India Legal 17 June 2019

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June 17, 2019
A PIL in the Supreme Court raises some complex questions, including how can
culpability be assessed for sentencing those with mental illnesses
By Professor Upendra Baxi
Mental Health
and Crime
Draft Language Formula:
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Bifurcation of Hyderabad Court:
Litigants left in the lurch

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4 June 17, 2019
HE continuing nationwide controversy
over the vulnerability of electronic vot-
ing machines (EVMs) to manipula-
tion—an issue which had forced no less
a person than former President Pranab
Mukherjee to issue a cautionary warning to the
Election Commission (EC) even as the polling for
the last general election was in progress—has
once again focused universal attention on the
growing menace and evil of computer hacking as
a whole.
After all, an EVM is essentially a computer.
And anybody who can hack a computer, notwith-
standing protestations to the contrary from the
EC, can hack an EVM unless data is scrupulously
and pro-actively protected. Techopedia describes
the process as unauthorised intrusion into a
computer or a network. The person engaged in
hacking activities is known as a hacker. This
hacker may alter system or security features to
accomplish a goal that differs from the original
purpose of the system. It can also refer to non-
malicious activities, usually involving unusual
or improvised alterations to equipment or
processes.
According to Techopedia, hackers employ a
variety of techniques for hacking, including vul-
nerability scanner: checks computers on net-
works for known weaknesses; password crack-
ing: the process of recovering passwords from
data stored or transmitted by computer systems;
packet sniffer: applications that capture data
packets in order to view data and passwords in
transit over networks; spoofing attack: involves
websites which falsify data by mimicking legiti-
mate sites, and they are therefore treated as
trusted sites by users or other programmes; root
kit: represents a set of programmes which work
to subvert control of an operating system from
legitimate operators; Trojan horse: serves as a
back door in a computer system to allow an
intruder to gain access to the system later; virus-
es: self-replicating programmes that spread by
inserting copies of themselves into other exe-
cutable code files or documents; key loggers:
tools designed to record every keystroke on the
affected machine for later retrieval.
There is no information whether the EC
employs “good” hackers (as against the “bad”
ones) as part of its support staff. These legitimate
hackers can be used to find flaws in the security
system, thus preventing identity theft and other
computer-related crimes. But large corporations
and organisations worldwide are becoming
increasingly sensitive about the protection of
data security and digital assets. This, in view of
the continuous suspicion surrounding the fair-
ness of the EVM-related electoral process in
India, has become an increasingly prominent
and important risk area for all professions.
The legal profession, not just in India but
globally, is particularly vulnerable. A few years
ago, in a prescient report published in the
Business Law Journal of the Legal Practice
Division, the International Bar Association
(IBA), honed in on this all-important subject.
The research paper, “Data Security and the Legal
Profession: Risks, Unique Challenges and Prac-
tical Considerations” was written by Anurag
Bana, senior legal adviser, and David Hertzberg,
an intern at IBA.
The authors argue that, compared to other
businesses, law firms are perceived to have par-
ticular data security vulnerabilities. And they
sound the alarm, that despite this, in-house
counsel is also considered to be critically lacking
in data security expertise. “Lawyers in all juris-
diction and practice settings,” they observe, “need
greater engagement with the issue of data securi-
ty to protect the interests of their clients, their
firms and the general public, and to discharge
their professional ethical obligations.”
In fact, a recent Bloomberg poll ranked hack-
ers and data breaches fourth out of five enumer-
ated threats to law firms. Data security, in effect,
has emerged as a key area of risk for all members
of the global legal profession. While it is
difficult to quantify the extent and number of
LAWFIRMS:EASYTARGETS
Inderjit Badhwar
T
Aresearchpaper
publishedinthe
BusinessLawJournal
hasdrawnattention
tothefactthatlaw
firmshaveparticular
datasecurity
vulnerabilities.The
authorsofthepaper
observedthat
“lawyersneedgreater
engagementwiththe
issueofdatasecurity
toprotectthe
interestsoftheir
clients,theirfirms
andthegeneral
public,andto
dischargetheir
professionalethical
obligations”.
Letter from the Editor

security breaches that have occurred to date, it
is, the report says, “a pressing issue that will
increasingly be a priority for law firms and busi-
ness, generally”.
Four years ago, market analyst firm Juniper
Research predicted that the global cost of data
breaches would reach a staggering $2.1 trillion
by 2019. That was roughly the 2015 FGD of
India! The Juniper report also predicted that the
average cost of a single data breach would exceed
$150 million by 2020 as businesses increase
their connectivity.
B
ana and Hertzberg spell out some of the
dire consequences of a law firm data secu-
rity breach: financial loss to the firm’s
clients, third parties and the firm; reputational
damage to the firm’s clients, third parties and the
firm; damage to the reputation and standing of
the legal profession; in some cases, damage to
economic infrastructure or threats to national
security; possible questions of professional mis-
conduct or failure to meet the minimum statuto-
ry standards for data protection.
Some years ago, a Citibank internal assess-
ment from its cyber intelligence centre, leaked to
The New York Times, cautioned that law firms
are at high risk for cyber intrusions and that
bank employees should be aware that digital
security at law firms “remains generally below
the standards for other countries”.
Why are law firms attractive targets for those
who would steal digital assets? Bana and
Hertzberg cite two main reasons: One, they hold
a high concentration of sensitive and valuable
information such as intellectual property (like
trade secrets and draft patent applications), busi-
ness strategies, financial account details, assets
inventories, litigation strategies, IPO details and
a wide variety of personally identifiable informa-
tion and protected health information relating to
employees of the law firm, clients, employees of
clients and third parties.
Two, they are relatively easier targets because
they have weaker data security than their clients
of third parties such as banks. Clients tend to be
larger companies with more resources to devote
to information security. The authors note: “Law
firms have variously been described as low hang-
ing fruit, or the soft underbelly, the Achilles’ heel,
or the weakest link, for hackers.”
Whatever the metaphor, the authors say, the
message is clear: law firms are prime targets.
They conclude that in view of the information
now available, data security should be a risk pri-
ority for all members of the global legal profes-
sion: “There is a pressing need for greater proac-
tivity and engagement by all lawyers. Lawyers
cannot rely on their IT department or assume
that technology will look after itself. As an initial
step management must take a leadership role in
promoting attention and vigilance at every level
of a law firm’s business.
“It will be important for bar associations and
international organisations like the IBA to raise
awareness and provide education, training and
other resources to assist lawyers in all jurisdic-
tions and practice settings to protect their digital
assets.”
| INDIA LEGAL | June 17, 2019 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
CYBER
INTRUSION
(L-R) Computer
hacking is a major
concern for
corporations and
organisations
worldwide; Law
firms are one of
the prime targets
pinterest.com

ContentsVOLUME XII ISSUE31
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6 June 17, 2019
LEAD
12Whither Justice?
All mentally ill persons who are convicted, as the Supreme Court has ruled, ought to be
treated with dignity according to the Mental Health Care Act, writes Prof Upendra Baxi
16No Animal Existence
In a unique judgment, the Punjab and Haryana High Court has declared that the entire
animal kingdom, including avian and aquatic, is a legal entity, with rights and duties
COURTS
18How To Earn a Home
The Delhi High Court has justified the
summary eviction of legal heirs from the
properties of senior citizens if they are
found neglecting or ill-treating them

28
GLOBALTRENDS
REGULARS
Followuson
Facebook.com/indialegalmedia
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Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Ringside............................8
Courts ...............................9
Is That Legal...................10
Media Watch ..................49
Satire ..............................50
Veritable Goldmine
Facebook’s proposed digital currency can work within WhatsApp,
Instagram and FB Messenger and offers price stability, privacy and
easy integration with banks. It may be ideal for direct benefit payments
24
COMMERCE
Confusion
Clears
The apex court has reversed
a Delhi High Court order
which barred Indraprastha
University from making
admissions to law courses
on the basis of CLAT scores
27
FOCUS
Lost Cause
The Delhi High Court’s order restraining
the central pollution body from taking
coercive action to realise the fine
imposed on DDA shows that penalties
are no deterrent for serial polluters
Courting Trouble Again 34
The Pakistan army’s misconduct case against a Supreme Court judge has got the
judiciary on the warpath again. Will it be a repeat of the confrontation between Gen
Musharraf and Chief Justice Iftikhar Chaudhry in 2007?
Shaky Foundation 40
The MP High Court has struck down a decision of the previous BJP regime to legalise
over 4,800 colonies and thus dealt a body blow to the builder-politician nexus
STATES
In a Spot 43
Four of five members of an SIT set up to probe the sacrilege incidents in Punjab in 2015
have disassociated themselves from its report which indicted the previous Badal regime
Unequal Balance
In sexual harassment cases there is an inherent unfairness about the
victim remaining anonymous while the alleged perpetrator is named
30
COLUMN
LEGALEYE
A Tale of Two Courts
Close to five months after the Andhra Pradesh High Court came up in
Amaravati, lawyers are unable to adjust to the poor infrastructure and
desolation and shuttle between Hyderabad and Amaravati
20
ENVIRONMENT
First Port of Call 37
India's traditional ties with the Maldives, which
had taken a downturn, are likely to improve after
Modi's visit to this important neighbour.
Terrorism, maritime security and China’s growing
influence are concerns for both countries
Bon Appétit
The Punjab government has asked online
food delivery firms to display hygiene
ratings of all food business operators regis-
tered/affiliated with them within 90 days
46
SPOTLIGHT
Writing on
the Wall
With the initial draft of the National Education
Policy proposing Hindi as a compulsory
language in non-Hindi speaking states, India
is venturing into uncharted territories
22
Doctor Who?
With the Pharmacy Council allowing its
degree holders to use the “Dr” prefix,
practitioners of modern medicine are
seeing red and patients are left confused
MYSPACE
32

8 June 17, 2019
““Dhoni is in Eng-
land to play cricket
not to for Maha-
Bharta, what an idi-
otic debate in Indian
Media, a section...is
obsessed with War...”
—Pak minister Faw-
ad Hussain Chau-
dhry’s tweet (sic) on
an Indian army in-
signia on MS Dhoni’s
wicketkeeping gloves
“As a Law Minister, I
will not be a post
office simpliciter.
The Law Minister...
the Law Ministry
has a role...giving
due...respect to the
Collegium system...
neither I nor my
department will
remain a post office.”
—Ravi Shankar
Prasad after taking
charge as the Union
law minister
“There is nothing to
be scared of… Don’t
be scared, the faster
they captured
EVMs, the quicker
they will disappear.
In future, we will
fight all battles
together. Rem-
ember, you are dead
if you are scared....”
—West Bengal CM
Mamata Banerjee,
addressing Muslims
in Kolkata on
Eid-ul-Fitr
“We have decided to
fight the bypolls...
alone. If I feel that
the SP president is
able to fulfil his
duties and convert
his people into
missionaries, then
we can still walk
together in future....”
—BSP chief Maya-
wati, announcing
that her party would
fight the coming
bypolls alone in
Uttar Pradesh
“Pilot saab also said
that we will win
Jodhpur with a big
margin...and our
poll campaign was
fabulous. So, I feel
he should own
responsibility for
that seat at least.
There should be a
complete post-
mortem....”
—Rajasthan CM
Ashok Gehlot, refer-
ring to Sachin Pilot
after his son's defeat
“I am sure Mr
Modi... will make a
real effort to set
things right in this
country. But their
basic idea of
equating national-
ism with Hindu-
ism...The Savarkar
brand of national-
ism, that
worries me....”
—Filmmaker Aparna
Sen to NDTV
“They may think
that practising one’s
own religion would
suffice and it was
fine to look down
upon people and
customs of other
faiths...such people
are adhaarmik.”
—Bihar CM Nitish
Kumar on Union
minister Giriraj
Singh’s iftar barb
“The world is taking it (pollution) so seriously. We
are not...no state in the whole country is compli-
ant with the rules and regulations of waste man-
agement. No shortage of funds can be given (as an
excuse). Pollution is no less an offence than mur-
der or rape. So let us be aware of the consequences.
We can make money. But at whose cost? Are we
going to create wealth over dead bodies.”
—NGT Chairman Justice Adarsh Kumar Goel
RINGSIDE
Anthony Lawrence
NEPAL
GOVERNMENT
MOUNT
EVERESTFree for all at peak hour

Courts
—Compiled by India Legal Team
Further probe needed
into CJI conspiracy case
The committee set up by the apex court
to look into the alleged conspiracy
against Chief Justice of India Ranjan
Gogoi has come across some incriminat-
ing material that needs further investiga-
tion. Justice AK Patnaik (retd), the head
of the committee, has asked the CBI, the
Intelligence Bureau and Delhi Police to
investigate the role of an alleged corpo-
rate-underworld nexus in the conspiracy
to frame the CJI. The committee has also
expressed a view that the allegations
made in the affidavit filed by
advocate Utsav Bains with
the Supreme Court can-
not be brushed aside.
The committee is expe-
cted to submit its report
to the apex court in
the first or sec-
ond week
of July.
Avacation bench of the Supreme Court
asked the CBI to complete its probe
into the Muzaffarpur shelter home abuse
case within three months. The bench
took note of the status report filed by the
CBI and directed it to look into the allega-
tions of murder of 11 girls by key accu-
sed Brajesh Thakur and his associates.
The CBI was also told to investigate the
role of outsiders who facilitated the sexu-
al assault on the shelter home inmates
after administering them intoxicants. It
may be recalled that the apex court had
taken over the monitoring of the case
from the Patna High Court on September
20, 2018. Subsequently, the probe was
transferred to the CBI which has charge
sheeted 21 people, including Thakur.
CBI to finish shelter home probe in 3 months
The Supreme Court directed the
Maharashtra government to hold the
last round of counselling for postgradu-
ate medical and dental seats by June
14. A vacation bench comprising
Justices Indu Malhotra and MR Shah
also directed the state
to give wide publicity
to the extension of the
admissions deadline
from June 4 to 14. “No
application and petition
in connection with the
admission in PG med-
ical courses in the
state, for this current
academic year, can be
entertained by any
other court,” the bench
added. This direction
follows a previous
order by the apex court
restraining the state
from implementing the
10% quota for eco-
nomically weaker sec-
tions (EWS) in admissions for the cur-
rent academic year. In the same order,
the Court had asked the state to issue a
revised merit list for admissions after
removing the seats allotted to 25 stu-
dents under the 10% EWS quota.
Abench of Justices BP Dharmadhikari
and Revati Mohite Dere of the
Bombay High Court upheld the constitu-
tional validity of Section 376E of the
Indian Penal Code (IPC) which provides
that repeat offenders in rape cases can
be awarded life imprisonment or the
death penalty. The bench said that the
newly incorporated Section 376E “is not
ultra vires the Constitution”. “Repeat
offender in a rape case cannot be allo-
wed to put his life before the lifelong
plight of the survivor,” added the bench,
while dismissing the pleas of three con-
victs sentenced in the Shakti Mills case.
They had been awarded the death penal-
ty by a lower court in 2014 for the gang
rape of an 18-year-old call centre emp-
loyee in July 2013 and a 22-year-old
photojournalist the very next month at
the Shakti Mills Compound in Mumbai.
Repeat offenders can
be awarded death
SC sets June 14 deadline
for medical admissions
Sadhvi Pragya appears
before special court
Newly elected BJP MP from Bhopal
Pragya Singh Thakur made her first
appearance on June 7 before the special
court hearing the 2008 Malegaon blast
case. The court had earlier rejected an
application by Thakur seeking exemption
from appearance in court from June 3 to
June 7. Thakur’s counsel contended that
she had to complete various parlia-
mentary procedures, making it difficult for
her to be present in court. However, the
court remained firm in its stand. Citing
health reasons, her counsel made a sec-
ond attempt to seek exemption. The court
obliged but with the caveat that she would
have to be present in court on June 7.

ISTHAT
Can a person have two
voter cards legally?
Section 17 of the Represen-
tation of People Act, 1950,
states that no person can
be enrolled as a voter in
more than one constituen-
cy. Further, Section 31 of
the Act makes it clear that
any false declaration before
the Election Commission of
India regarding (i) prepara-
tion, revision or correction
of an electoral roll; (ii) in-
clusion or exclusion of any
entry in or from electoral
roll or declaration in writing
shall be punishable with
imprisonment for a term
which may extend to one
year, or with fine, or
with both.
—Compiled by India Legal team
Electoral Malpractice
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
What is Zero FIR?
A Zero FIR is an FIR which can be filed
in any police station. It means one can
even file the FIR in a police station which
does not have jurisdiction over the place
where the offence was committed. How-
ever, the FIR is later transferred to the
concerned police station after investiga-
tion and filing in front of a magistrate.
This provision of Zero FIR was rec-
ommended by the Justice Verma Com-
mittee Report in the New Criminal
Amendment Act, 2013, after the 2012
Nirbhaya gang rape. It is no doubt a
positive step in the criminal justice sys-
tem, provided people are aware of it.
File FIR Anywhere
?
What are the rights of women in case of arrest?
A woman cannot be arrested between sunset
and sunrise.
Section 46 of the CRPC,1973, says: “Where a
woman is to be arrested, unless the police offi-
cer is a female, the police officer shall not touch
the person of the woman for making an arrest
and arrest would be presumed on her submis-
sion to custody on oral intimation. After sunset
and before sunrise, no woman can be arrested,
except in exceptional circumstances and upon
prior written permission from the local
Magistrate.”
Guidelines for Arresting Women
10 June 17, 2019
The right to education is an important law
for school education. Are parents duty-
bound to send their children to school?
The 86th amendment of the Constitution in
December 2002 inserted Article 21A, which
says: “The state shall provide free and com-
pulsory education to all children of the age
of six to fourteen years in such manner as
the state may, by law, determine.”
Further, another clause was added to
Article 51A that deals with the fundamental
duties of citizens. It says: “Who is a parent
or guardian to provide opportunities for
education to his child or, as the case may
be, ward between the age of six and four-
teen years.”
Hence, it is the duty of parents to send
their children aged between six and 14 to
school or any place wherein they get an
opportunity for education.
A Child Must Be Sent to School

Lead/ Mental Health and Dignity
12 June 17, 2019
N Accused X v State of
Maharashtra, Justices NV Ramana,
Mohan M Shantanagoudar and
Indira Banerjee (delivered on April
12, 2019), wrestled with many a
dilemma in the field of criminal
justice and mental health. Leaving
largely the matter of sentencing guide-
lines to the legislature, the Court
favoured working with a framework of
reasoned judicial discretion privileged
by judicial directions.
However, as Justice Ramana said,
the “complex questions concerning the
relationship between mental illness and
crime” raise issues about how culpability
“can be assessed for sentencing those
with mental illness? Is treatment better
suited than punishment?” In a constitu-
tional democracy, such questions are
critical for professional as well as public
discourse.
The vast question of whether to
abolish or retain the death penalty did
not concern the Court here. Nor did it
require any elaborate examination
whether the crime committed and death
sentence awarded fell outside the “rarest
of the rare” situation. Both the trial
and the High Court had decided that
the heinous crime of statutory rape
and murder of two girls coupled with
an earlier record of such crimes
deserved death.
However, the appeal was based on
two narrow grounds: first, no separate
hearing on the sentence was given by
the trial court in direct contravention of
Section 235(2) of the Code of Criminal
Procedure (CrPC) and second, the
award of the death sentence was con-
trary to the three-judge Bench decision
in Shatrughan Chauhan (2014) fol-
lowed by a four-judge Bench decision of
this Court in Navneet Kaur (2014).
These decisions ruled that the execution
of persons suffering from mental illness
or insanity violates Article 21 of the
Constitution as this would be a “super-
vening circumstance meriting commu-
tation of the death sentence to life”.
The Court ruled, in effect, that the
CrPC did not mandate a separate pre-
sentence hearing and ordered the con-
version of death sentence to a life sen-
tence till the natural term of life. But the
Court added that about 17 years on
death row was long enough to cause
mental illness and directed the State of
Maharashtra “to consider the case of
‘accused x’ under the appropriate provi-
sions of the Mental Health Care Act,
2017 and if found entitled, provide for
his rights under that enactment”.
Note that the Court while insisting
on the demands of dignity was still
unsure about whether the convict was
actually mentally ill!
Of course, state governments are
obliged under Section 103 of that Act to
“set up a mental health establishment in
the medical wing of at least one prison
in each State and Union Territory, and
prisoners with mental illness may ordi-
narily be referred to and cared for” in
such facilities. The Court, however,
refrained from issuing further concrete
directions, perhaps, because of the inde-
terminacy of finding of such illness by
prison doctors and a psychiatrist. Are
jail doctors and randomly chosen psy-
chiatrists the only available specialists or
does dignity demand something more?
It is sad and surprising that the
learned Justices passed by the opportu-
nity of doing something more specific,
given their general care and concern
with the “dignity” of the disabled, and
particularly of people living with
mental illness.
How is a State that blithely disre-
gards the mandate of Section 20 (1) of
the Act explicitly providing that “every
person with mental illness shall have a
right to live with dignity” likely to take
seriously any judicial exhortations? The
least the Court could have done was to
order a compliance report and even
maintain a continuing mandamus till
dignity was achieved.
SEPARATE PRE-SENTENCE
HEARING?
What does Section 360 of the CrPC
require when it prescribes that the sen-
tencing court should hear the accused
on the question of sentence? The incon-
vertible proposition of law is that there
is a right to “meaningful hearing” but
this does not answer the question
whether the Code requires a separate
hearing, denial of which vitiates convic-
tion? Disciplined constitutional reason-
ing is expected from the judiciary, but
puzzlingly, the help that may be derived
from Wesley Newcomb Hohfeld’s analy-
Whither Justice?
Allmentallyillpersonswhoareconvicted,theCourtruled,oughttobe
treatedwithdignityaccordingtotheMentalHealthCareAct
By Prof Upendra Baxi
Thecourtobservedthatour“Constit-
utionembodiesbroadandidealistic
conceptsofdignity,civilizedstandards,
humanity,anddecencyagainstwhich
penalmeasureshavetobeevaluated”.
I

sis has been spurned by Indian lawyers
and justices (puzzling because Hohfeld
remains discussed in the Indian juris-
prudence classrooms and textbooks.)
Hohfeld did not deny judicial cre-
ativity (who can?) but required that con-
fusion in analysis of jural relations and
opposites be avoided. Thus, one ques-
tion is: did Section 360 contemplate a
right/duty or a privilege/no-right rela-
tion? Or, should courts and judges feel
free to convert the first relation into a
second without explicitly justified rea-
soning? Reviewing past decisions, the
Court here effectively rules that there is
no constitutional or statutory right to
separate pre-sentence hearing.
However, Bachan Singh (1980) held
in no uncertain terms that the hearing
“would be rendered devoid of all mean-
ing and content and it would become an
idle formality, if it were confined merely
to hearing oral submissions without any
opportunity being given to the parties
and particularly to the accused, to pro-
duce material in regard to various fac-
tors bearing on the question of sentence,
and if necessary, to lead evidence for the
purpose of placing such material before
the court”. But the Court has, over the
years, converted this right-duty relation
into a privilege-no right relation.
Why so? First, Mukesh (2017) ruled
that “there are two modes, one is to
remand the matter or to direct the
accused persons to produce necessary
data and advance the contention on the
question of sentence”. Second, the “defi-
ciency … can be cured by providing the
opportunity at the appellate stage itself
so as to curtail the delay in the proceed-
ings”. Third, because lack of pre-sen-
tence hearing is “procedural impropri-
ety”, which can be remedied later, the
mere non-conduct of the present hear-
ing on a separate date would not per se
vitiate the trial if the accused has been
afforded sufficient time to place relevant
material on record”. Fourth, the talis-
manic phrase—“facts and circumstances
of the case”—appears all through the
discourse. Accordingly, the Court holds
that “there is no bar on the present
hearing taking place on the same day as
the preconviction hearing” and reiter-
ates that “it is open for the Trial Court to
hear the parties on sentence on the
same day after passing the judgment
of conviction”.
But the very first consideration
points to two courses of action, either to
remand or to meaningfully hear the par-
ties in appellate hearing. Does not the
exclusion of pre-sentence hearing then
point to the entire superfluity of Section
360? Elsewhere, the Court remains
quite clear (recalling its 1981 observa-
tions) that “it is the bounden duty of the
judge to cast aside the formalities of the
court scene and approach the question
of sentence from a broad, sociological
JusticeRamanasaidthe“complex
questionsconcerningtherelationship
betweenmentalillnessandcrime”raise
issuesabouthowculpability“canbe
assessed”insuchcases.
Anthony Lawrence

Lead/ Mental Health and Dignity
14 June 17, 2019
point of view”. That is, the pre-sentence
hearing has to bear in view the “socio-
legal” aspects. But if this is so, is it not
proper to remand the case to the trial
court to hold a proper pre-sentence
hearing?
SENTENCING POLICY & JUSTICE
The Court recalls Section 465 of the
CrPC which mandates that “no finding,
sentence or order passed by the Court of
competent jurisdiction shall be reversed
or altered by the Court of appeal on
account of any error, omission or irregu-
larity in the order, judgment and other
proceedings before or during trial unless
such error, omission or irregularity
results in a failure of justice”. Arguably,
justice lay in the present case in leaving
the matter to courts. And the Court was
convinced that the convict had no exten-
uating narratives to offer. The mitigat-
ing circumstance urged here—depen-
dence of the aged mother and her and
his young age—were outweighed by
“aggravating circumstances of the crime,
i.e. the magnitude and manner of com-
mission of the crime in the form of the
kidnapping, rape and murder of two
minor girls” and past history.
It may also be, after all, wise, as the
Supreme Court says, to rely on “the
experienced judges in India” who have
“enough expertise to distinguish,
between the schemes for protracting tri-
als from that of genuine causes in order
to protect rights of the accused”. But
does not “justice” require that trial
judges acquire that experience by mak-
ing a pre-sentence hearing as a matter
of rule rather than exception?
On the question of executing con-
victs who developed mental illness, the
Court is right to follow the Supreme
Court of the US in Atkins (2000), which
said that hanging “disabled or retarded
neither increases the deterrence effect of
death penalty” nor “the non-execution of
the mentally disabled will measurably
impede the goal of deterrence”.
But what is really path-breaking is
the observation that “Article 20 of the
Constitution guarantees individuals the
right not to be subjected to excessive
criminal penalty”. And this right
emanates from the doctrine proportion-
ality which reaffirms “the duty to respect
the dignity of all persons”.
Our “Constitution embodies broad
and idealistic concepts of dignity, civi-
lized standards, humanity, and decency
against which penal measures have to
be evaluated’’.
This is a giant demosprudential
step towards constitutional morality,
attracting a more strict judicial scrutiny
of legislative prescriptions of punish-
ments. One hopes that it will be vigor-
ously followed.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
“Wehavefailedtoidentifydepression
asaseriousprobleminoursurroundings
duetowhichpeoplehesitatetotalkaboutit
openly.Peoplewhosufferfromdepression
feelashamedtotellpeopleaboutit....”
—PMModiinhisMannkiBaatprogramme
S
ome prisons in India have been
taking initiatives to offer coun-
selling to prisoners suffering
from mental illness. These are:
In Delhi’s Tihar jail, around 7,000
inmates were provided counselling by
professional mental health experts as
part of Project Samarthan which was
launched last year in collaboration
with AIIMS and the Medical Health
Foundation of India. The aim of this
project was to check mental and
behavioural disorders in inmates
The Sabarmati central jail in
Ahmedabad has set up a psychologi-
cal counselling unit headed by a
forensic psychologist to work on the
mental well being of inmates
The Mangaluru district prison has
arranged for its 300 inmates to have
access to psychiatrist counselling as
part of an initiative organised by it in
collaboration with the Indian Red
Cross Society and the Government
Wenlock Hospital
—Compiled by India Legal Bureau
Mentalhealthmatters
UNI
HOLISTIC CARE
A kite flying festival organised at the Regional
Thana Mental Hospital in Mumbai

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www.indialegallive.com
June 10, 2019
The concept of democratic federalism, introduced by our Founding Fathers,
is under threat. It is being replaced by a strong assertion of a unitary and
unified theocracy. Will our Republic survive this challenge?
By Prof G Mohan Gopal
Retreatfrom
Federalism
Kolkata: Top cop
on the run
Britain after May:
What next?
STATES
UNION GOVERNMENT
FEDERATION

Courts/ Animal Rights
16 June 17, 2019
F you are the owner of a tonga any-
where in Haryana and use it to
transport office-goers to work or
children to school and back, make
sure there are no more than four
persons, excluding the driver and
children below six years of age, riding it
at any given time. Similarly, if you own a
bullock, camel or horse cart, don’t forget
to put fluorescent reflectors at the front
and back of the cart and ensure that the
animals are covered with fluorescent
reflector stripes for visibility. Or, if you
use animals for drawing vehicles, make
sure you do so only when the tempera-
ture does not exceed 37°C between 11
am and 4 pm in summer or does not go
below 5°C between 5 am and 7 am and
between 10 pm and 5 am in winter.
This set of dos and don’ts have come
not from the Society for Prevention of
Cruelty to Animals but from the Punjab
and Haryana High Court where Justice
Rajiv Sharma ruled that all living crea-
tures are legal entities with distinct per-
sona and, like living persons, enjoy
rights and have duties and liabilities.
Justice Sharma gave the order while
upholding the sentence given to a peti-
tioner by a judicial magistrate in Karnal
under the Punjab Prohibition of Cow
Slaughter Act.
The case was related to an incident
in which a man was caught transporting
cows from Haryana to Uttar Pradesh,
for which he was duly charged under
All Creatures, Great And Small
Inauniquejudgment,thePunjabandHaryanaHighCourthasdeclaredthattheentireanimal
kingdom,includingavianandaquatic,arelegalentities
I
NEED FOR COMPASSION
Horses, bulls and donkeys often carry or pull much more load than they
can bear. In his judgment, Justice Sharma said that the animals can’t be
treated as objects or property and are entitled to justice
youtube.com
martling.org

the Haryana rules. The judicial
magistrate of Karnal found him guilty
and sentenced him to two years’ imp-
risonment. On appeal, the sessions
court, too, upheld the conviction but
reduced the sentence to six months.
It was submitted before the court that
cow slaughter had been banned in
Haryana and permission was needed
from the competent authority even to
transport cows and this was also subject
to certain rules.
J
ustice Sharma pointed out that
since the petitioner had already
served the required sentence in
jail, an order against the additional
session judge’s verdict would be ineffec-
tive. However, taking a broad view on
animal protection and rights, the judge
referred to various pieces of legislation
framed by state governments and the
centre in support of animal rights in
his judgment.
His order had several directives that
ensure animal rights. These included:
The government must ensure that ani-
mals do not carry loads exceeding pre-
scribed limits while drawing vehicles.
No animal shall carry loads in excess
of the weights prescribed.
Weight should be halved if the route
involves an ascent exceeding the limit
prescribed by the Court.
Animal-drawn vehicles must not carry
more than four persons, excluding the
driver and children below six years
of age.
Use of spike stick or bit, harness or
yoke with spikes, knobs or projections
or any other sharp tackle or equipment
is banned throughout Haryana to avoid
bruises, swelling and abrasions in ani-
mals. Bullock- and horse-drawn carts
must have fluorescent reflectors at the
front and back of the carts and animals
must be covered with fluorescent reflec-
tor stripes for visibility at night.
Municipal bodies throughout the state
of Haryana must provide shelter of suit-
able size to horses, bullocks and camels
drawing vehicles.
Provisions of the Transport of Animals
Rules, 1978, and the Haryana Motor
Vehicles Rules, 1993, must be followed
while transporting animals.
Vehicles must be made suitable for
transporting animals by providing pad-
ding, anti-slipping materials, etc. There
should be a limit on the number of
cattle transported per vehicle (no more
than six heads). There should be restric-
tions on overcrowding the vehicle with
other merchandise. It must be made
sure that there is an attendant with the
animal being transported. The cattle
must face the engine to prevent it from
being frightened or injured. First-aid
must be provided to cattle in need.
The state must appoint veterinary offi-
cers as per Section 3 of the Prevention
and Control of Infectious and Conta-
gious Diseases in Animals Act, 2009,
and declare controlled and free areas to
prevent, control or eradicate any sched-
uled disease by notification.
The state must enforce the provisions
of the 2009 Act to prevent animals from
infectious and contagious diseases.
Animals, including cows, buffaloes,
calves, horses, ponies, mules, donkeys,
foals, goats and sheep, kids and lambs,
pigs and piglets shall not be transported
on foot beyond the period specified in
Rule 12 of the Prevention of Cruelty to
Animals (Transport of Animals on Foot)
Rules, 2001.
Animals shall be transported on foot
only when the temperature is between
12°C and 30°C. They should be provided
water every two hours and food every
four hours. They should not be made to
walk more than two hours at a stretch.
The state must ensure that every ani-
mal used in transportation is healthy. A
certificate from a veterinary doctor for
each animal is compulsory as per the
2001 rules.
The list is long and in summing up,
the Court noted: “All animals have hon-
our and dignity…. Have an inherent
right to live and is required to be pro-
tected by law. The rights and privacy of
animals are to be respected and pro-
tected from unlawful attacks.”
Interestingly, Justice Sharma has
been espousing the cause and rights
of not just animals through his judg-
ments but even rivers. While in July
2018, he passed a similar judgment in
the Uttarakhand High Court declaring
the animal kingdom a legal entity, a
year earlier he had declared that even
rivers like the Ganga and Yamuna
as well as their tributaries have the sta-
tus of legal entities.
—Furkan Ahmed
RIGHT TO LIVE
FOR ALL
(Above) Justice Rajiv
Sharma; a protest for
protecting animal rights
in New Delhi
InJuly2018,JusticeSharmapasseda
similarjudgmentintheUttarakhandHigh
Courtdeclaringtheanimalkingdoma
legalentity.Hehadalsodeclaredrivers
andtributarieslegalentities.
Anil Shakya

and will be implemented by the district
magistrate (DM), ie., by an authority
other than a civil court, whose jurisdic-
tion is barred under the Act. The DM,
under the Act, performs quasi-judicial
functions as different from administra-
tive functions.
In the instant case, the Government
of the National Capital Territory of
Delhi (GNCTD) framed rules under the
Act to indicate the parameters on which
the DM/Deputy Commissioner shall act.
On June 30, 2009, the GNCTD notified
the Delhi Maintenance and Welfare of
Parents and Senior Citizens Rules, 2009
and a separate comprehensive action
plan was also framed under Section
32(2)(f) of the Act. This plan, through
Rule 22(1) and (2), cast a duty on con-
Courts/ Rights of the Elderly
18 June 17, 2019
UE to the withering of the
joint family system, a large
number of elderly people
are not being looked after
by their families. Conse-
quently, many of them, par-
ticularly widows, are forced to spend
their twilight years alone and are
exposed to emotional neglect and lack of
physical and financial support. Ageing,
thus, has become a major social chal-
lenge and there is a need to give more
attention to their care and protection.
Though parents can claim mainte-
nance under the Code of Criminal
Procedure, 1973, the procedure is both
time-consuming and expensive. Hence,
a need was felt to have a simple, inex-
pensive and speedy mechanism for
parents/senior citizens to claim
maintenance.
The Maintenance and Welfare of
Parents and Senior Citizens Act, 2007,
was enacted to achieve this purpose.
The Act also provides for protection of
the life and property of senior citizens
and parents from the children/legal
heirs who refuse or fail to maintain/pro-
vide basic amenities to them. The Act
entitles parents/senior citizens to seek
eviction of children/legal heirs from the
property, which is the only way for them
to seek protection so that they continue
to have shelter and can sustain them-
selves independently without interfer-
ence from their children/legal heirs.
A senior citizen cannot knock on the
door of a civil court to fight a legal battle
to obtain possession of the property as
the jurisdiction of this court is barred
under Section 27 of the Act. The Act
empowers the state government to for-
mulate a summary procedure for evic-
tion of children/legal heirs of senior citi-
zens in the eventuality of ill-treatment
or non-maintenance. Section 22
empowers state governments to pre-
scribe “a comprehensive action plan for
providing protection of life and property
of senior citizens”.
On May 30, the Delhi High Court
held that as the protection of life and
property basically pertains to law and
order, a state subject, the obligation to
prepare an action plan has been placed
on the state government. The plan to be
prescribed is the one which is speedy
Inawelcomemove,theDelhiHighCourthasjustifiedsummaryevictionofchildrenandlegalheirs
fromthepropertiesofseniorcitizensiftheyarefoundneglectingorill-treatingthem
By Venkatasubramanian
D
A Roof over Their Heads
HOPE ON THE HORIZON
The old and deprived have something to
cheer about after the High Court’s verdict
myrows.org.in

procedure wherein any party
in settled possession and hav-
ing possessory rights will be
evicted without following
substantive procedure of law.
The petitioners contended
that the Act does not con-
template resolution of family
dispute or the protection of
civil rights and the property
of senior citizens who are of
adequate means and are not
left shelterless or without
food. The Act, they contend-
ed, provides for protection
only in cases where the sen-
ior citizens/parents have
been neglected or abused to
usurp their property. Enlar-
ging the scope of the Act, they argued,
would amount to judicial activism. The
bench of the outgoing Chief Justice
Rajendra Menon (who retired on June
6) and Justice V Kameswar Rao (who
authored the judgment), however, found
these arguments irrelevant to resolve the
challenge before them.
T
hus, on an application by a senior
citizen/parent(s) for eviction of
his/her son, daughter or legal
heir from his/her property (as defined
under Section 2(f) of the Act of 2007),
the DM, after due diligence and follow-
ing the principles of natural justice, may
pass an order of eviction.
The eviction is from the property of
the senior citizen/parent which is, mov-
able or immovable, ancestral or self-
acquired, tangible or intangible property
which he owns or has a right or interest.
The Delhi High Court has held that
the Act’s delegation of power to the state
government to frame an action plan and
to the DM to implement the same is jus-
tified and is not vague.
Further, the centre, through Sections
30 and 31 of the Act has retained with
itself the power to issue broad guide-
lines to the state governments on exe-
cuting the provisions of the Act and also
to make periodical review and monitor
the progress of the implementation of
the provisions of the Act. The Delhi
High Court inferred from this that the
centre thus has the power to prevent the
misuse of the Act.
While interpreting laws aimed at
social welfare, courts generally choose
the interpretation which favours its ben-
eficiaries. Therefore, the Delhi High
Court’s May 30 judgment is consistent
with this principle of interpretation. It
has helped the judiciary resolve legal
challenges to laws aimed at protection
of the rights of senior citizens.
UNI
bollywoodpapa.com
cerned police officials to prepare a list of
senior citizens in their area, regularly
visit them and promptly attend to their
complaints. But there was no specific
provision for any remedy of eviction
under the action plan.
On December 19, 2016, the GNCTD
incorporated an action plan under a
summary procedure for eviction of a
senior citizen’s son/daughter/legal heir
from his self-acquired property on
account of his non-maintenance and ill-
treatment. The Rules were further
amended on July 18, 2017, to expand the
scope of the term “property” under the
Rules. As a result, the remedy of evic-
tion was extended to “property of any
kind, whether moveable or immoveable,
ancestral or self-acquired, tangible and
intangible, and include rights or inter-
ests in such property” as opposed to only
self-acquired property.
In Aarshya Gulati (Through Next
Friend Mrs. Divya Gulati) and Ors v
GNCTD and others, two minor petition-
ers challenged through their mother the
validity of the Rules before the Delhi
High Court. They contended that the
impugned Rules erroneously conferred
powers of eviction through a summary
ThebenchofthenChiefJusticeRajendraMenon
(left)andJusticeVKameswarRaoheldthatthelaw
allowingthestategovernmenttoframeanactionplan
onevictionandtheDMtoimplementitisjustified.
AT SON’S MERCY?
(Below) Dr Vijaypat Singhania with his
estranged son, Gautam Singhania. The
Singhania feud started with Vijaypat gifting his
son control of the Raymond group. Now, he
claims, he and his wife are living in penury

High Courts, one for each state, and this
was provided for by the Andhra Pradesh
Reorganisation Act. This did not hap-
pen because then Andhra Pradesh Chief
Minister N Chandrababu Naidu did not
seem keen to bifurcate the High Courts.
Neither was then Chief Justice of Andh-
ra Pradesh High Court Justice Kalyan
Jyoti Sengupta in favour of dividing the
Court without proper infrastructure at
the site of the new High Court.
The new High Court for Andhra Pra-
desh in Amaravati came up on January
1, 2019, four and a half years after the
state was established. The speculation in
the corridors of power is that the Union
government moved rapidly after the
Telugu Desam Party (TDP) led by Naidu
Legal Eye/ Andhra Pradesh High Court
20 June 17, 2019
HE recent election of YS
Jagan Mohan Reddy as
chief minister of Andhra
Pradesh has sparked off a
new speculation—that the
seat of the new Andhra Pra-
desh High Court, established a few
months ago at Amaravati, will be shifted
to Kurnool, a few hundred kilometres
away. This may not happen actually be-
cause the new court has just been set
up. But expectations have been raised
because of two reasons. First, Reddy
was not in favour of the new High Court
being set up at Amaravati and secondly,
the first seat of the Andhra Pradesh
High Court, when it was set up in 1953,
was Guntur even as the capital was
in Kurnool. Both the High Court and
the capital subsequently moved to
Hyderabad in 1956. As the capital this
time around is in Amaravati (close to
Guntur), going by the historical prece-
dent, it would follow that the High
Court could be in Kurnool. But it is
unlikely that even if Reddy was to make
such a demand, the Supreme Court
would consent.
After the bifurcation of Andhra
Pradesh into Telangana and Andhra
Pradesh in June 2014, the High Court
remained in Hyderabad and continued
to have jurisdiction over the two states.
However, the name of the High Court
was changed to Hyderabad High Court.
But the ultimate idea was to have two
ClosetofivemonthsafterthenewHighCourtshiftedfromHyderabadtoAmaravati,lawyersare
unabletoadjusttothepoorinfrastructureanddesolationandshuttlebetweenthetwocities
By Kingshuk Nag in Hyderabad
T
Wikipedia
A Tale of Two Courts

court and even tribunals would be
accommodated and there is provision
for a residential complex for judges of
the high court and judicial officers of the
subordinate court.” The bench noted
that an inspection committee estab-
lished by the Andhra Pradesh High
Court was satisfied with the plan and so
were the judges of the High Court,
including those who would move.
I
t is a fact that the infrastructure for
a High Court was missing at Ama-
ravati. The High Court which came
up after a sudden decision by the Union
government, is located in a building at
the proposed Justice City where the city
civil court was being envisaged as oper-
ating from. A new building for the High
Court is being planned and will come up
later; after this, the city civil court will
move into its anointed building. Worse,
there is also no proper bar at the new
High Court. Lawyers who were practis-
ing at Hyderabad have been chary of
moving to Amaravati, which, as a city,
has underdeveloped infrastructure.
“Which lawyer with an established prac-
tice in Hyderabad will move to Amara-
vati, which has no requisite infrastruc-
ture as a city?” asks lawyer MN Rao.
“Only a novice lawyer trying to set up a
practice might find it useful to move to
this barren city,” he adds.
Incidentally, only Andhra Pradesh
government employees transferred to
Amaravati have reluctantly moved there
from Hyderabad. But many of them still
return to Hyderabad during the week-
end. Lawyers, being on their own, have
the freedom to stay in Hyderabad and
that is an option most have exercised.
But L Ravichandar, senior advocate at
Telangana High Court (this is the new
name for the High Court at Hyderabad
after the Andhra Pradesh High Court
began operating at Amaravati), said that
as there are matters to be pleaded at the
new High Court, he flies down to
Amaravati once a week to plead his
cases. He revealed that many other
lawyers too fly down to Amaravati once
a week.
The Andhra Pradesh High Court
which began functioning at Amaravati,
still does not have the full complement
of judges. There are nine judges, includ-
ing the acting chief justice, but a High
Court would be expected to have twice
the number of judges. Apparently, the
appointment of a full chief justice and
other judges has been caught up in
bureaucratic wrangles in Delhi. “Of
course, there is nothing surprising about
this. All High Courts in India have
vacancies, but when a new High Court is
located in a godforsaken place, the gov-
ernment should have made special
efforts to fill up all the vacancies,” a
leading lawyer said.
Talking about courting trouble.
COURT OF DISCONTENT
(Facing page) The AP High Court at
Amaravati; (extreme left) CM Jagan Mohan
Reddy may shift it to Kurnool; former CM
N Chandrababu Naidu did not want two HCs
withdrew from the National Democratic
Alliance. This meant that Naidu lost his
persuasive power in New Delhi. The off-
icial gazette notification came on Dec-
ember 26, 2018, although everything
was final much before.
But a day after the courts were bifur-
cated, the High Court Advocates Asso-
ciation approached the Supreme Court
against the move. The petition conten-
ded that the infrastructure for a new
High Court was still lacking in Amara-
vati and that there was no habitation
near the site and the only habitants
were part of a village panchayat.
However, the apex court bench of
Justices AK Sikri and S Abdul Nazeer
threw out the petition, ruling that
“initial hiccups will always be there”.
The Court also said that (the High
Court) is now functioning and will
change for the better. A few months ear-
lier, a Supreme Court bench had given
its final nod to the new High Court,
observing: “We may place on record that
in Amaravati a very big complex known
as Justice City is under construction
where the high court and subordinate
UNI UNI

the K Kasturirangan Committee was
shared by the ministry of human reso-
urce and development (HRD) for public
comment. Like the National Policy on
Education of 1968, the Education Policy
of 1986 and the Programme of Action by
the Parliament on education in 1992, it
reiterated its commitment to the three-
language formula, but with a twist in
the tale. It recommended Hindi as a
compulsory language in non-Hindi
speaking states.
Protests exploded across the country,
with the southern states taking the lead.
Social media went into overdrive, with
#StopHindiImposition hashtags trend-
ing on Twitter. Opposition leaders—
Tamil Nadu to West Bengal, Maharash-
tra to Kerala—warned of mass dissent.
The centre went into damage control
mode, with senior cabinet ministers
tweeting reassurances that Hindi would
not be imposed without public consulta-
tion. Yet another draft was prepared in a
day by the HRD ministry to defuse the
crisis, dropping the clause. But the idea
of the three-language formula continued
even in the latest draft. Hence, Hindi
could come in by the backdoor. How
many schools in India would have the
wherewithal to find teachers equipped
to teach a range of regional languages,
asked experts. Wouldn’t Hindi become
the default language of choice in most
non-Hindi speaking states? What would
stop Hindi-speaking states from aban-
doning regional languages and opting
for Sanskrit as the third language?
When the new council of ministers
took the oath of office on May 30, 58
people were from Hindi-speaking states.
Nothing unusual in that as this is a
trend that goes as far back as the first
Lok Sabha of 1952. What was atypical
was the dominant language of the
ceremony: Hindi.
Striking in traditional headgear was
G Kishan Reddy, 55, the sole minister
from the Telugu states, a BJP member
since age 15, known to be “Amit Shah’s
right hand man”. As he read out his oath
in Hindi with a heavy Telugu accent,
fumbling a little with the words, an
Spotlight/ Making Hindi Compulsory
22 June 17, 2019
OW many languages
should a child learn?
America does not care to
teach a second language to
schoolchildren. Barely 47
percent of British children
learn another language, while it is 10
percent in Brazil, Russia and Argentina
and just one percent in China. Europe
offers multiple languages in school, but
only for a year, while in Japan it is two
years. With 780 spoken languages, 122
in the Census, 22 official and no nation-
al language, India wrestles with its lin-
guistic diversity, compelling children to
learn more languages than they can
master. After 30 years, a policy overhaul
waits on the anvil. But new flashpoints
reopen old fault lines—of politics, iden-
tity and chauvinism. And they are all
there, waiting to be repeated.
Exactly a day after its second term
started, the Narendra Modi-led NDA
government landed in the eye of a storm
on the politically sensitive question of
language rights. On May 31, a draft
National Education Policy developed by
Indiaisventuringintounchartedterritories,whereHindiis
developingnewcloutandlegitimacy.Thismayposeathreatto
thelinguisticdiversityandfederalstructureofthecountry
By Damayanti Datta
H
TELLING SIGNS
(Top) G Kishan Reddy, a Telugu-speaking
minister, taking oath in Hindi; (above) Hindi
words on a milestone blackened in Karnataka
Writing on the Wall
PIB

in 49 tongues similar to Hindi, shows
the People’s Linguistic Survey 2017.
Nearly 60 percent Indians speak a lan-
guage other than Hindi. The Constitu-
tion designates 22 official languages,
Hindi written in the Devanagari script,
as well as English as the official lan-
guages of the Union. The state govern-
ments have the power to legislate their
own official languages. Hence, there are
22 official languages. Hindi or English is
used for official purposes: parliamentary
proceedings, judiciary and communica-
tions between the centre and states.
A
t the time of framing of the
Constitution, it was decided that
Hindi in Devanagari script
would be adopted as the official lan-
guage of the Union under Article 343(1)
under Part XVII of the Constitution,
while English would continue to be used
for executive, judicial and legal purposes
until 1965. Article 351 of the Constitu-
tion advocated developing Hindi as an
“official language” with the help of other
Indian languages to make it acceptable
to non-Hindi speakers. The provisions
created tension between those who
wanted English to stay and those who
wanted primacy for Hindi.
Collisions were averted by Jawaharlal
Nehru’s assurance in 1959 that English
would be an associate language as long
as states would want it. In 1963, the
Official Languages Act sanctioned the
continued use of English even after 1965
and for correspondence between the
centre and the states. Article 348(1) pro-
vided for the use of English in the
Supreme Court and high courts as well
as for drafting bills, acts and orders,
although Article 348(2) read with
Section (7) of the Official Languages
Act, 1963, provided for Hindi or other
official languages to be used in High
Courts “in addition to English”.
Ultimately, it is the apex court that
can shed new light on the muddled
mess around India’s language policy,
especially the outmoded Part XVII. In
2014, a constitution bench upheld the
fundamental right of parents to choose a
child’s mother tongue and medium of
instruction, invoking Articles 19(1)(a)
and (g) of the Constitution—or the
rights to freedom of speech and profes-
sion. The bench also precluded proac-
tive role of the state to determine “stan-
dards of education,” or “impose” a lan-
guage on an unwilling population.
Formal, no-nonsense, quiet, non-
intrusive and at the same time, a stickler
in matters of propriety, President
Kovind interrupted seven NDA minis-
ters on May 30 for callous oath-taking,
five of whom were native Hindi-speak-
ers. Kovind is the first president to have
taken his oath in Hindi, yet it’s his com-
mand over English, and knowledge of
the Constitution that is said to have
clinched the NDA decision to nominate
him as the president. No wonder, lan-
guage plays a pivotal role in his public
speeches. He advocates citizens to learn
more languages, asks Hindi-speakers to
extend more respect and space to
regional languages, worries about the
opposition to Hindi in some parts of the
country and enjoins all to adopt other
languages and cultures, to “unite the
people and the country”.
As the constitutional head of the
Union, will he build bridges across lan-
guages in politically turbulent times?
uncharacteristic note of contention
interrupted the solemn routine. Presi-
dent Ram Nath Kovind broke in to cor-
rect his accent and words, making him
repeat sentences. The nation watched.
In 2009, a Maharashtra MLA was
slapped by his peers from the opposition
for taking the oath of office in Hindi and
not Marathi. Ten years later, it seems
like a lost chapter in the story of India.
Hindi, the fastest-growing Indian lan-
guage, is developing new clout and legit-
imacy. At work is the powerful Shiksha
Sanskriti Utthan Nyas, an RSS affiliate
that propagates the idea of “Hindi,
Hindu, Hindustan” and the removal of
English. Led by Modi, BJP politicians
are aggressively using Hindi on social
media. On the floor of Parliament,
Hindi is fast replacing English; Modi
speaks only in Hindi. With the Commi-
ttee of Parliament on Official Languages
promoting Hindi, it is now everywhere:
official speeches, airline tickets, syllabi
of central schools. The writing is on the
wall: India is venturing into uncharted
territories, where the spectacular rise of
Hindi may pose a threat to our linguistic
diversity and federal structure.
Yet, there is no national language in
India. Although Hindi remains the most
spoken mother tongue in the country,
barely a dozen states and Union Terri-
tories have a majority who list Hindi as
their mother tongue. And out of them,
40 percent do not speak pure Hindi, but
#Stop-Hindi-Imposition/Facebook
NOT MY LANGUAGE: A demonstration against the imposition of Hindi

book get valued for billions
despite minuscule sales
revenues. It has a market
capitalisation of $178 bil-
lion on sales of only $15
billion and profits of less
than $6 billion. In contrast,
Walmart has a market cap
of $292 billion on $138 bil-
lion in sales revenue—a
price to sales ratio of
around 2.1 compared to
Facebook’s 11.8.
Selling at a price-earn-
ings multiple of almost 30,
Facebook is an expensive
stock, yet its stock price is
up 36 percent in 2019,
which is more than twice
that of the broad index
(S&P500). Savvy investors
in companies like Face-
book, which allow billions
across the world to net-
work with each other for
free, have long recognised that the sec-
ret lies in collecting “eyeballs”, or visi-
tors, in the hope of eventually tapping
into that collective attention through
advertising and transactional products.
And it appears that Facebook has
done just that. It recently announced
that it was developing its own asset-ba-
sed cryptocurrency, codenamed
GlobalCoin (eventual name may be dif-
ferent), designed to operate within the
company’s existing messaging infra-
structure of WhatsApp, Instagram and
Facebook Messenger. In April, Mark
Zuckerberg, Facebook’s boss, said at the
company’s annual conference for devel-
opers that it “should be as easy to send
Commerce/ Facebook’s Currency
24 June 17, 2019
ACEBOOK, with 2.4 billion
global subscribers, is almost
twice the size of the largest
country in the world. That
represents enormous power,
especially in the world of com-
merce. But as the subscribers are dis-
persed geographically, it is difficult for
them to transact with each other. What
if they all had a common currency, and
that currency was in digital form so that
its ownership could be easily transferred
and it was stable in price?
Suddenly, the paradigm changes. If a
person in India wants to buy something
from an individual in Poland, he could
use the common currency without the
need for a central bank to facilitate the
exchange. And millions of transactions
like these between private individuals,
all happening on an easy-to-use messag-
ing application like WhatsApp, presents
a veritable goldmine for Facebook.
And that is exactly what Facebook is
trying to capitalise on—its seemingly
limitless resource of subscribers. Scep-
tics wonder how companies like Face-
A Digital Goldmine
ThedigitalcurrencycanworkwithinWhatsApp,InstagramandFacebookMessengerandoffersprice
stability,privacyandeasyintegrationwithbanks.ThismaybeidealforIndia’sdirectbenefitpayments
By Sanjiv Bhatia
F
Amitava Sen
GlobalCoinisoneofthenewgeneration
cryptocurrencieslikeTether(USDT),
TrueUSDandUSDCoin.Theyarepegged
toanassetwithuniversalacceptance
suchasgold,theUSdollar,ortheeuro.

percent in price on any given day. This
rapid price fluctuation makes them
extremely inconvenient for daily trans-
actions and has been the biggest hurdle
in their adoption. Imagine paying `150
for your favourite cup of coffee one day,
and `200 the next. For digital curren-
cies to become mainstream, price
stability is crucial. Currencies like
GlobalCoin could become mainstream
in a short time because along with price
stability, they offer privacy, decentralisa-
tion and easy integration
with banks and credit cards
for commercial purposes.
This new generation of
asset-backed stable coins
could be gamechangers in
the world of commerce.
Low fees, decentralisation,
price stability, and not nee-
ding intermediaries make
these stable cryptocurren-
cies easier to integrate into
daily life. The fact that one
can easily transfer any am-
ount (potentially) anywhere
in the world in a matter of
seconds through a messag-
ing app makes the prospects even
more attractive.
The current process of global ex-
change through intermediaries like
banks is especially inconvenient and ex-
pensive for cross-border trading. If you
live, say, in India and need to move
funds to your daughter studying in the
US, it would take time and you could
pay upto three percent of the total am-
ount in service charges. For merchants,
the need to pay a fee inevitably influ-
ences the prices of the goods they sell.
Cryptocurrencies help solve this issue
with the help of fast transactions and
low fees. Currently, anywhere from one
to two percent of every transaction goes
as fees to banks and companies that
facilitate the exchange and is an unnec-
essary cost of global trade. With current
global trade amounting to about $18
trillion a year, the transaction costs of
using intermediaries is significant. If
digital currencies like GlobalCoin can
find acceptance, it opens up an enor-
mous opportunity for companies like
Facebook, which have been bleeding
cash for years trying to scale up their
subscriber base. Facebook’s recent pur-
chase of WhatsApp enables it to lever-
age the over 55 billion messages exchan-
ged daily through this messenger service
for commercial purposes. The potential
is, indeed, staggering.
There are, however, issues that
UNI
THINKING BIG
Facebook founder Mark
Zuckerberg wants to launch
the cryptocurrency
next year
money to someone as it is to send a
photo”. With GlobalCoin, that vision
gets closer to reality. Facebook is talking
to potential partners, such as credit card
issuers, merchants and financial regula-
tors such as the Bank of England, and
hopes to launch the currency
in 2020.
GlobalCoin is among a handful of
new-generation cryptocurrencies like
Tether (USDT), TrueUSD and USD
Coin, which have one big advantage that
previous generation cryptocurrencies
such as Bitcoin did not—a stable price
because they are pegged to another asset
with universal acceptance such as gold,
the US dollar, or the euro. Stable coins,
as they are called, work as a bridge bet-
ween the world of cryptocurrencies and
the world of fiat currencies. There is a
centralized authority that backs every
coin with one-to-one equivalence in US
dollars or euros and this controls the
price volatility.
T
hese new stable coins solve a
major problem with the first gen-
eration of cryptocurrenies such as
Bitcoin and Ethereum which are highly
volatile and can fluctuate as much as 20
Facebookistryingtocapitaliseonitsresourceof2.4billionglobalsubscribersby
developingacryptocurrencycodenamedGlobalCoin.Consideringthereachofits
existingmessagingplatforms(above),itisagoldmineforthesocialmediagiant.

need to be resolved for cryptocurrencies
like GlobalCoin. The biggest challenge
will be scalability. As these currencies
are asset-backed, backers will have to
invest billions to create enough liquidity
in these coins to support interesting
applications of the technology. This
could potentially create a cap on how
fast these currencies can grow. Another
potential problem, as always, is regula-
tion. Central banks may be quicker to
act on stable coins because they are tied
to an underlying fiat currency like the
dollar. As the innovation of stable coins
is fairly new, there are also technical
challenges that need to be overcome.
B
ut Facebook’s involvement in the
use of digital currencies will help
push their adoption. Imagine the
size of a global marketplace that can be
created by 2.4 billion people being able
to transact and exchange goods and
services on a free unregulated market
without the need for an intermediary
like a bank or a credit card company.
The potential for stable coins is huge in
everything—from global transactions of
goods, services and investment prod-
ucts, business-to-business trade, bank-
ing, lending and savings and insurance.
The potential for use of asset-backed
coins in a country like India can be
enormous. An immediate and signifi-
cant application can be in the area of
welfare payments. The government cur-
rently has over 200 welfare schemes and
subsidies from food distribution to mo-
ney for building toilets and homes and
educational, health, agriculture subsi-
dies, etc. Most of these are expensive to
run because they require a permanent
government machinery, plus there is
massive pilferage and fraud in most pro-
grammes. All these disparate schemes
could potentially be replaced with a
minimum income guarantee using a
digital currency.
Blockchain technology that provides
the foundation on which these digital
currencies are built would enable track-
ing of every transaction, allowing for
easy detection of theft or pilferage. The
fact that transferring welfare benefits
could be as easy as sending photos on a
messenger app with little or no transac-
tion costs and minimal leakage will be
transformational for India.
Facebook’s entry into the world of
digital currencies is a huge step in their
eventual acceptance. As with any tech-
nology, one can expect rapid advances to
make these currencies more stable, scal-
able and redeemable. Already, asset-bac-
ked stable coins are a significant impro-
vement over algorithmically-priced
cryptocurrencies like Bitcoin. Historian
Yuval Harari rightly said: “Money is the
most universal and most efficient system
of mutual trust ever devised. Even peo-
ple who do not believe in the same god
or obey the same king are more than
willing to use the same money.” The day
of universal acceptance of digital cur-
rencies is not far away.
India has an opportunity to be at the
forefront of digital currency technology.
It can either deregulate the development
and use of these currencies and allow
the free market to develop indigenous
versions, or it can stifle their growth
with unnecessary restrictions.
The government of India has been
eager to convert India’s informal econo-
my into a formal one to maximise its tax
potential. This is a huge mistake as
India’s informal economy is the world’s
largest free market and provides em-
ployment to millions who otherwise
would be unemployable in the formal
economy. A better option would be to
allow the informal market to tap into
the advantages offered by a digital cur-
rency, and once its use has been univer-
sally accepted, to impose a very small
transaction tax. If all welfare payments
are made in digital currency, it would
make the adoption even faster. This
would be a win-win for everyone—re-
monetisation of the informal economy,
more effective tax collection for the gov-
ernment and a leakage-free welfare dis-
tribution system for taxpayers.
—The writer is a financial economist
and founder, contractwithindia.com
26 June 17, 2019
Commerce/ Facebook’s Currency
Thereareissueswithcryptocurrencies
likeGlobalCoin.Regulationisoneofthem.
Centralbanks(above)maybequickerto
actonstablecoinsastheyaretiedtoan
underlyingfiatcurrencylikethedollar.
medium.com

Focus/ Admission to Law Courses
N a recent order, the Supreme
Court held that admissions to law
courses in Guru Gobind Singh
Indraprastha University (GGSIPU)
for the academic year 2019-20 can
take place only through the Common
Law Admission Test (CLAT). By this
order, the Court reversed a Delhi High
Court decision whereby a circular issued
by GGSIPU on February 26 was stayed.
The circular had stated that admissions
to law courses offered by the University
and its affiliated institutes would take
place through CLAT.
Through an interim ruling on April
1, the High Court had accepted the con-
tention of the petitioner, the Self Finan-
cing Educational Institutions Associa-
tion, that the February 26 circular con-
tradicts the Delhi Professional Colleges
or Institutions (Prohibitions of Capita-
tion Fee, Regulation of Admission, Fix-
ation of Non-Exploitative Fee and Other
Measures to Ensure Equity and Excell-
ence) Act, 2007. This Association com-
prises 12 private colleges affiliated to
GGSIPU which offer LLB courses. The
High Court had also mandated the
Delhi-based varsity to conduct the Com-
mon Entrance Test (CET) for admission
to its law courses, as has been the prac-
tice till date.
GGSIPU had challenged this deci-
sion by filing an appeal before the Sup-
reme Court. In its petition, the Univer-
sity submitted that “the students would
suffer irreparable loss and injury, if the
order passed by the Honourable High
Court is not stayed, whereas no preju-
dice would be caused to the respondents
nor they suffer in any manner whatsoev-
er due to the stay as prayed for”. The
matter was heard by a vacation bench
comprising Justices Arun Mishra and
MR Shah on May 21.
Even though the respondent, the
Association, argued that students would
suffer if admissions to law courses were
made only through CLAT as the last
date for applying for it was over, the
bench ruled in favour of GGSIPU. The
judges rebutted the respondent’s con-
tention, saying: “Your apprehension
does not appear to be right. The stu-
dents are much smarter these days, and
they would have applied for CLAT…
Nobody will suffer. CLAT means
CLAT....They (University) took permis-
sion from the government and it was
permitted to admit students on the basis
of CLAT.”
On February 11, the Delhi govern-
ment’s Directorate of Higher Education
had issued an order allowing GGSIPU
to adopt national-level tests for admis-
sion to several courses, including LLB
and LLM courses for 2019-20. Soon
after, on February 26, the University
had issued a circular announcing that
CLAT-UG and CLAT-PG scores will
form the basis for admission of students
in the law programmes for 2019-20.
This case brings into focus the bar-
rage of controversies plaguing CLAT
examinations, and consequently, admis-
sions to law programmes in the country.
The CLAT 2019 examination, which was
held on May 26, appears to be no differ-
ent. Introduced in 2008, when only
seven national law universities accepted
CLAT scores, the number of participat-
ing institutions has now grown to
around 70, of which 21 are national law
universities and the rest include govern-
ment as well as private universities.
The results of CLAT 2019 are likely
to be declared by June 10, after which
online counselling will begin for all the
participating universities, including
GGSIPU. One hopes that the students
will not have to suffer more confusion.
Confusion
Clears
I
ROOTING FOR CLAT
A moot court session at GGSIPU. It had
challenged the High Court order in the SC
TheSupremeCourthas
reversedaDelhiHighCourt
orderbarringIndraprastha
Universityfromconducting
admissionstolawcourseson
thebasisofCLATscores
By Vrinda Agarwal

My Space/ Prefixing “Dr” Dr KK Aggarwal
28 June 17, 2019
S per Medical Council of
India (MCI) ethics regula-
tion 2.1, every doctor has
an obligation towards the
sick: “Though a physician
is not bound to treat each
and every person asking his services, he
should not only be ever ready to respond
to the calls of the sick and the injured,
but should be mindful of the high char-
acter of his mission....A physician advis-
ing a patient to seek service of another
physician is acceptable, however, in case
of emergency a physician must treat the
patient. No physician shall arbitrarily
refuse treatment to a patient….”
Regulation 2.4 says: “The patient
must not be neglected: A physician is
free to choose whom he will serve. He
should, however, respond to any request
for his assistance in an emergency....”
In an emergency situation, the only
answer is a modern medicine doctor or
one registered with the Medical Council
of India.
But it is regulation 1.1.3 that is espe-
cially important and defines who is a
physician: “No person other than a doc-
tor having qualification recognised by
Medical Council of India and registered
with Medical Council of India/State
Medical Council(s) is allowed to practice
Modern system of Medicine or Surgery.
A person obtaining qualification in any
other system of Medicine is not allowed
to practice Modern system of Medicine
in any form.” So, in an emergency, the
public must find a doctor with an MBBS
degree and the accepted way of doing it
is to search for a person who has pre-
fixed Dr before his name.
MCI ethics regulation 1.4.2 also says:
“Physicians shall display as suffix to
their names only recognised medical
degrees or such certificates/diplomas
and memberships/honours which confer
professional knowledge or recognises
any exemplary qualification/achieve-
ments.” In the case of MBBS doctors, it
will be modern medicine.
Article 18 of the Constitution talks
about abolition of titles: “No title, not
being a military or academic distinction,
shall be conferred by the State. No states
can officially issue titles.” When I rec-
eived the Padma Shri from the president
in 2010, I was cited a Supreme Court
ruling as part of the briefing: I cannot
use Padma Shri Dr KK Aggarwal under
Article 18. But I can use Padma Shri
awardee Dr KK Aggarwal or recipient of
Padma Shri Dr KK Aggarwal.
The prefix Dr used by modern medi-
cine doctors is not given by the Medical
Taking the Shine Away
Withthepharmacycouncilallowingitsdegreeholderstousethe“Dr”prefix,practitionersof
modernmedicineareirkedandpatientsareleftconfusedastowhomtogotoinanemergency
A
QUESTIONABLE CLAIM
Pharm D candidates at the Guru Nanak
Institute of Pharmaceutical Science &
Technology, Kolkata; they can prefix “Dr”
gnipst-pc.ac.in

Council of India, a medical college or a
state university, but by society to differ-
entiate us from others and identify us as
modern medicine doctors. However,
today, even a person who has completed
doctoral research and is awarded a PhD,
prefixes Dr to his name. Practitioners of
AYUSH systems of medicine also prefix
their names with Dr even though they
have their own appropriate terms such
as Vaidya (Ayurveda), Hakim (Unani),
Naturopath (Naturopathy), Yogacharya
(Yoga) and Homoeopath (Homoeo-
pathy). One must remember that in an
emergency, these systems of medicine
are not effective. That’s not all.
Universities also felicitate eminent indi-
viduals for their contribution in many
fields such as literature, science, sports,
music, cinema, social service, etc, with
doctorate degrees. These individuals
also prefix Dr to their names.
Now there is talk of the Pharmacy
Council of India (PCI) authorising can-
didates receiving the Doctor of
Pharmacy degree (Pharm D) from
recognised universities to use the “Dr”
prefix. This title reflects entitlement and
identity and the Indian Medical
Association (IMA) is against it being
used by those trained in other streams
of medicine as it confuses people during
medical emergencies. In a letter issued
to the director of the Board of
Examination and Evaluation of Sant
Gadge Baba Amravati University, the
registrar-cum-secretary of the PCI,
Archana Mudgal, has said that the
University should use the “Dr” prefix
before the names of candidates while
awarding them degrees. But as universi-
ties in Maharashtra were not issuing
degrees with “Dr” prefix, members of
the Doctor of Pharmacy Association of
Maharashtra approached the PCI for
clarification. The PCI then issued a cir-
cular stating that Pharm D candidates
can use Dr before their names. Legally,
this is only an executive order and not a
legally sanctioned clause.
Physiotherapists have also been ask-
ing for Dr as a prefix. Tomorrow, even
nurses will start writing Dr as a prefix.
Of course, quacks are also prefixing Dr
before their names. And surprisingly,
even health products are using Dr liber-
ally such as Dr Morpen, Dr Fixit, etc.
The use of Dr as a prefix is wide-
spread, be it dentists, veterinary doctors,
acupressure and acupuncture specialists
or occupational experts. The easiest
solution to distinguish these branches
of medicine would be to have specific
degrees such as XYZ, Doctor of
Pharmacy.
W
hen I was the National
President of the IMA, this
matter was discussed on
many occasions. We were getting many
complaints from the public of being
misguided and exploited by untrained
doctors during emergencies.
Different variations of Dr were being
used—DR, DR., Doc, Doc., Doctor, Dr
(Modern Medicine), Dr (Homoeopathy),
Dr (Ayurveda), Dr (Naturopathy), Dr
(Dental), Dr (Veterinary), Dr (Yoga), etc.
I personally started carrying a stetho-
scope around my neck as a symbol of
modern medicine and being available in
any emergency.
While one can stop pharmacists or
physiotherapists from using Dr before
their names, one will never be able to
stop AYUSH doctors from doing the
same. So the IMA copyrighted an
emblem for modern medicine which is
to be used by all its doctors to diff-
erentiate themselves from those in
other fields.
The government must come out with
a regulation so that ordinary people can
differentiate between doctors of differ-
ent systems of medicine. The confusion
can cause fatal errors and delay in treat-
ment. Will the government listen or
should we again look to the judiciary to
intervene and take a decision?
—The writer is President, Heart Care
Foundation of India, and President-
elect, Confederation of Medical
Associations of Asia and Oceania
TheuseofDrasaprefixiswidespread
andpronetoabuse.SotheIMAcopyright-
edanemblemformodernmedicine,tobe
usedbyallitsdoctorstodifferentiate
themselvesfromthoseinotherfields.
UNI

Column/Sexual Harassment at Workplace Act Maithili Shaan Katari Libby
30 June 17, 2019
HE World Health Org-
anisation has recognised
sexual violence as a serious
public health and human
rights problem. It can take
many forms including rape,
sexual slavery, harassment, forced expo-
sure to pornography, pregnancy, sterili-
sation, genital mutilation and others.
Any office worker facing unwelcome
sexual advances in the “workplace” has
the right to sue the perpetrator under
the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and
Redressal) Act, 2013. Chief Justice of
India (CJI) Ranjan Gogoi has spent
weeks of his tenure fighting off a sexual
harassment claim. Unhappy with the
way the Supreme Court in-house panel
was handling this particular case, the
complainant eventually refused to att-
end further hearings, and the rest of the
proceedings were done ex parte; the CJI
was found not guilty of any harassment.
What is the right way of handling
such sensitive complaints? Empathy is
the key and so is the need to be com-
pletely neutral. In the CJI’s case, for
instance, the original panel was rapidly
swapped for a fairer one comprising
Justices SA Bobde, Indu Malhotra and
Indira Banerjee. Also, when the com-
plainant expressed discomfort with
Justice NV Ramana being part of the
panel, he promptly recused himself.
Making the complainant feel totally
comfortable is crucial.
Section 4(1c) of the Act clearly states
that one half of the members on the
panel must be women. The original
panel in this case had no women mem-
bers, although the later one comprised
two women. There should always be an
external member on the panel as well.
In short, the panel needs to be bey-
ond reproach. Nemo judex in sua causa
is a Latin phrase that literally means “no
one should be a judge in his own case”.
Therefore, under no circumstances
should the accused—even if he is the
boss—be permitted to be privy to, or
worse still, sit on the panel. When it
comes to sexual harassment cases, even
small companies take pains to make the
procedure clear, make provisions for
recordings, and the transcripts are given
for the complainant/witnesses to end-
orse. Having legal counsel present is less
common, but given the imbalance of
power, one does not see why this request
was not acceded to in the CJI’s case.
The Act is, as the title suggests,
meant for women in the workplace. This
is a welcome idea, and there is much
that is right with this Act. However,
there is an inherent unfairness about
the victim remaining anonymous, while
the alleged perpetrator is named. Any-
one with an axe to grind could make a
complaint, or persuade someone else to
do so. This would serve to dilute the Act
itself, as all complaints will then be
viewed with some degree of suspicion,
and genuine complaints will be lost in
the noise—so to speak.
Under Article 1.1 of the International
Covenant on Civil and Political Rights,
1966, to which India is a party, everyone
charged with a penal offence has the
right to be presumed innocent until pro-
ven guilty. It is submitted that here too,
he should receive the same treatment.
The Act has a provision for punishment
for false or malicious complaints (Sec-
tion 14) but this is too little, too late,
especially for someone of stature/
standing—whose life is turned upside
down, reputation tarnished, while he is
spoken about, whispered/written
about—until the proceedings are over.
Stop Malicious Tarnishing
WhiletheActisawelcomeidea,thereisaninherentunfairnessaboutthevictimremaining
anonymouswhiletheallegedperpetratorisnamedandshamedbyanyonewithanaxetogrind
T
UNI

And how many will wait to read the
outcome before passing their own
judgements? And will we be able to turn
back the clock and restore public per-
ception? Justice AK Ganguly had to
resign as chairman of the West Bengal
Human Rights Commission even
though the sexual harassment allega-
tions made against him by an intern
were never proven!
In India, as in many other countries,
self-respect is everything. With it goes
your standing in society, and by exten-
sion that of your family’s. The Delhi
High Court had restrained TV channels,
print media and news websites from
reporting allegations of sexual harass-
ment against another former Supreme
Court judge, but a simple Google search
links him with the charges. In an age
where the first step of any HR depart-
ment is an internet search on a potential
employee, prospects will be slim for any
man who has once had these charges
made against him. Any passing refer-
ence to this online is a blow to the repu-
tation—even if they were later disproved
or found to have been malicious.
By contrast, the complainant—gen-
uine or not—continues to live her life
with only those close to her knowing
what is underway. A malicious com-
plaint will result in “appropriate punish-
ment” in accordance with the internal
rules (if any). This could mean anything
from a slap on the wrist to a stern warn-
ing or removal from service. None of
these will show up on a Google search.
A
s a strong proponent of equality
between men and women, one
can see that there is currently a
distinct imbalance in this law. It is pos-
sible to be discreet about both parties.
The settlement provision at Section
10(1) of the Act envisions the Internal
Committee encouraging conciliation—
via discussion, apologies, job reinstate-
ment, and other amends—without a
monetary exchange. Where is the possi-
bility of such conciliation if the woman
is permitted to go straight to the press?
It would appear that in some cases,
there is in fact no desire for concilia-
tion—only an urgency to tarnish.
Some believe that the Act is too open
to manipulation. This is what Bar Coun-
cil of India (BCI) chairman Manan Mis-
hra was referring to in his open letter.
Essentially, women with ulterior motives
can drag a man through the slime, if
they wish to—so also corporates, politi-
cal parties or even ambitious subordi-
nates. This is inherently unfair. A tragic
consequence is that
women with genuine
harassment claims are
difficult to decipher and
getting justice for them
should be the priority.
As WOICE (Women
of India for Collabora-
tion and Empowerment
in Law) rightly said in
its open letter, societal
realities are “that com-
plainants usually risk
shame, social ostracisa-
tion and the potential
ruin of their futures in
coming forward to com-
plain of sexual offences.
Legal procedures req-
uire a complainant to
subject herself to inva-
sive (and often insensitive) scrutiny by
the police and other state authorities,
the defence counsel, the media and soci-
ety at large. In view of this, survivors of
sexual offences often prefer not to make
complaints”.
Therefore, only two types of women
will ultimately complain. The first cate-
gory includes those who have truly been
aggrieved and desperately need justice.
These are the ones we should be actively
protecting and encouraging. The second
includes women with an ulterior motive.
The latter is the category to be wary of.
Anonymity for both sides is needed
urgently—with only the Internal Compl-
aints Committee being privy to the iden-
tities. Severe penalties for any “leaks”
are a must too. Ultimately, if the man is
found guilty, his name can (and should)
be slapped across headlines. Equally, if
he is found to be innocent then he
should have the option of slapping the
false claimant’s name across headlines.
Of course, the choice should be
theirs. Either aggrieved party has the
option of choosing to let it go.
— The author is a barrister-at-law
(Honourable Society of Lincoln’s Inn,
UK) and a leading advocate in Chennai.
With inputs from Nikita Nayar
SomebelievethattheActistooopento
manipulation,asBCIchairmanManan
Mishra(above)saidinhisopenletter.
Womenwithulteriormotivescandraga
manthroughtheslime,iftheywishto.
DUE PROCESS OR NOT?
In the CJI’s case, the original
panel was rapidly swapped
for a fairer one comprising
(clockwise from top) Justices
SA Bobde, Indu Malhotra and
Indira Banerjee; (facing page)
activists holding a protest
after the panel gave a clean
chit to the CJI Twitter: @indialegalmedia

Environment/ DDA/ Pollution Norms
32 June 17, 2019
N May 29, 2019, the Delhi
High Court ruled in favour
of the Delhi Development
Authority (DDA) by
restraining the Central
Pollution Control Board
(CPCB) from taking any coercive action.
This was with respect to the environ-
mental damages of `1 crore imposed by
the regulatory body for DDA’s non-com-
pliance with green norms.
The CPCB notices issued on Feb-
ruary 20 and April 12, 2019, imposed
environmental damages on DDA, the
Delhi State Industrial and Infra-
structure Development Corporation Ltd
(DSIIDC) and the Irrigation and Flood
Control Department, holding them
liable for non-implementation of the
Graded Response Action Plan (GRAP)
under the Air Act and the Solid Waste
Management Rules, 2016. The CPCB, in
their field visits, had observed non-
action by these agencies leading to ille-
gal waste dumping, garbage littering,
burning of plastic waste, construction
debris dumping, plastic waste in drains
and non-action on illegal plastic recy-
cling industries. The inspection was car-
ried out by the officials in Narela,
Bawana, Patparganj, Okhla Industrial
Area, and other open and vacant plots.
The GRAP for Delhi and NCR was
notified by the environment ministry in
January 2017 as part of its efforts to
combat the deteriorating air quality in
Delhi-NCR. A comprehensive list of
actions was to be taken by the govern-
ments of Delhi-NCR and their agencies
under the GRAP. Prevention of garbage
burning, regular sweeping of roads for
dust control, regulating traffic, etc, are
some of the actions to be taken depend-
ing on the severity of air pollution. The
National Green Tribunal, in its order of
February 19, 2019, had proposed the fol-
lowing damages to be imposed due to
non-action under the GRAP (See chart).
The DDA approached the Delhi High
Court to challenge the fine imposed by
the regulatory body. In its plea, the DDA
contested the CPCB’s legal authority to
impose such environmental damages. It
also claimed that the CPCB disregarded
its response outlining the remedial mea-
sures and reiterated the fine of `1 crore.
The petitioner cited the 2012 Delhi
Pollution Control Committee vs Splen-
dor Landbase Ltd case decided by the
Delhi High Court to challenge CPCB’s
authority under the Air (Prevention and
Control of Pollution) Act, 1981, and
Solid Waste Management Rules, 2016.
“As far as my knowledge goes under
s.o.730(e) dated 10th July 2002 in exer-
cise of power conferred by section 23 of
Environment Protection Act, 1986 the
Central Government delegated power
vested under section 5 of the said act to
the chairman of CPCB to issue direc-
tions to any industry or any local or
other authorities for the violation of the
standards and rules relating to haz-
ardous waste, bio medical waste, haz-
ardous chemicals, industrial solid waste,
municipal solid waste including plastic
waste. Thus, chairman of CPCB can
direct DDA on this matter,” said Dr DD
Basu, a former CPCB executive, and
currently Adviser–Monitoring and
Compliance, Centre for Science and
Environment. “However, such direction
can always be subjected to judicial
scrutiny,” added Dr Basu, referring to
the current case.
According to lawyer Mallika
Mendhiratta, the DDA used a precedent
set by the Delhi High Court which ques-
tioned the procedural actions taken by
DPCC denying its authority to impose
punitive damages. “As far as the legality
of the CPCB to impose damages is con-
Cause and
No-effect
TheDelhiHighCourt’srestraining
orderontheCPCBregardingtaking
coerciveactiontorealisethefine
imposedonDDAonceagainshows
thatpenaltiesarenodeterrentfor
serialpolluters
By Papia Samajdar
O
RAMPANT VIOLATION
The CPCB fined the DDA for illegal waste
dumping in Bawana (above) and other places
knocksense.com

India Legal 17 June 2019

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