individual complainant, but a class or section which has a common grievance. Class action judges carry out very serious examination to determine whether a suit qualifies as a “class action suit”. In India also, PILs ought to be given sanctity only if they truly repre- sent a “class action suit” such as the Bhopal Gas tragedy case where victims were not given due compensation. However, the usefulness of PILs becomes questionable when they are misused. Upadhyay certainly isn’t the only one who has many PILs to his name. Earlier this year, the Supreme Court criticised the role of Prashant Bhushan while dismissing several PILs which sought an investigation into the death of special CBI court judge BH Loya way back in 2014. The apex court said: “Attempts were made to misrepre- sent and mislead the Court by manufac- turing evidence to cast a doubt on the circumstances leading to the death of judge Loya.” Justice DY Chandrachud, who authored the judgment, said: “Prashant Bhushan adopted a dual man- tle and went to the length of personally collecting evidence to bolster the case.” He added: “The petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institu- tions.” It criticised the intervention of Bhushan’s NGO, Centre for Public Interest Litigation (CPIL) in this case. Last year, Prashant Bhushan, repre- senting the Campaign for Judicial Accountability and Reforms, had demanded the recusal of CJI Dipak Misra from the bench hearing the plea seeking an SIT probe, saying there were allegations against him in the FIR. A three-judge bench of Justices RK Agrawal, Arun Mishra and AM Khan- wilkar censured Bhushan and Kamini Jaiswal for “forum shopping” because even while the first PIL was pending before a two-judge bench, they got a second petition, based on similar facts and with identical prayers, listed before the bench of Justice Chelameswar on | INDIA LEGAL | November 26, 2018 17 Publicityinterestlitigations? “WeneedthePILmechanismforsure.Thecon- cernsexpressedbytheSupremeCourtregarding itsabusearealsogenuine.Apublicinterestliti- ganthasaresponsibilitytoverifythesourceof informationandcheckforfactualloopholes beforefilingaPIL.” —AnupGeorge,senioradvocate While speaking at an India Legal show on PILs, telecast on APN News (our sister organisation), various lawyers expressed their concern over the abuse of the PIL system: “APILisanexcellentmechanismtoenablethose whoserightshavebeenaffectedbutareunableto cometocourtstoenforcethem.ButastheSC observed,PILsareturninginto‘publicityinterest litigations’or‘paisainterestlitigations’leadingto abuseoftheprocess.” —PHParekh,senioradvocate “Manytimes,projectsofnationalimportanceget challengedthroughPILswhichallegeirregulari- tiesintheirallotment.Thecourtpassesaninter- imstayorderbutlater,itisdiscoveredthatthe petitionwasfrivolousandwasfiledonbehalfof ‘vestedinterests’.Suchincidentscauseanincal- culablelosstotheeconomy.” —VikasSingh,senioradvocate
  17. 17. 18 November 26, 2018 an urgent basis. “The senior counsels attempted forum shopping to seek a favourable order and it was unethical of them to do so. They did not verify the position of law and unnecessary doubt was raised on this institution. Proper verification of facts was not made before filing this petition,” the order said. In 2016, Bhushan received the most stinging rebuke from a three-judge bench of Chief Justice TS Thakur and Justices AK Sikri and R Banumathi when they raised questions about CPIL while hearing a petition challenging the 4G spectrum auction to Reliance Industries Ltd’s Jio. “Prashant Bhushan, you have an image of a crusader. But can you become the centre for public interest litigation? Can the system be taken for a ride in such a manner? We cannot allow this,” they said. In another case, Justice Ranjan Gogoi (as he then was), had dismissed a PIL filed by former navy chief Admiral L Ramdas, saying: “PILs are for the poor and those who cannot afford to approach the court.” Admiral Ramdas had filed a PIL against the appointment of IPS officer Sharad Kumar as the vigi- lance commissioner in the Central Vigilance Commission. Bhushan, who had argued for the petitioner, contended that PILs can be filed by anybody in “public interest”. Both the argument and the petition were dismissed by the Court. Upadhyay’s latest petition that was dismissed is one of several petitions filed by him on election matters. CJI Gogoi, Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Upadhyay which demanded curtailing of time for filing an account of election expenses. He said: “Courts cannot moni- tor everything in the country.” Further- more, the CJI has held six meetings over future appointments in the short time that he has been CJI. As a consequence, four new judges have been elevated to the apex court within 48 hours of their names being recommended. There is no doubt that PILs are an advantage to the public, but when they are misused by people to further their own agendas or mislead the court, they consume the valuable time of the judici- ary and infringe on the relief that could be granted to other people instead. It is the duty of the judiciary to interpret laws, but it cannot function as the law maker. Most PILs get rejected as it is the government’s duty to be the policy maker, not the judiciary’s. Extensive filing of PILs has dimin- ished its purpose in the advocacy and justice system. It is the responsibility of the Bar to respect the essence of PILs and refrain from filing frivolous ones. The position of PILs in our judicial sys- tem is irreplaceable, but this mechanism should not be abused, otherwise it will lose its importance and everything it stands for. To prevent abuse, PILs should be checked for credibility and verifiability based on some standards set by the courts. sounding irritated, said: “Just because we have heard some matters of this gentle- man, three PILs are filed everyday and all regarding elections! Three PILs are com- ing tomorrow and one was mentioned today!” Observing the callous nature of the petitioner, the Court warned his counsel that such behaviour will not be tolerated. Agreeing with the CJI, Justice Sanjay Kishan Kaul suggested: “We should ban certain people from filing PILs…if some (petitions) are allowed, one cannot be filed every day. If it does not make any sense, we will not decipher it… caution your client, one more improper petition and we will ban him.” I n October 2018, the CJI-led bench imposed a fine of `25,000 on a lawyer for filing a PIL which prayed for lowering the marriageable age for men from 21 years to 18 years. The lawyer, Ashok Pande, contended that if an 18-year-old man has a right to vote and join the army, there was no ration- ale in restricting his right to marry until he has attained the age of 21. The bench concluded that the petitioner had no locus standi in this case and ultimately dismissed the PIL. The new CJI has been taking stern action to reduce the pendency of cases. On the first day of assuming office, he made it clear that PILs challenging every decision and action of the govern- ment will not be entertained. The same day, he rejected Bhushan’s plea to list a PIL relating to the deportation of seven Rohingya Muslims, and a PIL filed by SENDING A STERN MESSAGE (L-R) A bench of Justices RK Agrawal, Arun Mishra and AM Khanwilkar censured Prashant Bhushan and Kamini Jaiswal for “forum shopping” to seek a favourable order Supreme Court/ PILs
  18. 18. Justice of the Supreme Court. A press release issued by the Supreme Court states that the CRP’s main mandate will be to carry out cut- ting-edge research into “fundamental jurisprudence and doctrines of law” and “judicial reforms for improvement in justice delivery and judicial independ- ence”. To this end, it has been assigned the following specific tasks: (a) conduct its own research and harness those rele- vant to the judicial system; (b) create a network of leading independent scholars in key domain areas; (c) create a perma- nent and accessible database of relevant knowledge through a series of publica- tions, working papers, thematic briefs, case notes; (d) prepare summaries of the Supreme Court’s key judgments for gen- eral audiences in non-technical lan- guage; (e) conduct periodic seminars on doctrinal issues. It is widely believed that the high pendency of cases, delays in judicial appointments, lack of physical infra- structure in courts and poor quality of legal education will be some of the focus areas of the CRP. It will be headed by Dr Mohan Gopal (academician and former vice-chancellor of National Law School Supreme Court/ New Think Tank 20 November 26, 2018 HE Supreme Court has been in the headlines this year for many reasons, including a slew of land- mark verdicts. And on Nov- ember 1, it grabbed head- lines again when Chief Justice Ranjan Gogoi announced the setting up of an in-house think tank called the Centre for Research and Planning (CRP). While this initiative has garnered praise, ques- tions are being raised about whether such a think tank was necessary at all, given the vast pool of knowledge and resources already available to each Do We Need Yet Another? CJIRanjanGogoiismakinginstitutionalchanges, butthesettingupofanin-housethinktankraises questionsaboutothersimilarinstitutions By Vrinda Agarwal T Anil Shakya The Supreme Court led by Chief Justice Ranjan Gogoi has taken a laudable step by creating an in-house think tank within the Centre for Research and Planning. This Centre would be the key to building knowledge infrastructure for the judiciary. This would bring uniformity across India on current trends on the judi- cial canvas. There can be no doubt that each judge is good, but it is questionable whether judges interact with each other on issues of importance. Similarly, each judicial academy is good, but it is doubt- ful whether information is shared among them. This body would bridge the gap. It would make a highway through islands of judicial thinking and bring everybody onto the same page. It would bring clear think- ing and uniformity in judgments as well “Don’tfillitwith academicians” RUPINDER SURI, senior advocate in the apex court, tells INDIA LEGAL that while the attempt to set up a think tank is laudable, it is not the first attempt of the Supreme Court to do so. He said it is necessary for the Court to learn from past shortfalls and ensure that the Centre for Research and Planning utilises people who are aware of the ground reali- ties. Excerpts: Bhavna Gaur
  19. 19. | INDIA LEGAL | November 26, 2018 21 of India University, Bangalore). However, the CRP’s prescribed man- date seems to overlap with that of other similar institutions. Its creation thus raises questions over the efficacy of these institutions. There exists a net- work of national and state-level judicial academies for the purpose of strength- ening the administration of justice through judicial education, research and policy development. There is also the Law Commission, constituted every three years, for the purpose of reviewing laws that need to be updated and suggesting legal ref- orms. The Bar Council of India (BCI), a statutory body in existence since 1961, is responsible for suggesting reforms for improving the quality of legal education and practice. There is a case to be made for these institutions to be galvanised before new institutions are set up to work on similar areas. Eminent legal scholar, Professor Upendra Baxi, told India Legal: “In principle, the setting up of an in-house think tank in the Supreme Court is an excellent idea but much depends on how its mandate is translated into practice. It seems similar with that of the Indian Law Institute (ILI) and National Judiciary Academy (NJA), Bhopal. The ILI, established more than 50 years ago, was envisioned as a sort of think tank. In fact, both ILI and NJA are under the chairpersonship of the learned Chief Justice of India, so I am not certain whether this arrangement to have a think tank housed within the Supreme Court was entirely necessary. Let us hope that with the setting up of the think tank, these institutions do not get compromised. We will, of course, have to wait for more details to emerge about its work before its impact and reach can be properly assessed.” Professor NR Madhava Menon, founder director of NLS Bangalore, also sounded a word of caution while calling the creation of the CRP a welcome move. “For an institution as large and important as the Supreme Court, it is imperative that its knowledge needs are properly addressed. While CJI Gogoi appears serious about implementing institutional reforms, real change can usher in only when every single judicial officer of the country benefits from the work undertaken by the think tank. The onus will be on the Supreme Court to ensure that the benefit flows through. We will have to see how the recommen- dations of the think tank are acted upon by the chief justice.” Ending his address during the inau- guration of the CRP, CJI Gogoi said: “Both of these (opening of the Supreme Court to visitors and setting up of the in-house think tank) are experiments and let’s see what the future holds.” It’s important that the think tank experi- ment turns out to be a successful one so that its existence stands justified. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com as judicial interpretations. Another area which this think tank seeks to work towards is to ‘translate’ Supreme Court’s judgments into a lan- guage that is easily understandable and accessible to the common man. This is vital for ensuring effective access to justice. The issues which come for adjudica- tion before the Supreme Court have roots in the past, whereas judgments have to decide the present and govern future scenarios. Changes due to tech- nology and business are so rapid that law is normally lagging behind. Sometimes, even before a legislative enactment is passed, it becomes obso- lete and irrelevant. There is a dire need for law to keep pace with the changes. The Centre for Research and Planning in its ideal functioning state would fulfil this requirement and mitigate the rigours of change. Futuristic planning would become a part of legal adjudica- tion. However, this is a normative thought till it is effectively implemented. It is also not clear whether lawyers have any role to play in the Centre for Research and Planning. This is not the first attempt of the Supreme Court in set- ting up such a body. It is necessary for the Court to learn from past shortfalls and ensure that this Centre reaches its full potential. Filling the Centre with aca- demicians, however bright, without utilising people who are aware of ground realities can make the entire functioning of the Centre irrelevant. It would require constant supervision and periodical correction. “Letushopethatwiththe settingupofthethinktank, theseinstitutionsdonotget compromised.” —ProfessorUpendraBaxi, eminentlegalscholar “Realchangecanusherinonly wheneverysinglejudicialofficerof thecountrybenefitsfromthe workundertakenbythethinktank.” —ProfessorNRMadhavaMenon, founderdirectorofNLSBangalore
  20. 20. state for its “lethargic attitude” in not bringing the matter to its notice by filing an appeal. Why this case has been slammed is that certain predefined parameters are to be considered by the court before granting bail to any person. These include whether the accused is going to flee, whether he will tamper with the evidence, etc. Instead of asking these questions, the Gujarat High Court ordered various tests, leading to the Supreme Court’s reaction. The case related to an FIR filed on September 16, 2017, in Shahpur police station of Ahmedabad by a grandmother who alleged that sexual assault was committed on her seven-year-old grand- daughter by the head teacher of a municipal school. The offence was regis- tered under Sections 376(2)(f) and 376(2)(1) of the IPC and various sec- tions of POCSO. The matter came up before the High Court when the alleged accused, Sunil Kumar, moved an appli- cation under Section 439 of the CrPC for bail. After the serological and Forensic Science Laboratory (FSL) report and medical certificate indicated no wrong doing, Justice Pardiwala said: “If I accept the allegations as they are, then prima facie, it could definitely be said that the applicant-accused is involved in Courts/ Gujarat “Rape” Case 22 November 26, 2018 HE Supreme Court recently pulled up the Gujarat High Court for acting like “a trial court” in deciding a bail applica- tion and for disclosing the victim’s identity. The case related to sexual assault on a minor under the Protection of Children from Sexual Offences (POCSO) Act. The High Court had ordered lie detector, brain- mapping and narcoanalysis tests on the accused person for deciding the bail application. And it also ordered that the same tests be conducted on the vic- tim’s family members. The family appealed in the Supreme Court against this order. The apex court bench of Justices NV Ramana and Mohan S Shantanagoudar said it was “surprising” to note the approach adopt- ed by the Gujarat High Court. It said: “The court must not undertake meticu- lous examination of evidence collected by the police, or rather order specific tests, as done in the present case. By ordering the tests and venturing into the reports [of these tests] with meticulous details, the High Court has converted the adjudication of a bail matter to that of a mini-trial. This assumption of the function of a trial court by the High Court is deprecated.” It said the HC order stood in “clear violation” of the precedents set by it and “statutory pre- scriptions” by disclosing the victim’s name in the order. It also indicted the T Catching a Lie TheapexcourtpulleduptheGujaratHighCourtforordering liedetector,brain-mappingandnarcoanalysistestsonan accusedfordecidinghisbailapplication By RK Misra in Gandhinagar EXCEEDING ITS BRIEF The Gujarat High Court had virtually conducted a mini-trial during a bail hearing in a POCSO matter Thenarcoanalysisconcludedthatthe accusedhadnotcommittedthecrimeon thevictimoranyothergirloftheschool. Thereportofthebrain-mappingtestalso gaveacleanchittotheaccused.
  21. 21. | INDIA LEGAL | November 26, 2018 23 the offence. Having regard to the nature of the allegations and the serious doubt created in my mind, I thought fit to look into the matter closely although the prayer is for bail... In such circum- stances referred to above I thought fit to pass the following order, dated March 23, 2018.” The order said: “The applicant accused before me is a teacher. The vic- tim is a seven-year-old girl studying in the school in which the applicant is a teacher. The investigation is over. Chargesheet has been filed. Having regard to the peculiar facts and circum- stances of the case, I have suggested to the Investigating Officer to subject the applicant-accused to few scientific tests like lie detection, brain-mapping, narco- analysis, etc. The Counsel for the appli- cant has agreed to give his consent for undergoing such scientific tests. The Forensic Science Laboratory may be directed accordingly and the matter be posted for hearing on April 10, 2018, after obtaining the results of the tests.” The narcoanalysis concluded that the accused had not committed the crime on the victim or any other girl of the school. The report of the brain- mapping test also gave a clean chit to the accused. The Court further noted: “It is only with the aid of the results of the three scientific tests that I am in a position to reach to an appropriate con- clusion whether I should exercise my discretion in favour of the applicant- accused or not. If I would have gone only by the victim and their family members and rejected the bail applica- tion, then probably, I would have done injustice with the applicant.” The order said that while it is the duty of the Court to protect a genuine victim, it is equally its duty to ensure that an accused is punished only for an act he has actually committed. The order further noted that the ver- sion of the victim was that on the previ- ous day of the incident, the accused had played the same mischief in the class- room with other girls, too. However, this was not substantiated by the statement of those girls. The statement of the lady constable at the time of the recording of the victim’s statement also indicated that the grandmother kept giving hints to the victim and even pinched her. This led the lawyer of the accused to say it was out of vengeance towards the appli- cant on account of some dispute over admission and school-leaving certificate that the family members of the victim had done this. T he order further said: “I am of the view that the first inform- ant, her son and mother of the victim should be subjected to the same three tests to make the picture more clear. The investigating officer may do it as a part of the further investigation by informing the trial court in this regard. If any of the three offer any resistance in this regard then the same by itself will be an indication of their guilty conscience.” The order clarified that “it goes with- out saying that any observations touch- ing the merits of the case are purely for the purpose of deciding the question of grant of bail and shall not be construed as an expression of the final opinion in the main matter… the three tests by itself does not put an end to the trial. It will be open for the prosecution to lead appropriate evidence both, oral as well as documentary, for the purpose of establishing its case beyond reasonable doubt. The report of the Forensic Science Laboratory shall be considered by the trial court in accordance with the law along with other evidence that may be led in the course of the trial. At the trial, the trial court shall not be influ- enced by the observations of preliminary nature qua the evidence at this stage made by the court while enlarging the applicant on bail”. Over-enthusiasm, too, has its perils. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com The Supreme Court has spoken in dif- ferent voices in some its judgments while deciding bail cases. In some cases, it has asked high courts to quickly grant bail, whereas in other cases, it has asked them not to be prompt in doing so. In 2017, an SC bench of Justices AK Goel and UU Lalit directed High Courts to dispose of bail applications within a week and within two years in case the accused is in custody. But in January 2018, a bench of Justices Abdul Nazeer and NV Ramana in Lachhman Dass vs Sukhwinder Singh condemned the Punjab and Haryana High Court’s haste in granting bail to the accused without taking into consideration the criminal background of the accused. Differentvoices “Wevolunteeredforthebrain-mapping, narcoanalysisandliedetectiontests oftheaccusedbecauseweweresureof hisinnocence.Therearedifferentapex courtrulingsindifferentcasesinthe matterofbailbutthefactisthatyoucan- notputapersonawayinjailinterminably evenbeforehisguiltisestablished eschewinghisrighttoliberty.” —ViratPopat,lawyerfortheaccused, sayinghedoesnotagreewiththe observationsoftheSupremeCourt
  22. 22. The Commissioner Food Safety, Himachal Pradesh, also issued a notification regarding the prohibition of sale, storage and distribution of products like gutka, pan masala, masheri and khaini. They were made illegal and any person found with such products shall be sub- jected to penal provi- sions as per FSSA, 2006. The Central Government had also imposed fines on those who smoke in public. Authorised individuals shall collect fine and compound the offence under Sections 4 and 6 of COTPA. With street vendors selling loose cigarettes and other tobacco products, the public finds it a convenient way of indulging in smoking without having to burn a hole in the pocket by buying full packets. This has led to a spurt in public smoking, especially among youth, with even children in middle school bunking classes to catch a few puffs without a care for the very well publicised health hazards attached to smoking. Legislation banning loose tobacco products is a well intentioned measure, but as with most things, its success depends on effective implementation. It is to be hoped that the HC’s latest writ will finally goad the authorities to crack the whip. Courts/ Smoking Ban 24 November 26, 2018 OUGH measures are to go into effect in Himachal Pradesh to ensure that an already existing policy for the sale of tobacco prod- ucts and loose cigarettes is implemented in full. Taking serious note of illegal sale of tobacco products and loose cigarettes, a division bench comprising Justices Sanjay Karol and Ajay Mohan Goel passed this judgment last week on a let- ter by a state resident, highlighting the issue of non-implementation of the rules. Taking suo motu notice of the let- ter, the HC has directed the state gov- ernment to ensure that no sale of loose cigarettes/beedis/prohibited articles is allowed, specifically within the radius of 100 metres of educational institutions. HP had enacted the Prohibition of Sale of Loose Cigarettes and Beedis and Regulation of Retail Business of Cigarettes and Other Tobacco Products Act, 2016. This Act has completely banned the sale of loose cigarettes owing to the adverse effects of smoking in our society. Retail businesses of tobacco products cannot carry on unless registration is done with the registering authority in accordance with the provi- sions of the Act. However, this was not enforced, thanks to pressure from traders and small businesses. A 2001 judgment in Murli S. Deora vs Union of India had held how passive smokers suffer from different lung and heart diseases because of excessive pub- lic smoking, which also leads to the infringement of their Right to Life and Liberty under Article 21 of the Indian Constitution. The apex court, in the 2001 judgment directed all the govern- ments to ensure that public smoking is banned and take necessary steps to pro- hibit them in places like auditoriums, health institutions, educational institu- tions, government offices, court build- ings, and so on. A new Act came into force, known as the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA, 2003), which re- placed the erstwhile Act. The Act specif- ically banned public smoking and any type of advertisement of tobacco or related products. Sale of such products to children below 18 years became a prohibition, and except packed cigarettes, selling of loose cigarettes close to educational institutions have been proscribed. Restrictions have also been imposed with regards to trade and commerce, production, supply and distribution of such products under this Act. T TheHimachalPradeshHighCourttakessuomotu noticeofaletteranddirectsthe authoritiestoensurethatlawsaimedatcurbingsmokingarestrictlyenforced By Sankalan Pal Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Stubbing Out The Cigarette TheHChasdirectedthegovernmenttoensurethatnosale ofloosecigarettes/beedis/prohibitedarticlesisallowed within100metresofeducationalinstitutions. UNI
  23. 23. Courts/ Kerala/ MLA’s Disqualification 26 November 26, 2018 Shaji by a margin of 2,287 votes in the poll. However, it declined Kumar’s plea for declaring him the winner to take Shaji’s seat in the assembly. But it direc- ted Shaji to pay `50,000 to Kumar to- wards legal expenses and `5,000 as court expenses. The verdict has come a rude shock to Shaji who is widely seen as the liberal and secular face of the Muslim League. “I won the elections from a constituency where the Muslim population is only 20 per cent. How can I win if I spread com- munal spite during the election cam- paign? It is a manipulated case and the petitioner himself is notorious for mani- pulating things,” said Shaji responding to the verdict. He also described the verdict as something that has tarnished his image. “I am not bothered much about my MLA seat. But to say that I had spouted communal venom is a disgrace to my reputation. It pains me and I have to prove it wrong,” he reiterated. On the other side, Kumar was both elated as well as dejected as he had hoped that the Court while unseating Shaji would declare him the winner. “I will continue the legal battle to get my- self declared as the winner,” he said. Kumar contested and lost from the very seat his father and Communist re- bel leader MV Raghavan had won after the CPI(M) party expelled him in 1986. As for Shaji, it is for the second time he had won from the Azhikode cons- tituency, considered a CPI(M) bastion. Among the evidence that the Court used for arriving at its conclusion were a few pamphlets which Shaji claims were not distributed by him but were manip- ulated to make him look like a villain. In his petition, Kumar had alleged that Shaji managed to win by resorting to corrupt practices. He said that Shaji, a Muslim, made communal appeals to voters of his community to cast their votes keeping in mind that he was a practicing Muslim. Kumar also claimed that pamphlets were circulated in the constituency urging people not to vote for a candidate who is not a believer of UNSEATED BY COURT The Kerala High Court has allowed KM Shazi (left) to appeal against its verdict in the Supreme Court; Petitioner M Nikesh Kumar member of the Kerala assembly belonging to the Indian Union Muslim League (IUML), KM Shaji wears his secularism on his sleeve. But the rep- utation of the 47-year-old took a big hit recently when the Kerala High Court declared null and void his election from the Azhikode assembly constituency in Kannur district and also disqualified him from contesting polls for six years. The charge against him was that he had violated the code of conduct in the last assembly elections in 2016 by dis- tributing pamphlets that were deemed inflammatory and communal. However, within three hours after delivering the verdict, Justice PD Rajan stayed his own order for two weeks to facilitate Shaji to appeal against it in the Supreme Court. The Court passed the order on an election petition filed by Shaji’s princi- pal opponent, the CPI(M) candidate and journalist M Nikesh Kumar, who lost to A Code of Misconduct TheHighCourtdisqualifiesAzhikodeMLAKMShajiand barshimfromcontestingpollsforsixyears By NV Ravindranathan Nair in Thiruvananathapuram
  24. 24. the Islamic faith. He further alleged that Shaji had stated that non Muslims will never find the path to heaven. “Non-Muslims have no place in the kind Allah’s abode. On the dooms day, they will never cross the Siraat bridge to heaven. They are to sleep with the devil. All Muslims, please pray to Allah for the victory of he who prays five times a day for our safety—K Mohammad Shaji or KM Shaji. Please vote for K Mohammad Shaji and lead him to victory,” the pam- phlet produced before the Court said. The United Democratic Front (UDF) convener Benny Behennan said Shaji was the face of secularism and always stood out against religious fundamental- ism said, “The UDF or IUML has not and will not publish such a pamphlet. We intend to appeal in the apex court,” he said. Shaji pointed out that a corrupt offi- cial of the Election commission had manipulated the pamphlets he had seized from the Muslim League workers and inserted fake ones in it. And when the pamphlets were sought through an RTI request, fake ones were produced to render his election invalid. “It was the handiwork of a man with a diabolical mind. He is such a manipulator,” he said referring to his opponent. K erala has a history of MLAs being unseated by courts only to be later reinstated by a higher judicial authority or voters themselves. In 1957, the election of Rosamma Pun- noose of the CPI from Devikulam was nullified by the court. She is reportedly the first legislator in the country to face the wrath of the court. But in the ensu- ing bypoll, she was re-elected and be- came another first of sorts—the first person to be re-elected in a bypoll. In 1977, probably for the first time in the state, two leaders were disqualified for resorting to communal campaign during elections. The elections of politi- cal heavyweights, CH Muhammed Koya of the IUML and KM Mani of the Kerala Congress, were set aside by the court. However, the Supreme Court exo- nerated them of the charges and rein- stated them in the assembly. The case of PC Thomas, the lone NDA candidate to win from Kerala to the Lok Sabha in 2004 was somewhat different. His opponent CPI(M) candi- date PM Ismail moved the court chal- lenging Thomas’s election when he was declared winner with a thin majority of around 500 votes. The High Court, and later the Supreme Court, nullified his election citing that Thomas had exploit- ed the voters’ religious sentiments. Following Election Commission’s rec- ommendation, he was disqualified from contesting for three years. The disqualification of PC George, a member of the Kerala Congress (M), by the assembly speaker was a hotly debat- ed political issue. On November 13, 2015, then Speaker N Sakthan disquali- fied George with retrospective effect from June 3, 2015, for indulging in anti- party activities in the legislature. George challenged the order in the High Court on March 14, 2016, and the Court qua- shed the Speaker’s order observing that it was a malafide action. Shaji’s last hope lies in the apex court overturning the High Court order. | INDIA LEGAL | November 26, 2018 27 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com In recent times, the Election Commission (EC) has be- come extra vigilant as it looks into matters of corruption or unfair practices and disqualifies such candidates. Such inci- dents include: Narottam Mishra, an MP min- ister, was disqualified by the EC on June 24, 2017, for three years over alleged corrupt prac- tices and paid news circulation during the 2008 assembly polls in the state. Although this order was set aside by the Delhi High Court in May 2018, it is likely to challenge the verdict. The EC disqualified 20 MLAs of AAP in January 2018 for alle- gedly holding office of profit. This order was also challenged before the Delhi High Court and a stay was granted. There have been other dis- qualifications, but not by the EC. One was of UP CM Yogi Adityanath, where a petition was filed in the Allahabad High Court asking for his disqualifi- cation on the grounds that a parliamentarian cannot become a minister and this is in violation of Article 101(2) of the Consti- tution. The case is still going on in the Lucknow Bench of the Court. In Tamil Nadu, 18 MLAs of TTV Dhinakaran’s party were disqualified by the Speaker. A case was filed in the Madras High Court where the disqualifi- cation of all 18 was upheld. Postpollcrackdown COURTING CONTROVERSY (Clockwise from above) PC George, CH Muhammed Koya and KM Mani had to face disqualification as MLAs
  25. 25. Courts/ Kerala/ DNA Test 28 November 26, 2018 HE Kerala High Court has held that a DNA test cannot be ordered without hearing the person affect- ed, irrespective of the fact whether he is a minor or major. Taking into account the angst of an affected child being forced to prove paternity through a DNA test, a bench comprising Justices CK Abdul Rahim and R Narayana Pisharadi was deliver- ing its judgment on a petition filed by a man who had approached the Family Court in Alappuzha, Kerala, seeking a declaration that the child born to his ex- wife was not his daughter. The judges said that the court cannot order a DNA test without making the child a party to the case. Nizar and Raseena, both from Alappuzha, became man and wife on November 1, 1999. Nine years later, Raseena gave birth to a girl. The plea of the petitioner, Nizar, in the original petition filed before the Family Court, was that he never had sexual relations with his wife and the child born to Raseena was not his daughter. He also alleged that she had once told him that he is not the father of her child. Nizar then divorced Raseena on March 26, 2010, by pronouncing the word “talaq” three times. He then filed an application in the Family Court, praying that a DNA test be conducted to prove the paternity of the child born to Raseena. The estran- ged wife filed an objection to the appli- cation, denying the allegations raised by her former husband. She said she was ready to conduct a DNA test, but that willingness came with a rider—Nizar must file an undertaking before the court that he will pay an amount of `25,00,000 as compensation if the result of the test goes against him. She also filed another application, to issue direction to the petitioner to undergo a potency test, to ascertain that he had no physical disability to perform sexual intercourse during the period that their marriage lasted, when according to him, there were no sexual relations between the two. But the Family Court dismissed both applications. Meanwhile, Raseena moved the Chief Judicial Magistrate’s Court, Alapp- uzha, seeking various reliefs under Section 12 of the Protection of Women from Domestic Violence Act, 2005 including maintenance for herself and the child. The court ordered Nizar to pay maintenance to Raseena and the child at the rate of `5,000 and `2,000 per month, respectively. The petitioner challenged this order in the Sessions Court, Alappuzha. In the memorandum of appeal filed in that case, the petitioner did not raise a plea that the child born to the respondent is not his daughter. Raseena had filed a petition against her former husband in the Family Court, seeking return of gold ornaments and other materials which she had brought along at the time of the marriage. During the cross examination, Nizar was specifically asked whether he had denied paternity of the child in the case which Raseena had filed in the Judicial Magistrate’s court under the Domestic Violence Act for seeking maintenance. Nizar replied in the negative and said he had not denied paternity of the child in that case. He told the court that he was concerned about the welfare of the little girl and that was the reason he expressed will- TheKeralaHighCourthassaidthat beforeseekingdirectiontoconducta DNAtest,thepetitionermustmakethe affectedpersonapartytothe applicationfiledtoprovepaternity By NV Ravindranathan Nair in Thiruvananthapuram T Science Over Law Representative Image
  26. 26. | INDIA LEGAL | November 26, 2018 29 ingness to look after his former wife and her daughter. In response to another question, Nizar stated that he had no sexual relationship with the respondent for the ten years that they were officially husband and wife. The Family Court was of the opinion that the absence of a plea by the petiti- oner, denying paternity of the child born to the respondent, amounts to an admi- ssion by him that he is the father of the child. Therefore, it held that a DNA test is not needed for resolving the dispute. But the High Court held that “an admission is the best evidence that an opposing party can rely upon, and though not conclu- sive, is decisive of the matter, unless suc- cessfully withdrawn or proved erro- neous.” The bench observed that an admission by a party, in a plaint signed and verified by him in an earlier suit, is an admission within the meaning of Section 17 of the Act and it may be held against him in other litigations. But such admission cannot be regarded as conclusive, and it is open to the party to show that it is not true. T he bench observed that before seeking a direction to conduct a DNA test to prove the paternity of the child, the petitioner has to implead the child as a party to the pro- ceedings before the lower court. The court said that even the child has a right to be heard through its guardian before it takes a decision, whether to allow a DNA test or not. The court also noted that it had already heard the mother who is also the respondent but consid- ered her submissions insufficient as she was heard as an individual and not as a guardian of the minor. “The court cannot direct DNA or any such test with- out hearing the person affect- ed, irrespective of the fact whether he is a minor or major. If such person is a minor, he should be heard through the guardian.” Referring to the plea to order a DNA test, the High Court, citing an apex court judgment, observed that when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accept- ed by the world community to be cor- rect, the latter must prevail over the for- mer. “When truth is known, there is no need or room for any presumption and a presumption cannot prevail over truth of a fact established by science,” the bench observed. In the instant case, the child was born to the respondent on August 6, 2008, during the continuance of a valid marriage between her and the petition- er. The petitioner pleaded that during the relevant period when Raseena was pregnant, he was abroad. The court said that Nizar was fully entitled to prove, by adopting scientific methods, that he is not the father of the child born to Raseena. But it disagreed with his attempts to make an open dec- laration about the illegitimacy of the child. “If a declaration as sought for is granted, the child alone will be the person affected by the declaration. Dec- laring illegitimacy of the child amounts to bastardising the child. Therefore, the child is a necessary party to the suit. Without the child on the party array, its paternity and legitimacy cannot be decided to grant the declaration,” the High Court said, while granting Nizar one month’s time to make the daughter a party to the case. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com TheorderoftheKeralaHC(below)came onapetitionfiledbyamanwhohad approachedtheFamilyCourtinAlapp- uzha,seekingadeclarationthatthechild borntohisex-wifewasnothisdaughter. Photo Courtesy: pennacle-investigations
  27. 27. IMPERFECT COVER Home Minister Rajnath Singh distributes Ayushman Bharat certificates to beneficiaries 30 November 26, 2018 VERY citizen in India has a right to receive safe and qual- ity medical treatment. Achieving universal health coverage is a target under the Sustainable Development Goal. All member states of the UN, including India, have committed to try to provide universal health coverage to all their citizens by the year 2030. India has one of the highest out-of- pocket expenditures on health in the world. This is of concern because a large majority of the population lives below the poverty line. Lack of public aware- ness and education further increase the gap making healthcare more inaccessi- ble and unaffordable. Also, by and large, we have a “curative” approach rather than a “preventive” approach towards health. Hence, universal health coverage is the need of the hour. This means good quality healthcare that is available, accessible, affordable and accountable. The Delhi government started the concept of mohalla clinics to provide pri- mary healthcare to the low-income pop- ulation. The central government is also proposing to build 1.5 lakh wellness clin- ics. Both are good ideas and in due course, may alter the healthcare scenario of the country. However, for providing secondary and tertiary specialty care, the Delhi government is yet to come up with a definitive universal scheme. However, the central government has launched Ayushman Bharat, which pro- vides coverage of up to `5 lakh per fami- ly per year for those registered under the scheme and those who cannot afford secondary and/or tertiary healthcare with no restriction of family size. Under the scheme, the central gov- ernment is reimbursing expenses for various procedures to both government and private empanelled hospitals. Currently, the government does not have the infra- structure to look after all 50 crore registered people in government hospitals and hence, it is dependent on private hospitals to get empanelled. Although the insured amount is `5 lakh, practi- cally speaking, the amount reimbursed would be much less because there is a capping for every procedure. Most routine surgeries would incur a cost much less than `50,000 per procedure. This will make it viable for any insurance company. Many private hospitals are finding these capped rates for some critical procedures too low. But can they refuse to participate? Firstly, these charges will get auto-cor- rected over time or get compensated with other procedures where the charges are reasonable. Secondly, if hospitals still refuse to empanel or any state govern- ment refuses to participate in the scheme, the government may use other options. In Delhi, where the state government is yet to participate in the scheme to en- sure advanced super-specialty care for beneficiaries of Ayushman Bharat, the centre plans to directly empanel private hospitals. These hospitals have so far been out of the purview of the scheme as the Delhi government has not signed on the initiative. But the deal will bene- fit patients from neighbouring states, Live and Let Live ThoughDelhiisyettoparticipateinthisscheme,thecentreplanstodirectlyempanel privatehospitalssothatpatientsfromneighbouringstatescanbenefit Column/ Ayushman Bharat Scheme Dr KK Aggarwal E UNI
  28. 28. | INDIA LEGAL | November 26, 2018 31 not Delhi residents. All the neighbour- ing states are part of the scheme. As per the Delhi government, it will come back with its own policy which will cover a larger section of society. This is because Delhi gets many patients from neighbouring states who come here for super-specialty care. All the neighbouring states are part of the scheme. If Delhi hospitals are empan- elled under it, Delhiites eligible to get benefits under it will not have to travel all the way back to their states to get treatment. They can avail the services in the empanelled Delhi hospitals. P rivate hospitals can refuse to par- ticipate in the scheme as it is vol- untary. What can be done in such a situation? There are two answers to this conundrum. The first is that the government can expand the health budget and open more government set- ups. The second is that the government can increase the capped charges per procedure or enforce the Essential Commodities Act. To understand any government poli- cy, we need to understand that in India, the legislative section is divided into three lists: Union, State and Concurrent Lists. Uniformity is desirable, but not essential on items in the Concurrent List. Health is in the Concurrent List and public health comes under the domain of the state government. So, for any public health policy to succeed, the state government has to be in symphony with the central government. Also, the Supreme Court in a catena of cases has held that the right to health and medical care is a Fundamental Right under Article 21 read with Articles 39(e), 41, and 43. Article 21 of the Constitution provides: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Article 47 is one of the Directive Principles and directs the State “to raise the level of nutrition and the standard of living and to improve public health… as among its primary duties”. Therefore, it is the duty of the state to look after public health. But what if a state cannot afford to do so? Then it has some immunity under Article 41 which says: “Right to work, to education and to public assis- tance in certain cases.—The State shall, within the limits of its economic capaci- ty and development, make effective pro- vision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sick- ness and disablement, and in other cases of undeserved want.” This means that those who cannot afford this have to be looked after by the government with a caveat “within the limits of its economic capacity”. Also, the government will simultane- ously need to make provisions to increase the health budget. Not doing so will violate Article 39(e) which states that “the health and strength of workers, men and women, and the tender age of children are not abused and that citi- zens are not forced by economic necessi- ty to enter avocations unsuited to their age or strength”. If the government cannot still pro- vide healthcare, it can invoke the Essential Commodities Act. It is an act of parliament which was established to ensure the delivery of certain commodi- ties or products, the supply of which if obstructed owing to hoarding or black- marketing would affect the normal life of the people. This includes foodstuff, drugs, fuel, etc. The same will cover drugs and investigations. But, the Essential Commodities Act can be enforced only in emergent conditions or as a life-saving measure. The central government is also propos- ing 100 percent insurance for the public with the rich paying a higher premium and the premium for the poor being paid by the government. If this happens, the cost of treatment in various hospitals will become reasonable and affordable. —The writer is president, Heart Care Foundation of India, and immediate past national president, Indian Medical Association Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com WILL THEY, WON’T THEY? Private hospitals feel the capped rates for some critical procedures are too low practo.com All the neighbouring states are part of the scheme. As per the Delhi government, it will come back with its own policy which will cover a larger section of society. Delhigovernmentreaction
  29. 29. States/ Tamil Nadu/Encroachments 32 November 26, 2018 N a hard-hitting order with far- reaching consequences, the Na- tional Green Tribunal’s (NGT) prin- ciple bench in Delhi recently direct- ed the Tamil Nadu government to pay a fine of `2 crore for inordinate delay in removing encroachments on the banks of Adyar and Cooum rivers in Chennai. The NGT headed by chairperson Jus- tice Adarsh Kumar Goel passed stric- tures on the state government for its poor pre-monsoon preparedness and also asked the state Public Works De- partment (PWD) to deposit `2 crore within 15 days with the Central Pollu- tion Control Board (CPCB). It was hear- ing a bunch of petitions relating to the pollution of Adyar and Cooum rivers and Buckingharm Canal in Chennai. The petitioners charged that there was uncontrolled discharge of effluents from different industries and untreated sewage was directly getting into the water bodies. In addition, they said that there was massive encroachment on the banks of the rivers due to construction. The bench said: “On 24.09.2013, we (NGT) had deprecated the pace of the work being undertaken by the authority for addressing the serious environmen- tal issues. It would be relevant to note that this case has been going on since 2013. Considering the inordinate delay in addressing serious environmental questions, we had directed the con- cerned authorities to file an affidavit placing before us the present status of the action taken for mitigation. “But on perusal of the reports of the Principal Secretary, Public Works De- partment, Tamil Nadu, we find that it is replete with vagueness and no ins- tances of tangible action taken for mitigation of the problems having been stated.” It added that “we are now of the view that the matter needs to be dealt with at the highest level and accordingly direct the Chief Secretary, Government of Tamil Nadu, to look into the matter directly and ensure that the steps are taken on an urgent basis in the interest of the environment and the people”. The bench then said that due to the inordinate delay by the PWD, a penalty of `2 crore would have to be deposited with the CPCB. “The amount shall be deposited within 15 days from hence (from October, 31, 2018). If the depart- A River Runs Through It TheNGThasaskedthestategovernmenttopayafineof`2 crorefordelayinremovingencroachmentsalongtheAdyarand Cooumrivers.Butthisiseasiersaidthandone By R Ramasubramanian CHENNAI Buckingham Canal Bay of Bengal Kosasthalai River Adyar River Cooum River TAMIL NADU Buckingham Canal SAVING RIVERS (Above) A map showing Cooum, Adyar and Kosasthalai flowing into the sea; Cooum river I Peter Fristedt/wikimedia.org Rajender Kumar

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