India Legal - 05 August 2019

NDIA EGALL STORIES THAT COUNT
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August5, 2019
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S President Trump is notorious for talk-
ing from both sides of his mouth, lying,
obfuscating reality, distorting history,
contradicting himself without batting
an eyelid or suffering even the teeniest
bit of remorse. This was in evidence again when
he told newspersons in the Oval Office during
Pakistan Premier Imran Khan’s visit to Washing-
ton that Indian Prime Minister Narendra Modi
had personally requested him to resolve the
Jammu and Kashmir issue through mediation.
Sure, panic buttons were pressed all across
Delhi because of the geopolitical embarrassment
this must have caused the Indian foreign policy
establishment, mostly Modi himself, because of
India’s long-standing and unflinching public
proclamations as well as adherence to the doctrine
that there shall not be any third party meddling or
arbitration to resolve the conflict in J&K, an inte-
gral part of the Indian Union. This position was
legally buttressed by the Simla Agreement signed
by Prime Minister Indira Gandhi and President
Zulfikar Ali Bhutto of Pakistan on July 2, 1972 fol-
lowing the 1971 war.
On a larger level, however, Trump’s bombshell
appeared to signal a new US tilt towards Pakistan
shortly after he had all but declared Pakistan a
rogue nation that supports terrorists and had cut
off billions of dollars of military aid to that nation.
This was hailed in India as a major diplomatic
coup in which New Delhi had been granted the
status of a major strategic ally of Washington, des-
tined to play a prominent role in bringing peace to
Afghanistan and “containing” the spread of
Chinese influence in the region.
Pakistan is now exulting over what it considers
a coup de grace by Prime Minister Khan that has
brought it back to centrestage in the Afghanistan
imbroglio with the real possibility of a renewed
flow of US military and economic aid that will fur-
ther strengthen the hands of the Pakistani mili-
tary-ISI complex.
Actually, in publicly proclaiming that Modi had
asked the US to mediate a settlement in Kashmir,
Trump—if he sticks to that statement—has
reversed the impact of decades of Indian diploma-
cy which, starting with Bill Clinton’s presidency,
had persuaded the Americans from resiling from
the traditional American Cold War attitude of tilt-
ing towards Pakistan and equating Delhi and
Islamabad on the Kashmir issue.
Imran Khan and Pakistan’s Washington-based
diplomats and lobbyists did not play any new card
in getting Trump to say what he did. In fact, they
played a very, very old and effective card against
which past Indian diplomacy has been quite help-
less. It’s called the “loyalty-sympathy card”. And in
the period that India has been boasting of its new
love affair with Uncle Sam, following the hugs-
and-visits stage shows and Trump’s denunciation
of Pakistan, the Pakistanis, instead of going into
an anti-American sulk, have quietly been playing
this card to the hilt. And Imran Khan played it
with a new gusto.
It’s not very complicated to people who have
seen it played before. It goes like this. The Pakis-
tani military and ISI have a bonding with the
American CIA and the military chiefs that few
other Asian nations enjoy. While Indian diplomats
indulge in moralising and intellectualising, the
Pakistanis and their lobbyists ceaselessly remind
American lawmakers and the administration that
the Americans have been ungrateful to their most
loyal and trustworthy friend and ally—Pakistan.
They remind them that while India was a Russian
“stooge” under the pretence of “non-alignment”
during the Cold War, Pakistan had joined the
SEATO and CENTO anti-Communist alliances
and even given the Americans air bases in
the country.
They remind the Americans that Pakistan had
helped open the doors for Washington to interact
with Beijing during the Nixon-Kissinger years.
They remind them that Pakistanis had martyred
themselves as fighting allies of the Americans in
helping create jehadi warriors to force the Soviets
to retreat from Afghanistan, and then helped them
in their global war against Al Qaeda. They remind
IMRAN’S TRUMP CARD
Inderjit Badhwar
U
ImranKhan
andPakistan’s
Washington-based
diplomatsand
lobbyistsdidnot
playanynewcard
ingettingDonald
Trumptosaywhat
hedid.Infact,
theyplayedavery,
veryoldand
effectivecard
againstwhich
pastIndian
diplomacyhas
beenquite
helpless.Itis
calledthe
“loyalty-sympathy
card”.
Letter from the Editor
4 August 5, 2019

the Americans that they are betraying their
very own “Frontline State”. A poor used and
abused ally.
T
o cap it all, Imran Khan played Trump like
a violin. Khan’s words were music to
Trump’s megalomaniacal ears: “I will be
asking President Trump. It’s the most powerful
country in the world, the United States. It can play
the most important role in bringing peace in the
subcontinent. You know, there are over a—over a
billion and a quarter people in the subcontinent.
They are held hostage to the issue of Kashmir.
“And I feel that only the most powerful state,
headed by President Trump, can bring the two
countries together. From my point, I can tell you,
we have tried our best. We’ve made all overtures to
India to start dialogue, resolve our differences
through dialogue. But unfortunately, we haven’t
made headway as yet. But I’m hoping that Presi-
dent Trump would push this process.”
Trump replied: “So I was with Prime Minister
Modi two weeks ago, and we talked about this
subject. And he actually said, ‘Would you like to be
a mediator or arbitrator?’ I said, ‘Where?’ He said,
‘Kashmir.’ Because this has been going on for
many, many years. I was surprised at how long; it’s
been going on a long…”
Imran: “Seventy years.”
Trump: “And I think they’d like to see it resol-
ved. And I think you’d like to see it resolved. And
if I can help, I would love to be a mediator. It
shouldn’t be—I mean, it’s impossible to believe
two incredible countries that are very, very smart,
with very smart leadership, can’t solve a problem
like that. But if you would want me to mediate
IRRESPONSIBLE
COMMENT
US President Donald
Trump’s habit of
talking from both
sides of his mouth
was evident in his
comment in the Oval
Office during Pakistan
Premier Imran Khan’s
visit to Washington
(above) that Indian
PM Narendra Modi
had requested him
to resolve the
Kashmir issue
through mediation
| INDIA LEGAL | August 5, 2019 5
pid.gov.pk

or arbitrate, I would be willing to do that.”
Imran: “President, I can tell you that right now,
it would, you will have the prayers of over a billion
people if you can mediate and resolve this issue.”
The Pakistani lobbying even has the American
media convinced that various United Nations res-
olutions call for a mediated settlement in Kashmir.
In fact, a senior journalist asked Trump at that
same press conference: “There is another security
threat in South Asia, and that is the Kashmir dis-
pute unresolved even by the United Nations and
even by the US, who voted in support of that reso-
lution in the UN. Now, are you going to make any
kind of submission and intervention, President
Trump? (Are you) going to play any role in that
Kashmir, where millions have been dead?”
Kashmiri separatists and advocates of Pakis-
tan’s position on Kashmir argue emotionally: By
denying the Kashmiris the right to self-determina-
tion and deploying its army there, isn’t India occu-
pying Kashmir by force? Those who seek media-
tion on Kashmir in order to establish a locus stan-
di for Pakistan—even as India argues that J&K is
India’s internal problem to be resolved between
the people of that state and New Delhi—forcefully
argue that the UN pledge of a plebiscite gave Pa-
kistan the legal basis for being a party to the
Kashmir dispute. They repeatedly assert that the
Islamist jehadis were created and funded by the
US and the CIA when the Soviets entered Afgha-
nistan. The Kashmiri crisis, they say, preceded the
jehadi creation. The Soviets were pushed out and
the US left Pakistan and Afghanistan in the lurch.
T
hese arguments, unfortunately for the
Indian position, appear, on the face of it, to
carry legal and emotional weight. The sanc-
tity of the UN. A faithful ally left high and dry. A
poor used and abused ally. The primary task of
Indian diplomats, I have always argued, is to
counter this historical disinformation, constantly,
consistently and credibly. Otherwise it reaches the
White House and international policy influencers
undiluted to become a handy tool with which to
justify beating India over the head and interfering
in J&K.
A textbook example of how to counter these
arguments came from political science professor
Dr Christine Fair of the Edmund A. Walsh School
of Foreign Service at Georgetown University.
Responding to a similar question from a Fulbright
Scholar, she responded:
“Have you read the UN Security Council Reso-
lution of 1948 (on plebiscite in Jammu and Kash-
mir)?” The Fulbright Scholar admitted he had not.
She admonished him: “First thing I would ask you
is to read it. Go to the UN Security Council web-
site and read that fabulous resolution. Every Pak-
istani points to it but nobody has actually read it.
Take the actual version and compare that to the
claims made by Pakistan’s per-
manent representative to the UN
and you are going to understand
your confusion.
“The resolution is actually
very clear. There were three
steps. They were sequential, and
they were conditional. The very
first step was that Pakistan was
to demilitarise to the satisfaction
of the UN body to be established.
Then, conditioned upon the UN
being satisfied that this demili-
tarisation (was complete), India
was also supposed to de-mili-
tarise with a presence being per-
mitted to defend itself against
Pakistani aggression.
“The third, both those steps
having been taken in sequence to
the preference of the UN, then
the plebiscite would be held. So
all those Pakistanis who are so
Letter from the Editor
bhutto.org
6 August 5, 2019
India’sunflinching
publicadherence
tothedoctrine
thatthereshall
notbeanythird
partymeddlingin
Kashmiraffairsis
well-known.This
positionwas
legallybuttressed
bytheSimla
Agreementsigned
byPMIndira
Gandhiand
PresidentZulfikar
AliBhuttoof
Pakistanon
July2,1972.

upset about the plebiscite that never happened,
they have their own government to blame because
Pakistan
never fulfilled the first necessary condition. So I’m
going to encourage you to read that before ever
making a fool of yourself again by presenting it in
public. So just do yourself a favor by reading
that document.
“Second, I want you to learn a little about your
own country’s Afghanistan policy. Sir, do you
know that it was Zulfiqar Ali Bhutto who began
the ISI cell in Afghanistan? It was also Bhutto
who began setting up what became the ‘Seven
Donkeys’ before even the Soviet Union crossed
over. Did you know this, sir? (Answer: No.)
“So this idea that somehow the United States
used Pakistan in some sort of effort to expel the
Soviets is a completely incorrect reading of your
own history. Bhutto, after King Zahir Shah was
ousted, and Dawood came to power began pro-
Soviet policies, driving the Islamists into Iran and
Pakistan respectively. Zulfiqar set up an ISI cell so
he could use those disenchanted and disenfran-
chised Islamists as vectors of Pakistan’s policies in
Afghanistan. Did you know that we first sanc-
tioned Pakistan in April of 1979 because of advan-
ces made in its nuclear weapons programme? If
we were so interested in sucking it into our evil
jehad designs we sure didn’t make that difficult for
ourselves because when the Soviets did cross over
we had to do a bunch manoeuvring to get a waiv-
er. And do you know that the first of that money
did not get into Pakistan until 1982 because of
that requirement to get a waiver?
“So before you go blaming the United States for
using and abusing poor Pakistan, you should fami-
liarise yourself with your own history because Pak-
istan has been instrumentalising Islamists long
before the Americans even knew what an Islamist
was. Now going to your next point about leaving
Pakistan high and dry. Let’s talk about the Pressler
Amendment. The Pressler Amendment was actu-
ally designed so Pakistan can continue proliferat-
ing, while we continue arming you, because we
had first sanctioned you in April 1979. Everyone
understood the name of this game. When we with-
drew in 1990, we withdrew. Pakistan, however,
continued mucking around with the Islamists. So
this idea that the jehad today or the Taliban today
or the Al Qaeda, this is really a grotesque empiri-
cal error…that I really don’t quite expect from
Fulbright students because everything you said is
a highly stylized re-telling that you get from
Pakistani media in your curriculum.”
Incidentally, the plebiscite was also to be con-
ducted regionally—separately for Jammu, Kash-
mir, Ladakh, Gilgit and Baltistan. But as an ana-
lyst correctly points out in an internet post, the
plebiscite/referendum is no longer valid for other
reasons as well: Because of Punjabi-speaking set-
tlers, the demographics have changed significantly
in PoK; Pakistan has ceded a part of Kashmir to
China (Shaksgam Valley); China has invested bil-
lions of dollars in Gilgit-Baltistan and even has
some troop presence there. Would Pakistan be
willing to hand over Gilgit-Baltistan to India—
even temporarily? Handing over Gilgil-Baltistan
means China and Pakistan would no longer share
any borders.
No one can force Trump to do his homework,
to read a book, or to study a position paper. But
surely, Indian diplomats and the country’s security
establishment can do better at countering pro-
nouncements such as the one made by Trump
based on historical disinformation by driving in
the home truths that are available on the record.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
DrChristineFairoftheEdmundA.WalshSchoolofForeignServiceat
GeorgetownUniversity,whilerespondingtoPakistan’spositiononKashmir,
saidthatitwasimperativeforeveryonetoreadtheUNSecurityCouncil
Resolutionof1948tofindoutthetruthandcleartheabidingconfusion.

In a progressive move, the apex court has asked
the centre to respond to the issue of shared
parenting of children in cases of separated or
divorced parents. This could be balm for those
from broken homes
ContentsVOLUME XII ISSUE38
AUGUST5,2019
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LEAD
12RTI…R.I.P.
While the government terms the changes to the RTI Act as “routine streamlining” and
rationalisation of procedures, the unseemly haste and secrecy suggest the intent is to
undermine citizens’ right to information and thwart uncomfortable questions
Let Them Thrive
8 August 5, 2019
LEGALEYE
16The Old Order Changeth
The Union cabinet recently approved a bill to scrap 58 archaic laws. Most were Acts
enacted to amend main laws. But this should not lead to repeal of good laws enacted to
ensure political accountability
SUPREMECOURT
20

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Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Cover Picture: ANIL SHAKYA
Ringside .........................10
Courts.............................11
International Briefs..........35
Media Watch ..................49
Satire ..............................50
Trouble in
Paradise
The Gulmarg land scam, which saw several
bureaucrats illegally transferring state land
to hoteliers by misusing provisions of the
Roshni Act, has seen the government cast a
benevolent eye on the accused
46
Not My Flag
A petition filed by the UP Shia Waqf Board chairman in the
Supreme Court has drawn attention to green flags with a
crescent and star hoisted on buildings in a few states,
saying these are un-Islamic and belong to the enemy
24
Orwellian
Dystopia
Many military installations and
defence facilities are being made
“leak-proof” as the Army is strictly
monitoring information security,
writes Maj Gen Ashok Mehta
26
Through a recent ruling, the Allahabad High Court has done
well to reiterate the expanding new frontiers of the right to
shelter. This broadens the mandate of Articles 19 and 21,
writes Prof Upendra Baxi
Roof on Top 28
Tentative steps towards peace are being taken by India, China,
US and Pakistan which will have a stabilising effect on a world
beset by instability and security tensions
Building Bridges
The Great Forex Gamble
The FM’s statement that the budget deficit would be financed from
international markets has created a furore as it is risky. Instead, the
government should focus on getting foreign financing into the country
ECONOMY
Politics of Tragedy
After the Sonbhadra carnage which left 10 tribals dead, UP Chief Minister Yogi
Adityanath has chosen to play the political blame game even as all opposition
parties are demanding a CBI probe
36
GLOBALTRENDS
COLUMN
MYSPACE
Harvest of Woes
With the Pradhan Mantri Fasal Bima Yojana becoming a profit-making enterprise
for private insurance companies, the Gujarat government will set up a separate
fund to compensate for crop failure
44
30
STATES
32
Cooling
Tempers
In an effort to resolve river water
disputes with Tamil Nadu and
Karnataka, Kerala, which has 44
rivers, will construct a permanent
hub in Palakkad for handling such
disputes
39
Turf Wars
The MP assembly
speaker’s directive to
government officials to
understand the problems
faced by villagers near the
Panna Tiger Reserve
highlights the constant
man-animal conflict there
42

10 August 5, 2019
“
“Don’t watch TV,
don’t read newspa-
pers. You will
be happy.”
—CJI Ranjan Gogoi
advising a lawyer on
news and comments
related to Karnataka
imbroglio in media
“It is indeed a
welcome step to see
the Prime Minister
make sincere efforts
to solve the issue
that has been linger-
ing around for more
than seven decades.
Any mediation
in conflict resolution
is not a new
approach....”
—NC President Far-
ooq Abdullah on US
President Donald
Trump’s statement
that PM Modi wanted
him to mediate on the
Kashmir issue
“Sabotage of a duly
elected government
in Karnataka carried
out by the BJP is
one of the most
heinous and subver-
sive instances of bla-
tant political horse
trading the country
has ever witnessed.”
—Rahul Gandhi, on
Twitter, after the
coalition government
fell in Karnataka
“I have not been
made (elected MP)
to clear the gutter...I
have not been made
(MP) at all to clean
your toilet. The
work for which I
have been made, I
will do with all hon-
esty....”
—Bhopal MP Pragya
Singh Thakur at a
meeting of party
workers in MP
“Did he... name Ak-
ash? There were so-
me other instances
(of indiscipline),
maybe he referred to
all of them together.
Is there a sound byte
or video of him....”
—B Raghuvanshi,
Madhya Pradesh
convenor, BJP
disciplinary com-
mittee, on PM Modi’s
criticism of BJP
legislators
“These boys who
have picked up guns
are killing their own
people, they are kill-
ing PSOs (personal
security officers) and
SPOs (special police
officers).... Kill those
who have looted the
wealth of Kashmir.
Have you killed any
of them?”
—J&K Governor
Satya Pal Malik at
an event in Kargil
“I have...never seen a
government like this.
Bills are being plan-
ned in the dead of
night and are placed
(in parliament) in
the morning. No one
is being consulted or
informed. The feder-
al structure is being
bulldozed....”
—West Bengal CM
Mamata Banerjee at
a rally in Kolkata
“A Brahmin is twice born, because of his poorva
janma sukratham (good deeds of his past life). He
has got certain distinct characteristics, clean
habits, lofty thinking, sterling character, mostly
vegetarian, a love of Carnatic music. All good qual-
ities rolled into one is a Brahmin… Such a person
should always be at the helm of affairs....”
—Kerala High Court Judge Justice V Chitambaresh,
addressing a Tamil Brahmins’ global meet in Kochi
Anthony Lawrence
RINGSIDE
I only spoke of meditation,
not mediation
Trumped....Again

Courts
—Compiled by India Legal Team
Two weeks after it decided to take suo
motu cognisance of increasing child
rape cases and appointed senior advocate
V Guri as amicus curiae to assist in framing
of guidelines, the Supreme Court ordered
the setting up of special designated courts
to deal with such cases. The Court said
these special courts will exclusively be try-
ing cases under the Protection of Children
from Sexual Offences (POCSO) Act in each
district where the number of pending cases
exceeds 100. These courts will have to be
set up within a period of 60 days and fund-
ed by the centre. The Court also asked the
centre to appoint sensitised prosecutors to
deal with child sexual assault cases. It also
directed the chief secretaries of states and
Union Territories to ensure timely submis-
sion of forensic reports in such cases. It
has given the centre 30 days’ to apprise it
about compliance with its order.
SC issues notice over
illegal sand mining
Special courts to
deal with child
rape cases: SC The Supreme Court issued notices
to the centre, the CBI and five
states on a plea which sought prose-
cution of those involved in illegal
sand mining and a ban on the prac-
tice. The plea claimed that rampant
illegal mining in Tamil Nadu, Punjab,
Madhya Pradesh, Maharashtra and
Andhra Pradesh was causing envi-
ronmental degradation. It further said
that “inaction” by the states had res-
ulted in sustainable mining practices
not being implemented, lack of an
effective mechanism to curb illegal
and indiscriminate mining and the
rampant growth of illegal operations.
It also sought a direction from the
Court to the CBI to register and
investigate cases of illegal mining.
While hearing a plea filed by the
Gujarat High Court Advocates
Association (GHCAA) against the
centre’s delay in clearing the name
of Justice Akil A Kureshi as MP High
Court chief justice, the apex court
deferred the matter to August 2. Soli-
citor General Tushar Mehta informed
the Court that the centre was con-
sidering the matter and sought two
weeks’ time in this regard. In the
plea, the GHCAA asked the
Court to direct the cen-
tre to implement the
collegium’s resolution
of May 10, recom-
mending the name of
Justice Kureshi for
the position.
ASupreme Court bench
led by CJI Ranjan Gogoi
extended the deadline of
final publication of the Nat-
ional Register of Citizens
(NRC) for Assam from July
31 to August 31. It, howev-
er, declined the centre and
Assam government’s plea
to conduct sample reverifi-
cation of the names inclu-
ded in and excluded from
the draft NRC published on
July 30, 2018. Attorney
General KK Venugopal said:
“We must be 100 percent
right. There cannot be a
speck of doubt on the entir-
ety of the NRC exercise....”
Solicitor General Tushar
Mehta said the proposed
reverification could be done
within the extended deadline
of August 31. But the Court
refused, citing a July 18
report by NRC coordinator
Prateek Hajela that reverifi-
cation had been done on a
district-wise basis during
the adjudication of claims.
NRC deadline extended to Aug 31
The Supreme Court cancelled the regis-
tration of all Amrapali group companies
under the Real Estate Regulatory Authority
Act, 2016, and the lease of its properties
granted by Noida and Greater Noida author-
ities. It also asked the Enforcement
Directorate to conduct a detailed investiga-
tion against the group for diverting home-
buyers’ money. It further directed the
National Buildings Construction Corporation
(NBCC) to complete the group’s unfinished
housing projects in Noida and Greater
Noida and hand them over to homebuyers.
The Court was acting on a clutch of peti-
tions filed by homebuyers seeking posses-
sion of around 42,000 flats booked in
Amrapali housing projects. In May, it had
reserved its verdict after hearing the sub-
missions from the authorities of Noida and
Greater Noida, Amrapali and NBCC.
SC cancels Amrapali
Group registration
Centre gets 2 weeks
to consider elevation

Lead/ RTI Amendment
HE Right to Information
(RTI) Act, as its charter
says, mandates timely res-
ponse to citizens’ requests
for information on what’s
going on in the govern-
ment. Its basic objective is to empower
ordinary citizens, promote transparency,
seek accountability from the govern-
ment and make it work for the people.
Since it came into effect 14 years ago, it
has helped expose some of the biggest
scams the country has seen.
Mystery thus surrounds the mad
rushing of the Right to Information
(Amendment) Bill, 2019, through the
Lok Sabha and its passage within three
days of its introduction. Surprisingly, it
has now also been ratified by the Rajya
Sabha after Opposition parties failed to
put up a united front. The Congress
Parliamentary Party chairperson, Sonia
Gandhi, rightly termed it as “disempow-
ering every Indian citizen” and went on
to say that RTI now stands on the brink
of extinction.
The amendment brings in changes
involving the salaries and tenures of
information commissioners in the states
and at the centre. As per the amend-
WhilethegovernmenttermsthechangestotheRTIActas“routinestreamlining”and
rationalisationofprocedures,theunseemlyhasteandsecrecyshouldnotunderminecitizens’
righttoinformationandthwartuncomfortablequestions
By MG Devasahayam
T
RTI…R.I.P.
12 August 5, 2019

ment, information commissioners—who
currently have five-year tenures (up to
age limit of 65)—will have “terms as
may be prescribed by the central gov-
ernment”, and their salaries, instead of
being on a par with those of election
commissioners, will be decided by the
central government.
Arguing that the amendment was
done to “remove some anomalies in the
Act”, the government points out that the
functions being carried out by the Elec-
tion Commission (EC) and the informa-
tion commissions (ICs) are totally differ-
ent. The EC is a constitutional body
while ICs are statutory bodies estab-
lished under the RTI Act. “We are not
interfering and will not do anything to
affect the autonomy of the institution,”
said Jitendra Singh, Union minister of
state for personnel & training. This
sounds hollow and specious. What sort
of autonomy will the ICs have once the
tenure and salary of their commission-
ers comes under the whimsical control
of the government in power?
While inaugurating the national con-
vention on the occasion of the 10th
anniversary of the RTI Act in October
2015, Prime Minister Narendra Modi
had proclaimed that the Act, by empow-
ering an ordinary citizen to question the
administration and seek information
about its actions, forms the foundation
of a vibrant democracy. He had also elo-
quently stated that this enabled the gov-
ernment to monitor its own functioning,
bringing transparency and accountabili-
ty. He then said that questioning the
government was a citizen’s right and
vital for democracy. “People should have
a right to question the government. This
will increase their faith in democracy.
We need to become proactively trans-
parent. People should not have to make
effort to get information. More openness
in government will help citizens. In this
day and age, there is no need for secre-
cy,” Modi said.
H
ow ironic that Wajahat Habi-
bullah, India’s first chief infor-
mation commissioner (CIC),
has this to say now: “It is in recognising
the critical role of the ICs that Parlia-
ment thought fit to stipulate their sala-
ries and allowances and specify their
tenure in the RTI Act itself. Parliament
framed this scheme to ensure that the
ICs would work without fear or favour
in an autonomous manner, particularly
because in nine out of 10 appeal cases,
the government or a public sector und-
ertaking is a party. The present amend-
ment demolishes it all.”
Strangely enough, the government
introduced the amendment in complete
secrecy and in flagrant violation of the
Pre-legislative Consultation Policy
which mandates public disclosure and
consultation on draft legislation. Owing
to the undemocratic method of its intro-
duction, the contents of the draft
amendments were not known to MPs,
citizens and the media till the Bill was
circulated to Lok Sabha members on the
eve of its introduction.
Eminent social activist Aruna Roy,
the force behind the RTI Act, has this to
say: “The status of information commis-
sioners was extensively discussed
FLAG BEARERS
Social activist Aruna Roy (left) and then Congress party chief Sonia Gandhi were instrumental
in leading the RTI movement and bringing about the RTI Act in 2005
Anil Shakya
Photos UNI

Lead/ RTI Amendment
during the formulation of the law, inclu-
ding in the Standing Committee. In fact,
the Committee opined, ‘IC is an impor-
tant creation under the Act which will
execute the laudable scheme of the leg-
islation…It should, thus, be ensured that
it functions with utmost independence
and autonomy.’ It recommended that to
achieve this objective, it would be desir-
able to confer on the central chief infor-
mation commissioner and information
commissioners, status of the chief elec-
tion commissioner and election com-
missioners, respectively. The commit-
tee’s recommendation was accepted and
passed by Parliament unanimously
through an extensive process of public
and Parliamentary consultation.”
The present government, within
weeks of assuming power, calls this an
“anomaly” and seeks to remove it over-
night in a stealthy manner. Why this
supersonic speed, unseemly haste and
determination to amend the law? Obv-
iously, someone is afraid of the RTI Act!
I
n the mid-1960s, there was a popu-
lar play titled Who’s Afraid of
Virginia Woolf?, a parody of the
song from Walt Disney’s The Three
Little Pigs. The story revolves around
two couples trying desperately to sup-
press a certain truth, which to their con-
sternation manages to come out, leading
to thunder and fury. In her writing,
Woolf attempts to expose the truth: all
of the things that the couples try to
cover up. When the couples sing the
song together, they make mockery of
their own fear of the truth and are
attempting to project a false image.
Do we see a parallel with the present
government and the EC? Indeed, we
should. Particularly in the context of
speculation that it is due to differences
between the EC and the ICs that the
government thought it fit to bring about
this amendment. If the objective is just
to remove any “anomaly”, it could have
been done in a routine manner in full
public view. Why this guilt, tearing
hurry and secrecy?
Therein lies the tale of the recent
Lok Sabha polls which were devoid of
basic elements of integrity. There is deep
suspicion about extensive manipulation
of electronic voting machines (EVMs)
aided and abetted by the EC itself. The
issue was serious enough to prompt 64
former civil servants (many of whom
have conducted and supervised elec-
tions) belonging to the Constitutional
Conduct Group to write to the EC, inter
alia, stating that: “The 2019 general
election appears to have been one of the
least free and fair elections that the
country has had in the past decades...In
the past, despite the efforts of criminal
elements, musclemen, and unscrupulous
politicians, the persons who graced the
EC did their best to ensure that elec-
tions were conducted as freely and fairly
as possible. In this general election,
however, an impression has gathered
ground that our democratic process is
being subverted and undermined by the
very constitutional authority empowered
to safeguard its sanctity. It was rare in
the past for any serious doubts to be
raised about the impartiality, integrity
and competence of the EC. Unfortu-
nately, the same cannot be said about
the present EC and the way it has con-
ducted the 2019 general election.”
And though suppressed in main-
stream media, there has been an ava-
lanche of allegations and charges
against the EC and several public cam-
paigns have been launched to take the
Commission to task in order to save
democracy. In the process, there will be
a spate of RTI applications to the EC
and appeals before the ICs to ascertain
facts and information in order to acti-
vate these campaigns as well as to seek
remedies through courts of law. The EC
has already started to feel the heat and
has resorted to bluff and filibuster.
A typical case is the reply received by
The Quint for their RTI query to the
“Chief Information Commissioners
could survive only because the law
prescribes their tenure. One cannot
disturb him/her until he/she completes
Thosewerethedays
A determined group of activists has
been voicing its opposition to the
amendments, unsparing in its criti-
cism of the government’s brazen
move. Among them are a few for-
mer information commissioners,
who had this to say:
THE BIG REVEALS
The Adarsh housing society (above), 2G
spectrum (right) and Commonwealth Games
(far right) scams were exposed through RTI
14 August 5, 2019

EC, seeking information and documents
on the VVPAT count data during the
Lok Sabha election: “Polling station-
wise data of Lok Sabha Election-2019 is
not available with the Commission. It
may be available with the CEOs of all
states/UTs. You may obtain information
from the office of CEOs of the states/
UTs by submitting an application under
the RTI Act, 2005, separately. Your app-
lication cannot be transferred to them as
more than one PIOs are involved u/s
6 (3) of the RTI Act, 2005.”
This absurd reply came even as the
circulars issued by the EC itself say that
all chief election officers (CEOs) are to
submit their VVPAT data to it within
seven days from counting day. So why is
the data “not available” with it?
The central information commission
order says that even if multiple PIOs are
needed to share the information, it is the
responsibility of the PIO in possession of
the RTI query to transfer it to the rest of
the PIOs. So why did they claim they
cannot transfer the request to more than
one PIO? Why is the EC attempting to
hide the massive mismatch between the
EVM count and VVPAT slips by refusing
to share this crucial data?
T
he EC also seems to be in some
sort of panic. How else can one
explain the conflicting statements
issued by it regarding the mismatch
between the EVM vote count and
VVPAT slips? On May 26, 2019, the EC
said that there was no mismatch but on
July 22, it admitted there were eight
mismatches. To boot, the EC has com-
menced a Goebbelsian mode of publicity
blitzkrieg extolling the virtues of EVMs
through paid advertisements! All these
indicate that there must be something
very rotten and there are many skele-
tons in its closet.
It looks as if after having committed
a grievous assault on democracy, the EC
is now caught between a rock and a
hard place. And the political bosses and
beneficiaries of this election have come
to its rescue to wipe out the autonomy
of ICs, only to conceal the misdeeds of
the EC. Clearly, the first is being sacri-
ficed at the altar of the latter!
The issue basically is: Should the
truth about the arbitrary, autocratic and
partisan functioning of the EC be
brought out in the open and made pub-
lic? A la Virginia Woolf, the ICs would
be for revealing the truth which the EC
is desperately trying to suppress and
cover up. When the EC mocks the ICs, it
is expressing its own fear of the truth
and is projecting a false image before
the people. So, who is afraid of the RTI
Act? Do we need a jury?
—The writer is a former Army and
IAS officer
the complete five-year term or attains 65
years of age. We would have been fin-
ished long ago had there been no such
rule in the Act,” former Information
Commissioner M Sridhar Acharyulu said.
“The government is not telling Parliament
what will be the status of information
commissioners...will that be equal to a
secretary or upper-division clerk?”
he added.
The commission should be inde-
pendent of the government because it
deals with issues wherein it directs the
administration to provide information.
After the amendment to the RTI Act, the
information commissioners will be totally
dependent on the government for tenure
and salaries, Acharyulu said.
Wajahat Habibullah, the first CIC, cla-
imed that through the amendment, the
government seeks to usurp Parliament’s
power to determine the salaries of infor-
mation commissioners and their tenure
fixed by the RTI Act at the central and
state levels. “The government kept the
amendment bill top secret and intro-
duced it in Parliament without any public
consultation. Is this how they are going
to provide information to common peo-
ple under the RTI Act?” he said.
An independent commission—in
terms of pay and tenure—can direct the
government to provide information,
otherwise withheld by the administration,
if it thinks the public should have access
to it, former Information Commissioner
Yashovardhan Azad said. “How will
information commissioners be able to
hear a common man’s plea against gov-
ernment officials if they are made subor-
dinate to the executive?” Azad asked. It
also subverts the principle of federalism,
with the centre deciding pay and tenure
of state information commissioners,
he said.

Legal Eye/ Obsolete Laws
large number of laws
always leads to a situation
where more discretion is
conferred on the enforc-
ing agencies. This is what
a committee set up by the
Prime Minister’s Office in November
2014 found. Called the Ramanujam
Committee, it was headed by R
Ramanujam, secretary to the prime
minister, and had VK Bhasin, former
secretary, Legislative Department, as its
member.
The Committee found that 115 years
before the Constitution, 2,911 central
Acts and thereafter for 66 years, 3,701
central Acts were enacted.
It felt that the issue of governance by
central Acts vis-à-vis exercise of execu-
tive power needed to be revisited in the
light of provisions of the Constitution
and today’s socio-economic context
which emphasises self-regulation and
globalisation. The Committee observed
that the executive function is not con-
fined to execution of laws; therefore, it
is erroneous to suggest that in order to
enable the executive to function in
respect of any subject, there must be a
law already in existence.
Specific legislation may, of course, be
necessary to incur expenditure of public
funds or to encroach upon private
rights, which cannot, under the
Constitution, be done without legisla-
tion. But, apart from this, it cannot be
held that in order to undertake any
Cleansing
the Statute Books
Thecabinetrecentlyokayedabilltoscrap58archaiclaws.Mostofthesewereenactedtoamend
mainlaws.Butthisshouldnotleadtorepealoflawsenactedtoensurepoliticalaccountability
By Venkatasubramanian
A
Anil Shakya

function, such as entering into any
trade or business, the executive must
obtain prior legislative sanction, the
Committee added.
In the absence of statutory provi-
sions or statutory rules or where such
rules are silent, the government is
competent to make administrative
rules. Such non-statutory rules shall to
that extent be binding on the parties,
it suggested.
O
n July 17, the cabinet approved
a bill to scrap 58 laws, which
were found to be archaic and
obsolete. The list of these laws was not
immediately available, but sources in
the government reportedly said that
most were Acts which were enacted to
amend principal or main laws. Accor-
ding to a government functionary, once
the principal Act was amended, these
amendment laws lost relevance. Their
presence in the statute books as inde-
pendent laws was unnecessary and they
were only clogging the system, the offi-
cial was quoted as saying.
An amending central Act (making
amendments to the principal Act),
according to the Ramanujam Comm-
ittee, becomes redundant in pursuance
of Section 6A of the General Clauses
Act, 1897, when all the provisions of
such amending Acts have come into
force. The committee identified 777
central Acts for repeal.
It also requested the Department of
Legal Affairs (DLA) to examine whether
the provisions of all the Constitution
(Amendment) Acts (except those which
are substantive in nature) could be
repealed in the light of Section 6A of the
General Clauses Act, 1897, read with
Article 367 of the Constitution. It said
that if so, it should indicate the Cons-
titution (Amendment) Acts which can
be repealed in whole or in part, specify-
ing the sections for partial repeal. It is
not known whether the DLA responded
to this request so far.
The DLA’s examination of such Acts
has become crucial in the wake of rep-
orts that the repeal of one such Amend-
ment Act in 2015 helped Sikkim Chief
Minister Prem Singh Tamang to avoid
disqualification on the ground of con-
viction in a criminal case. Tamang, the
president of the Sikkim Krantikari
Morcha, an ally of the BJP government
at the centre, took oath as chief minis-
ter on May 27, 2019, following the
results of elections to the assembly held
along with the recent Lok Sabha polls.
Tamang was found guilty in a corrup-
tion case in 2016, and had served a
prison sentence from August 10, 2017
till August 10, 2018, following the Sik-
kim High Court’s confirmation of the
trial court’s verdict finding him guilty.
Section 8(1)(m) of The Represen-
tation of the People Act (RPA), 1951,
seeks to disqualify a person convicted of
an offence punishable under the
Prevention of Corruption Act, depend-
ing on the sentence. If the sentence is
only a fine, the convict is disqualified
from contesting elections for six years
from the date of conviction. If the sen-
tence is imprisonment, the convict
stands disqualified from the date of
conviction and until six years after
release. This provision was inserted
through an amendment in 2003 in the
RPA by Act No 9 of 2003. The Rep-
ealing and Amending Act, 2015 (Act No
17 of 2015) repealed the whole of Act
No 9, including this crucial amendment
of the RPA. The 2003 amendment sou-
ght to disqualify not only those found
guilty under the PCA, but under the
Commission of Sati (Prevention) Act,
1987 and the Prevention of Terrorism
Act, 2002 as well. The DLA, therefore,
has to clarify whether the repeal of the
entire 2003 Amendment Act would
also wipe out the disqualification claus-
es inserted through that Act in the
RPA. If it didn’t wipe out the disqualifi-
cation clause in the RPA (Section
8(1)(m)), Tamang could not have been
sworn in as he stands disqualified from
contesting elections for six years after
his release, that is, till August 10, 2024.
As Tamang’s supporters rely on the
repeal of the 2003 Amendment Act in
2015 to contest his disqualification
under Section 8(1)(m) of the RPA, this
ambiguity in law must be clarified at
the earliest by the centre. Sikkim Gov-
ernor Ganga Prasad, according to re-
ports, obtained legal opinion before
swearing-in Tamang. His appointment
as CM is now under challenge before
the Supreme Court, while he has to get
elected to the assembly within six
months of being appointed.
In similar circumstances in 2001, the
then Tamil Nadu chief minister, J
Jayalalithaa’s appointment was quashed
by the Supreme Court because she stood
disqualified at the time of her appoint-
ment by the governor in view of her con-
viction in a corruption case. The Sup-
reme Court had held that she was not
eligible for the benefit under Article
164(4) of the Constitution which en-
ables a non-member of the assembly to
become a minister, and continue in
office for six months. Before that ends,
she must get elected to the assembly.
Tamang did not contest the recent
assembly elections, whereas Jayala-
lithaa’s nomination was rejected by the
returning officer in view of her convic-
SikkimChiefMinisterPremSinghTamang
couldnothavebeensworninashe
standsdisqualifiedfromcontesting
electionsforsixyearsafterhisrelease,
thatis,tillAugust10,2024.

tion. Both used Article 164(4) to become
chief ministers because they were cho-
sen as leaders of the parties which had
won elections. Both were disqualified
under different provisions of the RPA.
In the absence of the centre’s clarifica-
tion on Section 8(1)(m), the Supreme
Court’s hearing of Tamang’s case and its
decision on the effect of repeal of an
amending Act will hopefully end the
ambiguity surrounding the law.
The term “scavenging” or “cleansing”
of the statute books, however, requires a
closer examination because govern-
ments in power should not adopt this
seemingly desirable method to repeal
good laws which were enacted to ensure
political accountability.
Thus, the repeal of the Hackney
Carriage Act, 1879 (legislated for the
regulation and control of hackney car-
riages), Dramatic Performance Act,
1876 (when theatre was used as a medi-
um of protest against British rule) and
the Ganges Tolls Act, 1867 (which pro-
vided for collecting toll “not exceeding
12 annas” on certain boats and steamers
plying on the Ganga to improve naviga-
tion of the river between Allahabad and
Dinapore) may not be controversial.
One estimate is that between 1950
and 2001, over a hundred Acts were
repealed. In September 2014, the Law
Commission found that a large number
of Appropriation Acts passed earlier
continued despite losing their relevance
over the years.
The Commission attributed this to
the absence of sunset clauses in those
Acts when they were enacted. A “sun-
set” clause enables an Act to repeal
itself automatically after the expiry of a
certain period since its enactment,
unless renewed by a fresh Act.
O
ne reason for the continuance
of a large number of enact-
ments in the statute book is
that no systematic and regular attempt
had been made to examine these Acts
in depth for the purpose of repeal. The
20th Law Commission, in the 248th
Report, stated that if the subject matter
of a pre-Constitutional law falls in the
State List, the state government is
the competent legislature to repeal
that Act.
In 1998, the PC Jain Commission
had recommended 114 central Acts
relating to state subjects for repeal by
state governments. The Legislative
Department of the central government
intimated that 108 such Acts had yet to
be repealed.
The Law Commission, in its 248th,
249th and 250th Reports, had recom-
mended repeal of 227 Acts. Some of
these were also recommended for
repeal by the PC Jain Commission. The
Ramanujam Committee, therefore, sug-
gested obtaining legal opinion from the
DLA or the Law Officer as to whether
Parliament can by a resolution passed
by the concerned state legislature, con-
sent of the state government or in any
other way repeal them.
The Ramanujam Committee had
recommended keeping all provisions
which were repetitive in nature and
including them in a single umbrella leg-
islation by either bringing amendments
in the General Clauses Act, 1897 or a
separate legislation which would be
applicable to all existing legislation and
those enacted in future. (The object of
the General Clauses Act was to shorten
the language of future statutory ena-
ctments and as far as possible, to pro-
vide for uniformity of expression where
there was identity of subject matter.)
The Ramanujam Committee obse-
rved that Tribunal/Appellate Trib-
unals/Boards were established under
various enactments to adjudicate
the matter specified under such
central Acts.
The Committee identified 27 central
Acts under which various Tribunals, etc.,
were established. The Committee rec-
ommended revisiting of the objects and
reasons for establishing Tribunals/Appe-
llate Tribunals/Boards and exploring
alternatives for constituting additional
specialised benches of High Courts for
the subjects or the matters adjudicated
by them.
The Committee also identified 20
Acts or provisions which had not come
into force for several years since their
enactment, raising the question of
whether it makes sense to repeal them.
The Committee suggested consolidation
of two or more central Acts and identi-
fied 150 such Acts for re-enactment into
a single central Act.
Indeed, there are many proposals for
repeal of obsolete laws. Many colonial
laws are also out of tune with the spirit
of contemporary times.
Section 377 of the Indian Penal
Code, for instance, was one such law
which was read down by the Supreme
Court, but is yet to be repealed or
replaced by a better law to protect
transgender persons.
Section 124A of the IPC, making
sedition an offence, is another law
which has been repeatedly misused by
governments to protect themselves
from criticism for their omissions and
commissions. The government, there-
fore, should keep an open mind, unin-
fluenced by political prejudices exploit-
ed for electoral ends while reviewing
laws which have become obsolete
and redundant.
Legal Eye/ Obsolete Laws
18 August 5, 2019
TheRamanujamCommitteeheadedby
RRamanujam,secretarytotheprime
minister,hadrecommendedincluding
allprovisionswhichwererepetitivein
nature,inasingleumbrellalegislation.

Supreme Court/ Joint Parenting
20 August 5, 2019
HEN a couple goes on
the warpath that leads
to separation or
divorce, it is the chil-
dren who pay the heav-
iest price as they are
shattered when the court tells them to
go with the parent whom he or she
deems best. Can there be a system
where they are able to take shelter
under a joint parenting system so that
they can live with both at different
periods of time and feel more secure
and complete?
When a plea filed by Save Child
India Foundation, an NGO, came up
before the Supreme Court asking it to
issue directions that would take the
interests of the child into account when
parents are warring and living apart, the
Court did not want to hear it. It felt that
it was a matter that the government
must consider by making appropriate
laws that would make joint parenthood
possible and it was for the Parliament to
do that. But later, a bench of Justices
SA Bobde and BR Gavai agreed to hear
the plea. The bench asked the centre to
respond to the issue of shared parenting
of a child in cases of separated or divor-
ced parents.
The plea wanted the Court to ask
child welfare committees and family
Saving the Children
W
Inaprogressivemove,the
Courthasaskedthecentreto
respondtotheissueofshared
parentingofachildincasesof
separatedordivorcedparents.
Thiscouldbebalmforthose
frombrokenhomes
By Ramesh Menon
Anthony Lawrence

courts to consider the importance of
shared parenting in cases of marital
disputes or divorce so that children do
not suffer. As divorce rates are spi-
ralling, children are the most affected,
it said.
The plea voiced an oft-repeated fear
that the trauma of parents separating
would destroy not only the child’s pres-
ent but also his future as his overall
mental development and health would
be affected.
The plea made some salient points:
Children’s rights need to be respected.
A child is entitled to the love of both
parents.
In the changing sociological scenario
where warring parents have become a
common phenomenon, children are
deprived of personal relations and direct
contact with their parents on a regular
basis.
The breakdown of marriage does not
signify the end of parental responsibility.
Lexicon matters. If “child custody” is
replaced with “parenting the child”,
there will be a substantial impact.
Children suffer the most in a matrimo-
nial dispute.
Present acts like the Hindu Minority
and Guardianship Act, the Guardians
and Wards Act and the Juvenile Justice
Act are inadequate to deal with the
emotional needs of a child whose par-
ents are separated or divorced.
Instead of serving to ensure proper
parenting of the child, the present legal
framework is more focused on granting
custody to one parent.
A clear direction should be given to the
concerned courts, child welfare commit-
tees and state commissions for the pro-
tection of child rights so that shared
parenting can be enforced.
According to the United Nations Con-
vention on the Rights of the Child, the
government is bound to respect the
rights of the child whose parents have
separated (India is a signatory to it).
C
urrently, most courts hearing
divorce cases end up granting
custody of the child to the moth-
er, especially if it is a girl. The father
stands a better chance of getting custody
if it is a boy and can prove to the court
that the mother is incapable of looking
after the child. Granting custody to one
parent may not be the best idea as it
may not go well with the child who
might miss out on the emotional securi-
ty that the other parent provided. Non-
custodial parents ultimately end up get-
ting visitation rights. This also deprives
that parent of playing an effective
parental role. Child psychologists say
that alienating a child from one parent
may affect his mental health, academic
performance and induce violent or crim-
inal behaviour and, in adulthood, affect
his own marital life.
Sudeshna Saha, a Delhi-based mar-
keting professional, told India Legal:
“Joint parenting is a good idea if both
the father and the mother dote on the
child and are mature and separated in
an amicable manner. But, in most cases,
this does not happen as there is domes-
tic violence, ill-treatment of the child
and serious compatibility issues in the
divorce case. It will not be a happy situ-
ation for the child. The courts also need
to ask the child what he or she wants
before deciding on joint parenting. It
should not be forced on him or her.”
Saha is currently fighting a divorce case
and the court has granted visitation
rights to her husband to meet their
daughter twice in a month and also
spend half her vacation with him. He
has been accused of domestic violence
and other complaints.
What is crucial is that the child
should be asked if he or she is comfort-
able with joint parenting. Many children
would be devastated if forced to spend
time or live with an abusive parent who
had earlier scarred them.
Four years ago, the Law Commission
headed by Justice AP Shah, retired chief
justice of the Delhi High Court, had
called for an amendment to the Hindu
Minority and Guardianship Act, 1956,
and detailed the conditions that could
be considered before deciding the
option of joint parenting. Some of the
guidelines suggested were:
Consider if the parents are mature and
responsible.
Are they willing to reach a consensus
on what affects their children and their
welfare?
Are parents capable of jointly agreeing
on a day-to-day plan to implement their
scheme of joint parenting?
Back in April 2016, a Supreme Court
bench of Justices Kurian Joseph and
Rohinton Nariman had remarked that a
child needed both the father and
WhenthepleafirstcameupbeforetheSC,theCourtdidnotwanttohearit,sayingthe
governmentmustconsideritbymakingappropriatelawsthatwouldmakejointparent-
hoodpossible.Butlater,JusticesSABobde(left)andBRGavaiagreedtohearit.

mother while hearing a plea by
a separated couple over the cu-
stody of their young daughter.
The Court said that it
impacted a child psychologi-
cally when parents separated.
Justice Kurian Joseph had
observed that: “We want to
remind both the father and
the mother that they may fight
endlessly, but in the process
the one person who is sand-
wiched, disturbed, pained,
shocked and spoiled is their
daughter.”
M
umbai-based psychiatrist Dr
Dayal Mirchandani told India
Legal: “Ideally, joint parent-
ing is the best option. But often, there
are many conflicts that a couple goes
through and continues to do so even
after divorce. If both or one of them has
remarried or one has moved to another
city, it further complicates the issue and
joint custody becomes a problem. Every
case has to be looked at differently. One
blanket law may not help further the
interests of the child. Often, the child
becomes hostage as one parent rubbish-
es the other. The legal
system is also patriarchal
and courts often do not
even grant enough money
as alimony to the mother.
Child protection services
need to keep a constant
tab on how the children
are treated by both the
parents. Joint parenting
is a nice idea only if
it works.”
Dr Manish Kansal, a
Delhi-based psychiatrist,
too said: “Joint parenting is always good
for the child. There are differences bet-
ween the parents but that should not be
the reason for their innocent children to
suffer. Hope it works out after a new law
comes out.”
Dr Linda Nielsen, professor of Ado-
lescent and Educational Psychology at
Wake Forest University, who reviewed
54 studies on shared parenting, said
that children in shared-parenting fami-
lies fared better than children in sole
physical custody families.
Research from Sweden indicates that
young children who enjoy equal shared
parenting have a level of well-being that
22 August 5, 2019
is as good as children coming from
intact families. On the other hand, par-
ents and teachers have observed psycho-
logical problems in children living with
one parent.
In Norway, a study involving over
7,000 teenagers aged between 16 and 19
years did not show significant differ-
ences between those living in equal
shared parenting or nuclear families in
terms of their physical health, emotions
and social behaviour. Clearly, shared
parenting has its advantages. But, it has
to be looked at on a case by case basis as
the circumstances in India are varied
and complicated.
The United Nations Convention on
the Rights of the Child, 1989, and the
European Union Charter of Fun-
damental Rights, 2011, mandate that
children should be allowed to maintain
meaningful relationships with both
parents.
In India, the apex court seems to be
moving in the same direction. It could
be balm for many young, hurt souls.
Theway
forward
Countries that
have joint par-
enting systems:
South Africa
Australia
The Netherlands
United Kingdom
United States
In2015,theLawCommission
headedbyJusticeAPShahhad
detailedtheconditionsthat
couldbeconsideredbefore
decidingonjointparenting.
Supreme Court/ Joint Parenting

Supreme Court/ Flag Row
24 August 5, 2019
HE UP Shia Waqf Board
chairman, Syed Waseem
Rizvi, has left no stone un-
turned to endear himself
to the ruling BJP by sing-
ing its tunes on various
sensitive issues like the Ram temple and
linking madrassas with terrorism.
Being at loggerheads with another
Shia cleric, Kalbe Jawwad, Rizvi is
known for his controversial statements.
Some of them are that the Babri Masjid
is a blot on Indian soil; the mosque at
the disputed site is against Islamic prin-
ciples; if a Ram temple is not built in
Ayodhya, “I will self-immolate in front
of the Ram temple gate”; madrassas
should be closed down as they promote
terrorism and Muslims
should hand over nine dis-
puted mosques to Hindus.
He even called the All-India
Muslim Personal Law Board
a “terrorist organisation”. His
remarks on homosexuality
and Islam led to his expul-
sion from the community.
Now pained at the “grow-
ing strife between two major
communities of India”, Rizvi
filed a PIL in the Supreme
Court in April last year after
seeing “scores of green flags
with crescent and star,
resembling Pakistani politi-
cal party Muslim League
flags…hoisted on hundreds
of buildings, shops…Muslim religious
places, including mosques” in Mumbai
and a few other states. Claiming that
these green flags with the crescent and
star were enemy flags and “un-Islamic”,
the petition, which was taken up on July
20, sought a ban on their hoisting. The
flag is the officially registered flag of the
Pakistan Muslim League (PML), a polit-
ical party of an enemy country, but
Indian Muslims treated it as an Islamic
flag, the petition argued. As these flags
are not Islamic flags, they will come
under the category of enemy flags, the
petitioner said.
The PML’s political flag has become
a religious flag in India, it said, and
hoisting them causes communal ten-
sion. They should be banned to preserve
harmony, the petition argued. It also
sought action against those hoisting
flags similar to that of the PML which
belonged to an enemy country. The peti-
tion submitted that Pakistan was an
enemy country and was responsible for
a series of terror attacks on India and
has been promoting and propagating
cross-border terrorism. “Our country
remains vulnerable to the hidden att-
acks by the Pakistani intelligence agen-
cies through their militant network
which is very active in our country,” the
petition, which was filed under Article
32 of the Constitution, said. It also said
that hoisting wrong flags, believing
them to be religious flags, required the
Raising a Red Flag
ApetitionbytheUPShiaWaqfBoardchairmanhasdrawnattentiontogreenflagswithacres-
centandstarhoistedinsomestatesandsaidthesewereun-Islamicandbelongedtotheenemy
By Atul Chandra in Lucknow
FLAGGING CONTROVERSY
The petitioner said hoisting of
the green flag with a crescent
and star amounted to sedition
T
UNI

intervention of the government and
its agencies.
Green flags with a crescent and star
were also raised at Rahul Gandhi’s rally
in Wayanad in April after he filed his
nomination for the general election. BJP
leaders and social media trolls attacked
him for having Pakistan supporters rais-
ing that country’s flag, although these
flags were distinctly different. A fact
check showed that the flags belonged to
the Indian Union Muslim League
(IUML), which was formed in Chennai
in 1948, but the BJP’s propaganda
machinery distorted the fact.
T
he contentious flag in UP, accor-
ding to the petition, came into
existence with the formation of
the Muslim League in 1906. Although
the Jinnah-led party was dissolved in
1947, “it still flies prominently at various
places in India”. After Partition, Pak-
istan adopted the same flag with a
minor addition of a vertical white strip
on the hoist side, but the PML retained
the same flag. Prior to that, Turkey’s flag
had a star and crescent on its flag but on
a red background.
Rizvi said that the IUML flag was
different from the PML’s. According to
available images, the IUML flag has the
crescent and a star in the top left corner
near the hoist, while the PML flag has
the two objects almost in the middle.
The petition said that it was “relevant to
state that the crescent and star in a
green backdrop have never been part of
any Islamic practice and it does not have
any role or significance in Islam”. Dur-
ing the time of Prophet Muhammad
“early Muslim armies and caravans flew
simple solid coloured flags, generally
black or white, for identification purpos-
es,” said the petition.
The Prophet, it said, used flags of
different colours in different campaigns.
“One of the flags used by the Prophet,
the Black Standard was known as al-
Uqab (the eagle). It was pure black
without symbols or markings,” but the
Prophet entered Mecca holding a white
flag, the petition said. Muslim clerics,
however, associate the green flag
with Islam.
Rizvi argued that “crescent and stars
were worshipped like God before Islam
came into being”, but the tenets of the
Holy Quran “prohibit the worship and
obeisance to sun and moon”. Verse 37 of
Chapter 41 categorically states that
Muslims must not worship the stars and
the crescent, the petition said.
A translation of the verse provided in
the petition says, “And the night and the
day, and the sun and the moon (all the
phenomena and objects you see in the
universe) are among His signs (guiding
to His absolute Oneness). Do not
prostrate in adoration of the sun or the
moon, but prostrate in adoration of
God, Who has created them if it is in-
deed Him you worship.”
This verse, the petition argued, “clar-
ifies all doubts on the subject as it cate-
gorically states that no one, who accepts
the Islamic faith, is required to prostrate
before or accept the crescent and moon
as the symbols of Islam”.
Arguing that hoisting of the green
flag with a crescent and star “by a hand-
ful of greedy and opportunist people”
amounted to sedition, Rizvi said that
the act “falls within the ambit of
Section 124A, 153, 153A of IPC”. These
sections relate to offences of sedition
and those of promoting enmity between
different groups.
Maulana Khalid Rashid Firangi
Mahali, a prominent Sunni cleric, coun-
tered Rizvi’s argument and asserted that
the green flag was being used from the
time of the Prophet and it is an Islamic
flag. Muslims from any country carry
green flags, he said. “It is a frivolous
petition,” Khalid Rashid said. A senior
journalist, Afsar Husain, said that Islam
has no flag, but the crescent and the star
were a symbol of Islam. He alleged that
Rizvi was being patronised by the BJP
government which is why he kept rais-
ing contentious issues.
A bench headed by Chief Justice
Ranjan Gogoi has sought the govern-
ment’s reply on the issue and asked
Solicitor General Tushar Mehta to revert
with a proper response in two weeks.
SyedWaseemRizvi(left)saidthat
theIndianUnionMuslimLeague’s
flag(bottomleft)wasdifferent
fromthePakistanMuslim
League’sflag(bottomright).The
IUMLflaghasthecrescentanda
starinthetopleftcornernearthe
hoist,whiletheotherflaghasthe
twoobjectsalmostinthemiddle.

tently exchanges hands, which then is
liable to misuse. A well-known case is of
a brigadier who innocently took photo-
graphs of operations maps which had
sensitive military deployments marked
on them, which he later transmitted to
his own brigade headquarters on
WhatsApp. The designated staff officer
in his headquarters passed on the opera-
tional deployments to lower formations,
thereby violating the sacrosanct princi-
ple of sharing information on need-to-
know basis.
Recently, a Delhi think tank which
was “looking back into the future – 20
years after Kargil” invited the IAF and
army commanders who had fought the
Kargil battle to share their experience.
Candidly, an IAF commander said that
the army withheld information attribut-
ing it to lack of trust. This presents the
dilemma of rational marking of red lines
in information sharing. But the infor-
mation dissemination process should
HE Indian military is sei-
zed with the need for
heightened security aware-
ness, especially information
security. Very strict moni-
toring and severe penalties
are to be imposed on breaches in infor-
mation security related to classified in-
formation. The Official Secrets Act, 1923
which was to have been streamlined and
made contemporary in the light of exist-
ing challenges (and not colonial era
threats) has not been brought up to
speed. Many military installations,
headquarters of formations and defence
facilities are being made “leak-proof”
with layered checks and cell phones
taboo inside sensitive military facilities.
Last month, an army command
headquarters held a seminar on a neigh-
bouring country which falls in its opera-
tional jurisdiction. The seminar was ela-
borate even by army standards and res-
tricted to senior officers, colonels and
brigadiers upwards. Within hours of the
commencement of the seminar, hackers
from Pakistan and China—allies higher
than mountains and deeper than
oceans—were at work from as far away
as Belize and Haiti in the Caribbean and
South America, to get a peek into the
seminar. I learnt from officers tracking
the hackers that this was normal prac-
tice for our enemies to extract informa-
tion and sometimes disrupt the net-
works. This electronic espionage is
being done to compensate for barriers
imposed on operations of their agents.
In the case of Pakistan, as infiltration
across the LoC has become more haz-
ardous, ISI is resorting to finding pas-
sage for its agents across the open India-
Nepal border where a number of terror-
ists and intelligence operators have gone
through. Soon after Kulbhushan Jadhav
was apprehended by ISI in Iran’s Balu-
chistan, R&AW tried to abduct a retired
Pakistani Lt Col who was on the loose
in Kathmandu.
Hacking of military facilities is in-
creasing, the latest victim being the
accounts department of the Army which
is responsible for disbursing pay and
pensions of serving and retired person-
nel. Other departments have also been
struck. The IAF and Navy are more suc-
cessful in countering and minimising
losses and damage of data due to enemy
hacking operations.
The latest ban order to the army
rank and file on use of social media by
Army Headquarters (AHQ), New Delhi,
came after a series of security breaches
perpetrated by cameras in smart pho-
nes. It is common these days at think
tanks to watch information seekers click
their cameras to take pictures of slides
of any PowerPoint presentation. Many a
time, medium grade but classified infor-
mation slips through. But when this
occurs in operations rooms of active for-
mations, sensitive information inadver-
Column/ Army Information Security Maj Gen Ashok Mehta
26 August 5, 2019
T
Photos: UNI
SPREADING AWARENESS
Army chief General Bipin Rawat addressing a
seminar on cyber security in New Delhi
Big Brother is Listening
Manymilitaryinstallations,headquartersofformationsanddefencefacilitiesarebeingmade
“leak-proof”asthearmyisstrictlymonitoringandimposingpenaltieswheretherearebreaches

not lead to quarantining another service
from operational information. In the
1965 India-Pakistan war, the air chief
said he did not get the information
on time.
Following the mishap in the opera-
tions room of a formation headquarters
by a brigadier-level officer, AHQ issued
these instructions: “No Indian army
personnel shall be part of any large
group(s) on internet-based messen-
ger/chat/email services. One to one mes-
saging, however, is permitted in a
closed-knit group where members/sub-
scribers are those whose credentials can
be ascertained may be allowed.”
I
n my several conversations with
serving army officers recently, I dis-
covered an acute sense of informa-
tion security consciousness which was
absent even a decade ago because of
advanced digital technology not being
available then. Military officers are loath
to share their emails and instead pass
on the coordinates of their spouses for
security reasons.
It has become extremely difficult to
communicate with serving army officers
on cell phones as these are jammed in
all major headquarters. Landlines are
not accessible anymore by outsiders.
Service officers wishing to communicate
from headquarters outside have to go
through the military exchanges. In some
army stations/cantonments, telecommu-
nication towers have been rejigged to
prevent serving officers from using their
cell phones. But maybe I am exaggerat-
ing. My own efforts this month in estab-
lishing contact with serving officers in a
big cantonment have failed. I have to
send a text message before the person
concerned calls back through the mili-
tary exchange.
AHQ justified the orders issued by
the Military Operations Directorate. It
said: “The rampant use of personal IT
devices especially smart phones and
other messaging services including
WhatsApp for exchange of official infor-
mation was identified as the primary
source of pilferage of information.”
The use of WhatsApp to transmit
classified information is a breach of
operational security. Even if information
sent on WhatsApp is encrypted, the cell
phone handset is vulnerable to tap-
ping/interception.
The current debate over 5G mobile
technology which has the potential to
connect India with the fourth industrial
revolution has one major snag: India’s
over-reliance on foreign players manu-
facturing telecom equipment as our own
Make in India industry has failed to
take off. One of the 5G service providers
is the Chinese Huawei which will have
inevitable security implications—the
kind that forced US President Donald
Trump to blacklist it. India is going
ahead with trials and spectrum auction
over the next 100 days. But national
security concerns will not be ignored.
A special tri-service agency for inter-
net governance and cyber security is to
be set up under the Integrated Defence
Staff. Lt Gen Rajesh Pant, a former Sig-
nals Corps officer, was appointed Na-
tional Cyber Security Co-ordinator and
is likely to produce India’s cyber security
strategy policy next year. The National
Cyber Security Coordination Centre will
handle cyber security intelligence and
mitigate online threats. Cyber security,
online and social media will play pivotal
roles in future wars even as counter-ter-
rorism and left-wing extremism will be
India’s primary internal and external
security challenges.
Besides, high-tech, practical prob-
lems will continue to worry the army. In
January 2003, two Indian soldiers were
beheaded by Pakistan’s Border Action
Team in Mendhar sector of Rajouri.
Even before the Brigade and Divisional
Headquarters could verify the details of
the incident, one of the surviving mem-
bers of the patrol took a picture of the
brutalised soldier on a cell phone and
passed it on to a friend who gave it to a
journalist. The incident was on social
media in no time even as intermediary
headquarters remained in the dark.
That is why the digital camera is at
times compared to a suicide bomber.
Disabling intercom towers, passing
ban orders and enforcing other disrup-
tive measures are unlikely to ensure
misuse of information. Only an under-
standing of the fundamentals of nation-
al and military security, including infor-
mation security, will engender the cul-
ture to covet and protect these vitals.
Big Brother is not only watching but
also listening.
—The writer has fought in all the
wars after 1947 and was Commander of
the IPKF (South) in Sri Lanka
Inmyconversationswitharmyofficers,I
foundanacutesenseofinformation
securityconsciousness,absentevena
decadeagobecauseofadvanceddigital
technologynotbeingavailablethen.
INNOCUOUS
ACTION?
A soldier
captures visuals
of a damaged
vehicle after a
militant attack on
an Army convoy
in Srinagar

My Space/ Housing for the Impoverished Prof Upendra Baxi
28 August 5, 2019
USTICE Surya Prakash
Kesarwani of the Allahabad
High Court has added a new
chapter in the interpretive histo-
ry of Article 21 of the Constitut-
ion, when he affirmed in Rajesh
Yadav v State of UP (July 1, 2019) that
the State had a duty to the petitioners
corresponding to the right to shelter. In
this, the Allahabad Court followed a
binding decision of the Supreme Court
in the 1977 Olga Tellis v. Bombay
Municipal Corporation, most valiantly
argued by Indira Jaising. The Court
ruled (as per Justice Yeshwant Chand-
rachud) that “slums which have been in
existence for a long time, say for twenty
years or more, and which have been
improved and developed will not be
removed unless the land on which they
stand or the appurtenant land, is
required for a public purposes, in which
case, alternate sites or accommodation
will be provided to them”. Olga Tellis
strictly dealt not with the rights of the
pavement dwellers but with their pow-
ers to encroach on public lands, which
the Court denied, or at best only upheld
for slum dwellers who have occupied
public land for 20 years or more.
I have always written and said that
we still await, in strict law, a judgment
on the right to shelter under Article 21
because I consider a legal judgment to
be a unity between judicial reasoning
and result. Disunity reigned judicial dis-
course in this case and whatever actual
relief that was meagerly available was
more due to the fasting unto death by
activist film star Shabana Azmi (as late
as September 4, 2018, she said that “if
we leave the affordable housing to the
private sector, we are in deep trouble”)
than from the normative discourse of
the Supreme Court. But courts and
commentators have resolutely bypassed
my view, thus installing Olga Tellis as
the font of the right to shelter and hous-
ing. I have been thus been proved wrong
even in my studied opinions!
The right to housing and shelter are
primarily derived from Article 21’s rights
to life and liberty (as described recently
in my contribution to India Legal, April
8, 2019, issue). There are not too many
decisions outlining the contours of the
right to shelter, according to Article
19(1)(e) guaranteeing the right to resi-
dence and settlement. These rights are
as important as the rights contained in
Article 21.
Justices K Ramaswamy, S Mohan
and N Venkatachala ruled in P.C.Gupta
v. State of Gujarat (1955Supp (2)SCC
182) that these rights will “remain more
a teasing illusion unless the State pro-
vides them the means to have food,
clothing, and shelter so as to make life
worth living with dignity”. What rema-
ins equally important is the invocation
of Article 11(1) of the International Cov-
enant on Economic, Social and Cultural
Rights. Justice Kesarwani also invoked
this ruling which clearly held that it “is
the duty of the State to construct houses
at reasonable cost and make them easily
accessible to the poor” as per the “prin-
ciples...expressly embodied and inbuilt
in our Constitution to secure socio-
economic democracy.” The current
Pradhan Mantri Awas Yojana seems
based on these very principles, and the
perspectives of international and consti-
tutional human rights to shelter and
housing would be helpful. But the
Yojana has not yet had the benefit of full
judicial inputs through the processes of
A Basic Human Right
TheAllahabadHChasdonewelltoreiteratetheexpandingnewfrontiersoftherighttoshelter.
TherealisationofthefullesthumanflourishingisthusthebroadmandateofArticles19and21
J
LEFT IN THE LURCH
A slum-dweller rests amid the rubble of her
home, demolished by the authorities in Delhi
UNI

social action adjudication, unlike some
other schemes aspiring to promote
nutrition for the impoverished (such as
the Antyodaya Anna Yojana, Sampoorna
Grameen Rozgar Yojana and the public
distribution system).
Perhaps, the South African Constitu-
tion goes the farthest in declaring: “Eve-
ryone has the right to have access to ad-
equate housing”, and makes this enunci-
ation justiciable. Of course, it also says
that the “state must take reasonable leg-
islative and other means, within its
available resources, to achieve the pro-
gressive realization of this right”. But
there is also an additional guarantee
that no one “may be evicted from their
home, or have their home demolished,
without an order of court made after
considering all the relevant circum-
stances” and no “legislation may permit
arbitrary evictions”. This has enabled the
South African Constitutional Court to
exercise more superintendence than the
Indian Supreme Court, though it has
been amongst the finest constitutional
pedagogues.
We must also recall that the UN
Committee on Economic, Social and
Cultural Rights in its General Comment
4, adopted in 1991, stated that “instan-
ces of forced eviction are prima facie
incompatible with the requirements of
the Covenant and can only be justified
in the most exceptional circumstances,
and in accordance with the relevant pr-
inciples of international law”. The Ind-
ian Bar should not be found wanting,
in this recourse to international
conventions and global comparative
human rights law, at least as aid to the
construction of Article 51 of the
Constitution which enjoins respect for
international law.
The Allahabad decision would not
have been remarkable had it merely
implemented the earlier directions and
decisions of the Supreme Court of India.
But Justice Kesarwani goes further to
say that “shelter for a human being is
not a mere protection of his life and
limb”. Rather, it is a “home” providing
“opportunities to grow physically, men-
tally, intellectually and spiritually”.
Thus, the right to shelter “includes ade-
quate living space, safe and decent
structure, clean and decent surround-
ings, sufficient light, pure air and water,
electricity, sanitation and other civic
amenities like roads etc. so as to have
easy access to … daily avocation”.
Further, it extends to “all the infrastruc-
ture necessary to enable them to live
and develop as a human being”. Right to
shelter stands again declared as “an
essential requisite to the right to live…
deemed to have been guaranteed as a
fundamental right”.
T
his valiant judicial enunciation,
one hopes, will reach the consti-
tutionally impaired hearing of
the administration, thus far making the
tasks of human rights defenders in areas
such as forced eviction, night shelters
and slum dwellers even more uphill.
Just to ensure this, Justice Kesar-
wani also holds the PIL petitioner liable
for exemplary damages “for filing this
frivolous petition as PIL and abusing
the process of court”. The damages of
`10,000, however, are puny compared
to the grave violation of rights involved.
These included not just the right to
shelter involving Articles 19 and 21 but
also the Directive Principles contained
in Article 38 and 39 (duties of creating
and maintaining a just social order,
which redistributes the resources of the
society for the common good) and the
Preamble. Yet, the award of exemplary
damages makes a good deal of constitu-
tional sense in principle.
In fact, in this case, the residential
lease of very small plots was granted to
poor and landless agricultural labourers
of backward classes by the competent
authority in 1995; these respondents
(No 6 to 10) constructed their houses
over it and lived there (since 1995). The
Court also held that they have the pro-
tection of Section 67A of the Code,
2006, which “provides a preference in
allotment to agricultural labourer or a
village artisan residing in the Gram
Sabha and belonging to a scheduled
caste or scheduled tribes or other back-
ward classes or a person of general cate-
gory living below poverty line”. That
Section disables the Court from issuing
any direction to the respondent authori-
ties to remove the shelter (houses) of
respondents. Yet, the question arises as
to why such a petition was allowed in
the first place, despite it “suppressing
the material facts particularly those
mentioned in paragraphs 4 and 5 of the
counter affidavit” of the learned stand-
ing counsel.
The right to shelter stands again
declared as “an essential requisite to the
right to live… deemed to have been
guaranteed as a fundamental right”.
The realisation of the fullest human
flourishing is thus the broad mandate of
Articles 19 and 21.
The routine admission of a PIL peti-
tion is as dangerous for constitutional
justice as the routine denial of SAL (a
social action litigation) petition. Our
courts will do well to maintain this dis-
tinction and ensure that it is always
observed through the jurisdictional hier-
archy.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
ActivistfilmstarShabanaAzmihas
beenonaprotestfastandhassaidthat
“ifweleaveaffordablehousingtothe
privatesector,weareindeeptrouble”.

Tentativestepstowards
peacearebeingtaken
bythefourcountries
whichwillhaveastabi-
lisingeffectonaworld
besetbyinstabilityand
securitytensions
By Seema Guha
Global Trends/ India-China-Pakistan-US Ties
30 August 5, 2019
HERE is a sliver of hope
that the dynamics of India’s
immediate neighbourhood
could change for the better.
Whether it is China or Pak-
istan, things seem to be
looking up. Though there is many a slip
between the cup and the lip, India-Chi-
na ties are back on an even keel. Exter-
nal Affairs minister S Jaishankar is to
visit China in August to prepare for
another informal Wuhan-type summit
between PM Narendra Modi and
President Xi Jinping, this time in India.
The news is also encouraging from
Washington where Pakistan Prime
Minister Imran Khan met US President
Donald Trump. The meeting between
them went off well, with Trump saying:
“To be honest, we have a better relation-
ship with Pakistan right now than we
did when we were paying that money.
But all of that can come back depending
on what we work out...and I think at the
end of this, the end of a very short time,
we can have a very great relationship
with Pakistan.” Trump also held out
hope that military aid could be resumed
and investments by American compa-
nies encouraged if things panned out
well. His outreach to Pakistan has much
to do with the fact that he wants peace
in Afghanistan and to get US troops out
of harm’s way there before elections next
year when he faces a tough Democratic
challenge. So for now, the US needs
Pakistan and Imran Khan needs the US
to revive its dwindling economy.
Pakistan is under pressure from the
Financial Action Task Force, where
there is the possibility of getting black-
listed by October. Having the US on its
side will help Khan immensely. The
arrest of Mumbai terror mastermind
Hafiz Saeed, as well as a crackdown on
nearly 20 terror camps in PoK is all
good news for India, provided it lasts.
However, Trump’s claim, in his usual
hyperbolic style, that Modi had asked
him to mediate on Kashmir was a
damper. That was immediately rejected
by the external affairs ministry. No one
would believe that any Indian prime
minister would ever ask for third-party
intervention in Kashmir. Modi may have
asked Trump to put pressure on
Pakistan to act against militant outfits
there. Delhi has been saying that to
every country which wields influence in
Islamabad. This includes the US, China,
Saudi Arabia, UAE and those in the EU.
India should welcome the easing of
tension between the US and Pakistan. It
is hardly likely that the US would revert
to the bad old days when it would back
every claim made against India by
Pakistan. The world is now aware of
Pakistan’s doublespeak and India is in a
much better position to combat
Islamabad’s propaganda. Trump can use
his good offices to push both countries
T
Photos: UNI
Indianeedsapeacefulneighbourhoodto
concentrateonrevitalisingthe
economyandcreatingjobs.Asecure
bordercanhelpthegovernmentfocus
onwhatisimportant.
Hope
Flickers

towards talk, sorely needed to stabilise
the region. Normal relations with Pak-
istan are a must for the development of
both nations.
India needs a peaceful neighbour-
hood to concentrate on revitalising the
economy and creating jobs. Empty
nationalistic rhetoric is not enough and
Modi knows it. A secure border can help
the government focus on what is impor-
tant. China realised it long ago when it
began to resolve its border disputes with
all neighbours. The India-China bound-
ary dispute is an exception. After the 73-
day stand-off in Doklam in 2017, it is
imperative that the two countries make
sure that such incidents do not recur.
Wuhan helped to defuse the tension.
But the relationship has not reached
even a quarter of its full potential.
When Xi comes to India, possibly
Varanasi, for a follow-up meeting with
Modi, it is imperative to ensure that
such incidents do not disturb the
rhythm of normalising the border. Des-
pite the frequent intrusions across the
Line of Actual Cont-
rol, not a single shot
has been fired by
either side since the
leaders of the two
countries began
negotiating a settle-
ment of the boundary
dispute.
In Beijing,
Jaishankar will hold
talks with State
Councillor and
Foreign Minister
Wang Yi during the
informal summit.
Afghanistan, Iran
and the oil crisis will
all figure in the discussions. Enhancing
people-to-people contact and expanding
cooperation in trade and investment will
be major issues. Opening China’s mar-
ket for Indian pharma and agricultural
products will be a key demand from
Modi. The fate of Huawei, the Chinese
telecom giant accused by the US of
working directly with the Chinese gov-
ernment, will certainly come up. The US
is hoping to persuade the world not to
give business to the Chinese company.
India is mulling what to do.
Delhi hopes to roll out the 5G spec-
trum by 2020 and has called for propos-
als. It has so far received six proposals,
including from two Chinese companies,
Huawei and ZTE.
A
ccording to Ravi Shankar
Prasad, minister for telecom, a
panel would look into security
issues. Huawei’s technology is excellent
and costs less than other global vendors,
but it will not be allowed to operate in
sensitive border areas. Since the 1962
war, Indians are suspicious of China.
That mindset has not changed much.
Add to this the close friendship between
Pakistan and China and there is histori-
cal baggage which has to be tackled. But
this is a time of unprecedented change.
The global order which was in existence
since World War II with free trade and
liberal values is crumbling and a new
protectionist order is being encouraged
by Trump himself. Add to this the gath-
ering war clouds in the Persian Gulf
triggered by the US desire to redraw the
power equation in West Asia. Any kind
of military confrontation would send oil
prices soaring, affecting the world econ-
omy, especially in developing nations
like India and China. Modi and Xi could
find much ground to cover. Modi 2.0
has set its ambitions high and promised
to work for a $5 trillion economy and
hopes to lay the foundation for that in
its current term.
Most analysts, however, are not as
optimistic and the forecast is dire with
manufacturing slowing down, exports
dwindling and oil prices expected to rise.
The ongoing trade war between China
and the US, two of the world’s largest
economies, is showing no signs of abat-
ing despite trade talks that have shown
little progress. Overall, both Modi and Xi
will try to push relations forward.
India and Pakistan will also be under
much pressure to start talking. Every
major power wants lowering of tensions
between the two nuclear powers. Unless
there is another terror strike, India and
Pakistan are likely to take up the stalled
dialogue. Delhi should be confident
enough not to be rattled. With a peace
deal with the Taliban uppermost for
Trump, there will be constant pressure
on India to improve ties with Pakistan.
Modi will not be averse to that if he is
convinced that Pakistan will crack down
on terror. For the moment, Pakistan will
clean up its act, but for how long rem-
ains to be seen.
DEFUSING TENSION
(From facing page) US
President Donald Trump
with Pak Prime Minister
Imran Khan at the White
House; Prime Minister
Modi with Chinese
President Xi Jinping in
Wuhan in April 2018

Economy/ India’s Debt
32 August 5, 2019
N the 2019 budget, the finance min-
ister announced that the govern-
ment would increase its borrowing
in the international market. This
was being done to avoid the “crowd-
ing out” effect—a phenomenon
where the government borrows money
that could otherwise have been borrowed
(and used more productively) by the pri-
vate sector. The ubiquitous Pareto prin-
ciple, also called the 80/20 rule, drives
India’s savings and investment—80 per-
cent of the nation’s savings are used by
the government and invested in activities
that produce only 20 percent of the eco-
nomic growth, while the private sector
produces 80 percent of India’s GDP from
only 20 percent of savings.
The government is proposing to raise
$10 billion in sovereign debt from for-
eign markets and about $14.5 billion in
credit for millions of its small firms thr-
ough foreign lenders like Germany’s
state-owned development bank KfW
Group, the World Bank and some Cana-
dian institutions. These lenders want
the government to guarantee these loans
since many of these small firms lack
proper financial information which
makes it difficult to assess their credit
risks. If the companies cannot pay back
their foreign exchange denominated
debt, the government would be on the
hook for its repayment.
The government’s decision to borrow
in international markets has created a
furore, especially among ex-RBI gover-
nors who have unanimously condemned
the idea. Their main apprehen-
sion is the increased risk asso-
ciated with foreign currency
borrowing. These concerns are
legitimate and they have histo-
ry to back them up.
The 1997 Asian economic
crisis, which devastated many
East and Southeast Asian
countries, was not caused by
weak fundamentals. Like
India, the East Asian countries
had strong macroeconomic
fundamentals—good fiscal dis-
cipline, low inflation, high sav-
ings rates, rapid growth, high
reserves, and, in several cases,
modest current account deficits. The
source of their problem was their exter-
nal debt—in particular too much foreign
currency debt relative to domestic cur-
rency debt, and too much short-term
relative to long-term debt. Also, the
structure of financial claims involved
too much debt (borrowing) relative to
equity (FDI investment). The Latin
American debt crisis of the 1980s was
also the result of governments running
large fiscal deficits and financing them
by sovereign borrowing in international
capital markets. (The PMO has asked
the finance ministry to relook at the
Sovereign Bond Plan)
Most governments spend more than
they collect in revenue, and this deficit
is funded by borrowing from capital
The Foreign Hand
TheFM’sannouncementthatthebudgetdeficitwouldbefinancedfrominternationalmarkets
hascreatedafuroreasitisrisky.Instead,thegovernmentshouldfocusongettingforeign
financingintothecountry
By Sanjiv Bhatia
I
FISCAL BALANCING
Finance Minister Nirmala
Sitharaman on the way to
present her maiden budget
Anil Shakya

markets. As governments the world over
get bigger and their reach increases,
their debt has also increased. In 2018,
the debt of all governments globally was
$66 trillion, which is roughly 80 percent
of global GDP. Twenty years ago, it was
half—around 40 percent of global GDP.
Politicians have learnt to ingratiate the-
mselves to voters by providing increas-
ing amounts of subsidies and welfare
support. As money does not grow on
trees, the government ends up borrow-
ing it and sucking up savings that would
otherwise have been employed to pro-
duce goods and services and increasing
the economic welfare of the nation.
The table above shows the total debt
for select countries. Countries are awash
in debt. The IMF Global Debt database
shows that in 2017, global debt (both
public and private) reached an all-time
high of $184 trillion in nominal terms,
the equivalent of 225 percent of global
GDP. Ironically, the most indebted
economies in the world are also the
richer ones. Advanced economies have
an average debt of 266 percent of GDP,
while the average for emerging
economies (which include India and
China) is 168 percent of GDP and 77
percent of GDP for the low-income
countries. India’s total debt is around
$2,602 billion, which is 126 percent of
its GDP. Japan’s debt is the highest in
the world at a whopping 395 percent of
its GDP.
But how can a country like Japan
sustain debt levels which are consistent-
ly above 200 percent of the GDP, while
in 2015, Ukraine defaulted when its
debt was merely 30 percent of the GDP?
While the size of the debt matters, the
ability to make the payments is even
more important. Most of Japan’s debt is
internal, held by its citizens, whereas
Ukraine’s debt was owed mostly to for-
eign creditors.
A country’s debt profile has two
dimensions, the magnitude of the debt
and its composition. India’s debt at 126
percent of its GDP is high but within
the range for emerging economies.
While private debt is larger than public
debt for most countries, a majority of
India's debt, 57 percent, is debt incurred
by the government.
The second issue is the composition
of this debt. There are two kinds of debt,
internal debt, which is money owed to
the citizens of the country, and external
debt which is owed to foreigners.
External debt is rupee denominated if
foreign investors buy bonds in India or
the government and Indian companies
issue bonds overseas that are denomi-
nated in rupees (Masala bonds, for
example, are rupee-denominated bonds
issued by Indian companies). The serv-
icing of this debt is done in Indian
rupees, so the investor bears the curren-
cy risk. But if the external debt is
denominated in a foreign currency, the
risk associated with currency fluctua-
tions is borne by the issuer.
L
et’s assume a foreign investor
buys a one-year bond in India
yielding seven percent. If at the
end of the year, the rupee depreciates by
four percent, his take-home return is
three percent. The more the rupee
depreciates, the lower his eventual
return. The investor bears the currency
risk for this debt. Now assume the
Indian government issues a one-year
dollar bond to take advantage of lower
interest rates overseas. Assume the
interest on this bond is three percent,
and by year-end the rupee depreciates
four percent. Then the real cost to bor-
row for the government is seven per-
cent. The greater the rupee deprecia-
tion, the higher the cost of this external
debt to the government—the currency
risk in this case is borne by the issuer.
According to the Interest Rate Parity
(IRP) theory, any difference in interest
rates between two countries should be
offset by a change in the relative
exchange rate between their currencies.
In efficiently functioning global capital
markets, if IRP did not hold, smart
investors would borrow money in the
country with the lower interest rate and
lend it in the country with the higher
rate and make a riskless profit—in effect
they would have a money machine. This
is called the “carry trade” and is the
bread-and-butter trade for global hedge
funds. This trading ensures that interest
rates are generally at parity after adjust-
ing for currency risks.
Source: IMF Global Debt Yearbook
GlobalDebtScenario
Country Total Debt
$ Billion
% of
GDP
Government Debt
(% of total)
Private Debt
(% of total)
USA 19485 256 42 58
China 12015 254 19 81
Japan 4873 395 60 40
Germany 3701 171 37 63
UK 2628 257 34 66
India 2602 126 57 43
France 2588 289 34 67
Brazil 2055 153 55 45
Russia 1578 84 18 82
South Africa 349 124 43 57
Thegovernment’sdecisiontogoinfor
offshoreborrowinghascreatedafurore,
especiallyamongex-RBIgovernors.Their
fearistheincreasedriskassociated
withforeigncurrencyborrowing.

India Legal - 05 August 2019

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