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NDIA EGALL STORIES THAT COUNT
I
April6, 2020
dolegalprovisionsortheConstitutionallowthegovernmenttotakemore
seriousmeasuresthana21-daytotallockdownifthepandemicworsens?
howKeralaisshowingtheway
doesstampingofforearmsandpastingofquarantinenoticeson
residencesviolatehumanrights?
thecurse oftheblackmarket
theSAARCinitiativeonCOVID-19andwhyPakistanisplayingspoilsport
TheCOVID-19Emergency
Bank Failures:
Scope for scams
India legal 06 april 2020
India legal 06 april 2020
4 April 6, 2020
UARTZ Africa editor Yinka Adegoke
recently penned an astute little essay
on the universality of pandemics. “I’m
getting messages from friends in Lon-
don, Madrid, Lagos and other places,
who are reading news reports and
asking if we’re okay because we’re in New York,”
he said. “But I’m thinking the same about them.
It’s something about the psychology of fear and
how we transfer it onto others.”
Quartz editorialised that it is indeed riveting
“how a pandemic both cements and renders
moot our physical distance from one another.
Friends in New York and London, Lagos and
Madrid can be stuck thousands of miles apart,
but are going through variations of the same
experience. The fear is global, but so is the com-
munity. It’s an unfortunate but not entirely un-
pleasant camaraderie, like being trapped in a
broken elevator with the whole planet.”
In this issue of India Legal, we devote an
entire package, written and compiled by some of
the best in the business, of the multi-faceted ele-
ments of this scourge as it descends on the hud-
dled multitudes of India.
There is still debate on whether the miasma
permeating the subcontinent is the malodorous
stench of a community spread yet to manifest its
true diabolical spread. Every second, across the
globe, we are losing people we love to COVID-19
—from New York to Milan to Tehran.
I mention Tehran with the deepest sorrow
because in this hour of humanity’s collective
grief, when countless thousands of jobless work-
ing class Indians are being turned into hungry
refugees in their own land as they trek hundreds
of miles to find succour and shelter as the more
affluent cities shut them out, Iran too, suffers
egregiously.
India and Iran are civilisational countries
with a richly shared past, heritage and culture.
Today our sister nation, suffering the worst rav-
ages of the shared pandemic, and in need of the
warmth and friendship of us all, is sought to be
TO IRAN WITH LOVE
Q
Letter from the Editor
LOOKING FOR
SUCCOUR
(Below left) Iran has
been devastated by
COVID-19 and the US
sanctions will severely
restrict life-saving
medical supplies and
emergency medical
relief to that country;
(below right) a protest
to lift the sanctions
against Iran in the US
Inderjit Badhwar
UNI Medea Benjamin
| INDIA LEGAL | April 6, 2020 5
isolated by US President Donald Trump politi-
cally and economically.
An international effort is now underway
through a mass online petition being circulated
by “Win Without War” that deserves the support
of the world community. The organisation was
founded in 2002 in opposition to the impending
American invasion of Iraq. The coalition was
previously run by former US Representative
Thomas Andrews (D-ME), and its current direc-
tor is grassroots advocate Steven Miles.
The petition says:
While people everywhere scramble to self-iso-
late, patch together emergency medical sup-
plies, protect workers, and care for our loved
ones, 80 MILLION Iranians are facing an even
greater barrier to being able to respond: US
Sanctions.
US sanctions on Iran severely restrict life-sav-
ing medical supplies, including COVID-19 em-
ergency medical relief like protective gear and
ventilators. Even with exemptions for humani-
tarian aid, companies are not able to navigate
complex regulations in order to get the aid in.
And it’s predicted that if more is not done to
slow the spread of the virus, such as lifting sanc-
tions strangling Iran’s economy, at least 3.5 mil-
lion people in Iran will die of COVID-19.
That’s why a group of representatives, led by
Rep. Alexandria Ocasio-Cortez, just dropped a
bicameral letter in Congress calling on Sec-
retaries Mnuchin and Pompeo to suspend sanc-
tions on Iran for 120 days. They plan to deliver
it to Secs. Mnuchin and Pompeo. We don’t have
much time—will you urge your members of
Congress. Temporary suspension of sanctions on
Iran isn’t just an idealistic dream. We’ve already
seen it happen before.
During both the Bush and Obama administra-
tions, sanctions were temporarily suspended to
allow emergency relief in after devastating
earthquakes. And today’s coronavirus pandemic
is likewise an undeniable EMERGENCY. That’s
why in response to today’s emergency, we should
once again reach across borders, and take care
of each other.
Luckily there are more and more stories in the
press on the impacts of US sanctions on the
Iranian COVID-19 response. If we can get
members of Congress to add their voices to this
building momentum today, we can create pres-
sure from all sides to push Secretary Mnuchin
to do so.
Let’s be real, right now things are hard, every-
where. But you are not alone in your fear, or
your heartbreak right now. And it’s important,
now more than ever, that we continue to come
together, to take care of each other across the
street, across the country, and across the world.
Today let’s reach across borders and say loud
and clear: You are not alone in this.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
AgroupofrepresentativesintheUS,ledbyAlexandriaOcasio-Cortez
(above),hasdroppedabicameralletterintheUSCongress,callingon
SecretariesMnuchinandPompeotosuspendsanctionsonIranfor120days.
TheletterseekssupportfromtheCongresstoachievethisurgentobjective.
twitter.com
6 April 6, 2020
ContentsVOLUME XIII ISSUE21
APRIL6,2020
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Do legal provisions or the Constitution allow the government to take more serious
measures than a 21-day total lockdown if the COVID-19 situation worsens? Is this
ground to declare an emergency?
How Far Can the Government Go?
LEAD
10
The pragmatic way in
which Kerala has handled
the pandemic at the health,
economic and social levels
is probably the only way to
halt its rapid stride and
should be followed by
other states
14
Showing
the Way
| INDIA LEGAL | April 6, 2020 7
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
REGULARS
Ringside............................8
Courts ...............................9
International Briefs ........32
Media Watch ..................37
A Council of
Nominees? 40
The Direct Tax Vivad Se Vishwas Bill,
2020 will try to resolve IT disputes, bring
in much-needed revenue for the centre
and resolve the issue of cash hoarded
during demonetisation. It all depends
on how it will be implemented
Litigation
Dilemma
SEMINAR
An India Legal editorial had said
that the economy had entered a
full-blown recession. Neither the
budget nor politicians were able to
cope with it. This was reiterated by
experts at a seminar held before
the coronavirus impact
28
The Stark,
Searing
Reality...
18
A petition filed in the SC has alleged that sanitisers and masks are in
short supply due to black marketing and asked the top court to
ensure fairness in supply and retail
A Black Deed 22
Scams, Failures & Other Matters
Various bank scams have shown that breaking contracts may be rewarding. But quick
identification of contract violators and awarding deterring and just punishment should be
the main priority
38
Leaving a Mark
While stamping the hands of those quarantined may seem an
obvious method to prevent them from straying outside, they too have
a constitutional right to live with dignity and without stigmatisation
COLUMN
Even as polls to the Rajya Sabha are to
be held on March 26, its original vision
and design have changed as anyone can
contest irrespective of domicile. It is no
more a council of states but of politicians
OPINION
34
The country’s call for regional cooperation on the coronavirus through
the SAARC initiative was welcomed by all except Pakistan which has
still not announced its contribution
India Takes the Lead 24
8 April 6, 2020
Anthony Lawrence
RINGSIDE
“We Are One”
| INDIA LEGAL | April 6, 2020 9
Courts
In yet another step relat-
ed to the coronavirus
outbreak, the Supreme
Court ordered that the
limitation period for filing
appeals against High
Court orders or any tri-
bunal in the top court
will stand extended
possibly indefinitely and
this would not render
any appeal time-barred
in a situation of shut-
down in many areas in
the country.
A bench headed by
Chief Justice of India SA
Bobde and comprising
Justices L Nageswara
Rao and Surya Kant
said: “We are exercising
this power under Article
142 read with Article
141 of the Constitution
of India and declare that
this order is a binding
order within the meaning
of Article 141 on all
Courts/Tribunals and
authorities. This order
may be brought to the
notice of all High Courts
for being communicated
to all subordinate Courts/
Tribunals within their
respective jurisdiction.”
The apex court also
issued a notice to all the
registrar generals of the
High Courts, returnable
in four weeks.
The top court had
taken suo motu cogni-
sance of the situation
arising out of the chal-
lenge faced by the coun-
try on account of the
outbreak of COVID-19
and resultant difficulties
that may be faced by liti-
gants across the country
in filing their petitions.
SC extends limitation for filing
appeals against HC orders
The Supreme Court asked the states
and Union Territories (UTs) to set up
a panel to determine which categories
of prisoners could be temporarily
released to control the spread of COVID-
19. The apex court noted “a high risk of
transmission of COVID-19 to prison
inmates”, with prisoners, prison staff,
families of prisoners and lawyers enter-
ing and leaving the jails frequently.
The apex court asked the states and
UTs to submit written replies on steps
being taken to prevent the spread of the
pandemic among prisoners and juve-
niles. It suggested that prisoners con-
victed of or charged with offences
involving jail terms of seven years or
less could be considered for parole or
interim bail.
The same day, the Delhi government
informed the Delhi High Court in res-
ponse to a public interest litigation that it
would amend rules to enable prisoners
who had served a year of their sentence
and undertrials who had been in jail for
three months to avail of parole or fur-
lough, in cases of specific offences.
Tihar Jail authorities said they would
try to release about 3,000 prisoners in
the next few days to contain the spread
of the coronavirus infection as the
number of positive cases rose across
the country. They will be released under
parole or furlough or on interim bail.
SC orders release of prisoners
to decongest jails
Evicted from Shaheen Bagh, where
they had been on an anti-CAA
agitation for over 100 days, the pro-
testers have addressed a letter to the
judges of the Supreme Court to bring
to their notice “forcible removal” by
Delhi Police which “was a dispropor-
tionate action in the time of coron-
avirus”.
In the letter, the protesters said
they had already decided to vacate
the protest site in view of the “em-
erging situation with respect to
COVID-19”, except for two or three
women who would remain present to
symbolise the protest. These women
would observe the necessary physi-
cal distance and other precautions to
guard against the coronavirus, the
letter said.
“While we understand the need
for stricter imposition of curfew and
enforcement of pertinent restrictions,
the ruthless dismantling and thought-
less destruction of the markers of
our physical protest, especially the
very structures whose placement is
in question in a matter that is sub
judice in the SC, reeks of strong
vendetta and ill feelings towards our
innocent protesters, locals and sym-
pathisers” they told the judges.
Shaheen Bagh
protesters write to SC
—Compiled by India Legal team
Lead/ COVID-19 Crackdown
10 April 6, 2020
OR the first time in India’s
history, a 21-day total lock-
down has been imposed to
fight the deadly COVID-19
pandemic. On March 24,
Prime Minister Narendra
Modi announced measures to curb the
spread of this virus among India’s 1.3
billion population. He also stated that
this lockdown would be curfew-like.
The outbreak of this virus has had
far-reaching consequences all around
the world and affected different spheres
of life—economic, financial, political,
educational, travel and tourism, avia-
tion and most of all, health.
Drastic prohibitory measures have
been taken by both the central and
state governments to limit the spread
and transmission of the virus. But even
these measures have not been able to
ensure total compliance by citizens. In
fact, soon after the prime minister’s
speech, visuals of people crowding
around shops to buy essential supplies
were seen, defeating the very purpose of
the curfew. The question then is whe-
ther India has enough laws to demand
strict compliance as is required in the
present situation.
The 21-day lockdown was imposed
by invoking the National Disaster
Management (NDM) Act, 2005. The
Union home ministry has also issued
regulations to ensure strict compliance
and enforcement of the lockdown
invoking the same Act, the violation of
which can result in imprisonment of up
to two years.
The objective and purpose of the
NDM Act is to manage disasters,
How Far Can the
Government Go?
DolegalprovisionsortheConstitutionallowthegovernmenttotakemoreseriousmeasuresthana
21-daytotallockdownifthepandemicsituationworsens?Isthisgroundtodeclareanemergency?
By Srishti Ojha
BAN ON MOVEMENT
The Delhi-Meerut Expressway after the
lockdown imposed by the government
F
Photos: UNI
| INDIA LEGAL | April 6, 2020 11
including preparation of mitigation
strategies, capacity-building, etc. The
Act defines a disaster as a “catastrophe,
mishap, calamity or grave occurrence in
any area, arising from natural or man-
made causes”. The definition also states
that the disaster should have resulted in
“substantial loss of life or human suffer-
ing or damage to property and environ-
ment to such an extent that it is beyond
the coping capacity of the affected area”.
The centre has declared COVID-19
as a “notified disaster” and as a “critical
medical condition or pandemic situa-
tion”. This will allow the government to
use the National Disaster Response
Fund to contain the rise in COVID-19
cases and to make policies at the na-
tional, state and district levels.
Before the complete lockdown was
announced, partial restrictions were
imposed by state governments in the
last two weeks on the centre’s direction.
These lockdowns were imposed by in-
voking the 123-year-old colonial-era
law, the Epidemic Diseases Act, 1897.
They included Punjab, Nagaland,
Maharashtra, Delhi, Uttarakhand and
Telangana. Partial lockdowns were also
imposed by Chhattisgarh, Uttar
Pradesh and Goa.
The Epidemic Diseases Act was
meant to prevent the spread of danger-
ous epidemic diseases and consists of
only four sections. The centre had
already advised states to use it to make
their coronavirus advisories more strin-
gent. It was used by states to restrict
movement of people.
This law has been invoked in the
past too by states to control the spread
of H1N1 (swine flu) and other such
diseases. Maharashtra invoked this Act
in 2009 to combat the outbreak of
swine flu and Chandigarh to control
dengue and malaria in 2015.
The Act empowers the centre and
state governments to take measures to
control further spread of the disease.
Section 2 of the Act says that when the
centre “is satisfied that India or any
part thereof is visited by, or threatened
with, an outbreak of any dangerous epi-
demic disease and that the ordinary
provisions of the law for the time being
in force are insufficient to prevent the
outbreak of such disease”, it may take
measures and prescribe regulations.
Under this Section, Delhi and Hima-
chal Pradesh announced the Delhi
Epidemic Diseases COVID–19 Regu-
lations, 2020, and the Himachal Pra-
desh Epidemic Disease (COVID–19)
Regulations, 2020, respectively. Maha-
rashtra too announced the Maharashtra
COVID–19 Regulations, 2020.
Section 2A of the Act gives power to
the central government to inspect (any
ship or vessel) and even detain persons
if necessary. Section 3 makes it a crimi-
nal offence to disobey any regulation or
order under the Act.
The punishment is in accordance
with Section 188 of the Indian Penal
Code, which provides for simple impris-
onment of one month and a fine of Rs
200 for violating an order of a public
servant. Imprisonment of six months
and a penalty of Rs 1,000 can also be
imposed depending on the impact that
the disobedience has.
Other than the fact that there is no
recent statute to govern protection and
regulation against spread of such pan-
demic diseases, there is also the inabili-
ty of the centre to impose laws and
regulations regarding healthcare on
states. This is owing to the federal
structure of Indian democracy and the
fact that “public health” is listed in the
State List in the Seventh Schedule of
the Constitution.
The Epidemic Diseases Act, howev-
er, can only help the government a little
when inspection, quarantine or penalty
has to be imposed. But do legal provi-
sions or the Constitution allow the gov-
ernment to take more serious measures
if the situation worsens? Can the centre
declare a health emergency in India?
Can a pandemic or an epidemic be a
ground to declare an emergency?
T
he provisions regarding procla-
mation of emergency can be
found under Article 352 of the
Constitution. It says that an emergency
can be declared on the grounds of war,
external disturbance and internal dis-
turbance. The term internal distur-
bance was a flexible term broad enough
to include disturbances caused due to
an epidemic. “Internal disturbances”
was replaced with “armed rebellion” by
the 44th amendment to the Constitu-
tion, but not in Article 355.
Article 355 places a duty on the
Union government to protect all states
against external aggression and internal
disturbance, and ensure that the gover-
nance of states is carried on in accor-
dance with the Constitution.
Article 353 includes the effect of
proclamation of emergency and
permits the central government to
direct a state how to use its executive
power, and the Parliament to make laws
on matters from the State List. During
an emergency, the freedoms provided
under Article 19 are suspended and so
is the enforcement of fundamental
rights (under Articles 358 and 359
respectively).
The chairman of the Drafting
Committee in the Constituent Assembly
had explained the underlying princi-
Evendrasticprohibitorymeasuresbythe
governmenthavenotbeenabletoensure
totalcompliance.SoonafterModi’s
speech,peoplecouldbeseencrowding
aroundshopstobuyessentialsupplies.
12 April 6, 2020
ple of Article 355 and stated that the
Constitution, under provisions for
emergency, provides the central govern-
ment with some overriding powers and
the use of that power or “invasion” by
the centre of the Provincial field (state).
Therefore, introduction of Section 355,
casting a duty on the Union to protect a
state, was essential to prevent such
unprincipled invasion.
The Report of the Sarkaria Commi-
ssion on the provisions of the Constitu-
tion had stated with reference to emer-
gency provisions: “The Constitution-
framers conceived these provisions as
more than a mere grant of overriding
powers to the Union over the States.
They regarded them as a bulwark of the
Constitution, an ultimate assurance of
maintaining or restoring representative
government in States responsible to the
people. They expected that these extra-
ordinary provisions would be called
into operation rarely, in extreme cases,
as a last resort when all alternative cor-
rectives fail.”
T
he Report had also stated that
the term “internal disturbances”
has a broad scope and it can be
nature-made also. Natural calamities of
unprecedented magnitude such as
floods, cyclones, earthquakes and epi-
demics may paralyse the government of
a state and put its security in jeopardy.
“Under Article 355, a whole range of
action on the part of the Union is possi-
ble depending on the circumstances of
the case, the nature, the timing and the
gravity of the internal disturbance.”
Therefore, according to the Consti-
tution, a health emergency being
invoked by the centre, though not cov-
ered by Article 352 which deals with
the proclamation of emergency on the
grounds of war, external aggression and
armed rebellion, could be covered
under internal disturbance.
India has a plethora of laws and
guidelines, but there is still a need to
strengthen its legal framework to deal
with such an emergency, including coor-
dination and implementation issues.
This is especially so considering that the
main legal weapon the government pos-
sesses today to deal with COVID-19 is
the Epidemic Diseases Act, a law of
colonial vintage, and the Disaster
Management Act of 2005 which does
not incorporate the specific approach
required to deal with an emergency of
such severe proportions.
INEFFECTIVE CLAMPDOWN?
(Top) Police beat violators of the lockdown; a
worried crowd outside a closed store
ThecentrehasdeclaredCOVID-19asa
“notifieddisaster”andasa“criticalmed-
icalconditionorpandemicsituation”.
Thiswillallowthegovernmenttouse
theNationalDisasterResponseFundto
containtheriseinCOVID-19cases.
Lead/ COVID-19 Crackdown
India legal 06 april 2020
Lead/ COVID-19/ Kerala’s Model
14 April 6, 2020
VEN as the COVID-19 scare is
subsuming India, Kerala’s fight
against it has shown the way to
the rest of the country. After
the effective containment of the
Nipah virus outbreak in Kozhikode dis-
trict in 2018, health workers and the
state government got accolades from
across the globe. And in the wake of
COVID-19, this has been repeated.
Kerala’s doctors, highly qualified
nurses and experienced paramedical
staff have been its strength and hon-
oured by the most advanced countries as
acclaimed professionals. Whether it is
COVID-19, Nipah, SARS or MERS, the
adept manner in which they take con-
trol of the situation is helping the state
lead in the health sector. Along with this
professional workforce, Kerala’s strong
four-layered health infrastructure start-
ing with community and primary health
centres, taluk and district hospitals,
medical colleges and superspecialty hos-
pitals has proved that it can match or
even outsmart those in western coun-
tries. Plus, it has 6,000 hospitals in the
public and private sectors and a strong
chain of ayurvedic and homeo hospitals.
So what did Kerala do to deal with
COVID-19? It was in early February
that three Malayalee medicos from Wu-
han, China, the epicentre of the out-
break, returned to Kerala and tested po-
sitive. As they volunteered to get quar-
antined and treated in isolation, they
did not spread it to anyone. They soon
recovered and were discharged. But five
Showing the Way
ThepragmaticwayinwhichIndia’smostliteratestatehandledthepandemicatthehealth,economic
andsociallevelsisprobablytheonlywaytohaltitsrapidstrideandshouldbefollowedbyotherstates
By NV Ravindranathan Nair in Thiruvananthapuram
STRATEGY AGAINST COVID-19
Kerala CM Pinarayi Vijayan giving instructions
to officials through video conferencing
E
UNI
| INDIA LEGAL | April 6, 2020 15
members of a family in Pathanamthitta
district came from Italy, where the pan-
demic was wreaking havoc, and trav-
elled around to churches, cinemas, hos-
pitals, shopping malls and the homes of
friends and relatives within a space of
three weeks. Dr Anand, a young doctor
at General Hospital, Pathanamthitta,
detected one of their primary contacts
with symptoms of COVID-19. By the
time this case was detected, 15 other pri-
mary contacts of this family had con-
tracted the virus.
W
hat followed was a massive
trail of those who had come
in contact with the family.
Health workers prepared a primary con-
tact list, which was over 750 people.
Strict vigil against people assembling for
festivals, weddings and funerals helped
check the spread. Except for Attukal
Pongala, the largest congregation of
women at Attukal temple in Thiruva-
nanthapuram, the government did not
concede any demand and strictly pro-
hibited huge crowds. It also asked tem-
ple, church and mosque authorities to
close these down for the time being.
Even major temples like Guruvayoor
had to limit rituals, and pilgrims were
discouraged from going to Sabarimala.
Taking a cue from this, people volun-
tarily decided to skip festivities and tem-
ple rituals. Juma-Ath committees called
off Friday prayers in a majority of mos-
ques and many churches complied with
the advisories of the government. Police
registered cases and arrested priests
whenever they breached the orders.
Moreover, even before the prime minis-
ter’s call for a janata curfew, Kerala
introduced restrictions for traders and
the general public. But at some places,
every effort to check the spread of the
virus was thwarted. An NRI who rea-
ched Kasaragod district spread the
infection to several people, forcing thou-
sands of primary contacts to be quaran-
tined. Over 30 people got tested positive
due to this.
Meanwhile, the Kerala police came
out with half-a-dozen innovative videos
with songs and dances advising people
to maintain personal hygiene. One of
them used the classical art form of
Kathakali to show the importance of
hand washing. Another showed a group
of policemen dancing to a film song
sung by a tribal woman on the same
theme. This went viral, attracting the
international media too. Trolls too
played an important role in the cam-
paign. One was of a mother asking her
children to assemble for family prayer.
The son says: “Hello, police station?
Here a woman is insisting on people
crowding together.” Many of these trolls
used characters in popular Malayalam
films to get the message across. Some
lampooned the government’s insistence
that it would not close down Kerala
State Beverages Corporation outlets, the
milch cow of the state. However, after
the centre’s announcement of a lock-
down across India, the state government
closed all these outlets. As on March 25,
COVID-19 cases numbered 113 in the
state. As many as 72,460 people are
Alongwithaprofessionalworkforce,
Kerala’sstrongfour-layeredhealth
infrastructurehasprovedthatit
canmatchorevenoutsmartthose
inwesterncountries.
ON A WAR FOOTING
Streets in Kerala being disinfected to control
the spread of the coronavirus
16 April 6, 2020
under observation, of whom 71,994 are
in their houses and 466 in hospitals.
The 21-day lockdown has seen all
private vehicles off the road. Autos and
taxis can be hired only during emergen-
cies. Over 2,000 cases have already been
registered against those breaching these
restrictions and over 1,600 arrested.
Chief Minister Pinarayi Vijayan inter-
acted with MLAs through audio-confer-
encing and asked them to co-ordinate
the activities. “Special attention should
be given to the elderly, homeless, spe-
cially-abled in the state and local self-
government institutions should take an
effort to arrange food and shelter for the
needy. Apart from medicines, those in
isolation would also be given coun-
selling if required,” he said.
T
he state government also ordered
the opening of community
kitchens at the panchayat level
and getting food to the houses of those
who had none. Before the total lock-
down, Vijayan had invited the youth to
come forward to volunteer as bystanders
in hospitals and other places. He also
ensured media support by directly inter-
acting with the editors of print and elec-
tronic media. He also ensured that test-
ing facilities in central universities such
as the Indian Institute of Science Edu-
cation and Research in Thiruvanan-
thapuram were made available in case of
an emergency.
Meanwhile, Kerala University of
Health Sciences, under which 22 med-
ical colleges function, has listed over one
lakh students and faculty for volunteer
work to take care of patients in case of
an emergency.
“We have prepared the list of all
these students and faculties. They will
be deployed in their own districts,” said
Mohanan Kunnummal, vice-chancellor,
Kerala University of Health Sciences.
KK Shylaja, the health minister, who did
a commendable job, said the govern-
ment had 4,000 rooms in 22 medical
college hostels to house patients in case
the pandemic went out of hand. Already,
non-functional hospitals, rest
houses, schools and colleges
have been taken over and facili-
ties arranged if there is a need
for corona care centres.
All these efforts have also
been buttressed by a massive
relief package of Rs 20,000
crore. Though detractors may
say this was done with an eye on
local body elections due in six
months, the fact remains that
Kerala has been a guiding light
in its fight against the virus. Rs
2,000 crore has been set apart
for consumer loans and this will
be made available through
Kudumbashree, a massive
women’s self-help group having a mem-
bership of nearly five million.
In addition, Rs 1,000 crore each for
rural job employment guarantee sch-
emes during April and May and social
security pensions worth Rs 1,320 crore
for two months to five million people of
the low income group will bring cheer.
Rs 100 crore has been earmarked for
special assistance to BPL and Antyodaya
families. APL families would get 10 kg
of rice during the period, while BPL
families would get a food kit with 15
kilos of rice and other items free of cost.
All arrears worth Rs 14,000 crore due to
individuals and institutions would also
be settled immediately.
Finance Minister TM Thomas Isaac
said in a Facebook post: “Our aim is to
bring money into the hands of the peo-
ple. The best way to do this is to settle
the dues in one go. We will spend the
entire amount of MNREGS meant for
the next fiscal year in the first two mon-
ths. We will find the means for this by
availing at least half of the Rs 25,000
crore sanctioned by the centre for
next year.”
Perhaps other states could take a leaf
out of Kerala’s book
INNOVATIVE METHOD
The Kerala government has
launched a coronavirus awareness
campaign through robots
TheKeralapolicecameoutwith
innovativevideosadvisingpeopleto
maintainpersonalhygiene.Oneof
themshowedagroupofpolicemen
dancingtoafilmsongsungbyatribal
womanonhandwashing.
Lead/ COVID-19/ Kerala’s Model
India legal 06 april 2020
Lead/ Coronavirus/ Quarantine Issues
18 April 6, 2020
HILE quarantine during
a pandemic is a must, it
has its negative side.
Delhi, like states such as
Maharashtra, has begun stamping the
hands of the people who have been ad-
vised home quarantine in the wake of
the coronavirus outbreak. Authorities
are using indelible ink like that used
for voters mostly on those who have a
travel history.
In Delhi, people arriving at the
Indira Gandhi International Airport
from abroad are being checked for
COVID-19, and if directed to remain at
home, are being stamped “Home
Quarantined”. The stamp states, “Proud
to protect Delhiites. Home quaranti-
ned”, and has a date showing when the
person was stamped. It has also been
reported that Punjab has put up sign-
boards outside the houses of people who
have corona.
However, this is not as per one’s
rights regarding quarantine. In India,
where mob mentality is common, it can
be dangerous. That was evident from
Air India crew members who took to
Leaving a Mark
Whilestampingthehandsof
thosequarantinedmayseem
anobviousmethodtoprevent
themfromstrayingoutside,
theytoohaveaconstitutional
righttolivewithdignityand
withoutstigmatisation
By Dr KK Aggarwal
NEED OF THE HOUR
(Above L-R) Many states are stamping
the hands of people who have been
advised home quarantine; many houses
have also been marked as
“Quarantined” by health authorities
w
| INDIA LEGAL | April 6, 2020 19
social media alleging discrimination by
their housing societies when they
returned from flying international sec-
tors with some being asked to look for
alternative accommodation. They said
matters became complicated after their
houses were stamped as “Quarantined”
by health authorities. This, despite the
airline coming to the aid of Indian citi-
zens left stranded in other countries.
So while the government has the ri-
ght to quarantine anyone, they too have
some rights. The Constitution protects
one’s individual rights. Among them is
the right to not be denied “liberty” with-
out “due process”. There’s a big differ-
ence between a procedural right and a
substantive right. There is no freestan-
ding constitutional right to go about
your normal life while an epidemic en-
dangers many people’s lives. At the same
time, the government cannot simply
confine people for arbitrary reasons, or
without providing an adequate explana-
tion and leaving one getting stigmatised.
It is true if someone is quarantined,
he does not necessarily have a right to
be released from it. But does he have
the right to demand some sort of adju-
dicative process to determine whether
the type and manner of quarantine
are justified?
I
t is well-established that the gov-
ernment may confine people against
their will if they present a danger to
themselves or others even if they have
not committed a crime. In Addington vs.
Texas (1979), the US Supreme Court
held that individuals with such severe
mental illnesses that they presented a
threat to their own safety or to the safety
of others may be involuntarily confined
to a mental hospital. Addington, howev-
er, also held that the government must
prove by “clear and convincing” evidence
that such confinement is justified—a
much higher burden of proof than co-
urts typically apply in civil cases.
An “individual’s interest in the out-
come of a civil commitment proceeding
is of such weight and gravity”, the Court
explained, “that due process requires the
state to justify confinement by proof
more substantial than a mere prepon-
derance of the evidence”. It’s not entirely
clear that this heightened standard of
proof would apply to coronavirus quar-
antines. Though Addington held that
“civil commitment for any purpose con-
stitutes a significant deprivation of lib-
erty that requires due process protec-
tion”, much of the Court’s analysis was
restricted to the specific circumstances
of a person believed to have severe men-
tal illness.
A person confined due to the coron-
avirus is likely to recover much more
quickly. And even if there is uncertainty
about whether their symptoms are due
to the coronavirus or some other disease,
this uncertainty could be resolved by
testing. For these reasons, it’s possible
that the courts may permit the govern-
ment to quarantine individuals based on
less than clear and convincing evi-
NO ROOM FOR EXACERBATION
It is very important to protect the mental
health of people under quarantine or
undergoing treatment for coronavirus
UNI
20 April 6, 2020
dence. Courts may also be reluctant to
intervene in such cases. Thus, just
as judges tend to defer to the executive
on matters of national security, they are
likely to defer to public health officials
regarding a potential pandemic. But
everyone has a constitutional right to live
with dignity and without stigmatisation.
Articles 14 and 21 of the Constitution
say:
“14. Equality before law—The State shall
not deny to any person equality before
the law or the equal protection of the
laws within the territory of India.
“21. Protection of life and personal liber-
ty—No person shall be deprived of his
life or personal liberty except according
to procedure established by law.”
Apparently, there is no specific men-
tion of human dignity as no such ex-
pression is used. Yet, the Supreme Court
introduced a judge-made doctrine of
human dignity by reading the same into
these Articles on the same lines as craft-
ed by the US Supreme Court. The
Indian Supreme Court has read “right
to life” enshrined under Article 21 as
“right to live life with dignity”. And it is
linked with the right to grow as a
human being.
The basic spirit of our Constitution is
to provide each person equal opportuni-
ty to grow as a human being, irrespec-
tive of race, caste, religion, community
and social status. This means:
I have a right to be tested for corona
at the time of quarantine as per protocol
I have the right to be quarantined in a
hygienic state
I have the right not to be stigmatised
I have the right to get a proper place
to live with all facilities required with a
one to one toilet facility
I cannot be marked on my hand with
a voting ink. Even prisoners have a right
not to be handcuffed
If I am home quarantined, I cannot be
stamped on my hand and wherever I go,
I cannot be subjected to checks
If I am not having symptoms, I should
be able to get a test done in six days as
the mean incubation period is six days
I have a right to be isolated in a single
room if I am infected or at risk of infect-
ing others
I have a right to age-specific cohort
quarantine if multiple people are quar-
antined together. On the Diamond Prin-
cess ship, which was quarantined off
Yokohama, Japan, 3,700 people were
cohort quarantined together. This led to
23 percent of them getting infected and
seven dying. If the quarantine had been
as per age and individual risk, more wo-
uld have been saved.
Q
uarantine should not end in an-
xiety. A recent study from The
Lancet notes that the psycho-
logical impact of quarantine without
proper counselling can be great, result-
ing in a range of mental health concerns
from anxiety and anger to sleep distur-
bances, depression and post-traumatic
stress disorder (PTSD). Separate studies
of quarantined patients of SARS, a pre-
vious coronavirus outbreak in 2003,
found between 10-29 percent suffered
from PTSD.
The Lancet’s report found mental
health concerns could be inflamed by
stressors associated with quarantine
such as infection fears, frustration, bore-
dom, inadequate supplies, lack of infor-
mation, financial loss and stigma associ-
ated with contracting the disease. That
can be an issue not only for people with
pre-existing mental health concerns, but
also those in seemingly good psychologi-
cal health.
The Centers for Disease Control and
Prevention in US notes that people
should look out for signs of distressed
mental health in themselves and others.
Symptoms may include: Fear and
worry; changes in sleep or eating pat-
terns; difficulty sleeping or concentrat-
ing; worsening of chronic health prob-
lems and increased use of alcohol,
tobacco, or other drugs. Recognising the
problem, the WHO released guidance
on how people can protect their mental
health during the outbreak.
Prolonged quarantine or social isola-
tion (without compensatory methods in
place) will exacerbate anxiety, depres-
sion and a sense of helplessness.
—The writer is President,
Confederation of Medical Associations
in Asia and Oceania and former
National President, IMA
Lead/ Coronavirus/ Quarantine Issues
WITHIN LEGAL LIMITS
People can be forced to stay indoors if they
present a danger to themselves or others
UNI
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NDIA EGALL STORIES THAT COUNT
I
March23, 2020
JusticeVenkatachaliah,whoservedaschiefjusticeofIndia,isoneofIndia’smostrespectedjurists.Anavid
championofhumanvaluesandrights,hespoketo RAJSHRIRAI,MD,INDIALEGALonthejudiciary,religion,
Ayodhya,upbringingofchildrenandwhytheSupremeCourtshouldbetrustedtodotherightthing
JusticeVenkatachaliah
‘‘KeepFaithin
theJudiciary’’
Coronavirus:
India’s opportunity
Exclusive Interview
Lead/ Supreme Court/ PIL On Hoarding
22 April 6, 2020
HOUGH hand sanitisers
and face masks have been
deemed by the government
as “essential commodities”
in the wake of the deadly
Covid-19, a black market in them has
emerged, leaving people with a shortage
of these basic necessities to protect life.
Also, these are being sold at a much
higher price than the prescribed maxi-
mum retail price (MRP).
In order to ensure fairness in supply
and retail in hand sanitisers and masks,
a PIL was filed in the Supreme Court by
Justice for Rights Foundation through
its president, Satyam Singh Rajput, al-
ong with advocate Amit Kumar Sharma
and Prateek Sharma, a final-year law
student of Delhi University. Rajput and
the other petitioners have also asked for
free distribution of these essential com-
modities.
The petitioners prayed to the Court
to issue directions to the authorities
to discharge their duty for public wel-
fare and public healthcare and ensure
fair and equitable distribution of
surgical/N95 masks, hand sanitisers
and liquid soap and make them avail-
able to the public. They also prayed for
the creation of a special task force to
effectively implement the notifications
of the government.
The writ petition has been referred
before the Court mainly on the grounds
that widespread infection and growing
cases required effective precautionary
methods and the government must en-
sure availability of such apparatus. It
said it was failure on the part of the go-
vernment if it did not provide adequate
and effective mechanisms.
Another ground for the petition was
that the right to life as enshri-
ned in Article 21 of the Consti-
tution is sacrosanct and should
not be made a part of a trade in
the hands of a nefarious few.
Also, it is an established fact
that the State is the custodian
of the welfare and well-being of
its citizens. Their life cannot be
allowed to hang in a balance,
it said.
While the government and
various departments have iss-
ued notifications declaring
hand sanitisers and masks essential
commodities, further notices have been
put in place, empowering the concerned
authorities to check the menace of ille-
gal hoarding which is causing a surge in
prices. Most of the items have run out
of stock despite the government saying
that there is no shortage.
The PIL was to be heard this week
but the declaration of a lockdown of the
entire nation has deferred it.
Earlier this month, the government
had capped the MRP of a hand sanitis-
er at Rs 100 per 200ml bottle till June
30. Similarly, the price of a 2 ply (surgi-
cal) mask was capped at Rs 8 and that
of a 3 ply (surgical) mask at Rs 10 till
June 30, Consumer Affairs Minister
Ram Vilas Paswan had said. “The price
cap has been imposed taking into acc-
ount the sharp increase in prices of raw
materials used in making of face masks
and hand sanitiser,” he said.
But then, black marketers always
find a way out.
A Black Deed
Apetitionhasallegedthatsanitisersandmasksareinshortsupplyduetoblack
marketingandaskedtheCourttoensurefairnessinsupplyandretail
By Vedant Bhelonde
ESSENTIAL COMMODITIES
People buying face masks in
Chennai to protect themselves
Agroundforthepetitionwasthatthe
righttolifeissacrosanctandshouldnot
bemadeapartofatradeinthehandsofa
nefariousfew.Stateisthecustodianof
thewelfareandwell-beingofitscitizens.
T
UNI
India legal 06 april 2020
Lead/ SAARC Initiative
24 April 6, 2020
HEN Prime Minister
Narendra Modi de-
cided to give a push
to the South Asian
Association for Re-
gional Cooperation (SAARC)—the
regional outfit which India had effec-
tively made irrelevant since 2014 to iso-
late Pakistan—there was speculation
that perhaps it was softening its stand.
This was an overture as Islamabad was
India Takes the Lead
India’scallforregionalcooperationontheviruswaswelcomedbyallexceptPakistanwhich
hasstillnotannounceditscontribution
By Seema Guha
NOVEL INITIATIVE
On March 15, Prime
Minister Narendra Modi
held a video conference
with SAARC leaders to
jointly fight the
coronavirus pandemic
w “Wecanalsoquicklyarrangeonline
trainingcapsulesforyouremer-
gencyresponseteams.Thiswillbe
basedonthemodelwehaveused
inourowncountry,toraisethe
capacityofallouremergency
staff.”
—PMModiwhileaddressingthe
SAARC leadersinavideoconference
| INDIA LEGAL | April 6, 2020 25
also included in the invitation.
But it was quickly apparent that
India was not reaching out to Pakistan.
Nor was Islamabad in any mood to ob-
lige. Pakistan is today in a much better
position internationally, thanks mainly
to US President Donald Trump’s hopes
of getting US troops out of Afghanistan
before the November US presidential
elections. Pakistan is a player in this ga-
me and is no longer treated like a pari-
ah by the international community.
Trump insists he is good friends with
Pakistan Prime Minister Imran Khan.
Pakistan showed its lack of interest at
the Indian move by sending a junior
minister to represent it at the video
conference initiated by India. Comm-
entary in the Pakistan press about
India’s initiative was also lukewarm.
On March 15, Modi held a video
conference with SAARC leaders to
jointly fight the coronavirus pandemic.
With the combined population of
SAARC nations representing nearly
one-fourth of the world’s population,
India got the opportunity to seize the
moment. It once again tried to gain the
high moral ground. It was New Delhi’s
way of pulling its weight in the region
and sending out the message that it was
willing to play the leadership role in
keeping with its big power status. WHO
praised India’s initiative, as did Trump
and Russian President Vladimir Putin.
Modi has suggested a similar video con-
ference for G20 leaders.
Apart from Modi, the conference
was addressed by Bangladesh Prime
Minister Sheikh Hasina, her Bhutanese
counterpart, Dr Lotay Tshering, Nepal’s
KP Sharma Oli, Maldives President
Ibrahim Mohamed Solih, Sri Lanka’s
President Gotabaya Rajapaksa and
Pakistan’s aide to the PM on health, Dr
Zafar Mirza. The refusal by Imran
Khan to attend an event dealing with
a threat to public health has sent a
wrong signal and shown him as churl-
ish and irresponsible.
I
ndia’s image had got a battering in
recent times. The February 2020
communal riots in Delhi where 54
people, mainly Muslims, were killed,
combined with the internet lockdown
in Kashmir after the scrapping of its
special status, the National Register
of Citizens as well as the Citizenship
Amendment Act had changed the nar-
rative for India. Trump and his family’s
highly successful visit to Ahmedabad
and Delhi got buried in the mayhem.
The coronavirus onslaught gave India
the perfect opportunity to change
the narrative.
At the video conference, Modi sug-
gested a SAARC Corona Emergency
Fund which member states could draw
from to fight the deadly disease. India
announced an initial contribution of
$10 million; Maldives $2 lakh; Nepal
and Bhutan nearly $1 million and $1
lakh, respectively; Colombo $5 million,
Bangladesh $1.5 million and Afghanis-
tan $1 million. The Fund now has a
total of $18.3 million. The multiplica-
tion of cases in SAARC countries rein-
forced the need for the group to act
together. Pakistan is the only country
that has so far not put any money on
the table, possibly because it is an
Indian suggestion.
During his address, Modi said that
India was getting together a rapid
response team of doctors and special-
ists, along with testing kits and other
equipment. “They will be on standby, to
be placed at your disposal, if required,”
he said. “We can also quickly arrange
online training capsules for your emer-
gency response teams. This will be ba-
sed on the model we have used in our
own country, to raise the capacity of all
our emergency staff.”
Considering that India, a nation
PakistanPrime
MinisterImranKhan
didnotattendthe
conferencebutdeput-
edPakistan’saideto
thePMonhealth,Dr
ZafarMirza(right).
Hisrefusaltoattend
aneventdealingwith
athreattopublic
healthhassenta
wrongsignaland
shownhimaschurlish
andirresponsible.
26 April 6, 2020
of 1.3 billion people, also has a health
emergency in place and Modi has ann-
ounced a virtual lockdown for 21 days,
will Delhi have the capacity to help
others when its own resources are
badly stretched?
L
ike in everything between India
and Pakistan, the video confer-
ence was also mired in contro-
versy. Pakistan’s health minister could
not help but drag in Kashmir. Mirza
spoke of the need to end the blockade
in the Valley to fight COVID-19. While
India bristles at the mention of Kash-
mir, the Pakistan government has to
play to its domestic constituency and
cannot help but mention the situation
in the Valley. “Opening up communica-
tion and movement would facilitate dis-
semination of information, allow distri-
bution of medical supplies and allow
containment and relief efforts to pro-
ceed unimpeded,” the minister said.
But despite the sound and fury
raised by Imran Khan on Kashmir, the
world has not responded to Pakistan in
the way it would have liked. In fact, the
opposition in Pakistan is calling out
Khan for not being able to further in-
ternationalise the plight of Kashmiris.
So mention of Kashmir and the suffer-
ing of the people there since the abro-
gation of Article 370 should have
been expected.
Nevertheless, Raveesh Kumar, In-
dia’s external affairs spokesman, had
this to say about Pakistan after the
video conference: “A crisis of this mag-
nitude does not recognise borders. In
this spirit, the prime minister had
called the SAARC video conference on
coronavirus. The platform was not
political, but humanitarian. They mis-
used it.”
Naturally, Pakistan’s Foreign Office
reacted instantly. First, it accused India
of twisting the minister’s statement at
the video conference. “The people of
South Asia are well aware as to which
country has been seeking to ‘politicise’
the SAARC process and continues to
obstruct its onward march,” it said. The
statement underscored that Pakistan
believed the collective endeavours of
South Asian nations to fight common
challenges should not be allowed to
become a victim of self-serving propa-
ganda. Pakistan, it said, had reaffirmed
its readiness to host a SAARC health
ministers’ video conference. Its foreign
minister, Shah Mahmood Qureshi, was
on the phone with his Bangladesh co-
unterpart and informed him that Pak-
istan was keen to organise it. Pakistan
has also been advocating getting China
on board as the Chinese are best placed
to advise member states considering
they have the experience and means to
fight COVID-19. India certainly would
not be amused by this call.
Modi was way ahead of other region-
al leaders in proposing a joint strategy
for SAARC nations to help each other
in fighting the pandemic. Pakistan is
now hoping to catch up. But it is a
repeat of the same old story for other
member states. SAARC continues to
remain a moribund grouping mainly
because it is held hostage to the India-
Pakistan rivalry. The rest of the mem-
bers continue to remain silent specta-
tors and suffer the consequences.
Themultiplicationofcoronaviruscases
inSAARCcountriesreinforcedthe
needforthegrouptoacttogetherand
contributetowardstheCorona
EmergencyFund.Pakistan,however,has
sofarnotputanymoneyonthetable.
Lead/ SAARC Initiative
GLOBAL RECOGNITION
India's initiative was also praised by US
President Donald Trump (right) and Russian
President Vladimir Putin
Photos: UNI
NDIA EGALEEL STORIES THAT COUNT
NI
February24, 2020
OutingtheCriminalsFlaggingan“alarmingriseinthecriminalisationofpolitics,”theSupremeCourtlays
downstrictinstructionsonmakingpublicdetailsofacandidate’scriminalhistory.
Whatimpactwillithaveonpoliticalpartiesandfutureelections?
Shiv Visvanathan on Shaheen Bagh Mothers
NO HOLDS BARRED
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NDIA EGALEEL STORIES THAT COUNT
NI
March2, 2020
TheIronFistIncreasingly,Section144isbeenusedbypoliticiansandbureaucratsto
deprivecitizensoftheirfundamentalrights.Nowthecourtshavesteppedin
tostemthemisuse,butisitenough?
Justice Chandrachud:
“Dissent not anti-national”
GAL
an
ou
?
NDIA EGALEEL STORIES THAT COUNT
NI
March9, 2020
Judiciary’sRoleina
ChangingWorld
TheInternationalJudicialConference2020wasthefirstofitskindorganisedbytheSupreme
Courttodiscusscontemporarychallengestothejudiciary.Therangeofspeakers,fromthe
chiefjusticeofIndiaandotherseniorjudges,gavevaluableinsightsontohowthecourtsview
theirresponsibilitiesinrapidlychangingtimes
Coronavirus:
How prepared is India?
GAL
ee
o
or
nge
so
es
NDIA EGALEEL STORIES THAT COUNT
NI
March16, 2020
LawandDisorderCrucialmattersthatcameupintheSupremeCourtandDelhiHighCourtindicateacrisisinIndia’s
basicgovernance.TheCrPCandPoliceActsclearlylaydownthatitisthejobofDMsandSDMsto
maintainlawandorder,buttheirrolehasbeentakenoverbythepolicewithquestionableresults
Fast Track Courts:
New scheme
GAL
oturt
sth
ce
NDIA EGALEL STORIES THAT COUNT
NI
March23, 2020
JusticeVenkatachaliah,whoservedaschiefjusticeofIndia,isoneofIndia’smostrespectedjurists.Anavid
championofhumanvaluesandrights,hespoketo RAJSHRIRAI,MD,INDIALEGALonthejudiciary,religion,
Ayodhya,upbringingofchildrenandwhytheSupremeCourtshouldbetrustedtodotherightthing
JusticeVenkatachaliah
‘‘KeepFaithin
theJudiciary’’
Coronavirus:
India’s opportunity
Exclusive Interview
DIAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA EEEEEEEEGAL
smm
LEG
truu
aa
nn
yy
NDIA EGALEEL STORIES THAT COUNT
NI
March30, 2020
Judgesandlawyersincourtsarestrugglingtodispensejusticeevenasthefearoftransmissionof
thevirustakeshold.IndiaLegal’sspecialpackagelooksat measuresbeingtakenbytheSupreme
CourtandHighCourtsacrossthecountryandhowitaffectsthejusticesystem
CoronavirusPlagues
TheCourtSystem
Special Supplement:
The Idea of Citizenship
Analysing SC’s Annual Report:
Prof Upendra Baxi
Seminar/ State of the Economy
28 April 6, 2020
ANY promises were made
by the Narendra Modi
government both during
the campaign and after
coming to power in 2014.
These included economic reform, fast
industrial development, creation of jobs
and India reaching a $5-trillion econo-
my within five years. But all these have
been belied.
This was discussed during a recent
dialogue session, “Politics of Economic
Policy and Budget Making”, under the
chairmanship of Dr Kulwant Singh, for-
mer general secretary of National Me-
dia Centre, Gurgaon. Dr Singh also ser-
ves with the UN and is CEO, 3R
WASTE Foundation/Urban Policy. Am-
ong the panellists were Dr Anuradha
Balaram (former economist with the
Asian Development Bank and chief co-
ordinator of the Awakened Citizen
Programme of Ramakrishna Mission,
Delhi), Prof Sudha Pai, a political scien-
tist at JNU, and Dr VK Garg, former
CMD of Power Corporation of India.
They said that over the last year or
so, estimates have shown that GDP
growth for 2019-20 plunged to an 11-
year-low of five percent, which fell fur-
The Stark,
Searing Reality...
AnIndiaLegal editorialhadsaidthattheeconomyhadenteredafull-blownrecession.Neither
thebudgetnorpoliticianswereabletocopewithit.Thiswasreiteratedbyexpertsataseminar
heldbeforethecoronavirusimpact
SIGNIFICANT SUGGESTIONS
Dr VK Garg, former CMD of Power
Corporation of India, was part of the panel
ANALYSING THE ECONOMY
Dr Anuradha Balaram, former economist with
the ADB, was also present at the session
SHARING HER THOUGHTS
Prof Sudha Pai, a political scientist at JNU,
also actively participated in the discussions
M
| INDIA LEGAL | April 6, 2020 29
ther in the next quarter primarily be-
cause of a poor show by construction
and manufacturing. According to some
estimates, it will require India to grow
at 8-9 percent per year from 2020 to
2024 to become a $5-trillion economy.
Both demonetisation and GST
created problems particularly for small
businesses and contributed to the slow-
ing of growth. The promise of
“Cooperative Federalism” has not been
kept as states have not received their
share of GST revenues.
The government has also moved
from the open economy that was put in
place in 1991 towards a more closed
economy with rising tariff walls, which
has particularly hurt imports.
While there are hard economic rea-
sons for the crisis, there are strong
political reasons also for this situation.
Politics has always shaped policy mak-
ing in any government and the budget
is a political statement. For the BJP,
the economy is not the first priority
within its larger Hindutva ideology and
policy making. This was more apparent
since 2016.
The priority of the government has
been to create a Hindu vote-bank, cap-
ture state power and move towards the
creation of a de facto Hindu Rashtra.
Following the 2019 general election in
which the BJP gained a huge majority,
it was felt that attention would now be
focused on the economy, which had
already started on a downward spiral.
Much was expected of Budget 2020.
However, the shift of priority from
the economy to social transformation is
visible in the passing of the Citizenship
(Amendment) Act and the National
Register of Citizens. The new Act sur-
prised many as two big issues on which
the BJP had built its movement and
party since the early 1990s had been
achieved: the Ram Temple at Ayodhya
and removal of Article 370 in Kashmir.
The issue of triple talaq, seen as the
first step to a Uniform Civil Code, was
also achieved.
These divisive social policies were
FOCUSING AWAY FROM ECONOMY
The CAA exhibits a shift in the government’s
priorities towards social transformation
Whiletherearehardeconomicreasons
forthecrisis,therearestrongpolitical
reasonsaswell.FortheBJP,theeconomy
isnotthefirstprioritywithinitslarger
Hindutvaideologyandpolicymaking.
UNI
30 April 6, 2020
used as a strategic cover-up for the
downswing in the economy, which
began in 2018 and worsened in 2019
and 2020.
The panellists felt that this push to-
wards social policies rather than the
economy is visible in a number of steps
taken by the government, such as:
The method of governance adopted in
2014 itself: This has affected the econo-
my as a highly centralised and authori-
tarian government is centred in the
PMO. India does not lack experts with
knowledge of how to fix the economy
but they are not listened to and the gov-
ernment is in denial as seen from the
2020 Budget.
With the downswing of the economy,
the government attempted to hold back
government data and present a more
positive picture of the fiscal state as
assembly elections were due. NSSO
data was withheld as it showed that
unemployment had reached a high not
seen in 60 years, leading to members of
the organisation resigning.
The use of social media to shape pub-
lic opinion and targeted messaging cre-
ated a positive picture of government
functioning.
Criticism of government policy led to
reprisals which created an atmosphere
of fear and lack of trust. Many critics of
the government are in jail today, lab-
elled as anti-national, liberals of Lut-
yens’ Delhi, urban naxals and Bhima-
Koregaon and Elgar Parishad partici-
pants. Sections of the media have decid-
ed to keep quiet out of fear of reprisals.
The general polarisation has affected
the corporate sector as seen in state-
ments by Rahul Bajaj and Kiran Maz-
umdar Shaw.
Lack of social cohesion and harmony,
which is visible in communal polarisa-
tion and divisive policies. This led to
loss of trust in the centre and lack of
investment also destroyed the interna-
tional image of the government.
The RSS has in many ways shaped the
policy making of the government.
A number of populist policies by the
government contributed to the down-
turn of the economy: failure to move on
land acquisition and royalties
for genetically modified seeds
despite having a majority in
Parliament; protectionist poli-
cies reversing the change in
1991; tightening of norms for e-
commerce retailers which ham-
pered the operations of Amazon
and Flipkart that goes against
the statement of “red carpet for
foreign investors”; loan waivers
and other forms of fund distri-
bution to farmers rather than
addressing the agrarian crisis;
the 2017 ban in UP on all “illegal”
slaughterhouses and curbs on mechani-
cal abattoirs leading to tremendous loss
of foreign exchange earnings and liveli-
hoods of a large number, etc.
A
ccording to Garg, from 2010 to
2020, India's consumption
demand shifted to imports from
China, Vietnam, Malaysia and Thailand
and was worth Rs 6.6 lakh crore in
2018-19 alone. This, he said, needs to
be pulled back to create manufacturing
sector employment, power generation,
income and demand and thereby re-
duce the stress on banking and non-
bank financial companies. He suggested
that the micro and the SME sector
should be revived by providing them
technology, raw materials and financial
support.
Is anyone listening?
In sum, the downswing of the econo-
my is due not just to incompetent han-
dling, but also the political ideology
that underlies the functioning of
the government.
Criticismofgovernment
policyledtoreprisalswhich
createdanatmosphereoffear
andlackoftrust.Thegeneral
polarisationhasaffectedthe
corporatesectorasseenin
statementsbyRahulBajaj(left)
andKiranMazumdarShaw.
MIGUEL QUESADA/wikiwand.com
Seminar/ State of the Economy
Sabka Saath-Sabka Vikas-Sabka Vishwas
Social Audit
Rising Steps
Important steps taken by the Government of Uttar Pradesh to
ensure transparency, public participation and accountability
in the implementation of Government of India/State
Government schemes to all sections of society
To ensure transparency, public
participation and accountability in the
work of Gram Panchayats and other
executing organizations.
Monitoring of accounts with physical
verification of works, participation and
monitoring of society
To ensure the benefit of schemes
reaches all sections of society
To make aware public of their rights,
duties in the schemes
Social audits of 20,887 gram panchay-
ats were conducted in the year 2018-19.
In the year 2019-20, social audit was
conducted in more than 16 thousand
gram panchayats till September, 2019.
The target is to conduct social audit in
all gram panchayats of the state by
March 31, 2020.
Through public awareness rallies, placing
hoardings on all development buildings,
involving schoolchildren in awareness ral-
lies, scooter motorcycle rallies, sharing
information through folk songs, pamphlets
and loudspeakers before the social audit
meetings, the common people were con-
nected to a transparent process like social
audit leading to increased public participa-
tion
Through social audits, people succeeded
in raising their voice by coining the slogans
like “Mera Kam Mera Daam” “Mera Paisa
Mera Hisab”. Schemes like MNREGA-
Pradhan Mantri Awas Yojana brought qual-
itative changes in the standard of living of
the villagers and they managed to air their
views through a democratic platform.
Social audit is a continuous process. According to the calendar available on the website of
the Directorate, http://socialauditup.in, contribute to ensure accountability by making active
participation in the meeting of the Social Audit Gram Sabha of the respective Gram Panchayats
and make the social audit more public utility.
Why social audit?
Progress so far
Appeal to public
Efforts made for public
awareness
TEST AUDIT
The test audit is conducted by the directorate to maintain the quality of social audit.
RAJENDRA PRATAP SINGH (MOTI SINGH)
Minister, Rural Development Department, Uttar Pradesh
What we achieved
RAJENDRA PRATAP SINGH (MOTI SINGH)
Minister, Rural Development Department, Uttar Pradesh
Issued in the public interest by the Directorate of Social Audit, Uttar Pradesh-Rural Development Department, Uttar Pradesh.
Scientists and governments all over the
world are analysing South Korea’s
response to the coronavirus and how they
were able to get it under control so quickly.
On February 18, South Korea diagnosed its
31st patient with COVID-19, and she be-
came known as the country’s “super-sprea-
der”. She was a middle-aged woman who
had taken part in mass congregations at a
religious group. She passed the virus onto
other members of the group and unsus-
pecting residents of the city of Daegu.
Overnight, doctors were diagnosing more
than 900 new cases a day.
That’s when the government came up
with a strategy called TRUST (Transpa-
rency, Robust Screening and Quarantine,
Unique but Universally Applicable, Strict
Control, and Treatment). That included
swift deployment of testing stations, cre-
ation of mobile applications and quaran-
tining capabilities, reporting of accurate
and transparent data and strict monitoring
and investigations of possible contacts and
finally, treatment.
The government was
able to run up to 19,000
diagnostic tests a day
and, in the early phase of
the outbreak, it made
hospitalisation manda-
tory for all confirmed
cases regardless of the
severity of symptoms.
When Chinese scien-
tists first published the
COVID-19 virus’ genetic
sequence in January, at
least four South Korean
firms began developing
and stockpiling test
kits—well before the
country had its first out-
break. Anyone with a
mobile phone also
received alerts about
areas where the virus
was known to be active.
Transparency played a
big role. Since day one, press briefings have
been held twice a day by experts in disease
control. The briefings were livestreamed
through the internet with simultaneous
interpretation into English. This openness
and transparency have been pivotal in gai-
ning public trust and a high level of civic
awareness, which encouraged the public to
take voluntary self-quarantine and other
preventive measures such as “social dis-
tancing” that has effectively slowed the
spread of COVID-19. South Korea has one
of the lowest casualty rates from COVID-
19 in the world, at just 1 percent.
32 April 6, 2020
International Briefs
The Trust Method
The deluge of information being dis-
tributed on social media and the in-
ternet to meet the insatiable demand for
news on the coronavirus crisis has created
what is literally a fake medical factory
with all sorts of advice being given out,
mostly fake and in many cases, downright
dangerous. The fact remains that, as of
now, there is no known cure even as the
pandemic continues to spread alarmingly.
That has not stopped people from offer-
ing all sorts of “expert” advice, none based
on scientific evidence or proven usage. In
India, we have had elected members of
the BJP offering bizarre cures—one said
cow urine and cow dung could be cures,
yet another distributed cloves “energised
by mantras” while others, including
some in government, are talking up
homeopathy and various herbs. Baba
Ramdev has also advocated yoga as a
possible counter to the pandemic, again
without empirical evidence. The other
“cures” put out by assorted “experts”
include:
Raw garlic: Social media is flooded
with advice on eating garlic to prevent
infection. The World Health Organi-
The Fake Medical
Factory
UNI
Ahuge number of the big-
gest brands in the world
are doing their bit in the fight
against Covid-19. They in-
clude luxury brands like Yves
Saint Laurent and Balenciaga
who are using their work-
shops to make surgical masks
instead of luxury clothes for
the French health service.
French luxury power-
house LVMH, which owns
Louis Vuitton, Bulgari, TAG
Heuer, Tiffany, Dom Péri-
gnon, and many other high-
end brands, has ventured
into the hand sanitiser sector.
Perfume and cosmetics mak-
ers Christian Dior, Guerlain,
and Givenchy will use their
production facilities to make
hand sanitisers that will be
provided to French authori-
ties for free in an effort to
fight the coronavirus. L'Oréal
Group, one of the largest
beauty producers in the
world, is using its facilities to
make hand sanitisers for
medical officials.
Even carmakers are join-
ing in: Vauxhall offered to
assemble ventilators and ven-
tilator components using 3-D
printers at its plant in Eng-
land, after it stopped produc-
tion due to falling demand.
In the US, General Motors
Co, and Ford Motors Co were
examining whether they
could also put their idled fac-
tories to work making med-
ical equipment. Meanwhile,
Jack Ma, the billionaire fo-
under of Chinese e-commerce
giant Alibaba, is donating
1.1 million testing kits, 6 mil-
lion masks, and 60,000 pro-
tective suits and face shields.
They are all being sent to
Ethiopia from where they
will be sent out to every
other country on the
African continent.
| INDIA LEGAL | April 6, 2020 33
In a heartwarming devel-
opment, celebrities are li-
ning up to do their bit and
send some of the millions
they have earned towards
helping fight the coron-
avirus. Roger Federer widely
considered the best tennis
player of all time, and his
wife, Mirka, will be donating
1 million Swiss francs ($1.02
million) to help the most
vulnerable families in his
home country, Switzerland.
Two of the biggest names
in the world of soccer are
also making sizable dona-
tions. Barcelona star Lionel
Messi is donating 1 million
euros that will be split bet-
ween the Hospital Clinic in
Barcelona and another med-
ical centre in Argentina.
Juventus star Cristiano Ro-
naldo is funding three inten-
sive care units for coron-
avirus patients at hospitals
in Portugal. In America,
Arnold Schwarzenegger,
actor and former governor of
California, has donated $1
million to the Frontline
Responders Fund to address
the shortage of protective
equipment and medical
supplies. Actor Gwyneth
Paltrow also donated
$100,000 to the same Fund.
Power couple Ryan Reynolds
and Blake Lively have pled-
ged $1 million to Feeding
America and Food Banks
Canada. Pop star Rihanna
has announced that she will
donate $5 million to
COVID-19 rapid response
efforts in the US and across
the globe. Bill and Melinda
Gates Foundation has com-
mitted $105 million to aid
the global response to the
novel coronavirus.
Celebrities Join the Crusade
sation says that while it is “a healthy food
that may have some anti-microbial prop-
erties”, there’s no evidence that eating
garlic can protect people from the new
coronavirus. In China, a woman had to
receive hospital treatment for a severely
inflamed throat after consuming 1.5kg of
raw garlic after an online post went viral
claiming that a bowl of boiled garlic wa-
ter can cure the 2019 novel coronavirus.
Facebook has since blocked the post
because “the primary claims in the infor-
mation are factually inaccurate”.
Hot baths: Taking a hot bath will not
prevent you from catching COVID-19.
Your normal body temperature remains
around 36.5°C to 37°C, regardless of the
temperature of your bath or shower.
Antibiotics: Again, antibiotics do not
work against viruses, only bacteria. The
new coronavirus is a virus and, therefore,
antibiotics should not be used as a means
of prevention or treatment.
Hand dryers: Debunking circulating
myths, the World Health Organisation
said hand dryers alone cannot kill coron-
avirus. Rumours circulated that using the
hot air from the dryer for 30 seconds will
rid any trace of the virus on your hands.
Sesame oil: Another myth is related to
sesame oil, a staple in Asian cooking. But
that’s about all. Contrary to rumours,
rubbing sesame oil onto the skin won’t
block coronavirus from entering the body.
The WHO says: “No. Sesame oil does not
kill the new coronavirus.”
Eating chicken will encourage the
virus: This is absolutely false. Suppliers
of meat, fish and chicken have been badly
hit after false rumours circulated that
non-vegetarian food, especially chicken,
infected people with the virus. WHO has
rubbished such claims.
Cats and dogs spread coronavirus:
There is no evidence that COVID-19 can
infect pets. In Hong Kong, a pomeran-
ian’s owner had COVID-19 but his dog
did not display any symptoms.
Brand Value
Messi Rihanna Federer Gates
34 April 6, 2020
N an attempt to facilitate resolution
of pending income tax (IT) litiga-
tion, Parliament cleared the Direct
Tax Vivad Se Vishwas Bill, 2020 on
March 13, 2020. This will also gen-
erate revenue at a time when the
government is struggling with collec-
tion—both direct and indirect. Signi-
ficantly, the scheme will also cover unex-
plained cash deposits during demoneti-
sation. With regard to indirect taxes,
such as customs, GST, etc, the govern-
ment had attained reasonable success
through a similar tax dispute resolution
scheme, Sab Ka Vishwas, which was
implemented recently.
The Vivad Se Vishwas scheme will be
applicable to all appeals/petitions filed
by taxpayers or the IT department,
which are pending on January 31, 2020,
with any of the following forums: Com-
missioner of Income-tax (Appeals), In-
come-tax Appellate Tribunal, High Co-
urt and the Supreme Court. It would
also be applicable in the following situa-
tions where, as on January 31, 2020:
(a) time limit for filing an appeal has
not expired
(b) cases pending before the Dispute
Resolution Panel (DRP) or where DRP
directions have been passed but final
assessment order is awaited
(c) revision petitions pending before the
Commissioner of Income-tax
(d) where the disputed demand in res-
pect of search cases is less than Rs
5 crore.
Disputed tax in an assessment year
would essentially mean tax on the in-
come under dispute. Taxpayers seeking
to settle disputes will have to make a
payment of a certain amount that would
depend upon the type of case and the
Litigation Dilemma
TheBillwilltrytoresolveITdisputes,bringinmuch-neededrevenueforthecentreandresolve
theissueofcashhoardedduringdemonetisation.Italldependsonhowitwillbeimplemented
Column/ Direct Tax Vivad Se Vishwas Bill, 2020 Sumit Dutt Majumder
I
POINT OF CONTENTION
While referring to the Vivad se Vishwas Bill,
FM Nirmala Sitharaman said that the centre
will address the issue of reduction of litigation
UNI
| INDIA LEGAL | April 6, 2020 35
date of payment of the disputed tax.
With regard to cases other than those
where searches were involved, the tax-
payer will pay 100 percent of the disput-
ed tax if the payment is made on or
before March 31, 2020. However, if the
payment is made after March 31, 2020,
the amount would be 110 percent of the
disputed tax. In respect of search cases,
the respective amounts will be 125 per-
cent or 135 percent of the disputed tax
depending upon whether the payment is
made on or before March 31, 2020, or
later, respectively. The main attraction
of the scheme is that in both cases of
search and non-search, interest and
penalty amount will be waived.
Further, where arrears relate to only
the disputed interest or penalty, and not
the disputed tax, 25 percent of this
penalty or interest will have to be paid if
the payment is made on or before
March 31, 2020. However, if the pay-
ment is made after March 31, it would
be 30 percent of the disputed penalty or
interest.
Regarding appeals filed by the IT
Department against orders in favour of
the taxpayer at the original or first
appeal stage, the amounts payable are
much less. This is because the order has
gone in favour of the taxpayer. In cases
other than search cases, it is 50 percent
and 55 percent of the disputed tax,
depending upon whether the payment is
made on or before March 31 or later. In
respect of search cases, it’s 62.5 percent
or 67.5 percent of the disputed tax,
again depending on the time of pay-
ment—on or before March 31. In these
cases too, the interest and penalty will
be waived.
W
ith regard to cases relating to
only interest or penalty, the
amounts payable would be
12.5 percent or 15 percent of the disput-
ed interest or penalty depending upon
the time of payment again. Further, if
the taxpayer has already paid the dis-
puted demand, which is more than the
amount payable under the
scheme, the taxpayer will
get the refund, but with-
out interest.
As for the process to
settle the tax dispute, an
individual taxpayer has to
take the following steps.
First, he has to file a dec-
laration in a specified
form to the designated
authority. He also has to
furnish an undertaking in
a specified format waiving
his right to pursue any
other proceeding in the
same matter. Based on the
declaration, the designat-
ed authority will determine the amount
payable. The applicant will have to make
the payment within the next 15 days;
there will be no appeal against the
amount so determined. On submission
of the proof of payment, the designated
authority will pass the necessary orders
for settlement. The last date for avail-
ment of the scheme is June 30, 2020.
It has also been clarified that dis-
putes pertaining to provisions of IT
alone, and not those covered under the
Wealth Tax Act, will come under the
ambit of this scheme. Further, there are
no provisions in the scheme to settle
only part of a pending dispute.
In the context of demonetisation,
the finance minister strongly denied
that the scheme was an “amnesty
scheme”. She clarified that IT disputes
related to unexplained cash deposited
in banks during demonetisation
(November 8 to December 31, 2016)
could also be settled under the scheme.
In such cases, the applicants would
need to pay 75 percent of the unex-
plained cash deposited in banks as tax
due to the government. Reportedly,
demonetisation-related tax disputes are
worth around Rs 3 lakh crore and
Thetaxpayersoptingforthescheme
wouldhavepeaceofmindandsaveon
timeandresourcesthatwouldotherwise
havebeenspentonlong-drawnand
vexatiouslitigationprocesses.
THE NOTIFIED RULE
The scheme allows a taxpayer
to file a declaration on the IT
e-filing portal
Column/ Direct Tax Vivad Se Vishwas Bill, 2020/ Sumit Dutt Majumder
36 April 6, 2020
depositors are likely to avail of the
scheme as the tax department had com-
pleted the final assessment. The debate
about whether this is a special amnesty
scheme for cash during the demonetisa-
tion period will linger though.
A
lso, it has been reported that
4.83 lakh direct tax cases worth
Rs 9.32 lakh crore are currently
pending before various appellate for-
ums. Thus, settling of these cases thro-
ugh this scheme will not only reduce lit-
igation, it will also add to the coffers
substantially in these difficult days of
revenue crunch.
Besides the waiver of interest and
penalty, there are other benefits from
this scheme. The settled cases cannot be
reopened in any other proceeding by
any tax authority. An appellate forum
too cannot issue an order in respect
of the settled issue. Thus, taxpayers opt-
ing for the scheme would have peace of
mind and save on time and resources
that would otherwise have been spent
on long-drawn and vexatious litigation
processes.
However, it is incumbent upon the
taxpayer to consider certain aspects
before opting for the scheme. He must
assess how strong is his defence on the
merits of departmental proceedings,
expected cost of litigation, implications
of carried forward losses, cash flow con-
siderations, etc.
The Central Board of Direct Taxes
has clarified various queries from stake-
holders in the form of FAQs. These con-
tain clarifications on scope, eligibility,
calculation of disputed tax, procedure
related to payment of disputed tax and
consequential benefits to the declarant.
The rules and online forms for the
scheme have just been notified. The first
step is to file a declaration with detailed
information in Form 1 at the e-filing
portal of the Department. An undertak-
ing waiving the right to pursue any
claim will be given in Form 2. The des-
ignated authority will then issue an
order regarding payment amount in
Form 3. The taxpayer will intimate the
details of payment he made in Form 4.
These will be electronically verified and
the matter settled.
Given that the fresh rules and
reforms were notified just about ten
days before the deadline, it would be
imperative to extend the deadline of
March 31.
While the scheme looks good on
paper, much will depend on the efficien-
cy of implementation and the level of
engagement between taxpayers and the
tax administration. After all, the proof
of the pudding is in the eating.
UPDATE: As we went to press, Union
Finance Minister Nirmala Sitharaman
announced that the government had
extended the deadline for settling tax
disputes under the Vivad se Vishwas
scheme without paying any interest and
penalty to June 30, 2020.
—The writer is former Chairman, CBEC
PayableTaxForSettlement
(For appeals filed by taxpayers)
Type of Cases On or Before March 31,
2020
After March 31, 2020
(a) Normal Cases (other
than Search)
100 percent of disputed
tax (DT)*
110 percent of DT*
(b) Search Cases 125 percent of DT* 135 percent of DT*
(c) Cases relating to only
interest, penalty, etc. (and
not tax)
25 percent of disputed
interest, penalty, etc.
30 percent of disputed
interest, penalty, etc.
N.B. * Interest and penalty waived in these cases.
REMOVING MISCONCEPTIONS
In the context of demonetisation, the Union
finance minister strongly denied that the
scheme was an “amnesty scheme”
UNI
| INDIA LEGAL | April 6, 20 37
D
ainik Bhaskar, the coun-
try’s leading Hindi lan-
guage daily, is now
posting video clips on social
media which show newspaper
sheets being sprayed with sa-
nitisers before they are distrib-
uted. The Chennai-based The
Hindu is doing something simi-
lar, informing readers that the
company has installed com-
pressed sanitiser dispensers
that spray a mist on the news-
papers when they are coming
out of the printing machines.
This is in response to the
panic surrounding the coro-
navirus which has prompted
many individuals and housing
societies to ban newspaper
vendors from entry and
distribution.
BCCL, the company that
publishes national dailies like
The Times of India and The
Economic Times, issued a
press release which says:
“Let’s not go by rumour mills
and fear mongers. The news-
paper delivered to your home
is safe. The newspaper print-
ing, folding and bundling are
all done without touch. The
bundles are loaded on to fumi-
gated trucks by gloved and
face-masked handlers.”
Ads released by the Hindu
Group say: “In these trying
times… we and others in the
newspaper industry are work-
ing to bring to the people
accurate information that cru-
sades against fake news.”
Hindustan Times Media
group also said it is sanitising
all its plants regularly and
“attempts are being made to
avoid manual intervention”.
Despite such efforts and an
assurance from the World
Health Organisation that news-
papers carry a very low risk of
infection, most subscribers in
India have taken panic to a
new level by literally forgoing
their daily habit.
O
One of India’s
finest news pho-
tographers is no
more. Bhawan Singh,
who earned fame and
international recognition
for his heart-rending pho-
tos of the Nellie mas-
sacre, passed away last
week. Low-profile and
humble, he avoided the
limelight but his work
lives on as a legacy of a
master lensman.
He had retired after a
long and illustrious car-
eer at India Today maga-
zine where he covered
natural and human
tragedies and celebra-
tions and celebrities with
the same empathy and
eye for perfection. One
of his most memorable
photos is the one he
took of gangster Dawood
Ibrahim at Sharjah, The
image of the don, now
among India’s most
wanted, talking on the
phone and smoking, is
still the defining image
of Dawood, one that
everyone uses but few
give credit to Bhawan
Singh, a true diamond in
the rough.
Lens
Closed
Media Watch
P
rime Minister Narendra
Modi is ensuring that he
keeps the media on his
side as he tackles the enor-
mous challenge posed by the
coronavirus outbreak. In two
separate video conferences,
he interacted with media repre-
sentatives from TV and print
where he said: “The tireless
efforts of the reporters, camer-
apersons and technicians are
a great service to the nation.
The media should counter pes-
simism and panic through pos-
itive communication.”
The media representatives
included Subhash Chandra of
the Essel Group, Rajat Sharma
of India TV, Kalli Purie of India
Today Group, Smita Prakash of
ANI, and Arnab Goswami of
Republic TV, among others
while the print media included
editors and publishers of na-
tional and regional media rep-
resenting 11 languages, and
included Hindustan Times boss
Shobhana Bhartia, Viveck
Goenka of The Indian Express,
Ramoji Rao of the Eenadu
group, Mammen Mathew from
Malayalam Manorama and The
Times of India’s executive edi-
tor, Jaideep Bose.
The sole message was to
convey positive news and co-
unter rumours and fake news
regarding the coronavirus. The
participants unanimously pled-
ged to support the government
in its battle against the virus,
heeding Modi’s remark that
“COVID-19 is a lifetime chal-
lenge and it needs to be tack-
led through new and innovative
solutions”.
Modi and the
Media
Sanitising
the News
38 April 6, 2020
NE of the things which is
of major concern today is
that banks may not be
safe. Till the other day,
only Rs 1 lakh in a bank
account was insured. In
the most recent Budget, this sum was
raised to Rs 5 lakh. And even that did
not seem to provide adequate comfort.
But maybe I was talking to the
wrong set of people. After all, not too
many people have more than Rs 5 lakh
in their bank accounts. No matter what
you have in your account, if you are sud-
denly denied access to it, as and when
you want, it can feel quite rough. Con-
sequently, you might think twice before
keeping your hard-earned cash in banks.
More worrying, such bank crises
keep happening quite regularly. It is
Yes Bank now but it was the Punjab
and Maharashtra Cooperative Bank last
September. Not only banks, but airlines
such as Jet Airways, Kingfisher and the
famous travel agency, Cox and King’s,
folded up, leaving people suddenly
without jobs and literally stranded.
Investors in institutions such as
DHFL and ILF&S found their invest-
ments disappearing due to, to put it
politely, “mismanagement”. Or slightly
earlier, we were faced with scams origi-
nating from the actions of the late
Harshad Mehta or to the collapse of
Satyam Computers. The last time there
was a financial crisis was in 2008 when
markets in East Asia collapsed. Are we
seeing something similar now? And are
such collapses of the stock markets
cases of market failure?
American economist Kenneth Arrow,
writing about the 2008 crisis, said:
“...the failure of the markets for various
kinds of derivative securities to perform
properly is an essential element of the
current financial crisis”. People attribute
the current collapse in stock markets to
the coronavirus. Maybe it is so. Time
will tell what is happening now: how
Scams,Failures&OtherMatters
Variousscamshaveshownthatbreakingcontractsmayberewarding.Butquickidentificationof
contractviolatorsandawardingdeterringandjustpunishmentshouldbethemainpriority
Opinion/ Bank Collapses and Business Failures Anjan Mukherji
O
WORRYING FACTOR
Yes Bank promoter Rana Kapoor being taken
away by ED officials after his arrest. Such
bank crises keep happening quite regularly
youtube
| INDIA LEGAL | April 6, 2020 39
much of it is because of the world-wide
meltdown and/or whether local prob-
lems have had a say.
People may be tempted to attribute
the apparent disconnect between what
one studies in textbooks, where every-
thing is supposed to work out nicely and
cleanly, and what one notices in real life
as described above to the inadequacies
of what we have taught our students or
the theory itself. I shall argue that what-
ever one sees around us is exactly as the
textbooks should have led us to expect.
The current economic paradigm pre-
valent the world over has been referred
to as the SLP regime by Dani Rodrik.
This means:
Stabilise (government expenditures
have to be kept to low levels)
Liberalise (allow trade to take place
between countries without significant
friction in the form of tariffs or taxes)
Privatise (in the sense that govern-
ment or the public sector should not get
into producing goods and services).
The SLP regime is usually taken to
originate from Adam Smith. However,
much before him, Chanakya had advo-
cated that markets should be allowed to
function freely. But there are externali-
ties and problems of asymmetric infor-
mation which vitiate market functioning
and this means that governments must
intervene to tackle these. In spite of
these, some may say because of them,
undesirable outcomes persist.
There are other more basic problems.
One should realise that any economic
activity, be it sale and purchase of daily
necessities such as vegetables or negoti-
ating loans from banks to foster indus-
trial growth, involves a contract between
two parties. Often, one of the parties
could be the government. But someone
has to oversee the maintenance of these
contracts. Otherwise, what can one do,
if one party fails to keep to the terms of
the contract?
Dragging the offending party to
court for a quick and fair decision is the
only legitimate answer. This would
make the breaking of contracts unat-
tractive. Clearly, we do not have such an
opportunity in India today and we are
forced to enter into lengthy, costly
exchanges with lawyers and courts to
the detriment of the affected.
Thus, trade or transactions which
could have taken place may not; funds,
which could have come, are diverted
elsewhere. Trade that did occur is twist-
ed into yielding outcomes which illegally
benefit one party and scams and market
failures occur. And what should be wor-
rying is that such occurrences are going
to keep surfacing periodically.
T
his depressing conclusion is
because we have not yet realised
the centrality of the above argu-
ment. We often read about steps being
advocated by various scholars from
home and abroad. Yet, how many times
have you seen the reforms of courts and
the judicial system being mentioned as
top priority? Quick identification of vio-
lators of contracts and awarding deter-
ring and just punishment should be the
number one priority. Breaking contracts
may often be hugely rewarding, if one
can get away with it.
In such situations, the perpetrator
continues to do exactly as he wishes,
and scams and unwelcome outcomes
continue and flourish. As someone said
with respect to the handling of the situ-
ation at Yes Bank, while profits were
privatised, losses will now be nation-
alised and incentive for wrongdoing
strengthened.
Finally, both Adam Smith and
Chanakya realised that freely function-
ing markets can lead to prosperity only
on the basis of good moral behaviour.
Mistakenly, people have attributed greed
to be the enabling characteristic. Greed
together with a belief of being able to
get away scot-free has got us the various
scams and failures that we have alluded
to. It is this aspect that we no longer
emphasise while framing policies. To
counter this, the need for timely, just
policing and a fair and efficient legal
system becomes paramount.
—The writer is Professor Emeritus,
Centre for Economic Studies and
Planning, JNU. This note appeared in
the 10th Edition of Vitta, the FIC, Sri
Ram College of Commerce Journal. It
appears here with the kind permission of
their editorial board
Notonlyseveralbanks,butevenairlines
suchasJetAirways,Kingfisherandthe
famoustravelagency,CoxandKing’s
foldedup,leavingpeoplesuddenlywith-
outjobsandliterallystranded.
UNI
Opinion/ RS Biennial Polls Vivek K Agnihotri
40 April 6, 2020
IENNIAL elections to the
Rajya Sabha have been
postponed to replace 55
retiring members in 17
states. Each member of the
Rajya Sabha (RS) is elected
for six years. According to Clause (1) of
Article 83 of the Constitution, the
Council of States (i.e. the RS) shall not
be subject to dissolution, but one-third
of its members shall retire every second
year. This scheme has been considerably
altered, and elections to the RS have
being held on more than three occasions
within six years.
This is due to the imposition of
President’s Rule and/or dissolution of
various state assemblies from time to
time before the completion of their five-
year term. Some state assemblies were
thus in a state of dissolution when the
biennial elections to the RS were due
and hence elections to the seats of those
states were held later. This staggering
of elections has played havoc with the
biennial schedule. Actually, the elections
of 73 members will be held in the
course of 2020, which is close to the
statutory one-third.
Article 80 provides for the RS to
have 12 members nominated by the
president and not more than 238 repre-
sentatives of states and Union Territo-
ries. As against this sanctioned strength
of 250 members, the RS at present has
245 members, the number of elected
members having been restricted to 233
as detailed in the 4th Schedule of the
A Council of Nominees?
EvenaspollstotheHousehavebeenpostponed,itsoriginalvisionanddesignhavechangedas
anyonecancontestitirrespectiveofdomicile.Itisnomoreacouncilofstatesbutofpoliticians
B
LOSING ITS CHARACTER
The Chairman of the Rajya Sabha M Venkaiah
Naidu, presiding over a session
BLURRED DISTINCTION
The Rajya Sabha has been made
somewhat of a clone of the Lok
Sabha (left) in filling its seats
| INDIA LEGAL | April 6, 2020 41
Constitution. There is a link between
the numbers of RS seats allotted to
various states and their respective
population.
According to Clause (4) of Article 80,
the representatives of each state in the
RS shall be elected by members of the
legislative assembly of the state in
accordance with the system of “propor-
tional representation by means of the
single transferrable vote”. In simple
terms, “proportional representation”
means a political party gets to elect one
or more member(s) to the RS in propor-
tion to the number of its members in
the state assembly. Again, the vote of
each member of the assembly is “single”
but “transferable”. Thus, in the ballot
paper, the names of all the contesting
candidates are listed and the electors
have to indicate their order of prefer-
ence against them. After putting “1”
against the candidate of his choice, the
MLA’s other preferences come into play
only if the number of contesting candi-
dates is more than the current vacancies
in that state and, in the first round of
counting, one or more candidates does
not get the required number of votes to
get elected.
The formula for deciding the mini-
mum number of votes required by a
candidate to get elected is:
Total Number of MLAs
+1
Number of Vacancies+1
For example, let us look at the sce-
nario in Andhra Pradesh in the forth-
coming elections. First the facts: the
strength of the state assembly is 175; the
number of RS seats for which elections
are scheduled is four. The YSR Congress
Party (led by Jagan Mohan Reddy) has a
strength of 151 in the assembly. Accor-
ding to the formula given above, the mi-
nimum number of votes required by a
candidate to get elected would be:
175
+1 = 36
4+1
Each of the four candidates nominat-
ed by YSRCP would thus need to secure
36 votes. As the YSRCP has a strength
of 151 in the assembly, it requires a
whip to at least 144 (36x4) MLAs to give
their first preference in the ballot paper
to one or the other of the candidates
nominated by their party. Other candi-
dates, if any, in such a situation would
be no-runners, at the starting point
itself, because the opposition has only
24 members.
D
uring the debates in the Consti-
tuent Assembly, a member, Lok-
nath Mishra, conceptualised the
RS as “a sobering House, a reviewing
House, a House standing for quality and
the members will be exercising their
right to be heard on the merits of what
they say, for their sobriety and knowl-
edge of special problems….” M Ananth-
sayanam Ayyangar, a former Speaker of
the Lok Sabha, thought that on such a
platform of reflective consideration “the
genius of people may have full play”, and
it can make place for people “who may
not be able to win popular mandate”.
However, over time, we have some-
how moved away considerably from the
original vision and design of the RS in
letter and spirit. The RS, as envisioned
by the framers of the Consti-
tution, has been “basically”
modified by removal of the
domicile requirement origi-
nally mandated by The Rep-
resentation of the People
Act, 1951. In permitting any-
one to contest the elections
to the RS irrespective of do-
micile, the diversity, which
was the hallmark of the Up-
per House, has been watered
down and it has, to some
extent, become somewhat
akin to the Lok Sabha. It is
no more the council of
states, and at present is, to
ProvidingseatsintheRajyaSabhato
variousstatesonthebasisoftheirpopu-
lationisuncalledfor.Whenweconsider
allstatesasequalforcertainlegislative
purposes,whythenthisdiscrimination?
India legal 06 april 2020
India legal 06 april 2020
India legal 06 april 2020

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India legal 06 april 2020

  • 1. NDIA EGALL STORIES THAT COUNT I April6, 2020 dolegalprovisionsortheConstitutionallowthegovernmenttotakemore seriousmeasuresthana21-daytotallockdownifthepandemicworsens? howKeralaisshowingtheway doesstampingofforearmsandpastingofquarantinenoticeson residencesviolatehumanrights? thecurse oftheblackmarket theSAARCinitiativeonCOVID-19andwhyPakistanisplayingspoilsport TheCOVID-19Emergency Bank Failures: Scope for scams
  • 4. 4 April 6, 2020 UARTZ Africa editor Yinka Adegoke recently penned an astute little essay on the universality of pandemics. “I’m getting messages from friends in Lon- don, Madrid, Lagos and other places, who are reading news reports and asking if we’re okay because we’re in New York,” he said. “But I’m thinking the same about them. It’s something about the psychology of fear and how we transfer it onto others.” Quartz editorialised that it is indeed riveting “how a pandemic both cements and renders moot our physical distance from one another. Friends in New York and London, Lagos and Madrid can be stuck thousands of miles apart, but are going through variations of the same experience. The fear is global, but so is the com- munity. It’s an unfortunate but not entirely un- pleasant camaraderie, like being trapped in a broken elevator with the whole planet.” In this issue of India Legal, we devote an entire package, written and compiled by some of the best in the business, of the multi-faceted ele- ments of this scourge as it descends on the hud- dled multitudes of India. There is still debate on whether the miasma permeating the subcontinent is the malodorous stench of a community spread yet to manifest its true diabolical spread. Every second, across the globe, we are losing people we love to COVID-19 —from New York to Milan to Tehran. I mention Tehran with the deepest sorrow because in this hour of humanity’s collective grief, when countless thousands of jobless work- ing class Indians are being turned into hungry refugees in their own land as they trek hundreds of miles to find succour and shelter as the more affluent cities shut them out, Iran too, suffers egregiously. India and Iran are civilisational countries with a richly shared past, heritage and culture. Today our sister nation, suffering the worst rav- ages of the shared pandemic, and in need of the warmth and friendship of us all, is sought to be TO IRAN WITH LOVE Q Letter from the Editor LOOKING FOR SUCCOUR (Below left) Iran has been devastated by COVID-19 and the US sanctions will severely restrict life-saving medical supplies and emergency medical relief to that country; (below right) a protest to lift the sanctions against Iran in the US Inderjit Badhwar UNI Medea Benjamin
  • 5. | INDIA LEGAL | April 6, 2020 5 isolated by US President Donald Trump politi- cally and economically. An international effort is now underway through a mass online petition being circulated by “Win Without War” that deserves the support of the world community. The organisation was founded in 2002 in opposition to the impending American invasion of Iraq. The coalition was previously run by former US Representative Thomas Andrews (D-ME), and its current direc- tor is grassroots advocate Steven Miles. The petition says: While people everywhere scramble to self-iso- late, patch together emergency medical sup- plies, protect workers, and care for our loved ones, 80 MILLION Iranians are facing an even greater barrier to being able to respond: US Sanctions. US sanctions on Iran severely restrict life-sav- ing medical supplies, including COVID-19 em- ergency medical relief like protective gear and ventilators. Even with exemptions for humani- tarian aid, companies are not able to navigate complex regulations in order to get the aid in. And it’s predicted that if more is not done to slow the spread of the virus, such as lifting sanc- tions strangling Iran’s economy, at least 3.5 mil- lion people in Iran will die of COVID-19. That’s why a group of representatives, led by Rep. Alexandria Ocasio-Cortez, just dropped a bicameral letter in Congress calling on Sec- retaries Mnuchin and Pompeo to suspend sanc- tions on Iran for 120 days. They plan to deliver it to Secs. Mnuchin and Pompeo. We don’t have much time—will you urge your members of Congress. Temporary suspension of sanctions on Iran isn’t just an idealistic dream. We’ve already seen it happen before. During both the Bush and Obama administra- tions, sanctions were temporarily suspended to allow emergency relief in after devastating earthquakes. And today’s coronavirus pandemic is likewise an undeniable EMERGENCY. That’s why in response to today’s emergency, we should once again reach across borders, and take care of each other. Luckily there are more and more stories in the press on the impacts of US sanctions on the Iranian COVID-19 response. If we can get members of Congress to add their voices to this building momentum today, we can create pres- sure from all sides to push Secretary Mnuchin to do so. Let’s be real, right now things are hard, every- where. But you are not alone in your fear, or your heartbreak right now. And it’s important, now more than ever, that we continue to come together, to take care of each other across the street, across the country, and across the world. Today let’s reach across borders and say loud and clear: You are not alone in this. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com AgroupofrepresentativesintheUS,ledbyAlexandriaOcasio-Cortez (above),hasdroppedabicameralletterintheUSCongress,callingon SecretariesMnuchinandPompeotosuspendsanctionsonIranfor120days. TheletterseekssupportfromtheCongresstoachievethisurgentobjective. twitter.com
  • 6. 6 April 6, 2020 ContentsVOLUME XIII ISSUE21 APRIL6,2020 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Junior Sub-editor Nupur Dogra Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Do legal provisions or the Constitution allow the government to take more serious measures than a 21-day total lockdown if the COVID-19 situation worsens? Is this ground to declare an emergency? How Far Can the Government Go? LEAD 10 The pragmatic way in which Kerala has handled the pandemic at the health, economic and social levels is probably the only way to halt its rapid stride and should be followed by other states 14 Showing the Way
  • 7. | INDIA LEGAL | April 6, 2020 7 Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE Cover Photo: UNI REGULARS Ringside............................8 Courts ...............................9 International Briefs ........32 Media Watch ..................37 A Council of Nominees? 40 The Direct Tax Vivad Se Vishwas Bill, 2020 will try to resolve IT disputes, bring in much-needed revenue for the centre and resolve the issue of cash hoarded during demonetisation. It all depends on how it will be implemented Litigation Dilemma SEMINAR An India Legal editorial had said that the economy had entered a full-blown recession. Neither the budget nor politicians were able to cope with it. This was reiterated by experts at a seminar held before the coronavirus impact 28 The Stark, Searing Reality... 18 A petition filed in the SC has alleged that sanitisers and masks are in short supply due to black marketing and asked the top court to ensure fairness in supply and retail A Black Deed 22 Scams, Failures & Other Matters Various bank scams have shown that breaking contracts may be rewarding. But quick identification of contract violators and awarding deterring and just punishment should be the main priority 38 Leaving a Mark While stamping the hands of those quarantined may seem an obvious method to prevent them from straying outside, they too have a constitutional right to live with dignity and without stigmatisation COLUMN Even as polls to the Rajya Sabha are to be held on March 26, its original vision and design have changed as anyone can contest irrespective of domicile. It is no more a council of states but of politicians OPINION 34 The country’s call for regional cooperation on the coronavirus through the SAARC initiative was welcomed by all except Pakistan which has still not announced its contribution India Takes the Lead 24
  • 8. 8 April 6, 2020 Anthony Lawrence RINGSIDE “We Are One”
  • 9. | INDIA LEGAL | April 6, 2020 9 Courts In yet another step relat- ed to the coronavirus outbreak, the Supreme Court ordered that the limitation period for filing appeals against High Court orders or any tri- bunal in the top court will stand extended possibly indefinitely and this would not render any appeal time-barred in a situation of shut- down in many areas in the country. A bench headed by Chief Justice of India SA Bobde and comprising Justices L Nageswara Rao and Surya Kant said: “We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/ Tribunals within their respective jurisdiction.” The apex court also issued a notice to all the registrar generals of the High Courts, returnable in four weeks. The top court had taken suo motu cogni- sance of the situation arising out of the chal- lenge faced by the coun- try on account of the outbreak of COVID-19 and resultant difficulties that may be faced by liti- gants across the country in filing their petitions. SC extends limitation for filing appeals against HC orders The Supreme Court asked the states and Union Territories (UTs) to set up a panel to determine which categories of prisoners could be temporarily released to control the spread of COVID- 19. The apex court noted “a high risk of transmission of COVID-19 to prison inmates”, with prisoners, prison staff, families of prisoners and lawyers enter- ing and leaving the jails frequently. The apex court asked the states and UTs to submit written replies on steps being taken to prevent the spread of the pandemic among prisoners and juve- niles. It suggested that prisoners con- victed of or charged with offences involving jail terms of seven years or less could be considered for parole or interim bail. The same day, the Delhi government informed the Delhi High Court in res- ponse to a public interest litigation that it would amend rules to enable prisoners who had served a year of their sentence and undertrials who had been in jail for three months to avail of parole or fur- lough, in cases of specific offences. Tihar Jail authorities said they would try to release about 3,000 prisoners in the next few days to contain the spread of the coronavirus infection as the number of positive cases rose across the country. They will be released under parole or furlough or on interim bail. SC orders release of prisoners to decongest jails Evicted from Shaheen Bagh, where they had been on an anti-CAA agitation for over 100 days, the pro- testers have addressed a letter to the judges of the Supreme Court to bring to their notice “forcible removal” by Delhi Police which “was a dispropor- tionate action in the time of coron- avirus”. In the letter, the protesters said they had already decided to vacate the protest site in view of the “em- erging situation with respect to COVID-19”, except for two or three women who would remain present to symbolise the protest. These women would observe the necessary physi- cal distance and other precautions to guard against the coronavirus, the letter said. “While we understand the need for stricter imposition of curfew and enforcement of pertinent restrictions, the ruthless dismantling and thought- less destruction of the markers of our physical protest, especially the very structures whose placement is in question in a matter that is sub judice in the SC, reeks of strong vendetta and ill feelings towards our innocent protesters, locals and sym- pathisers” they told the judges. Shaheen Bagh protesters write to SC —Compiled by India Legal team
  • 10. Lead/ COVID-19 Crackdown 10 April 6, 2020 OR the first time in India’s history, a 21-day total lock- down has been imposed to fight the deadly COVID-19 pandemic. On March 24, Prime Minister Narendra Modi announced measures to curb the spread of this virus among India’s 1.3 billion population. He also stated that this lockdown would be curfew-like. The outbreak of this virus has had far-reaching consequences all around the world and affected different spheres of life—economic, financial, political, educational, travel and tourism, avia- tion and most of all, health. Drastic prohibitory measures have been taken by both the central and state governments to limit the spread and transmission of the virus. But even these measures have not been able to ensure total compliance by citizens. In fact, soon after the prime minister’s speech, visuals of people crowding around shops to buy essential supplies were seen, defeating the very purpose of the curfew. The question then is whe- ther India has enough laws to demand strict compliance as is required in the present situation. The 21-day lockdown was imposed by invoking the National Disaster Management (NDM) Act, 2005. The Union home ministry has also issued regulations to ensure strict compliance and enforcement of the lockdown invoking the same Act, the violation of which can result in imprisonment of up to two years. The objective and purpose of the NDM Act is to manage disasters, How Far Can the Government Go? DolegalprovisionsortheConstitutionallowthegovernmenttotakemoreseriousmeasuresthana 21-daytotallockdownifthepandemicsituationworsens?Isthisgroundtodeclareanemergency? By Srishti Ojha BAN ON MOVEMENT The Delhi-Meerut Expressway after the lockdown imposed by the government F Photos: UNI
  • 11. | INDIA LEGAL | April 6, 2020 11 including preparation of mitigation strategies, capacity-building, etc. The Act defines a disaster as a “catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man- made causes”. The definition also states that the disaster should have resulted in “substantial loss of life or human suffer- ing or damage to property and environ- ment to such an extent that it is beyond the coping capacity of the affected area”. The centre has declared COVID-19 as a “notified disaster” and as a “critical medical condition or pandemic situa- tion”. This will allow the government to use the National Disaster Response Fund to contain the rise in COVID-19 cases and to make policies at the na- tional, state and district levels. Before the complete lockdown was announced, partial restrictions were imposed by state governments in the last two weeks on the centre’s direction. These lockdowns were imposed by in- voking the 123-year-old colonial-era law, the Epidemic Diseases Act, 1897. They included Punjab, Nagaland, Maharashtra, Delhi, Uttarakhand and Telangana. Partial lockdowns were also imposed by Chhattisgarh, Uttar Pradesh and Goa. The Epidemic Diseases Act was meant to prevent the spread of danger- ous epidemic diseases and consists of only four sections. The centre had already advised states to use it to make their coronavirus advisories more strin- gent. It was used by states to restrict movement of people. This law has been invoked in the past too by states to control the spread of H1N1 (swine flu) and other such diseases. Maharashtra invoked this Act in 2009 to combat the outbreak of swine flu and Chandigarh to control dengue and malaria in 2015. The Act empowers the centre and state governments to take measures to control further spread of the disease. Section 2 of the Act says that when the centre “is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epi- demic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease”, it may take measures and prescribe regulations. Under this Section, Delhi and Hima- chal Pradesh announced the Delhi Epidemic Diseases COVID–19 Regu- lations, 2020, and the Himachal Pra- desh Epidemic Disease (COVID–19) Regulations, 2020, respectively. Maha- rashtra too announced the Maharashtra COVID–19 Regulations, 2020. Section 2A of the Act gives power to the central government to inspect (any ship or vessel) and even detain persons if necessary. Section 3 makes it a crimi- nal offence to disobey any regulation or order under the Act. The punishment is in accordance with Section 188 of the Indian Penal Code, which provides for simple impris- onment of one month and a fine of Rs 200 for violating an order of a public servant. Imprisonment of six months and a penalty of Rs 1,000 can also be imposed depending on the impact that the disobedience has. Other than the fact that there is no recent statute to govern protection and regulation against spread of such pan- demic diseases, there is also the inabili- ty of the centre to impose laws and regulations regarding healthcare on states. This is owing to the federal structure of Indian democracy and the fact that “public health” is listed in the State List in the Seventh Schedule of the Constitution. The Epidemic Diseases Act, howev- er, can only help the government a little when inspection, quarantine or penalty has to be imposed. But do legal provi- sions or the Constitution allow the gov- ernment to take more serious measures if the situation worsens? Can the centre declare a health emergency in India? Can a pandemic or an epidemic be a ground to declare an emergency? T he provisions regarding procla- mation of emergency can be found under Article 352 of the Constitution. It says that an emergency can be declared on the grounds of war, external disturbance and internal dis- turbance. The term internal distur- bance was a flexible term broad enough to include disturbances caused due to an epidemic. “Internal disturbances” was replaced with “armed rebellion” by the 44th amendment to the Constitu- tion, but not in Article 355. Article 355 places a duty on the Union government to protect all states against external aggression and internal disturbance, and ensure that the gover- nance of states is carried on in accor- dance with the Constitution. Article 353 includes the effect of proclamation of emergency and permits the central government to direct a state how to use its executive power, and the Parliament to make laws on matters from the State List. During an emergency, the freedoms provided under Article 19 are suspended and so is the enforcement of fundamental rights (under Articles 358 and 359 respectively). The chairman of the Drafting Committee in the Constituent Assembly had explained the underlying princi- Evendrasticprohibitorymeasuresbythe governmenthavenotbeenabletoensure totalcompliance.SoonafterModi’s speech,peoplecouldbeseencrowding aroundshopstobuyessentialsupplies.
  • 12. 12 April 6, 2020 ple of Article 355 and stated that the Constitution, under provisions for emergency, provides the central govern- ment with some overriding powers and the use of that power or “invasion” by the centre of the Provincial field (state). Therefore, introduction of Section 355, casting a duty on the Union to protect a state, was essential to prevent such unprincipled invasion. The Report of the Sarkaria Commi- ssion on the provisions of the Constitu- tion had stated with reference to emer- gency provisions: “The Constitution- framers conceived these provisions as more than a mere grant of overriding powers to the Union over the States. They regarded them as a bulwark of the Constitution, an ultimate assurance of maintaining or restoring representative government in States responsible to the people. They expected that these extra- ordinary provisions would be called into operation rarely, in extreme cases, as a last resort when all alternative cor- rectives fail.” T he Report had also stated that the term “internal disturbances” has a broad scope and it can be nature-made also. Natural calamities of unprecedented magnitude such as floods, cyclones, earthquakes and epi- demics may paralyse the government of a state and put its security in jeopardy. “Under Article 355, a whole range of action on the part of the Union is possi- ble depending on the circumstances of the case, the nature, the timing and the gravity of the internal disturbance.” Therefore, according to the Consti- tution, a health emergency being invoked by the centre, though not cov- ered by Article 352 which deals with the proclamation of emergency on the grounds of war, external aggression and armed rebellion, could be covered under internal disturbance. India has a plethora of laws and guidelines, but there is still a need to strengthen its legal framework to deal with such an emergency, including coor- dination and implementation issues. This is especially so considering that the main legal weapon the government pos- sesses today to deal with COVID-19 is the Epidemic Diseases Act, a law of colonial vintage, and the Disaster Management Act of 2005 which does not incorporate the specific approach required to deal with an emergency of such severe proportions. INEFFECTIVE CLAMPDOWN? (Top) Police beat violators of the lockdown; a worried crowd outside a closed store ThecentrehasdeclaredCOVID-19asa “notifieddisaster”andasa“criticalmed- icalconditionorpandemicsituation”. Thiswillallowthegovernmenttouse theNationalDisasterResponseFundto containtheriseinCOVID-19cases. Lead/ COVID-19 Crackdown
  • 14. Lead/ COVID-19/ Kerala’s Model 14 April 6, 2020 VEN as the COVID-19 scare is subsuming India, Kerala’s fight against it has shown the way to the rest of the country. After the effective containment of the Nipah virus outbreak in Kozhikode dis- trict in 2018, health workers and the state government got accolades from across the globe. And in the wake of COVID-19, this has been repeated. Kerala’s doctors, highly qualified nurses and experienced paramedical staff have been its strength and hon- oured by the most advanced countries as acclaimed professionals. Whether it is COVID-19, Nipah, SARS or MERS, the adept manner in which they take con- trol of the situation is helping the state lead in the health sector. Along with this professional workforce, Kerala’s strong four-layered health infrastructure start- ing with community and primary health centres, taluk and district hospitals, medical colleges and superspecialty hos- pitals has proved that it can match or even outsmart those in western coun- tries. Plus, it has 6,000 hospitals in the public and private sectors and a strong chain of ayurvedic and homeo hospitals. So what did Kerala do to deal with COVID-19? It was in early February that three Malayalee medicos from Wu- han, China, the epicentre of the out- break, returned to Kerala and tested po- sitive. As they volunteered to get quar- antined and treated in isolation, they did not spread it to anyone. They soon recovered and were discharged. But five Showing the Way ThepragmaticwayinwhichIndia’smostliteratestatehandledthepandemicatthehealth,economic andsociallevelsisprobablytheonlywaytohaltitsrapidstrideandshouldbefollowedbyotherstates By NV Ravindranathan Nair in Thiruvananthapuram STRATEGY AGAINST COVID-19 Kerala CM Pinarayi Vijayan giving instructions to officials through video conferencing E UNI
  • 15. | INDIA LEGAL | April 6, 2020 15 members of a family in Pathanamthitta district came from Italy, where the pan- demic was wreaking havoc, and trav- elled around to churches, cinemas, hos- pitals, shopping malls and the homes of friends and relatives within a space of three weeks. Dr Anand, a young doctor at General Hospital, Pathanamthitta, detected one of their primary contacts with symptoms of COVID-19. By the time this case was detected, 15 other pri- mary contacts of this family had con- tracted the virus. W hat followed was a massive trail of those who had come in contact with the family. Health workers prepared a primary con- tact list, which was over 750 people. Strict vigil against people assembling for festivals, weddings and funerals helped check the spread. Except for Attukal Pongala, the largest congregation of women at Attukal temple in Thiruva- nanthapuram, the government did not concede any demand and strictly pro- hibited huge crowds. It also asked tem- ple, church and mosque authorities to close these down for the time being. Even major temples like Guruvayoor had to limit rituals, and pilgrims were discouraged from going to Sabarimala. Taking a cue from this, people volun- tarily decided to skip festivities and tem- ple rituals. Juma-Ath committees called off Friday prayers in a majority of mos- ques and many churches complied with the advisories of the government. Police registered cases and arrested priests whenever they breached the orders. Moreover, even before the prime minis- ter’s call for a janata curfew, Kerala introduced restrictions for traders and the general public. But at some places, every effort to check the spread of the virus was thwarted. An NRI who rea- ched Kasaragod district spread the infection to several people, forcing thou- sands of primary contacts to be quaran- tined. Over 30 people got tested positive due to this. Meanwhile, the Kerala police came out with half-a-dozen innovative videos with songs and dances advising people to maintain personal hygiene. One of them used the classical art form of Kathakali to show the importance of hand washing. Another showed a group of policemen dancing to a film song sung by a tribal woman on the same theme. This went viral, attracting the international media too. Trolls too played an important role in the cam- paign. One was of a mother asking her children to assemble for family prayer. The son says: “Hello, police station? Here a woman is insisting on people crowding together.” Many of these trolls used characters in popular Malayalam films to get the message across. Some lampooned the government’s insistence that it would not close down Kerala State Beverages Corporation outlets, the milch cow of the state. However, after the centre’s announcement of a lock- down across India, the state government closed all these outlets. As on March 25, COVID-19 cases numbered 113 in the state. As many as 72,460 people are Alongwithaprofessionalworkforce, Kerala’sstrongfour-layeredhealth infrastructurehasprovedthatit canmatchorevenoutsmartthose inwesterncountries. ON A WAR FOOTING Streets in Kerala being disinfected to control the spread of the coronavirus
  • 16. 16 April 6, 2020 under observation, of whom 71,994 are in their houses and 466 in hospitals. The 21-day lockdown has seen all private vehicles off the road. Autos and taxis can be hired only during emergen- cies. Over 2,000 cases have already been registered against those breaching these restrictions and over 1,600 arrested. Chief Minister Pinarayi Vijayan inter- acted with MLAs through audio-confer- encing and asked them to co-ordinate the activities. “Special attention should be given to the elderly, homeless, spe- cially-abled in the state and local self- government institutions should take an effort to arrange food and shelter for the needy. Apart from medicines, those in isolation would also be given coun- selling if required,” he said. T he state government also ordered the opening of community kitchens at the panchayat level and getting food to the houses of those who had none. Before the total lock- down, Vijayan had invited the youth to come forward to volunteer as bystanders in hospitals and other places. He also ensured media support by directly inter- acting with the editors of print and elec- tronic media. He also ensured that test- ing facilities in central universities such as the Indian Institute of Science Edu- cation and Research in Thiruvanan- thapuram were made available in case of an emergency. Meanwhile, Kerala University of Health Sciences, under which 22 med- ical colleges function, has listed over one lakh students and faculty for volunteer work to take care of patients in case of an emergency. “We have prepared the list of all these students and faculties. They will be deployed in their own districts,” said Mohanan Kunnummal, vice-chancellor, Kerala University of Health Sciences. KK Shylaja, the health minister, who did a commendable job, said the govern- ment had 4,000 rooms in 22 medical college hostels to house patients in case the pandemic went out of hand. Already, non-functional hospitals, rest houses, schools and colleges have been taken over and facili- ties arranged if there is a need for corona care centres. All these efforts have also been buttressed by a massive relief package of Rs 20,000 crore. Though detractors may say this was done with an eye on local body elections due in six months, the fact remains that Kerala has been a guiding light in its fight against the virus. Rs 2,000 crore has been set apart for consumer loans and this will be made available through Kudumbashree, a massive women’s self-help group having a mem- bership of nearly five million. In addition, Rs 1,000 crore each for rural job employment guarantee sch- emes during April and May and social security pensions worth Rs 1,320 crore for two months to five million people of the low income group will bring cheer. Rs 100 crore has been earmarked for special assistance to BPL and Antyodaya families. APL families would get 10 kg of rice during the period, while BPL families would get a food kit with 15 kilos of rice and other items free of cost. All arrears worth Rs 14,000 crore due to individuals and institutions would also be settled immediately. Finance Minister TM Thomas Isaac said in a Facebook post: “Our aim is to bring money into the hands of the peo- ple. The best way to do this is to settle the dues in one go. We will spend the entire amount of MNREGS meant for the next fiscal year in the first two mon- ths. We will find the means for this by availing at least half of the Rs 25,000 crore sanctioned by the centre for next year.” Perhaps other states could take a leaf out of Kerala’s book INNOVATIVE METHOD The Kerala government has launched a coronavirus awareness campaign through robots TheKeralapolicecameoutwith innovativevideosadvisingpeopleto maintainpersonalhygiene.Oneof themshowedagroupofpolicemen dancingtoafilmsongsungbyatribal womanonhandwashing. Lead/ COVID-19/ Kerala’s Model
  • 18. Lead/ Coronavirus/ Quarantine Issues 18 April 6, 2020 HILE quarantine during a pandemic is a must, it has its negative side. Delhi, like states such as Maharashtra, has begun stamping the hands of the people who have been ad- vised home quarantine in the wake of the coronavirus outbreak. Authorities are using indelible ink like that used for voters mostly on those who have a travel history. In Delhi, people arriving at the Indira Gandhi International Airport from abroad are being checked for COVID-19, and if directed to remain at home, are being stamped “Home Quarantined”. The stamp states, “Proud to protect Delhiites. Home quaranti- ned”, and has a date showing when the person was stamped. It has also been reported that Punjab has put up sign- boards outside the houses of people who have corona. However, this is not as per one’s rights regarding quarantine. In India, where mob mentality is common, it can be dangerous. That was evident from Air India crew members who took to Leaving a Mark Whilestampingthehandsof thosequarantinedmayseem anobviousmethodtoprevent themfromstrayingoutside, theytoohaveaconstitutional righttolivewithdignityand withoutstigmatisation By Dr KK Aggarwal NEED OF THE HOUR (Above L-R) Many states are stamping the hands of people who have been advised home quarantine; many houses have also been marked as “Quarantined” by health authorities w
  • 19. | INDIA LEGAL | April 6, 2020 19 social media alleging discrimination by their housing societies when they returned from flying international sec- tors with some being asked to look for alternative accommodation. They said matters became complicated after their houses were stamped as “Quarantined” by health authorities. This, despite the airline coming to the aid of Indian citi- zens left stranded in other countries. So while the government has the ri- ght to quarantine anyone, they too have some rights. The Constitution protects one’s individual rights. Among them is the right to not be denied “liberty” with- out “due process”. There’s a big differ- ence between a procedural right and a substantive right. There is no freestan- ding constitutional right to go about your normal life while an epidemic en- dangers many people’s lives. At the same time, the government cannot simply confine people for arbitrary reasons, or without providing an adequate explana- tion and leaving one getting stigmatised. It is true if someone is quarantined, he does not necessarily have a right to be released from it. But does he have the right to demand some sort of adju- dicative process to determine whether the type and manner of quarantine are justified? I t is well-established that the gov- ernment may confine people against their will if they present a danger to themselves or others even if they have not committed a crime. In Addington vs. Texas (1979), the US Supreme Court held that individuals with such severe mental illnesses that they presented a threat to their own safety or to the safety of others may be involuntarily confined to a mental hospital. Addington, howev- er, also held that the government must prove by “clear and convincing” evidence that such confinement is justified—a much higher burden of proof than co- urts typically apply in civil cases. An “individual’s interest in the out- come of a civil commitment proceeding is of such weight and gravity”, the Court explained, “that due process requires the state to justify confinement by proof more substantial than a mere prepon- derance of the evidence”. It’s not entirely clear that this heightened standard of proof would apply to coronavirus quar- antines. Though Addington held that “civil commitment for any purpose con- stitutes a significant deprivation of lib- erty that requires due process protec- tion”, much of the Court’s analysis was restricted to the specific circumstances of a person believed to have severe men- tal illness. A person confined due to the coron- avirus is likely to recover much more quickly. And even if there is uncertainty about whether their symptoms are due to the coronavirus or some other disease, this uncertainty could be resolved by testing. For these reasons, it’s possible that the courts may permit the govern- ment to quarantine individuals based on less than clear and convincing evi- NO ROOM FOR EXACERBATION It is very important to protect the mental health of people under quarantine or undergoing treatment for coronavirus UNI
  • 20. 20 April 6, 2020 dence. Courts may also be reluctant to intervene in such cases. Thus, just as judges tend to defer to the executive on matters of national security, they are likely to defer to public health officials regarding a potential pandemic. But everyone has a constitutional right to live with dignity and without stigmatisation. Articles 14 and 21 of the Constitution say: “14. Equality before law—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. “21. Protection of life and personal liber- ty—No person shall be deprived of his life or personal liberty except according to procedure established by law.” Apparently, there is no specific men- tion of human dignity as no such ex- pression is used. Yet, the Supreme Court introduced a judge-made doctrine of human dignity by reading the same into these Articles on the same lines as craft- ed by the US Supreme Court. The Indian Supreme Court has read “right to life” enshrined under Article 21 as “right to live life with dignity”. And it is linked with the right to grow as a human being. The basic spirit of our Constitution is to provide each person equal opportuni- ty to grow as a human being, irrespec- tive of race, caste, religion, community and social status. This means: I have a right to be tested for corona at the time of quarantine as per protocol I have the right to be quarantined in a hygienic state I have the right not to be stigmatised I have the right to get a proper place to live with all facilities required with a one to one toilet facility I cannot be marked on my hand with a voting ink. Even prisoners have a right not to be handcuffed If I am home quarantined, I cannot be stamped on my hand and wherever I go, I cannot be subjected to checks If I am not having symptoms, I should be able to get a test done in six days as the mean incubation period is six days I have a right to be isolated in a single room if I am infected or at risk of infect- ing others I have a right to age-specific cohort quarantine if multiple people are quar- antined together. On the Diamond Prin- cess ship, which was quarantined off Yokohama, Japan, 3,700 people were cohort quarantined together. This led to 23 percent of them getting infected and seven dying. If the quarantine had been as per age and individual risk, more wo- uld have been saved. Q uarantine should not end in an- xiety. A recent study from The Lancet notes that the psycho- logical impact of quarantine without proper counselling can be great, result- ing in a range of mental health concerns from anxiety and anger to sleep distur- bances, depression and post-traumatic stress disorder (PTSD). Separate studies of quarantined patients of SARS, a pre- vious coronavirus outbreak in 2003, found between 10-29 percent suffered from PTSD. The Lancet’s report found mental health concerns could be inflamed by stressors associated with quarantine such as infection fears, frustration, bore- dom, inadequate supplies, lack of infor- mation, financial loss and stigma associ- ated with contracting the disease. That can be an issue not only for people with pre-existing mental health concerns, but also those in seemingly good psychologi- cal health. The Centers for Disease Control and Prevention in US notes that people should look out for signs of distressed mental health in themselves and others. Symptoms may include: Fear and worry; changes in sleep or eating pat- terns; difficulty sleeping or concentrat- ing; worsening of chronic health prob- lems and increased use of alcohol, tobacco, or other drugs. Recognising the problem, the WHO released guidance on how people can protect their mental health during the outbreak. Prolonged quarantine or social isola- tion (without compensatory methods in place) will exacerbate anxiety, depres- sion and a sense of helplessness. —The writer is President, Confederation of Medical Associations in Asia and Oceania and former National President, IMA Lead/ Coronavirus/ Quarantine Issues WITHIN LEGAL LIMITS People can be forced to stay indoors if they present a danger to themselves or others UNI
  • 21. Bringing You The Stories That Count An ENC Publication To Stay Abreast With Today, Pick Up Yesterday’s India Legal ONLY THE STORIES THAT COUNT Every week India Legal will bring you news, analyses and opinion from the sharpest investigative reporters and most incisive legal minds in the nation on matters that matter to you Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends NDIA EGALL STORIES THAT COUNT I March23, 2020 JusticeVenkatachaliah,whoservedaschiefjusticeofIndia,isoneofIndia’smostrespectedjurists.Anavid championofhumanvaluesandrights,hespoketo RAJSHRIRAI,MD,INDIALEGALonthejudiciary,religion, Ayodhya,upbringingofchildrenandwhytheSupremeCourtshouldbetrustedtodotherightthing JusticeVenkatachaliah ‘‘KeepFaithin theJudiciary’’ Coronavirus: India’s opportunity Exclusive Interview
  • 22. Lead/ Supreme Court/ PIL On Hoarding 22 April 6, 2020 HOUGH hand sanitisers and face masks have been deemed by the government as “essential commodities” in the wake of the deadly Covid-19, a black market in them has emerged, leaving people with a shortage of these basic necessities to protect life. Also, these are being sold at a much higher price than the prescribed maxi- mum retail price (MRP). In order to ensure fairness in supply and retail in hand sanitisers and masks, a PIL was filed in the Supreme Court by Justice for Rights Foundation through its president, Satyam Singh Rajput, al- ong with advocate Amit Kumar Sharma and Prateek Sharma, a final-year law student of Delhi University. Rajput and the other petitioners have also asked for free distribution of these essential com- modities. The petitioners prayed to the Court to issue directions to the authorities to discharge their duty for public wel- fare and public healthcare and ensure fair and equitable distribution of surgical/N95 masks, hand sanitisers and liquid soap and make them avail- able to the public. They also prayed for the creation of a special task force to effectively implement the notifications of the government. The writ petition has been referred before the Court mainly on the grounds that widespread infection and growing cases required effective precautionary methods and the government must en- sure availability of such apparatus. It said it was failure on the part of the go- vernment if it did not provide adequate and effective mechanisms. Another ground for the petition was that the right to life as enshri- ned in Article 21 of the Consti- tution is sacrosanct and should not be made a part of a trade in the hands of a nefarious few. Also, it is an established fact that the State is the custodian of the welfare and well-being of its citizens. Their life cannot be allowed to hang in a balance, it said. While the government and various departments have iss- ued notifications declaring hand sanitisers and masks essential commodities, further notices have been put in place, empowering the concerned authorities to check the menace of ille- gal hoarding which is causing a surge in prices. Most of the items have run out of stock despite the government saying that there is no shortage. The PIL was to be heard this week but the declaration of a lockdown of the entire nation has deferred it. Earlier this month, the government had capped the MRP of a hand sanitis- er at Rs 100 per 200ml bottle till June 30. Similarly, the price of a 2 ply (surgi- cal) mask was capped at Rs 8 and that of a 3 ply (surgical) mask at Rs 10 till June 30, Consumer Affairs Minister Ram Vilas Paswan had said. “The price cap has been imposed taking into acc- ount the sharp increase in prices of raw materials used in making of face masks and hand sanitiser,” he said. But then, black marketers always find a way out. A Black Deed Apetitionhasallegedthatsanitisersandmasksareinshortsupplyduetoblack marketingandaskedtheCourttoensurefairnessinsupplyandretail By Vedant Bhelonde ESSENTIAL COMMODITIES People buying face masks in Chennai to protect themselves Agroundforthepetitionwasthatthe righttolifeissacrosanctandshouldnot bemadeapartofatradeinthehandsofa nefariousfew.Stateisthecustodianof thewelfareandwell-beingofitscitizens. T UNI
  • 24. Lead/ SAARC Initiative 24 April 6, 2020 HEN Prime Minister Narendra Modi de- cided to give a push to the South Asian Association for Re- gional Cooperation (SAARC)—the regional outfit which India had effec- tively made irrelevant since 2014 to iso- late Pakistan—there was speculation that perhaps it was softening its stand. This was an overture as Islamabad was India Takes the Lead India’scallforregionalcooperationontheviruswaswelcomedbyallexceptPakistanwhich hasstillnotannounceditscontribution By Seema Guha NOVEL INITIATIVE On March 15, Prime Minister Narendra Modi held a video conference with SAARC leaders to jointly fight the coronavirus pandemic w “Wecanalsoquicklyarrangeonline trainingcapsulesforyouremer- gencyresponseteams.Thiswillbe basedonthemodelwehaveused inourowncountry,toraisethe capacityofallouremergency staff.” —PMModiwhileaddressingthe SAARC leadersinavideoconference
  • 25. | INDIA LEGAL | April 6, 2020 25 also included in the invitation. But it was quickly apparent that India was not reaching out to Pakistan. Nor was Islamabad in any mood to ob- lige. Pakistan is today in a much better position internationally, thanks mainly to US President Donald Trump’s hopes of getting US troops out of Afghanistan before the November US presidential elections. Pakistan is a player in this ga- me and is no longer treated like a pari- ah by the international community. Trump insists he is good friends with Pakistan Prime Minister Imran Khan. Pakistan showed its lack of interest at the Indian move by sending a junior minister to represent it at the video conference initiated by India. Comm- entary in the Pakistan press about India’s initiative was also lukewarm. On March 15, Modi held a video conference with SAARC leaders to jointly fight the coronavirus pandemic. With the combined population of SAARC nations representing nearly one-fourth of the world’s population, India got the opportunity to seize the moment. It once again tried to gain the high moral ground. It was New Delhi’s way of pulling its weight in the region and sending out the message that it was willing to play the leadership role in keeping with its big power status. WHO praised India’s initiative, as did Trump and Russian President Vladimir Putin. Modi has suggested a similar video con- ference for G20 leaders. Apart from Modi, the conference was addressed by Bangladesh Prime Minister Sheikh Hasina, her Bhutanese counterpart, Dr Lotay Tshering, Nepal’s KP Sharma Oli, Maldives President Ibrahim Mohamed Solih, Sri Lanka’s President Gotabaya Rajapaksa and Pakistan’s aide to the PM on health, Dr Zafar Mirza. The refusal by Imran Khan to attend an event dealing with a threat to public health has sent a wrong signal and shown him as churl- ish and irresponsible. I ndia’s image had got a battering in recent times. The February 2020 communal riots in Delhi where 54 people, mainly Muslims, were killed, combined with the internet lockdown in Kashmir after the scrapping of its special status, the National Register of Citizens as well as the Citizenship Amendment Act had changed the nar- rative for India. Trump and his family’s highly successful visit to Ahmedabad and Delhi got buried in the mayhem. The coronavirus onslaught gave India the perfect opportunity to change the narrative. At the video conference, Modi sug- gested a SAARC Corona Emergency Fund which member states could draw from to fight the deadly disease. India announced an initial contribution of $10 million; Maldives $2 lakh; Nepal and Bhutan nearly $1 million and $1 lakh, respectively; Colombo $5 million, Bangladesh $1.5 million and Afghanis- tan $1 million. The Fund now has a total of $18.3 million. The multiplica- tion of cases in SAARC countries rein- forced the need for the group to act together. Pakistan is the only country that has so far not put any money on the table, possibly because it is an Indian suggestion. During his address, Modi said that India was getting together a rapid response team of doctors and special- ists, along with testing kits and other equipment. “They will be on standby, to be placed at your disposal, if required,” he said. “We can also quickly arrange online training capsules for your emer- gency response teams. This will be ba- sed on the model we have used in our own country, to raise the capacity of all our emergency staff.” Considering that India, a nation PakistanPrime MinisterImranKhan didnotattendthe conferencebutdeput- edPakistan’saideto thePMonhealth,Dr ZafarMirza(right). Hisrefusaltoattend aneventdealingwith athreattopublic healthhassenta wrongsignaland shownhimaschurlish andirresponsible.
  • 26. 26 April 6, 2020 of 1.3 billion people, also has a health emergency in place and Modi has ann- ounced a virtual lockdown for 21 days, will Delhi have the capacity to help others when its own resources are badly stretched? L ike in everything between India and Pakistan, the video confer- ence was also mired in contro- versy. Pakistan’s health minister could not help but drag in Kashmir. Mirza spoke of the need to end the blockade in the Valley to fight COVID-19. While India bristles at the mention of Kash- mir, the Pakistan government has to play to its domestic constituency and cannot help but mention the situation in the Valley. “Opening up communica- tion and movement would facilitate dis- semination of information, allow distri- bution of medical supplies and allow containment and relief efforts to pro- ceed unimpeded,” the minister said. But despite the sound and fury raised by Imran Khan on Kashmir, the world has not responded to Pakistan in the way it would have liked. In fact, the opposition in Pakistan is calling out Khan for not being able to further in- ternationalise the plight of Kashmiris. So mention of Kashmir and the suffer- ing of the people there since the abro- gation of Article 370 should have been expected. Nevertheless, Raveesh Kumar, In- dia’s external affairs spokesman, had this to say about Pakistan after the video conference: “A crisis of this mag- nitude does not recognise borders. In this spirit, the prime minister had called the SAARC video conference on coronavirus. The platform was not political, but humanitarian. They mis- used it.” Naturally, Pakistan’s Foreign Office reacted instantly. First, it accused India of twisting the minister’s statement at the video conference. “The people of South Asia are well aware as to which country has been seeking to ‘politicise’ the SAARC process and continues to obstruct its onward march,” it said. The statement underscored that Pakistan believed the collective endeavours of South Asian nations to fight common challenges should not be allowed to become a victim of self-serving propa- ganda. Pakistan, it said, had reaffirmed its readiness to host a SAARC health ministers’ video conference. Its foreign minister, Shah Mahmood Qureshi, was on the phone with his Bangladesh co- unterpart and informed him that Pak- istan was keen to organise it. Pakistan has also been advocating getting China on board as the Chinese are best placed to advise member states considering they have the experience and means to fight COVID-19. India certainly would not be amused by this call. Modi was way ahead of other region- al leaders in proposing a joint strategy for SAARC nations to help each other in fighting the pandemic. Pakistan is now hoping to catch up. But it is a repeat of the same old story for other member states. SAARC continues to remain a moribund grouping mainly because it is held hostage to the India- Pakistan rivalry. The rest of the mem- bers continue to remain silent specta- tors and suffer the consequences. Themultiplicationofcoronaviruscases inSAARCcountriesreinforcedthe needforthegrouptoacttogetherand contributetowardstheCorona EmergencyFund.Pakistan,however,has sofarnotputanymoneyonthetable. Lead/ SAARC Initiative GLOBAL RECOGNITION India's initiative was also praised by US President Donald Trump (right) and Russian President Vladimir Putin Photos: UNI
  • 27. NDIA EGALEEL STORIES THAT COUNT NI February24, 2020 OutingtheCriminalsFlaggingan“alarmingriseinthecriminalisationofpolitics,”theSupremeCourtlays downstrictinstructionsonmakingpublicdetailsofacandidate’scriminalhistory. Whatimpactwillithaveonpoliticalpartiesandfutureelections? Shiv Visvanathan on Shaheen Bagh Mothers NO HOLDS BARRED Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends For advertising & subscription queries editor@indialegalonline.com SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS ` ` ` ` ` GAL m””t”t id tu NDIA EGALEEL STORIES THAT COUNT NI March2, 2020 TheIronFistIncreasingly,Section144isbeenusedbypoliticiansandbureaucratsto deprivecitizensoftheirfundamentalrights.Nowthecourtshavesteppedin tostemthemisuse,butisitenough? Justice Chandrachud: “Dissent not anti-national” GAL an ou ? NDIA EGALEEL STORIES THAT COUNT NI March9, 2020 Judiciary’sRoleina ChangingWorld TheInternationalJudicialConference2020wasthefirstofitskindorganisedbytheSupreme Courttodiscusscontemporarychallengestothejudiciary.Therangeofspeakers,fromthe chiefjusticeofIndiaandotherseniorjudges,gavevaluableinsightsontohowthecourtsview theirresponsibilitiesinrapidlychangingtimes Coronavirus: How prepared is India? GAL ee o or nge so es NDIA EGALEEL STORIES THAT COUNT NI March16, 2020 LawandDisorderCrucialmattersthatcameupintheSupremeCourtandDelhiHighCourtindicateacrisisinIndia’s basicgovernance.TheCrPCandPoliceActsclearlylaydownthatitisthejobofDMsandSDMsto maintainlawandorder,buttheirrolehasbeentakenoverbythepolicewithquestionableresults Fast Track Courts: New scheme GAL oturt sth ce NDIA EGALEL STORIES THAT COUNT NI March23, 2020 JusticeVenkatachaliah,whoservedaschiefjusticeofIndia,isoneofIndia’smostrespectedjurists.Anavid championofhumanvaluesandrights,hespoketo RAJSHRIRAI,MD,INDIALEGALonthejudiciary,religion, Ayodhya,upbringingofchildrenandwhytheSupremeCourtshouldbetrustedtodotherightthing JusticeVenkatachaliah ‘‘KeepFaithin theJudiciary’’ Coronavirus: India’s opportunity Exclusive Interview DIAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA EEEEEEEEGAL smm LEG truu aa nn yy NDIA EGALEEL STORIES THAT COUNT NI March30, 2020 Judgesandlawyersincourtsarestrugglingtodispensejusticeevenasthefearoftransmissionof thevirustakeshold.IndiaLegal’sspecialpackagelooksat measuresbeingtakenbytheSupreme CourtandHighCourtsacrossthecountryandhowitaffectsthejusticesystem CoronavirusPlagues TheCourtSystem Special Supplement: The Idea of Citizenship Analysing SC’s Annual Report: Prof Upendra Baxi
  • 28. Seminar/ State of the Economy 28 April 6, 2020 ANY promises were made by the Narendra Modi government both during the campaign and after coming to power in 2014. These included economic reform, fast industrial development, creation of jobs and India reaching a $5-trillion econo- my within five years. But all these have been belied. This was discussed during a recent dialogue session, “Politics of Economic Policy and Budget Making”, under the chairmanship of Dr Kulwant Singh, for- mer general secretary of National Me- dia Centre, Gurgaon. Dr Singh also ser- ves with the UN and is CEO, 3R WASTE Foundation/Urban Policy. Am- ong the panellists were Dr Anuradha Balaram (former economist with the Asian Development Bank and chief co- ordinator of the Awakened Citizen Programme of Ramakrishna Mission, Delhi), Prof Sudha Pai, a political scien- tist at JNU, and Dr VK Garg, former CMD of Power Corporation of India. They said that over the last year or so, estimates have shown that GDP growth for 2019-20 plunged to an 11- year-low of five percent, which fell fur- The Stark, Searing Reality... AnIndiaLegal editorialhadsaidthattheeconomyhadenteredafull-blownrecession.Neither thebudgetnorpoliticianswereabletocopewithit.Thiswasreiteratedbyexpertsataseminar heldbeforethecoronavirusimpact SIGNIFICANT SUGGESTIONS Dr VK Garg, former CMD of Power Corporation of India, was part of the panel ANALYSING THE ECONOMY Dr Anuradha Balaram, former economist with the ADB, was also present at the session SHARING HER THOUGHTS Prof Sudha Pai, a political scientist at JNU, also actively participated in the discussions M
  • 29. | INDIA LEGAL | April 6, 2020 29 ther in the next quarter primarily be- cause of a poor show by construction and manufacturing. According to some estimates, it will require India to grow at 8-9 percent per year from 2020 to 2024 to become a $5-trillion economy. Both demonetisation and GST created problems particularly for small businesses and contributed to the slow- ing of growth. The promise of “Cooperative Federalism” has not been kept as states have not received their share of GST revenues. The government has also moved from the open economy that was put in place in 1991 towards a more closed economy with rising tariff walls, which has particularly hurt imports. While there are hard economic rea- sons for the crisis, there are strong political reasons also for this situation. Politics has always shaped policy mak- ing in any government and the budget is a political statement. For the BJP, the economy is not the first priority within its larger Hindutva ideology and policy making. This was more apparent since 2016. The priority of the government has been to create a Hindu vote-bank, cap- ture state power and move towards the creation of a de facto Hindu Rashtra. Following the 2019 general election in which the BJP gained a huge majority, it was felt that attention would now be focused on the economy, which had already started on a downward spiral. Much was expected of Budget 2020. However, the shift of priority from the economy to social transformation is visible in the passing of the Citizenship (Amendment) Act and the National Register of Citizens. The new Act sur- prised many as two big issues on which the BJP had built its movement and party since the early 1990s had been achieved: the Ram Temple at Ayodhya and removal of Article 370 in Kashmir. The issue of triple talaq, seen as the first step to a Uniform Civil Code, was also achieved. These divisive social policies were FOCUSING AWAY FROM ECONOMY The CAA exhibits a shift in the government’s priorities towards social transformation Whiletherearehardeconomicreasons forthecrisis,therearestrongpolitical reasonsaswell.FortheBJP,theeconomy isnotthefirstprioritywithinitslarger Hindutvaideologyandpolicymaking. UNI
  • 30. 30 April 6, 2020 used as a strategic cover-up for the downswing in the economy, which began in 2018 and worsened in 2019 and 2020. The panellists felt that this push to- wards social policies rather than the economy is visible in a number of steps taken by the government, such as: The method of governance adopted in 2014 itself: This has affected the econo- my as a highly centralised and authori- tarian government is centred in the PMO. India does not lack experts with knowledge of how to fix the economy but they are not listened to and the gov- ernment is in denial as seen from the 2020 Budget. With the downswing of the economy, the government attempted to hold back government data and present a more positive picture of the fiscal state as assembly elections were due. NSSO data was withheld as it showed that unemployment had reached a high not seen in 60 years, leading to members of the organisation resigning. The use of social media to shape pub- lic opinion and targeted messaging cre- ated a positive picture of government functioning. Criticism of government policy led to reprisals which created an atmosphere of fear and lack of trust. Many critics of the government are in jail today, lab- elled as anti-national, liberals of Lut- yens’ Delhi, urban naxals and Bhima- Koregaon and Elgar Parishad partici- pants. Sections of the media have decid- ed to keep quiet out of fear of reprisals. The general polarisation has affected the corporate sector as seen in state- ments by Rahul Bajaj and Kiran Maz- umdar Shaw. Lack of social cohesion and harmony, which is visible in communal polarisa- tion and divisive policies. This led to loss of trust in the centre and lack of investment also destroyed the interna- tional image of the government. The RSS has in many ways shaped the policy making of the government. A number of populist policies by the government contributed to the down- turn of the economy: failure to move on land acquisition and royalties for genetically modified seeds despite having a majority in Parliament; protectionist poli- cies reversing the change in 1991; tightening of norms for e- commerce retailers which ham- pered the operations of Amazon and Flipkart that goes against the statement of “red carpet for foreign investors”; loan waivers and other forms of fund distri- bution to farmers rather than addressing the agrarian crisis; the 2017 ban in UP on all “illegal” slaughterhouses and curbs on mechani- cal abattoirs leading to tremendous loss of foreign exchange earnings and liveli- hoods of a large number, etc. A ccording to Garg, from 2010 to 2020, India's consumption demand shifted to imports from China, Vietnam, Malaysia and Thailand and was worth Rs 6.6 lakh crore in 2018-19 alone. This, he said, needs to be pulled back to create manufacturing sector employment, power generation, income and demand and thereby re- duce the stress on banking and non- bank financial companies. He suggested that the micro and the SME sector should be revived by providing them technology, raw materials and financial support. Is anyone listening? In sum, the downswing of the econo- my is due not just to incompetent han- dling, but also the political ideology that underlies the functioning of the government. Criticismofgovernment policyledtoreprisalswhich createdanatmosphereoffear andlackoftrust.Thegeneral polarisationhasaffectedthe corporatesectorasseenin statementsbyRahulBajaj(left) andKiranMazumdarShaw. MIGUEL QUESADA/wikiwand.com Seminar/ State of the Economy
  • 31. Sabka Saath-Sabka Vikas-Sabka Vishwas Social Audit Rising Steps Important steps taken by the Government of Uttar Pradesh to ensure transparency, public participation and accountability in the implementation of Government of India/State Government schemes to all sections of society To ensure transparency, public participation and accountability in the work of Gram Panchayats and other executing organizations. Monitoring of accounts with physical verification of works, participation and monitoring of society To ensure the benefit of schemes reaches all sections of society To make aware public of their rights, duties in the schemes Social audits of 20,887 gram panchay- ats were conducted in the year 2018-19. In the year 2019-20, social audit was conducted in more than 16 thousand gram panchayats till September, 2019. The target is to conduct social audit in all gram panchayats of the state by March 31, 2020. Through public awareness rallies, placing hoardings on all development buildings, involving schoolchildren in awareness ral- lies, scooter motorcycle rallies, sharing information through folk songs, pamphlets and loudspeakers before the social audit meetings, the common people were con- nected to a transparent process like social audit leading to increased public participa- tion Through social audits, people succeeded in raising their voice by coining the slogans like “Mera Kam Mera Daam” “Mera Paisa Mera Hisab”. Schemes like MNREGA- Pradhan Mantri Awas Yojana brought qual- itative changes in the standard of living of the villagers and they managed to air their views through a democratic platform. Social audit is a continuous process. According to the calendar available on the website of the Directorate, http://socialauditup.in, contribute to ensure accountability by making active participation in the meeting of the Social Audit Gram Sabha of the respective Gram Panchayats and make the social audit more public utility. Why social audit? Progress so far Appeal to public Efforts made for public awareness TEST AUDIT The test audit is conducted by the directorate to maintain the quality of social audit. RAJENDRA PRATAP SINGH (MOTI SINGH) Minister, Rural Development Department, Uttar Pradesh What we achieved RAJENDRA PRATAP SINGH (MOTI SINGH) Minister, Rural Development Department, Uttar Pradesh Issued in the public interest by the Directorate of Social Audit, Uttar Pradesh-Rural Development Department, Uttar Pradesh.
  • 32. Scientists and governments all over the world are analysing South Korea’s response to the coronavirus and how they were able to get it under control so quickly. On February 18, South Korea diagnosed its 31st patient with COVID-19, and she be- came known as the country’s “super-sprea- der”. She was a middle-aged woman who had taken part in mass congregations at a religious group. She passed the virus onto other members of the group and unsus- pecting residents of the city of Daegu. Overnight, doctors were diagnosing more than 900 new cases a day. That’s when the government came up with a strategy called TRUST (Transpa- rency, Robust Screening and Quarantine, Unique but Universally Applicable, Strict Control, and Treatment). That included swift deployment of testing stations, cre- ation of mobile applications and quaran- tining capabilities, reporting of accurate and transparent data and strict monitoring and investigations of possible contacts and finally, treatment. The government was able to run up to 19,000 diagnostic tests a day and, in the early phase of the outbreak, it made hospitalisation manda- tory for all confirmed cases regardless of the severity of symptoms. When Chinese scien- tists first published the COVID-19 virus’ genetic sequence in January, at least four South Korean firms began developing and stockpiling test kits—well before the country had its first out- break. Anyone with a mobile phone also received alerts about areas where the virus was known to be active. Transparency played a big role. Since day one, press briefings have been held twice a day by experts in disease control. The briefings were livestreamed through the internet with simultaneous interpretation into English. This openness and transparency have been pivotal in gai- ning public trust and a high level of civic awareness, which encouraged the public to take voluntary self-quarantine and other preventive measures such as “social dis- tancing” that has effectively slowed the spread of COVID-19. South Korea has one of the lowest casualty rates from COVID- 19 in the world, at just 1 percent. 32 April 6, 2020 International Briefs The Trust Method The deluge of information being dis- tributed on social media and the in- ternet to meet the insatiable demand for news on the coronavirus crisis has created what is literally a fake medical factory with all sorts of advice being given out, mostly fake and in many cases, downright dangerous. The fact remains that, as of now, there is no known cure even as the pandemic continues to spread alarmingly. That has not stopped people from offer- ing all sorts of “expert” advice, none based on scientific evidence or proven usage. In India, we have had elected members of the BJP offering bizarre cures—one said cow urine and cow dung could be cures, yet another distributed cloves “energised by mantras” while others, including some in government, are talking up homeopathy and various herbs. Baba Ramdev has also advocated yoga as a possible counter to the pandemic, again without empirical evidence. The other “cures” put out by assorted “experts” include: Raw garlic: Social media is flooded with advice on eating garlic to prevent infection. The World Health Organi- The Fake Medical Factory UNI
  • 33. Ahuge number of the big- gest brands in the world are doing their bit in the fight against Covid-19. They in- clude luxury brands like Yves Saint Laurent and Balenciaga who are using their work- shops to make surgical masks instead of luxury clothes for the French health service. French luxury power- house LVMH, which owns Louis Vuitton, Bulgari, TAG Heuer, Tiffany, Dom Péri- gnon, and many other high- end brands, has ventured into the hand sanitiser sector. Perfume and cosmetics mak- ers Christian Dior, Guerlain, and Givenchy will use their production facilities to make hand sanitisers that will be provided to French authori- ties for free in an effort to fight the coronavirus. L'Oréal Group, one of the largest beauty producers in the world, is using its facilities to make hand sanitisers for medical officials. Even carmakers are join- ing in: Vauxhall offered to assemble ventilators and ven- tilator components using 3-D printers at its plant in Eng- land, after it stopped produc- tion due to falling demand. In the US, General Motors Co, and Ford Motors Co were examining whether they could also put their idled fac- tories to work making med- ical equipment. Meanwhile, Jack Ma, the billionaire fo- under of Chinese e-commerce giant Alibaba, is donating 1.1 million testing kits, 6 mil- lion masks, and 60,000 pro- tective suits and face shields. They are all being sent to Ethiopia from where they will be sent out to every other country on the African continent. | INDIA LEGAL | April 6, 2020 33 In a heartwarming devel- opment, celebrities are li- ning up to do their bit and send some of the millions they have earned towards helping fight the coron- avirus. Roger Federer widely considered the best tennis player of all time, and his wife, Mirka, will be donating 1 million Swiss francs ($1.02 million) to help the most vulnerable families in his home country, Switzerland. Two of the biggest names in the world of soccer are also making sizable dona- tions. Barcelona star Lionel Messi is donating 1 million euros that will be split bet- ween the Hospital Clinic in Barcelona and another med- ical centre in Argentina. Juventus star Cristiano Ro- naldo is funding three inten- sive care units for coron- avirus patients at hospitals in Portugal. In America, Arnold Schwarzenegger, actor and former governor of California, has donated $1 million to the Frontline Responders Fund to address the shortage of protective equipment and medical supplies. Actor Gwyneth Paltrow also donated $100,000 to the same Fund. Power couple Ryan Reynolds and Blake Lively have pled- ged $1 million to Feeding America and Food Banks Canada. Pop star Rihanna has announced that she will donate $5 million to COVID-19 rapid response efforts in the US and across the globe. Bill and Melinda Gates Foundation has com- mitted $105 million to aid the global response to the novel coronavirus. Celebrities Join the Crusade sation says that while it is “a healthy food that may have some anti-microbial prop- erties”, there’s no evidence that eating garlic can protect people from the new coronavirus. In China, a woman had to receive hospital treatment for a severely inflamed throat after consuming 1.5kg of raw garlic after an online post went viral claiming that a bowl of boiled garlic wa- ter can cure the 2019 novel coronavirus. Facebook has since blocked the post because “the primary claims in the infor- mation are factually inaccurate”. Hot baths: Taking a hot bath will not prevent you from catching COVID-19. Your normal body temperature remains around 36.5°C to 37°C, regardless of the temperature of your bath or shower. Antibiotics: Again, antibiotics do not work against viruses, only bacteria. The new coronavirus is a virus and, therefore, antibiotics should not be used as a means of prevention or treatment. Hand dryers: Debunking circulating myths, the World Health Organisation said hand dryers alone cannot kill coron- avirus. Rumours circulated that using the hot air from the dryer for 30 seconds will rid any trace of the virus on your hands. Sesame oil: Another myth is related to sesame oil, a staple in Asian cooking. But that’s about all. Contrary to rumours, rubbing sesame oil onto the skin won’t block coronavirus from entering the body. The WHO says: “No. Sesame oil does not kill the new coronavirus.” Eating chicken will encourage the virus: This is absolutely false. Suppliers of meat, fish and chicken have been badly hit after false rumours circulated that non-vegetarian food, especially chicken, infected people with the virus. WHO has rubbished such claims. Cats and dogs spread coronavirus: There is no evidence that COVID-19 can infect pets. In Hong Kong, a pomeran- ian’s owner had COVID-19 but his dog did not display any symptoms. Brand Value Messi Rihanna Federer Gates
  • 34. 34 April 6, 2020 N an attempt to facilitate resolution of pending income tax (IT) litiga- tion, Parliament cleared the Direct Tax Vivad Se Vishwas Bill, 2020 on March 13, 2020. This will also gen- erate revenue at a time when the government is struggling with collec- tion—both direct and indirect. Signi- ficantly, the scheme will also cover unex- plained cash deposits during demoneti- sation. With regard to indirect taxes, such as customs, GST, etc, the govern- ment had attained reasonable success through a similar tax dispute resolution scheme, Sab Ka Vishwas, which was implemented recently. The Vivad Se Vishwas scheme will be applicable to all appeals/petitions filed by taxpayers or the IT department, which are pending on January 31, 2020, with any of the following forums: Com- missioner of Income-tax (Appeals), In- come-tax Appellate Tribunal, High Co- urt and the Supreme Court. It would also be applicable in the following situa- tions where, as on January 31, 2020: (a) time limit for filing an appeal has not expired (b) cases pending before the Dispute Resolution Panel (DRP) or where DRP directions have been passed but final assessment order is awaited (c) revision petitions pending before the Commissioner of Income-tax (d) where the disputed demand in res- pect of search cases is less than Rs 5 crore. Disputed tax in an assessment year would essentially mean tax on the in- come under dispute. Taxpayers seeking to settle disputes will have to make a payment of a certain amount that would depend upon the type of case and the Litigation Dilemma TheBillwilltrytoresolveITdisputes,bringinmuch-neededrevenueforthecentreandresolve theissueofcashhoardedduringdemonetisation.Italldependsonhowitwillbeimplemented Column/ Direct Tax Vivad Se Vishwas Bill, 2020 Sumit Dutt Majumder I POINT OF CONTENTION While referring to the Vivad se Vishwas Bill, FM Nirmala Sitharaman said that the centre will address the issue of reduction of litigation UNI
  • 35. | INDIA LEGAL | April 6, 2020 35 date of payment of the disputed tax. With regard to cases other than those where searches were involved, the tax- payer will pay 100 percent of the disput- ed tax if the payment is made on or before March 31, 2020. However, if the payment is made after March 31, 2020, the amount would be 110 percent of the disputed tax. In respect of search cases, the respective amounts will be 125 per- cent or 135 percent of the disputed tax depending upon whether the payment is made on or before March 31, 2020, or later, respectively. The main attraction of the scheme is that in both cases of search and non-search, interest and penalty amount will be waived. Further, where arrears relate to only the disputed interest or penalty, and not the disputed tax, 25 percent of this penalty or interest will have to be paid if the payment is made on or before March 31, 2020. However, if the pay- ment is made after March 31, it would be 30 percent of the disputed penalty or interest. Regarding appeals filed by the IT Department against orders in favour of the taxpayer at the original or first appeal stage, the amounts payable are much less. This is because the order has gone in favour of the taxpayer. In cases other than search cases, it is 50 percent and 55 percent of the disputed tax, depending upon whether the payment is made on or before March 31 or later. In respect of search cases, it’s 62.5 percent or 67.5 percent of the disputed tax, again depending on the time of pay- ment—on or before March 31. In these cases too, the interest and penalty will be waived. W ith regard to cases relating to only interest or penalty, the amounts payable would be 12.5 percent or 15 percent of the disput- ed interest or penalty depending upon the time of payment again. Further, if the taxpayer has already paid the dis- puted demand, which is more than the amount payable under the scheme, the taxpayer will get the refund, but with- out interest. As for the process to settle the tax dispute, an individual taxpayer has to take the following steps. First, he has to file a dec- laration in a specified form to the designated authority. He also has to furnish an undertaking in a specified format waiving his right to pursue any other proceeding in the same matter. Based on the declaration, the designat- ed authority will determine the amount payable. The applicant will have to make the payment within the next 15 days; there will be no appeal against the amount so determined. On submission of the proof of payment, the designated authority will pass the necessary orders for settlement. The last date for avail- ment of the scheme is June 30, 2020. It has also been clarified that dis- putes pertaining to provisions of IT alone, and not those covered under the Wealth Tax Act, will come under the ambit of this scheme. Further, there are no provisions in the scheme to settle only part of a pending dispute. In the context of demonetisation, the finance minister strongly denied that the scheme was an “amnesty scheme”. She clarified that IT disputes related to unexplained cash deposited in banks during demonetisation (November 8 to December 31, 2016) could also be settled under the scheme. In such cases, the applicants would need to pay 75 percent of the unex- plained cash deposited in banks as tax due to the government. Reportedly, demonetisation-related tax disputes are worth around Rs 3 lakh crore and Thetaxpayersoptingforthescheme wouldhavepeaceofmindandsaveon timeandresourcesthatwouldotherwise havebeenspentonlong-drawnand vexatiouslitigationprocesses. THE NOTIFIED RULE The scheme allows a taxpayer to file a declaration on the IT e-filing portal
  • 36. Column/ Direct Tax Vivad Se Vishwas Bill, 2020/ Sumit Dutt Majumder 36 April 6, 2020 depositors are likely to avail of the scheme as the tax department had com- pleted the final assessment. The debate about whether this is a special amnesty scheme for cash during the demonetisa- tion period will linger though. A lso, it has been reported that 4.83 lakh direct tax cases worth Rs 9.32 lakh crore are currently pending before various appellate for- ums. Thus, settling of these cases thro- ugh this scheme will not only reduce lit- igation, it will also add to the coffers substantially in these difficult days of revenue crunch. Besides the waiver of interest and penalty, there are other benefits from this scheme. The settled cases cannot be reopened in any other proceeding by any tax authority. An appellate forum too cannot issue an order in respect of the settled issue. Thus, taxpayers opt- ing for the scheme would have peace of mind and save on time and resources that would otherwise have been spent on long-drawn and vexatious litigation processes. However, it is incumbent upon the taxpayer to consider certain aspects before opting for the scheme. He must assess how strong is his defence on the merits of departmental proceedings, expected cost of litigation, implications of carried forward losses, cash flow con- siderations, etc. The Central Board of Direct Taxes has clarified various queries from stake- holders in the form of FAQs. These con- tain clarifications on scope, eligibility, calculation of disputed tax, procedure related to payment of disputed tax and consequential benefits to the declarant. The rules and online forms for the scheme have just been notified. The first step is to file a declaration with detailed information in Form 1 at the e-filing portal of the Department. An undertak- ing waiving the right to pursue any claim will be given in Form 2. The des- ignated authority will then issue an order regarding payment amount in Form 3. The taxpayer will intimate the details of payment he made in Form 4. These will be electronically verified and the matter settled. Given that the fresh rules and reforms were notified just about ten days before the deadline, it would be imperative to extend the deadline of March 31. While the scheme looks good on paper, much will depend on the efficien- cy of implementation and the level of engagement between taxpayers and the tax administration. After all, the proof of the pudding is in the eating. UPDATE: As we went to press, Union Finance Minister Nirmala Sitharaman announced that the government had extended the deadline for settling tax disputes under the Vivad se Vishwas scheme without paying any interest and penalty to June 30, 2020. —The writer is former Chairman, CBEC PayableTaxForSettlement (For appeals filed by taxpayers) Type of Cases On or Before March 31, 2020 After March 31, 2020 (a) Normal Cases (other than Search) 100 percent of disputed tax (DT)* 110 percent of DT* (b) Search Cases 125 percent of DT* 135 percent of DT* (c) Cases relating to only interest, penalty, etc. (and not tax) 25 percent of disputed interest, penalty, etc. 30 percent of disputed interest, penalty, etc. N.B. * Interest and penalty waived in these cases. REMOVING MISCONCEPTIONS In the context of demonetisation, the Union finance minister strongly denied that the scheme was an “amnesty scheme” UNI
  • 37. | INDIA LEGAL | April 6, 20 37 D ainik Bhaskar, the coun- try’s leading Hindi lan- guage daily, is now posting video clips on social media which show newspaper sheets being sprayed with sa- nitisers before they are distrib- uted. The Chennai-based The Hindu is doing something simi- lar, informing readers that the company has installed com- pressed sanitiser dispensers that spray a mist on the news- papers when they are coming out of the printing machines. This is in response to the panic surrounding the coro- navirus which has prompted many individuals and housing societies to ban newspaper vendors from entry and distribution. BCCL, the company that publishes national dailies like The Times of India and The Economic Times, issued a press release which says: “Let’s not go by rumour mills and fear mongers. The news- paper delivered to your home is safe. The newspaper print- ing, folding and bundling are all done without touch. The bundles are loaded on to fumi- gated trucks by gloved and face-masked handlers.” Ads released by the Hindu Group say: “In these trying times… we and others in the newspaper industry are work- ing to bring to the people accurate information that cru- sades against fake news.” Hindustan Times Media group also said it is sanitising all its plants regularly and “attempts are being made to avoid manual intervention”. Despite such efforts and an assurance from the World Health Organisation that news- papers carry a very low risk of infection, most subscribers in India have taken panic to a new level by literally forgoing their daily habit. O One of India’s finest news pho- tographers is no more. Bhawan Singh, who earned fame and international recognition for his heart-rending pho- tos of the Nellie mas- sacre, passed away last week. Low-profile and humble, he avoided the limelight but his work lives on as a legacy of a master lensman. He had retired after a long and illustrious car- eer at India Today maga- zine where he covered natural and human tragedies and celebra- tions and celebrities with the same empathy and eye for perfection. One of his most memorable photos is the one he took of gangster Dawood Ibrahim at Sharjah, The image of the don, now among India’s most wanted, talking on the phone and smoking, is still the defining image of Dawood, one that everyone uses but few give credit to Bhawan Singh, a true diamond in the rough. Lens Closed Media Watch P rime Minister Narendra Modi is ensuring that he keeps the media on his side as he tackles the enor- mous challenge posed by the coronavirus outbreak. In two separate video conferences, he interacted with media repre- sentatives from TV and print where he said: “The tireless efforts of the reporters, camer- apersons and technicians are a great service to the nation. The media should counter pes- simism and panic through pos- itive communication.” The media representatives included Subhash Chandra of the Essel Group, Rajat Sharma of India TV, Kalli Purie of India Today Group, Smita Prakash of ANI, and Arnab Goswami of Republic TV, among others while the print media included editors and publishers of na- tional and regional media rep- resenting 11 languages, and included Hindustan Times boss Shobhana Bhartia, Viveck Goenka of The Indian Express, Ramoji Rao of the Eenadu group, Mammen Mathew from Malayalam Manorama and The Times of India’s executive edi- tor, Jaideep Bose. The sole message was to convey positive news and co- unter rumours and fake news regarding the coronavirus. The participants unanimously pled- ged to support the government in its battle against the virus, heeding Modi’s remark that “COVID-19 is a lifetime chal- lenge and it needs to be tack- led through new and innovative solutions”. Modi and the Media Sanitising the News
  • 38. 38 April 6, 2020 NE of the things which is of major concern today is that banks may not be safe. Till the other day, only Rs 1 lakh in a bank account was insured. In the most recent Budget, this sum was raised to Rs 5 lakh. And even that did not seem to provide adequate comfort. But maybe I was talking to the wrong set of people. After all, not too many people have more than Rs 5 lakh in their bank accounts. No matter what you have in your account, if you are sud- denly denied access to it, as and when you want, it can feel quite rough. Con- sequently, you might think twice before keeping your hard-earned cash in banks. More worrying, such bank crises keep happening quite regularly. It is Yes Bank now but it was the Punjab and Maharashtra Cooperative Bank last September. Not only banks, but airlines such as Jet Airways, Kingfisher and the famous travel agency, Cox and King’s, folded up, leaving people suddenly without jobs and literally stranded. Investors in institutions such as DHFL and ILF&S found their invest- ments disappearing due to, to put it politely, “mismanagement”. Or slightly earlier, we were faced with scams origi- nating from the actions of the late Harshad Mehta or to the collapse of Satyam Computers. The last time there was a financial crisis was in 2008 when markets in East Asia collapsed. Are we seeing something similar now? And are such collapses of the stock markets cases of market failure? American economist Kenneth Arrow, writing about the 2008 crisis, said: “...the failure of the markets for various kinds of derivative securities to perform properly is an essential element of the current financial crisis”. People attribute the current collapse in stock markets to the coronavirus. Maybe it is so. Time will tell what is happening now: how Scams,Failures&OtherMatters Variousscamshaveshownthatbreakingcontractsmayberewarding.Butquickidentificationof contractviolatorsandawardingdeterringandjustpunishmentshouldbethemainpriority Opinion/ Bank Collapses and Business Failures Anjan Mukherji O WORRYING FACTOR Yes Bank promoter Rana Kapoor being taken away by ED officials after his arrest. Such bank crises keep happening quite regularly youtube
  • 39. | INDIA LEGAL | April 6, 2020 39 much of it is because of the world-wide meltdown and/or whether local prob- lems have had a say. People may be tempted to attribute the apparent disconnect between what one studies in textbooks, where every- thing is supposed to work out nicely and cleanly, and what one notices in real life as described above to the inadequacies of what we have taught our students or the theory itself. I shall argue that what- ever one sees around us is exactly as the textbooks should have led us to expect. The current economic paradigm pre- valent the world over has been referred to as the SLP regime by Dani Rodrik. This means: Stabilise (government expenditures have to be kept to low levels) Liberalise (allow trade to take place between countries without significant friction in the form of tariffs or taxes) Privatise (in the sense that govern- ment or the public sector should not get into producing goods and services). The SLP regime is usually taken to originate from Adam Smith. However, much before him, Chanakya had advo- cated that markets should be allowed to function freely. But there are externali- ties and problems of asymmetric infor- mation which vitiate market functioning and this means that governments must intervene to tackle these. In spite of these, some may say because of them, undesirable outcomes persist. There are other more basic problems. One should realise that any economic activity, be it sale and purchase of daily necessities such as vegetables or negoti- ating loans from banks to foster indus- trial growth, involves a contract between two parties. Often, one of the parties could be the government. But someone has to oversee the maintenance of these contracts. Otherwise, what can one do, if one party fails to keep to the terms of the contract? Dragging the offending party to court for a quick and fair decision is the only legitimate answer. This would make the breaking of contracts unat- tractive. Clearly, we do not have such an opportunity in India today and we are forced to enter into lengthy, costly exchanges with lawyers and courts to the detriment of the affected. Thus, trade or transactions which could have taken place may not; funds, which could have come, are diverted elsewhere. Trade that did occur is twist- ed into yielding outcomes which illegally benefit one party and scams and market failures occur. And what should be wor- rying is that such occurrences are going to keep surfacing periodically. T his depressing conclusion is because we have not yet realised the centrality of the above argu- ment. We often read about steps being advocated by various scholars from home and abroad. Yet, how many times have you seen the reforms of courts and the judicial system being mentioned as top priority? Quick identification of vio- lators of contracts and awarding deter- ring and just punishment should be the number one priority. Breaking contracts may often be hugely rewarding, if one can get away with it. In such situations, the perpetrator continues to do exactly as he wishes, and scams and unwelcome outcomes continue and flourish. As someone said with respect to the handling of the situ- ation at Yes Bank, while profits were privatised, losses will now be nation- alised and incentive for wrongdoing strengthened. Finally, both Adam Smith and Chanakya realised that freely function- ing markets can lead to prosperity only on the basis of good moral behaviour. Mistakenly, people have attributed greed to be the enabling characteristic. Greed together with a belief of being able to get away scot-free has got us the various scams and failures that we have alluded to. It is this aspect that we no longer emphasise while framing policies. To counter this, the need for timely, just policing and a fair and efficient legal system becomes paramount. —The writer is Professor Emeritus, Centre for Economic Studies and Planning, JNU. This note appeared in the 10th Edition of Vitta, the FIC, Sri Ram College of Commerce Journal. It appears here with the kind permission of their editorial board Notonlyseveralbanks,butevenairlines suchasJetAirways,Kingfisherandthe famoustravelagency,CoxandKing’s foldedup,leavingpeoplesuddenlywith- outjobsandliterallystranded. UNI
  • 40. Opinion/ RS Biennial Polls Vivek K Agnihotri 40 April 6, 2020 IENNIAL elections to the Rajya Sabha have been postponed to replace 55 retiring members in 17 states. Each member of the Rajya Sabha (RS) is elected for six years. According to Clause (1) of Article 83 of the Constitution, the Council of States (i.e. the RS) shall not be subject to dissolution, but one-third of its members shall retire every second year. This scheme has been considerably altered, and elections to the RS have being held on more than three occasions within six years. This is due to the imposition of President’s Rule and/or dissolution of various state assemblies from time to time before the completion of their five- year term. Some state assemblies were thus in a state of dissolution when the biennial elections to the RS were due and hence elections to the seats of those states were held later. This staggering of elections has played havoc with the biennial schedule. Actually, the elections of 73 members will be held in the course of 2020, which is close to the statutory one-third. Article 80 provides for the RS to have 12 members nominated by the president and not more than 238 repre- sentatives of states and Union Territo- ries. As against this sanctioned strength of 250 members, the RS at present has 245 members, the number of elected members having been restricted to 233 as detailed in the 4th Schedule of the A Council of Nominees? EvenaspollstotheHousehavebeenpostponed,itsoriginalvisionanddesignhavechangedas anyonecancontestitirrespectiveofdomicile.Itisnomoreacouncilofstatesbutofpoliticians B LOSING ITS CHARACTER The Chairman of the Rajya Sabha M Venkaiah Naidu, presiding over a session
  • 41. BLURRED DISTINCTION The Rajya Sabha has been made somewhat of a clone of the Lok Sabha (left) in filling its seats | INDIA LEGAL | April 6, 2020 41 Constitution. There is a link between the numbers of RS seats allotted to various states and their respective population. According to Clause (4) of Article 80, the representatives of each state in the RS shall be elected by members of the legislative assembly of the state in accordance with the system of “propor- tional representation by means of the single transferrable vote”. In simple terms, “proportional representation” means a political party gets to elect one or more member(s) to the RS in propor- tion to the number of its members in the state assembly. Again, the vote of each member of the assembly is “single” but “transferable”. Thus, in the ballot paper, the names of all the contesting candidates are listed and the electors have to indicate their order of prefer- ence against them. After putting “1” against the candidate of his choice, the MLA’s other preferences come into play only if the number of contesting candi- dates is more than the current vacancies in that state and, in the first round of counting, one or more candidates does not get the required number of votes to get elected. The formula for deciding the mini- mum number of votes required by a candidate to get elected is: Total Number of MLAs +1 Number of Vacancies+1 For example, let us look at the sce- nario in Andhra Pradesh in the forth- coming elections. First the facts: the strength of the state assembly is 175; the number of RS seats for which elections are scheduled is four. The YSR Congress Party (led by Jagan Mohan Reddy) has a strength of 151 in the assembly. Accor- ding to the formula given above, the mi- nimum number of votes required by a candidate to get elected would be: 175 +1 = 36 4+1 Each of the four candidates nominat- ed by YSRCP would thus need to secure 36 votes. As the YSRCP has a strength of 151 in the assembly, it requires a whip to at least 144 (36x4) MLAs to give their first preference in the ballot paper to one or the other of the candidates nominated by their party. Other candi- dates, if any, in such a situation would be no-runners, at the starting point itself, because the opposition has only 24 members. D uring the debates in the Consti- tuent Assembly, a member, Lok- nath Mishra, conceptualised the RS as “a sobering House, a reviewing House, a House standing for quality and the members will be exercising their right to be heard on the merits of what they say, for their sobriety and knowl- edge of special problems….” M Ananth- sayanam Ayyangar, a former Speaker of the Lok Sabha, thought that on such a platform of reflective consideration “the genius of people may have full play”, and it can make place for people “who may not be able to win popular mandate”. However, over time, we have some- how moved away considerably from the original vision and design of the RS in letter and spirit. The RS, as envisioned by the framers of the Consti- tution, has been “basically” modified by removal of the domicile requirement origi- nally mandated by The Rep- resentation of the People Act, 1951. In permitting any- one to contest the elections to the RS irrespective of do- micile, the diversity, which was the hallmark of the Up- per House, has been watered down and it has, to some extent, become somewhat akin to the Lok Sabha. It is no more the council of states, and at present is, to ProvidingseatsintheRajyaSabhato variousstatesonthebasisoftheirpopu- lationisuncalledfor.Whenweconsider allstatesasequalforcertainlegislative purposes,whythenthisdiscrimination?