India Legal -19 August 2019

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August19, 2019
THELEGAL
QUESTIONThreePILshavebeenfiledintheSupremeCourtchallenging
theCentre’smovetoabrogateArticles370and35Arelating
to J&K and reducing the state to a Union Territory. Since
there are other states in India which enjoy special rights,
howcredibleisthelegalchallenge?
Car Thefts: The
Microdot answer
CSR and India Inc:
Threat of imprisonment

MIDST all the euphoria on the slicing
up of the state of Jammu and Kashmir
and the emasculation of Article 370 of
the Indian Constitution which most
Indians seem to celebrate yet few un-
derstand, there are other numbers lurking in the
background, competing for attention with 3-7-0.
One of these is 5.8. Right now, this numerical has
been eclipsed by the machismo of 3-7-0, but sooner
or later it will occupy centrestage because unlike
3-7-0, it cannot be wished away.
This is the number which now describes the
slowdown blues of the Indian economy where
India’s current GDP has tanked to 5.8 percent.
This lowest growth statistic in the last five years
now denies India the pride of place of being tout-
ed as among the fastest growing economies of the
world. Jammu and Kashmir is not the only
national entity being sliced up. Part of the phe-
nomenon of the declining Indian growth story
which has been eclipsed by opulent displays of
hyper nationalism and muscle flexing is the slicing
up of India’s public sector which has been an
indispensable part of the nation’s growth story
over the last 70 years.
When the Indian nation was born, not even a
needle was being manufactured indigenously.
Today, the country manufactures everything from
microchips to rockets that can knock satellites in
deep space. And much of this real muscle—the
kind that gives you internal strength and vitality
and employment, rather than the ones we flex
against nasty neighbours—came from the public
sector: railroads, steel, oil, natural gas, cement,
telephony, nuclear wherewithal, airlines, airports,
large and small armaments, heavy electricals.
No matter how badly the public sector was bat-
tered ideologically, and for good reason, for its
lethargy and inefficiency, it has been the spine of
manufacturing and extraction of raw materials
and job creation for the onward march of the
Indian economy for the last 70 years.
Today, giants like IOC, ONGC, even Indian
Ordnance Factories are facing evisceration. The
steady shrinkage of this sector started not with the
present government but about 15 years ago when
diluting public shares in the public sector became
an easy way out for broke governments to tide
over economic difficulties. Public sector giants
which laid the foundation for economic recon-
struction are now being squeezed quietly, mostly
through a supra-governmental body—Group of
Ministers (GoM)—which functions independently
of parliamentary or cabinet approval.
Virtually shielded from public scrutiny, the
GoM goes virtually unchecked as it decapitates the
public sector. Disinvestment was a policy of selec-
tive action by the Congress and Manmohan Singh
government, but it has accelerated by leaps and
bounds. Between 2009 and 2014, about one thou-
sand lakh crore rupees were disinvested from this
sector. During Prime Minister Modi’s regime, this
figure rose to nearly three thousand lakh crore
rupees and is expected to accelerate in the next
five years.
In 2006, for example, the Indian Oil Corpo-
ration owned 82 percent of the company. During
the Manmohan Singh years, this figure came
down to 68 percent. Modi brought it down to
52.18 percent. The major advantage has gone to
private gas companies. Similarly, six airport oper-
ating and maintenance contracts have gone to sin-
gle private companies, even against the advice of
Niti Aayog. And all these airports were at a profit.
It is understandable to hive off unprofitable
chunks of PSUs to private parties at below-market
prices in the hope that they can be turned around.
But can there be any justification for farming out
profit-making airports, or putting the squeeze on
electricity transmission projects and inventive
companies like BSNL to favour private players?
Previous governments had set a Laxman
Rekha of 40 percent, below which disinvestment
should not go. Sources point out that the new
government is likely to allow dilution to 24 per-
cent. This is all public money and public land.
According to statistics, large PSUs hold about
thousands and thousands of acres as part of their
STEADILY SINKING
Inderjit Badhwar
A
India’scurrent
GDPhastankedto
5.8percentand
thisdeniesitthe
prideofplaceof
beingtoutedas
amongthe
fastestgrowing
economiesofthe
world.Partofthis
declininggrowth
storyistheslicing
upofthepublic
sectormostly
throughtheGroup
ofMinisters
whichfunctions
independentlyof
parliamentaryor
cabinetapproval.
Letter from the Editor
4 August 19, 2019

assets. Land is scarce today. Should the govern-
ment be allowed to part with this land for a song?
The argument that many PSUs were white ele-
phants and bureaucracy-ridden had a certain
validity. But what assurance is there that private
interests will run them more efficiently or prof-
itably given the performance of private airlines
and the hotshot corporate titans who have fled the
country after fleecing it, or the debt-ridden Mum-
bai-based tycoons responsible for the run on pub-
lic sector banks?
M
any of the arguments and figures cited
above came from an obscure digital
channel The Public run by political ana-
lyst Anand Vardhan Singh in an interview with
Magsaysay awardee Prof Sandeep Pandey. Pandey
has brought another disturbing fact to light, some-
thing not yet discussed in the mainstream media:
Indian Ordnance which manufactures most of the
armed forces’ weapons and ammunition is now
being privatised despite opposition from the
Parliament Standing Committee. Indian Ordnance
now runs 44 companies occupying over 20,000
acres of land with 82,000 employees.
Is it good public policy to privatise, at throw-
away prices, defence installations? Much of these
activities are being done on command, or with
instructions that go out of Niti Aayog, Pandey
says, and the Opposition is too tame, too weak,
even to ask questions. The mainstream media,
meanwhile, is obsessed with the bread and
circuses displays of politics, elections, and crass
border brinkmanship.
Disinvestmentwasa
policyofselectiveaction
bytheCongressand
ManmohanSingh
government,butithas
acceleratedtoalmost
threetimesandis
expectedtorisefurther.
RAISING CONCERN
(Top) In their meeting
with Finance Minister
Nirmala Sitharaman
on August 8, India Inc
sought several
measures to revive
the economy and
stimulate growth after
a five-year low of 5.8
percent; Ordnance
factories are now
being privatised
without any reason
PIB
| INDIA LEGAL | August 19, 2019 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

Following the passage of the Triple Talaq Bill,
various pleas have been filed in courts ques-
tioning its constitutionality and whether it will
really protect the interests of Muslim women
ContentsVOLUME XII ISSUE40
AUGUST19,2019
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LEAD
12The Legal Question
The centre’s move to abrogate Article 370 and convert J&K into two Union Territories faces a legal
challenge in the apex court. How credible is the challenge and how is the Court likely to react?
Divorced
from Reality
6 August 19, 2019
SUPREMECOURT
18Speak Up
The apex court has said that a judicial magistrate can direct an accused to provide voice samples
without seeking his consent. This will help in the investigation of criminal cases
20

STATES
Leashing
Khap Terror
Faced with a spurt in “justice” meted
out by Khap Panchayats, the Congress
government in Rajasthan has brought in
tough legislation to curb honour killings
42
REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Ringside............................8
Courts.............................10
Is that Legal....................11
Media Watch ..................29
International Briefs..........41
Satire ..............................50
Fall from Grace
Widespread protests have forced the
Kerala government to challenge in the High
Court the bail granted to an acclaimed IAS
officer who mowed down a journalist in a
drink and drive crash
48
Why Make Charity Criminal?
A draconian and bizarre move to criminalise non-compliance
with the mandatory CSR requirement threatens to punish those
who create wealth and jobs, and thus harm the economy
22
To deal with the rising incidence of vehicle thefts, the government has
issued a draft notification under the Motor Vehicles Rules that propos-
es to make microdot patches mandatory for all automotive makers
Protective Cover
The Great Indian Property Row
The apex court has brought to closure one of India’s longest running
civil cases and given its consent to split the private properties of the
ruler of Rampur state among all his heirs
LEGALEYE
Pizza Delivery in Parliament?
The recently concluded monsoon session is being hailed as a highly productive one with
the passage of many Bills. Opposition parties compare it to a pizza delivery service
34
Flaky Commitment
The Yogi Adityanath government’s decision to withdraw criminal cases related to the 2013
Muzaffarnagar riots suggests that the chief minister doesn’t always mean what he says
46
30
ACTS&BILLS
MYSPACE
32
Shielding the Saviours
A draft Bill has proposed that violence against doctors should be made a criminal offence
punishable with hefty fines and a jail term commensurate with the nature of assault
38
Up in Smoke
In an effort to stop the increasing prevalence of hookah smoking, the Rajasthan
government has introduced a Bill to prohibit and punish those indulging in this pastime
44
The CAG Audit Report, while appreciating the introduction of the
Goods and Services Tax, exposes some deficiencies that need to
be fixed to achieve greater gains
Partial Victory 26
COMMERCE
COLUMN
CRIME

8 August 19, 2019
““I have been asked
to quit the convent
within 10 days... I
am not going to va-
cate the premises....
They can’t dismiss
me.... I will look at
legal options....”
—Lucy Kallappura,
who protested aga-
inst Bishop Franco
Mullakal, after being
dismissed by Kerala's
Catholic Church, to
The Indian Express
“Thank you Prime
Minister. Thank you
very much. I was
waiting to see this
day in my lifetime.”
—Former External
Affairs Minister
Sushma Swaraj on
the centre scrapping
Article 370 in J&K,
sometime before she
passed away on
August 6, on Twitter
“When my parents
gave me the middle
name ‘Gopal,’ I don’t
think they knew
they were forecast-
ing the role of
‘AGMs’ in my
future!”
—Anand Mahindra,
on a tweet which said
“AGM (Anand G
Mahindra) at the
M&M AGM (Annual
General Meeting)”
“Is UN going to
stay the President’s
order or the
Constitutional
amendment?”
—Supreme Court
judge Justice NV
Ramana, while turn-
ing down a plea de-
manding quashing of
the president’s notifi-
cation scrapping
Article 370 in J&K
for urgent listing
“The people of
Kashmir have lived
in conflict since I
was a child, since
my mother and
father were children,
since my grandpar-
ents were young.
Today I am worried
about the safety of
the Kashmiri chil-
dren and women....”
—Nobel laureate Ma-
lala Yousafzai in a
statement on Twitter
“With a productivi-
ty... of 104.92 per-
cent, this Session is
the most productive
of the last 17 Sess-
ions. The House re-
ported 100 percent
or more productivity
for the first time in
the last five years.”
—M Venkaiah Naidu
in the Rajya Sabha
before it was adjour-
ned sine die
“New fashion in in-
dian cricket...con-
flict of interest....
Best way to remain
in news...god help
indian cricket....
Dravid Gets Conflict
of Interest Notice
from BCCI Ethics
Officer.”
—Former India
captain Sourav
Ganguly after BCCI’s
notice to Rahul
Dravid, on Twitter
“Judges and judicial officers must remember that
public faith and confidence, on which our institu-
tion lives and survives, is largely built on the basis
of orders and judgments passed by us. The right to
adjudicate the affairs of...citizens has an element of
divinity to it and this privilege...must fill us with
humility and a profound sense of duty....”
CJI Ranjan Gogoi at a public function in Guwahati
Anthony Lawrence
RINGSIDE
"We are bringing Peace and Prosperity to Kashmir": Amit Shah

Courts
10 August 19, 2019
—Compiled by India Legal Team
As the Supreme Court began
day-to-day hearings in the
Ramjanmabhoomi-Babri Masjid
title dispute from August 5, a
battery of lawyers appeared be-
fore the five-judge constitutional
bench. Led by CJI Ranjan Gogoi,
the bench comprises Justices SA
Bobde, DY Chandrachud, Ashok Bhushan
and SA Nazeer. It is hearing appeals against
the September 30, 2010, verdict of the
Allahabad High Court. The first to appear
was senior advocate Sushil Kumar Jain,
counsel for the Nirmohi Akhara, whose argu-
ments were cut short by the bench, saying
that he was unable to produce records to
substantiate the Akhara’s claim over the dis-
puted 2.77 acres of land. Senior advocate K
Parasaran, counsel for Ram Lalla Virajman,
told the bench that both Hindus and Muslim
parties to the dispute consider Ayodhya the
birthplace of Lord Ram and there’s no differ-
ence of opinion on it. The bench, in turn,
asked Parasaran: “Has a question like the
present one (on the birth of Ram) been
raised about the birth of a God or whether
Jesus was born in Bethlehem, in any court
anywhere in the world?” Given that one of
the plaintiffs is Ram Janmasthan, the bench
also queried Parasaran on whether a place
can be deemed a juristic person. Senior cou-
nsel Rajeev Dhawan, counsel for the Muslim
parties, also appeared before the bench to
express concern about the hearing schedule.
Delhi court issues
guidelines on
Unnao coverage
SC upholds status
of homebuyers
The Delhi court hearing the
Unnao cases told the media
to refrain from reporting the
names and addresses of the
rape survivor, her family mem-
bers and witnesses in the case.
The court also barred them from
reporting on the testimonies of
witnesses and on the merits of
the case. It said that access is
allowed to one journalist of each
national daily, and news agen-
cies PTI and UNI, besides other
national dailies, should share
their reports with other dailies
and the electronic media. Advo-
cate Tanveer Ahmed Mir, lawyer
for the accused, Kuldeep Singh
Sengar, had urged the court to
issue a “complete media gag”.
The Supreme Court upheld the
central government’s deci-
sion to confer homebuyers the
status of financial creditors
under the Insolvency and Bank-
ruptcy Code (IBC). This status
enables homebuyers to have a
say in the committee of creditors
set up under the IBC resolution
process, and initiate insolvency
proceedings against real estate
developers. Over 200 real estate
companies had challenged the
centre’s decision in the top court
as illegal and unconstitutional.
The Parliament passed the
Supreme Court (Number
of Judges) Amendment Bill,
2019, to increase the number
of Supreme Court judges to
33, excluding the Chief Jus-
tice of India. The Bill was
moved by Union Law Minister
Ravi Shankar Prasad and
passed by both Houses of
Parliament unanimously and
without much discussion. As
per the Statement of Objects
and Reasons of the Bill, the
amendment to the Supreme
Court (Number of Judges)
Act, 1956, was being sought
to deal with the constant rise
in pendency of cases. It may
be recalled that on July 31,
the Union cabinet had decid-
ed to move a Bill to increase
the sanctioned strength of the
apex court by 10 percent.
Parliament nod
for increase in
SC strength
Abench comprising CJI
Ranjan Gogoi and Justice
RF Nariman told the Assam
NRC coordinator, Prateek
Hajela: “What we want is the
NRC out within scheduled
time irrespective of who likes
or who doesn’t….” The
bench was hearing a plea
challenging the non-inclusion
in the NRC of those born in
India to migrants between
1971 and 1987 unless they
had ancestral links to the
country. Reserving judgment
on this issue, the bench
observed that the final NRC
must be completed by the
prescribed deadline of Aug-
ust 31. It also refused to be
drawn into criticism regard-
ing the process after Hajela
informed the Court about
alleged leak of NRC data and
certain statements made in
the Assam assembly against
the process.
NRC must be out by August 31, reiterates SC
Ayodhya
hearing begins
in apex court

ISTHAT
Why are parliamentary committees nec-
essary? What is their role?
The Executive organ of any government
wields tremendous power in a parliamen-
tary democracy and therefore there are
ample chances of its misuse. The Exe-
cutive often tries to implement its gover-
nance agenda by bringing in new laws
through bills in Parliament. And consider-
ing the huge volume of business trans-
acted by Parliament each day, it is not
possible to discuss threadbare all poli-
cies and legislation on the floor of the
House. But Parliament needs to serve as
a body of oversight over the Executive.
This is where parliamentary commit-
tees play an important role. Acting as a
watchdog, they screen the proposed
legislation and ensure that the interests
of the people are protected. By doing
this, they provide a system of checks
and balances.
The committees are formed for a specific
period of time by the House or one nomi-
nated by the Speaker and submit their
recommendations to Parliament. They
draw their powers from Article 105 and
Article 118 of the Constitution.
— Compiled by India Legal team
Role of a Watchdog
What are the things one must keep
in mind while buying a health
insurance policy?
Purchasing a health insurance poli-
cy is a must as expenses can go
through the roof and dip into your
savings in case of medical emer-
gencies. However, there are some
guidelines that must be followed
while buying a policy. You need to
know that there are restrictions on
coverage. Special attention must
also be paid to the clause that
excludes pre-existing diseases and
it is mandatory you disclose all
major and minor health issues to
the insurance provider. Then there
are other issues like the waiting
period before certain diseases can
be covered, restrictions on various
expenses related to hospitalisation,
co-payment, pre-conditions for
renewal and upper limits for age at
entry and for renewal.
Your Best
Healthcare Policy
?
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
Why is the Opposition crying foul on the gov-
ernment getting bills passed in Parliament with-
out referring them to a Standing Committee or
Select Committee for legislative scrutiny?
The Modi government has managed to get a
staggering number of bills passed in this ses-
sion of Parliament, that too in the Rajya Sabha
where it does not have a majority. Not a single
bill has been sent to a Standing Committee or
Select Committee of Parliament for further
scrutiny. The Opposition has blamed the gov-
ernment for flouting democratic norms by
refusing to refer the proposed laws to parlia-
mentary committees, especially legislation
related to important issues. However, Standing
Committees to scrutinise bills are yet to be
formed in Modi’s second term in office. And
there is no mandate on whether a bill can be
passed when committees are yet to be formed.
While the impressive number of bills passed
reflects the productivity of the session, discus-
sion and scrutiny on bills, an important facet of
parliamentary democracy, did not
take place.
How does the Code on Wages Bill,
2019, passed by Parliament, affect
two-fifths of the population in India?
The Code on Wages Bill, 2019, repla-
ces four laws: the Payment of Wages
Act, 1936; the Minimum Wages Act,
1948; the Payment of Bonus Act,
1965; and the Equal Remuneration
Act, 1976. Besides MGNREGA work-
ers whose wages are fixed by the
Rural Development Ministry, all work-
ers, including domestic workers,
have been brought under the purview
of the new law. Under this law, the
minimum wages will be fixed by pri-
marily taking into consideration the
skills involved and/or geography. The
Bill has dropped the clause “type of
employment” from the previous sys-
tem. A floor wage rate will be fixed by
the expert committee constituted by
the labour ministry. The Bill trans-
forms obsolete labour laws and
makes them more accountable.
Transforming Labour Laws
No Bills for Scrutiny

Lead/ J&K
ThreePILshavebeenfiledintheSupremeCourtchallengingthecentre’smovetoabrogate
Articles370and35AandreducingthestatetotwoUnionTerritories.Sincethereareother
statesinIndiawhichenjoyspecialrights,howcredibleisthelegalchallenge?
By Pushp Saraf
The Legal
Question
12 August 19, 2019

is likely to follow the legal route. Its
spokesperson and former legislator
Firdous Tak dropped a clear hint about
this when he accused the “Government
of India” of turning “the entire Jammu
and Kashmir into an open prison” and
caging people to “steal whatever was left
of constitutional guarantees made to
them at the time of accession”. He des-
cribed the methodology adopted by the
Union government as “arbitrary”, “auto-
cratic” and an “act of aggression on the
people of this trouble-torn state”. The
two main regional parties, along with
most other pro-India Opposition outfits,
are likely to take a joint stand in the
Supreme Court.
Legal experts in the Valley are strug-
gling to get details of the August 5
Constitution (Application to Jammu
and Kashmir) Order, 2019, and the
Jammu and Kashmir Reorganisation
Act, 2019, under which the political and
geographical contours of J&K have been
changed, downgrading it from a special
status state.
Congress Leader of the Opposition in
the Rajya Sabha Ghulam Nabi Azad,
who belongs to J&K, said the state had
been reduced to a “non-entity”.
According to DMK leader TR Baalu, it
was reduced to “two municipalities”.
Mobile, internet and cable television
services in the Kashmir region were cut
off and seriously hampered in Jammu
region. According to Nazir Masoodi of
NDTV, which has employed satellite
services, people confined to their homes
in Srinagar and elsewhere may still not
be aware of what has transpired.
Unknown to the majority of them, their
worst fears have come true.
Before being pushed behind an iron
curtain along with two former chief
ministers, Omar Abdullah and Meh-
booba Mufti, they had seen a huge
deployment of security forces, eviction
of tourists even from safer places and
cancellation of the Amarnath pilgrim-
age. In a highly volatile political society,
they did sense that Article 370 and
Article 35A might be in serious trouble.
The official word was that security
measures were necessitated as there was
a terror threat from Pakistan.
It served as camouflage for a steal-
thily planned constitutional coup to pre-
empt protests.
S soon as the gates will
open, our people will be
out, we will fight, we’ll go
to the court. We’re not
gun-runners, grenade-
throwers, stone-throwers,
we believe in peaceful resolution.” These
were the opening remarks of National
Conference (NC) stalwart Farooq
Abdullah in his first television appear-
ance in Srinagar after the momentous
events concerning J&K on August 5.
The Union government had knocked the
teeth out of Article 370 of the Consti-
tution which guaranteed special status
to J&K, scrapped Article 35A that pro-
tected exclusive privileges of its perma-
nent residents as defined under its pro-
visions, sent the separate constitution of
the state to the archives and bifurcated
the state into two Union Territories,
namely, J&K with a legislature and
Ladakh without a legislature. This was
the first comment from a J&K leader
about seeking judicial remedy for the
government’s “dictatorial” diktats.
Abdullah described the division of the
state as our “body being carved”.
The People’s Democratic Party (PDP)
A
NC’sFarooqAbdullah(above)saidthat“assoonasthegateswill
open,ourpeoplewillbeout,wewillfight,we’llgotothecourt”.
PDP’sMehboobaMuftiisalsolikelytotakethelegalroute.
“
Photos UNI

Political and emotional reactions
apart, judicial challenges to the govern-
ment’s unilateral measures are in the
pipeline. At least one petition has alre-
ady been filed in the apex court. This
was by advocate ML Sharma who chal-
lenged the validity of the Presidential
Order. Another petition by Congress
activist Tehseen Poonawalla seeks with-
drawal of restrictions imposed in J&K.
On August 8, a bench of the Supreme
Court headed by Justice NV Ramana
turned down the pleas for their urgent
hearing, observing that they would be
heard in due course.
“There will be a spate of petitions
against the government’s actions,” said
Sheikh Shakeel Ahmad, well-known
lawyer and PIL activist, to India Legal.
Speaking from Jammu, he said: “It is
going to be a battle for survival. What
has happened is not in accordance with
the mandate of the law and the Const-
itution. The constitutional position of
J&K has been altered in a manner
unknown to all. Nobody in Kashmir or
Jammu ever raised a demand for UT.
Why have they been punished? Why has
our statehood character been slashed?
The protection of local laws and umbrel-
la in the shape of Article 35A has gone.
Meagre job opportunities that are avail-
able would now be exposed to outsiders.
There was no Constituent Assembly.
There is no assembly at present. The
government was in a hurry not to wait
for elections to the new assembly and
take into account its view as required
under Article 370.”
Talks with a wide spectrum of the
legal fraternity in J&K revealed that the
Presidential Order 2019 and the Reor-
ganisation Act may face the following
legal challenges:
(a) With the elimination of effective
provisions of Article 370 and revocation
of Article 35A, these measures are the
betrayal of a constitutional and sover-
eign guarantee to the people of J&K
and are much like the abolition of privy
pursues. There too, there was no men-
tion of the enormous effort made to per-
suade the princes to be part of integrat-
ed India.
(b) Violation of Article 3 of the
Indian Constitution which provides that
no bill for alteration of boundary of a
state “shall be introduced in either
House of Parliament except on the rec-
ommendation of the President and
unless, where the proposal contained in
the bill affects the area, boundaries or
name of any of the States, the bill has
been referred by the President to the
Legislature of that State for expressing
its views”.
(c) “Illegal” and “unconstitutional”
amendment through a Presidential
Order of Article 367 of the Indian
Constitution to introduce a new clause
replacing the expression “Constituent
Assembly” mentioned in Article 370
with “legislative assembly” (Article 367
deals with interpretation of the
Constitution and, hence, according to
critics of the Union government, can be
amended only by Parliament).
(d) The manner of annulling the sep-
arate constitution of J&K.
(e) Breach of the Instrument of
Accession accepted by the government
of India after having been signed by
Maharaja Hari Singh and the violation
of the spirit behind the enactment of
Articles 370 and 35A.
(f) The “brute” manner in which the
Presidential Order, 2019, and Reorg-
anisation Act were enacted and made
applicable by shutting the voice of the
DefenceMinisterRajnathSinghsaidthat
thecentre’sdecisiontonullifyArticle
370andcreatingtwoUTsinJ&Kand
Ladakhhasendedthediscrimination
facedbythepeopleinthelast70years.
Lead/ J&K
14 August 19, 2019
UNHAPPY WITH THE MOVE
PDP MPs Nazir Ahmad (foreground) and Fayaz
Ahmad protest outside Parliament on Aug 5
UNI

affected population of J&K by deploying
a large uniformed force, imposing
restrictions on movement and cutting
off communication services.
(g) Discrimination against J&K by
abolishing its special status while retain-
ing special constitutional provisions for
Maharashtra, Gujarat, Nagaland,
Assam, Manipur, Andhra Pradesh,
Sikkim, Mizoram, Arunachal Pradesh
and Goa.
(h) Unprecedented downgrading of
a full-fledged state into two Union
Territories.
(i) Dissolution of the legislative
council.
(j) Delimitation of assembly con-
stituencies without following the
due process.
The picture will become clearer only
after the security blanket is lifted and
the people come face to face with the
legal provisions they have been asked to
live with from now on. Most of their
immediate queries and worries are born
of the sudden taking away of the “consti-
tutional commitment made to them”.
On a wider level, they are concerned
about the future of centre-state relations
and the state of federalism in the coun-
try in the days to come.
Quite a few parliamentarians too
have sounded alarm that the example
set in the case of J&K implies that a rul-
ing political party at the centre can
unsettle any state, its land and the pop-
ulation where another political party it
considers hostile is in power. It just has
to impose President’s Rule on some pre-
text, dissolve the state assembly and
exercise its legislative powers through
Parliament where it can use its majority
to change the political and physical
shape of the state, they said.
M
anish Tiwari of the Congress,
for instance, remarked in the
Lok Sabha on August 6: “This
is a constitutional tragedy, all that is
happening in this House today. This is
not the spirit of Article 3 that Parlia-
ment assumes powers of any state asse-
mbly or legislative council and unilater-
ally debates and decides to alter the
boundary of that state or splits it into
two parts. This is not the essence of
Article 3.”
Mohammad Rashid Qureshi, a prac-
tising advocate and a former J&K legis-
lator, was quite vocal about the
“tragedy” inflicted on them by the cen-
tral government wrongly interpreting
Article 3 and Article 367. According to
him, the Union government has acted as
judge, jury and executioner in this
instance: “It has made a backdoor entry
by isolating mainstream parties and
twisting constitutional provisions.
Amazingly, it has introduced the expres-
sion ‘legislative assembly’ by amending
Article 367 through invoking Article
370 even though Article 370 does not
empower the president to amend the
constitutional provisions which are not
related to J&K. Article 367 is an inde-
pendent article and can be amended
only by Parliament.” His argument, like
that of many others in J&K, is that
Article 370 is deemed to have become a
permanent feature of the Indian
Constitution after the Constituent
Assembly of the state ceased to exist in
the mid-1950s without recommending
its abrogation. “What about the J&K
Constitution?” he asked. Clarity about
its fate is missing, he said. His interpre-
tation of Article 3 of the Indian
Constitution is a “state means a state.
State can’t be made a Union Territory.
The Article also provides for consulta-
tion with the state assembly, which has
not been done”.
Ashok Vijay Gupta, senior advocate
and a highly regarded public figure, has
invited the ire of the BJP-dominated
Jammu and Kashmir High Court Bar
Association for having defended Article
370 and Article 35A in the historical
context. The Association has suspended
him for speaking contrary to its decision
to support abrogation of both the
Articles. Gupta has been a former presi-
dent of the lawyers’ body and, ironically,
was once backed by the BJP in a Rajya
Sabha election. In a post on social
media, he mentioned that he had not
been apprised of the suspension deci-
sion and was being targeted for “legally
interpreting a provision and the back-
ground in which the provision was
incorporated in our constitution of
“Therewillbeaspateof
petitions....Itisgoingtobea
battleforsurvival.Whathashap-
penedisnotinaccordancewith
themandateofthelaw.”
—LawyerSheikhShakeelAhmed
“TheUniongovernmenthasmade
abackdoorentrybyisolatingmainstream
partiesandtwisting
constitutionalprovisions.”
—MohammadRashidQureshi,formerJ&K
legislatorandadvocate

ek vidhan (one constitution), ek prad-
han (one prime minister) and ek nishan
(one flag).”
Clearly, the BJP sees the latest devel-
opments as the successful culmination
of its decades-old campaign based on
the slogan “ek desh mein do vidhan, do
pradhan, do nishan nahin chalenge
(there cannot be two Constitutions, two
prime ministers and two flags in one
nation)”. United J&K had its own
Constitution and a red flag with three
equidistant white stripes representing
its three regions—Jammu, Ladakh and
Kashmir—and a white plough repre-
senting farmers. The flag was flown
along with the Tricolour on government
buildings and official vehicles of consti-
tutional functionaries. J&K’s popular
head was known as the prime minister
till March 30, 1965, when the Congress
through an amendment in the state con-
stitution changed the nomenclature to
chief minister. Now the other two dis-
tinct symbols—the J&K constitution
and the flag—have also become museum
pieces. And J&K itself as a state is con-
signed to history.
Unless, of course, there is a contrary
judicial review.
16 August 19, 2019
India....” Talking to India Legal, he said
he was possibly being hit for being
“correct and truthful”. Several lawyers
have expressed resentment over the
action taken against him and threatened
to resign en masse from the Association.
The last word on this has not yet
been heard.
H
C Jhalmeria, an advocate
known for his leftist leanings,
also felt that a challenge has
been posed to a rich historical back-
ground marked by several positive
measures taken to pave the way for
J&K becoming a part of the country.
“The whole edifice,” he remarked, “has
been set on fire by the Union Govern-
ment to hide its failure over controlling
militancy.”
Of course, the BJP is riding high.
It is adding a touch of drama to height-
en the effect of triumph of its controver-
sial ideological plank. As soon as
President Ram Nath Kovind formally
signed the virtual epitaph of Article 370
after the passage of a statutory resolu-
tion in Parliament, Speaker Nirmal
Singh of the dissolved J&K assembly,
who was formerly state BJP president
and deputy chief minister, took off the
state flag from his official vehicle and
replaced it with the national Tricolour,
declaring that “from today there will be
The centre's moves on Kashmir have
been challenged in the Supreme
Court. The apex court will have to
decide whether Article 370 does,
indeed, give sweeping powers to the
president. It might also take many
months for a constitution bench of the
court to allow such a challenge. Below
is the history of judicial interventions
relating to Kashmir.
In Prem Nath Kaul (1959), a five-
judge bench of the Supreme Court
observed that Article 370(2) shows that
the continuance of the exercise of pow-
ers conferred on Parliament and the
president by the relevant temporary
provisions of Article 370(1) is made
conditional on the final approval of the
Constituent Assembly of Jammu
and Kashmir.
In Sampat Prakash (1968), the apex
court decided that Article 370 could be
invoked even after the dissolution of
the Constituent Assembly of Jammu
and Kashmir. “Article 370 has never
ceased to be operative,” the five-judge
bench said.
The Supreme Court in SBI v Zaffar
Ullah Nehru (2016) observed that the
federal structure of the Constitution is
reflected in Part XXI. The court also
said that J&K has a special status, and
that Article 370 was not temporary. The
court referred to Article 369 of Part XXI
that specifically mentions the period of
five years; no time limit is mentioned in
Article 370. The court observed that
Article 370 cannot be repealed without
the concurrence of the Constituent
Assembly of Jammu and Kashmir.
In Kumari Vijayalakshmi Jha vs Union
of India (2017), the Delhi High Court
rejected a petition that argued that
Article 370 was temporary, and that its
continuation was a fraud on the
Constitution.
In Santosh Kumar (2017), the apex
court said that due to historical rea-
sons, Jammu and Kashmir had a spe-
cial status.
In April 2018, the Supreme Court
said that the word “temporary” in the
headnote notwithstanding, Article 370
was not temporary.
Historyofcases
Lead/ J&K
EXPRESSING CONCERN
Protesters take out a rally in Kolkata against
the government’s move on Article 370
UNI

Supreme Court/ Voice Samples
18 August 19, 2019
HE Supreme Court in a
significant ruling said that
a judicial magistrate can
now direct an accused to
provide voice samples
without even seeking his
consent. This can have wide ramifica-
tions in the investigation of criminal
cases. It will especially help in cases that
are not getting solved due to lack of
proper evidence.
A three-judge bench led by Chief
Justice of India Ranjan Gogoi said that
Article 142 of the Constitution could be
invoked to confer such power on the
magistrate. The Court used its discre-
tionary power to empower magistrates
to direct an accused to provide his or
her voice sample.
Justice Gogoi said that directing a
person to give a voice sample to the
police was not a violation of his funda-
mental right to privacy. “It cannot be
construed as absolute and must bow
down to compelling public interest,” he
said. He compared a voice sample to
other impressions such as handwriting
specimens and impressions of fingers,
palm or foot that are collected by the
police during investigations and said
that a voice sample by itself was not
incriminating evidence.
Dr Kuldip Sharma, former Director-
General, Bureau of Police Research and
Development, Delhi, told India Legal:
“Allowing voice
samples to be
used is a step for-
ward in investi-
gating crime and
will help a great
deal. Earlier, it did not matter much, but
today with the extensive use of mobile
phones, it becomes crucial for the police
to use voice samples to provide credible
evidence. Most of the criminals get
apprehended today as we are able to
trace their locations when they use
their phones.”
The Court was hearing a case where
appellant Ritesh Sinha was challenging
an Allahabad High Court order where
he was asked to give his voice samples.
This was to aid investigation into a case
where he was allegedly involved in
accepting money from various people
after promising them jobs in the police
department of UP. He did this with
another accomplice, Dhoom Singh.
The Sadar Bazar police station in
the Saharanpur district lodged an FIR
against Sinha and Singh on December 7,
2009. The police arrested Singh and
recovered a mobile phone from him.
The police wanted to verify the conver-
sation on this phone between the two
and wanted their voice samples. So it
filed an application before the chief
judicial magistrate pleading that Sinha
be asked to be present in court to record
his voice sample.
The application was allowed by the
magistrate, but was challenged in the
Allahabad High Court which upheld the
decision of the magistrate. Sinha then
approached the Supreme Court against
the verdict.
A two-judge bench of the Supreme
Court, however, remained divided on
the issue. Justice RP Desai said that
voice samples could be procured under
Section 53 of the Criminal Procedure
Code for criminal investigation. But
Justice Aftab Alam, the other judge
hearing the case, said that compulsion
to give a voice sample could be used
only if there was a law authorising such
action and it was not for the judiciary to
give an interpretation.
Justice Desai had held that the mag-
istrate had the power but Justice Alam
disagreed, saying that the law did not
permit it. Due to the dissenting judg-
ment, it was again referred to a three-
judge bench of the Supreme Court.
While clearing the confusion this
month, Justice Gogoi said that the order
had taken into consideration Article 142
following the interpretation of all perti-
Mum’s Not
the Word
TheCourthassaidthatajudicialmagistrate
candirectanaccusedtoprovidethesamples
withoutseekingtheirconsent.Thiswillhelp
intheinvestigationofcriminalcases
By Ramesh Menon
T

nent laws. The bench, that included
Justices Deepak Gupta and Sanjiv
Khanna, asked the government to make
requisite changes in the law to ensure
that voice samples would be allowed to
be taken to investigate crime.
The Court order said that until
Parliament passed a law, a judicial mag-
istrate must be given the power to order
a person to give a sample of his voice for
this purpose.
The bench said: “Such power has to
be conferred on a Magistrate by a
process of judicial interpretation and
in the exercise of jurisdiction vested in
this Court under Article 142 of the
Constitution of India. However, when a
yawning gap in the Statute, in the con-
sidered view of the Court, calls for a
temporary patchwork of filling up to
make the Statute effective and workable
and to sub-serve societal interests a
process of judicial interpretation would
become inevitable.”
The vexed issue of whether to take a
voice sample or not has divided many
high courts until it got resolved by the
recent Supreme Court directive. The
87th Report of the Law Commission in
August 1980 said: “Often, it becomes
desirable to have an accused person
speak for the purposes of giving to the
police an opportunity to hear his voice
and try to identify it as that of the crimi-
nal offender. A comparison may even be
desired between the voice of an accused
person and the recorded voice of a crim-
inal which has been obtained by, say,
telephone tapping. To facilitate proof of
the crime the police may like that the
accused should be compelled to speak,
and even that his voice as recorded may
be converted into a voice print… How-
ever, if the accused refuses to furnish
such voice, there is no legal sanction for
compelling him to do so, and the use of
force for that purpose would be illegal.”
A
fter this interpretation, there has
been the question of whether
taking voice samples violated the
fundamental right to privacy. Sharma,
who cracked numerous crimes and
brought many criminals to book in
Gujarat, said: “There is absolutely noth-
ing wrong in securing a voice sample of
an accused. Suppose a criminal was in
possession of some documents that are
required to be acquired by the police in
the course of their investigations, there
is no way the accused can refuse to part
with them. Voice samples are also need-
ed to allow an investigation to proceed.”
Meeran Chadha Borwankar, a retired
IPS officer, told India Legal: “This
judgment was long awaited. Mandatory
voice sampling shall definitely help the
police. It can be strong proof in cases of
extortion, ransom phone calls post
kidnapping and other serious offences.
Corroboration by circumstances and
witnesses shall make the evidence
conclusive.
“However, we need to strengthen our
forensic labs with the required equip-
ment and skilled manpower so that
expert opinions are prompt and profes-
sionally sound to withstand cross-exam-
ination in a court of law.”
The Supreme Court directive may
help speed up criminal investigations
and now it is up to Parliament to pass a
law as suggested by the Court.
Athree-judgebenchledbyCJIRanjanGogoi(left)andcomprisingJusticesDeepak
Gupta(centre)andSanjivKhannasaidthatArticle142oftheConstitutioncouldbe
invokedtoempowerthemagistratetodirectanaccusedtoprovidevoicesamples.It
alsoaskedthegovernmenttomakerequisitechangesinthelawinthisregard.Anthony Lawrence

Supreme Court/ Triple Talaq Bill
20 August 19, 2019
VER since the Triple Talaq
Bill (The Muslim Women
(Protection of Rights on
Marriage) Bill, 2019) came
into force, its constitutionali-
ty and penal provisions have
come under scrutiny in the Supreme
Court and the Delhi High Court with
various pleas filed against it.
The provisions under challenge are
Section 4 and Section 7 of the Act.
Section 4 deals with punishment for
pronouncing talaq and says: “Any
Muslim husband who pronounces talaq
referred to in Section 3 upon his wife
shall be punished with imprisonment
for a term which may extend to three
years, and shall also be liable to fine.”
Section 7 lays down: “Offence to be cog-
nizable, compoundable, etc. — Notwith-
standing anything contained in the
Code of Criminal Procedure, 1973,— (a)
an offence punishable under this Act
shall be cognizable, if information relat-
ing to the commission of the offence is
given to an officer in charge of a police
station by the married Muslim woman
upon whom talaq is pronounced or any
person related to her by blood or mar-
riage; (b) an offence punishable under
this Act shall be compoundable, at the
instance of the married
Muslim woman upon
whom talaq is pro-
nounced with the per-
mission of the Magis-
trate, on such terms and
conditions as he may
determine; (c) no person
accused of an offence
punishable under this
Act shall be released on
bail unless the Magis-
trate, on an application
filed by the accused and
after hearing the married
Muslim woman upon
whom talaq is pro-
nounced, is satisfied that
there are reasonable grounds for granti-
ng bail to such person.”
What does this actually mean? If a
married Muslim woman or any of her
relatives by blood or marriage files a
complaint against the Muslim husband
of such a woman alleging the pro-
nouncement of triple talaq, the police is
empowered to arrest him on a non-bail-
able charge without a warrant. The hus-
band can be discharged if an amicable
compromise is arrived at. The magis-
trate may grant bail only on the concur-
rence of the wife who is victimised. The
offence is punishable with three years’
imprisonment and/or fine.
It was on August 22, 2017, that a
CJI-led Supreme Court bench had pro-
nounced a 400-page verdict striking
An Arbitrary Law?
SoonafterthepassageofthisBill,variouspleasincourtshavequestioneditsconstitutionality
andwhetheritwasreallymeanttopromotethedignityandfinancialsecurityofMuslimwomen
By India Legal Bureau
E
LOOPHOLES IN THE LAW
Muslim women holding
placards at a protest rally
against the triple talaq Bill
in Kolkata
AdvocateZulfikerAliPS,thecounselfor
SamasthaKeralaJamiyyathulUlama,
recentlychallengedtheBillintheSC.It
saidtheonlyobjectiveoftheBillwas
“topunishMuslimhusbands”.
UNI

down the talaq-e-biddat practice among
Muslims as void. But this has been chal-
lenged on the ground that the centre’s
intentions are mala fide and ultra vires
of the Constitution and contrary to the
provisions of the Holy Quran. Islam
decrees divorce to be final only when it
has been done three-fold.
If preservation of matrimonial har-
mony is the aim of this legislation, one
wonders if incarceration of a partner at
the instance of the other helps to fortify
it. Various petitions have raised con-
cerns about the State interfering in mat-
rimonial disputes.
Advocate Zulfiker Ali PS, the counsel
for Samastha Kerala Jamiyyathul Ulama,
one of the biggest religious organisations
of Sunni Muslim scholars and clerics in
Kerala, challenged the Bill in the Sup-
reme Court on August 2. The plea said
the only objective of the Bill was “to pun-
ish Muslim husbands”. It called the triple
talaq practice only an “irregularity in the
community”, the legislation for whose
remedy is “capricious, irrational, without
adequate determining principle, exces-
sive and disproportionate and hence,
manifestly arbitrary”.
The petition said: “If the motive was
to protect a Muslim wife in an unhappy
marriage, no reasonable person can
believe that the means to ensure it is by
putting an errant husband in jail for
three years and create a non-bailable
offence for merely saying ‘talaq, talaq,
talaq’”. It added: “It is absurd that for an
utterance which has no legal effect, whe-
ther spoken by Muslim, Hindu or Chris-
tian, it is only the Muslim husband who
is penalised with a three-year sentence.
Protection of wives cannot be achieved
by incarceration of husbands….” The plea
urged the Court to stay the operation of
the Bill while questioning the haste with
which it was promulgated.
A
nother plea said that when the
mere utterance of “talaq” has
been made inconsequential,
arrest and incarceration are completely
uncalled for. Shahid Ali, an advocate,
petitioned the Delhi High Court against
the 2019 Act and pointed out that the
chances of misuse when a woman may,
in cases of general marital discord, and
in the absence of witnesses, file a false
complaint are high. He said: “Non-men-
tioning of adequate measures, thus safe-
guarding the misuse of the Act, will
result in irrevocably breaking down
marriages.” Imposition of a fine should
be a sufficient deterrent for future repe-
tition of such acts, he said. He even sug-
gested charging the mehr amount or its
multiplier as penalty and to invoke
a deterrence.
While for all other communities di-
vorce could only be obtained from a
judicial forum, it is not so for Muslims.
The Court concurred with the conten-
tion that for one party alone, the right to
annul a marriage by a unilateral “talaq”
was clearly against public policy and
required to be declared as impermissible
in law. After all, the practice altered
the status of women, often leaving
them destitute.
The pleas before courts said that leg-
islation to promote the dignity and
financial security of Muslim women
should not have penalised their better
halves. In a country where the dignity of
women is largely intertwined with the
relationships they keep, it is unfath-
omable that their respect is maintained
by sending their husbands to jail. On the
contrary, arrest and incarceration end
chances of ever returning to their previ-
ous marital life.
While the Act forbids the pronounce-
ment of triple talaq, it has added to the
misery of Muslim wives. If a Muslim
woman is vindictive enough to send her
erring husband to jail, that means that
she has already decided to quit the acri-
monious relationship and does not want
to live with him.
There seems no apparent welfare in
this piece of legislation, according to ex-
perts. Muslim women belong to a large-
ly patriarchal society, and if dependent
on their husbands, they are best “pro-
tected” by having them by their sides.
The Bill will also leave the bread-winner
unable to provide for the family or work
towards arranging maintenance for
the wife.
So what was the real purpose of
this Bill?
ALLAYING FEARS
Law Minister Ravi Shankar Prasad arguing for
the triple talaq Bill in the Rajya Sabha
Accordingtoexperts,thereseemsno
apparentwelfareinthispieceoflegisla-
tion.TheBillwillleavethebread-winner
unabletoprovideforthefamilyorwork
forarrangingmaintenanceforthewife.

Column/ CSR Sanjiv Bhatia
22 August 19, 2019
A government that tries to do too
much ends up doing nothing well
—Benjamin Franklin, one of the
founding fathers of the US
magine a nation where the govern-
ment runs businesses, and the pri-
vate sector is responsible for social
welfare? In India, the government
owns, controls and operates hun-
dreds of companies in industries
such as oil and gas, steel, fertilisers,
electricity, coal, shipbuilding and bank-
ing and the private sector is being
forced to fund water projects, toilets
and programmes for gender equality
Adraconianandbizarremovetocriminalisethisvoluntaryact
threatenstopunishthosethatcreatewealthandjobsandwill
harmthecountry
I
Why Make
Charity Criminal?
through a law on mandatory corporate
social responsibility (CSR). Shifting the
responsibility of social welfare to the
private sector is an admission by the
government that it is failing in its basic
duties of providing public goods.
India is the first country in the world
to enshrine corporate giving into law.
The Companies Act 2013, originally
passed by the left-of-centre Congress
government, mandated that companies
above a certain size (annual turnover of
`1,000 crore or net worth of `500
crore), and profitability above `5 crore,
must contribute two percent of their
average three-year pre-tax profits to
social development activities. Around
6,000 companies currently fall under
these limits, and based on 2018 year-
end corporate filings, roughly about
`29,000 crore is available for CSR
donations. Till now, the law required
that “if the company fails to spend such
amount, the Board shall, in its annual
report, specify the reasons for not spen-
ding the amount”. But a 2019 amend-
ment to the Companies Act now adds a
three-year imprisonment term for exec-
utives of any company which is in de-
fault of its CSR obligations.
With this amendment, India is now
the only country that makes the volun-
tary act of charitable giving mandatory,
and worse, not giving charity a criminal
offence. It is often said that “the income
tax has created more criminals than any
other act of government”. Add CSR to
that odious category as the government
threatens to make criminals out of the
TOUGH STAND FM Nirmala Sitharaman justified the new CSR norms in the Companies (Amendment) Bill, 2019, in the Rajya Sabha
ThenewCSRamendmentmandatesa
three-yearjailtermforcompany
executivesdefaultingonCSRobligations.
Indiaisthefirstcountryintheworldto
enshrinecorporategivingintolaw.

people that create wealth and jobs in
the country. History is clear on one
thing: When governments use coercion
to modify the behaviour of wealth and
job creators, the results are never good.
Despite the apparent interdepend-
ence between business and society, CSR
has been a controversial issue. Nobel-
winning economist Milton Friedman
was of the view that a company can pro-
vide the best service to society by pro-
ducing the goods and services it needs,
and providing good-paying jobs in the
community, and that it could do these
things only by making profits. Loss-
making companies provide neither use-
ful goods nor steady employment. So,
according to Friedman, the only respon-
sibility of a company is to its sharehold-
ers. The decision on which charity to
support and how much money to do-
nate is a personal one best left to indi-
vidual shareholders. By forcing compa-
nies to comply with CSR, Friedman
argued, you allow a Board of eight peo-
ple to make that decision for millions of
shareholders. It is always possible that
the Board might decide to support a
cause that individual shareholders vehe-
mently oppose.
O
thers who have argued against
CSR have used a slightly differ-
ent approach. CSR is a tax on a
company which is eventually borne by
either the shareholders, employees or the
customers of the company. Since a corpo-
ration is a non-living entity, it cannot be
expected to bear the responsibilities nor-
mally associated with citizenship. It is,
therefore, best to allow living stakehold-
ers to voluntarily decide how best to meet
social obligations to their communities.
Those favouring CSR argue that
companies owe their success in large
part to the environment created by a
well-functioning society. A healthy, edu-
cated and peaceful society is more likely
to buy products and services and to
EARLY BIRD
(Below left) Anand Mahindra’s M&M has a
strong presence in CSR; The private sector is
being forced to fund CSR activities like water
projects (below right), toilets and gender
equality programmes through a law
csrbox.org
RatanTata,whoseTata
groupofcompanies
donatesover$100
millioneveryyearforCSR
activities,hasrepeatedly
criticisedthecorruption
andcronyismthat
accompaniesCSR.
causebecause.com

provide employable workers. No compa-
ny can survive in a dysfunctional socie-
ty. It is, therefore, morally incumbent
upon a company to engage in behaviour
that pays back to the community from
which it benefits. Sustainable businesses
must meet the needs of their social en-
vironment, and when those needs
change, companies have to adapt their
behaviour to survive.
It is this push towards sustainability
that now drives CSR behaviour. Over 80
percent of the companies in the US and
60 percent of EU-based companies now
disclose their CSR responsibilities tra-
nsparently in their annual statements.
The stock market is an important place
for capital in these countries and this
forces corporations to provide a high
degree of transparency and accountabil-
ity in their disclosures. There is also a
huge move towards investing in compa-
nies that show a high level of social
responsibility. Companies that behave
irresponsibly such as Volkswagen which
cheated on emission standards, or
British Petroleum which was responsi-
ble for the Deepwater Oil rig oil spill,
have seen their market values drop pre-
cipitously after these environmental dis-
asters. Nike faced the market’s wrath
when there was a strong public reaction
to abusive labour practices at its facto-
ries in Indonesia.
Despite the heightened awareness of
a company’s social responsibilities, CSR
still remains largely a voluntary act.
Companies have voluntarily stepped
forth mainly in response to reputational
risks and the wrath of capital markets.
Only in India is CSR a mandated am-
ount to be directed towards govern-
ment-dictated priorities, and it is only
here that any transgression could land
the senior management of a company in
jail for three years.
G
iven the current state of the
Indian economy, and the critical
role of the private sector in pro-
ducing growth and jobs, it is bizarre
that a supposedly business-friendly gov-
ernment would resort to criminalising
voluntary behaviour. The response from
India Inc has been predictable. Many
senior business leaders have termed the
government’s decision to impose a pri-
son sentence over CSR as retrograde.
Ratan Tata, whose Tata group of compa-
nies donates over $100 million every
year for CSR activities, has repeatedly
criticised the corruption and cronyism
that accompanies CSR. There is strong
anecdotal evidence to support Tata’s
claims. Many firms have developed ways
to receive their CSR donations back af-
ter giving kickbacks to an NGO. Others
siphon money off by giving it out to
NGOs owned by family members or
friends who then withdraw the money
in the form of large salaries.
And what is indeed troubling indus-
try participants is that the move to
criminalise CSR has come despite a sig-
nificant improvement in the level of
payments by the private sector. The
total amount spent by companies as a
percent of required CSR has increased
consistently over the last five years, up
from 70 percent in 2014 to 91.5 percent
in 2018. A study of NSE-listed compa-
nies shows that the number of compa-
nies with unspent CSR money declined
from 62 percent in 2014 to 39 percent
in 2018. It appears that the government
didn’t even bother to look at the data or
conduct an impact assessment of CSR
spends before passing such a draconian
law. This nonchalant irreverence to-
wards the corporate sector has irked
many business leaders.
The government would be well advi-
sed to take the private sector more seri-
ously. Killing the goose that lays the gol-
den egg has always had a sad ending.
The government should replace the
coercive mandate of CSR with positive
incentives and cooperation with corpo-
rates to seeking synergistic approaches
to socially beneficial activities. Instead
of threats of fines and jail time, the gov-
ernment should reward businesses that
voluntarily give to charities—white
passports for quick entry and exit at air-
ports, invitations to high-level govern-
ment delegations, tax rebates, preferen-
tial clearances, etc., are examples of
incentives that can be used to reward
corporate giving.
The current CSR law is so poorly
conceived that it obscures the enormous
opportunities for companies to truly be-
nefit society. If companies were allowed
to analyse their prospects for social res-
ponsibility using the same framework
used to build their business strategy,
CSR could be a source of innovation,
opportunity and competitive advantage.
Instead, now it is a box to be ticked and
a cost and constraint to doing business.
Why isn’t a company that requires
funds to develop an innovative product
(a new drug for example) allowed to put
CSR funds into its own R&D instead of
putting toilets in a faraway village? A
Column/ CSR/ Sanjiv Bhatia
24 August 19, 2019
Nobel-winningecono-
mistMiltonFriedman
feelsthatshareholders
shoulddecidewhich
charitytosupportand
howmuchtodonate.He
arguesthatthenewCSR
normsallowaBoardof
eighttodecidefor
millionsofshareholders.

for social welfare to the private sector,
there is an urgent need to reform the
government at all levels. There needs to
be a serious introspection on the size,
reach and responsibilities of a govern-
ment. Is it attempting to do too much
and ending up doing nothing well?
Millions suffer every monsoon from
floods caused by drainage pipes that
local municipalities don’t bother to keep
clean. Thousands needlessly die every
year in accidents caused by potholes on
roads that are ignored for years. And
after 70 years of independence, only two
cities in the entire country have 24-hour
running water.
What the country needs is not coer-
cive corporate giving but a law on gov-
ernment social responsibility (GSR)
which makes failure to deliver public
goods by government officials a criminal
act at par with CSR.
—The writer is a financial economist
and founder, contractwithindia.com
company that needs to invest in retrain-
ing its staff so it can compete globally
may find such retraining more socially
responsible than giving money to an
NGO that runs skill development cen-
tres. An investment by a company in a
start-up that is developing an innova-
tive water treatment technology may be
more socially responsible than one that
gives to a charity that distributes water
at a bus stand.
A
proper legislation on CSR
should allow companies to iden-
tify and prioritise those social
issues that matter most and where it
can best make an impact. Typically, the
more closely linked a social issue is to a
company’s business, the more it can
leverage its resources and benefit socie-
ty. But forcing companies to put their
unused CSR fund in a government
escrow amount, as the present law
requires, will simply encourage a hodge-
podge of uncoordinated charitable
activities that improve neither social
welfare nor a company’s long-term rep-
utational advantage. “Charitable giving
used to be a big reputation builder for
us,” says a director of a large corporate
house firm, “It was part of our business
strategy and often exceeded the two
percent mandatory amount. Now it’s
just about legal compliance and a box
to tick.”
Often senior government officials
“encourage” companies to support
charities and NGOs from which they
derive a financial benefit. There are 31
lakh NGOs in India, which is more than
twice the number of schools, and 250
times the number of hospitals. There is
one NGO for every 430 people, but only
one policeman for every 709 citizens.
With such a proliferation of NGOs,
many of whom are run by relatives of
powerful and networked people in the
government, it is no wonder that
corporations are mandated to feed
them money.
Instead of shifting the responsibility
ThemovetocriminaliseCSRhascome
despiteasignificantimprovementinpay-
mentsbytheprivatesector.Itseemsthe
governmentdidn’tbothertolookatthe
databeforepassingsuchadraconianlaw.
A
ccording to the KPMG India CSR
Reporting Survey 2018, compa-
nies in India spent `75.36 billion
on Corporate Social Responsibility activi-
ties in 2017-18, indicating an upward
trend of 47 percent as compared to
2014-15. The survey adds that more pri-
vate companies are spending in excess
of the mandatory two percent threshold.
The number of companies which has
spent less than two percent has also
substantially reduced by 37 percent to
33 companies in 2017-18 from 52 in
2014-15.
Other key findings of the survey are:
Expenditure on education increased
by over 75 percent over the last four
years—from `1,249 crore (2014-15) to
`2,202 crore (2017-18).
Energy and power sector spent the
highest amount on CSR (`2,464.96
crore). Other major sectors were bank-
ing, financial services and insurance or
BFSI (`1,352.67 crore), customer prod-
ucts (`635.41 crore), IT consulting and
software (`1,100 crore) and mining and
metal (`647.12 crore), chemicals
(`22.03 crore), media and entertainment
(`25.4 crore) and the services sector
(`152.5 crore).
Eighty nine per cent Indian origin com-
panies had a stand-alone CSR commit-
tee during 2017-18 as compared to 79
percent during 2014-15.
—Compiled by India Legal team
CSRSpendinIndia
causebecause.com
SERVING SOCIETY A CSR project on educating the girl child

Commerce/ GST Compliance
26 August 19, 2019
HE Comptroller and
Auditor General (CAG), in
its Report for the year end-
ing March 2018, has dealt
with the implementation of
the Goods and Services Tax
(GST) in India in the first year of its
introduction. In the “Preface” of the
Report, the efforts of all the stakehold-
ers in transiting to the GST system have
been appreciated. It has also been
urged that the gaps/shortcomings in the
implementation of GST, as have been
pointed out in the Report, should not
be taken by the stakeholders as a fault-
finding exercise; these are to be taken
“in the spirit of constructive suggestions
to realise the full potential of this
major reform”.
After examining the “objectives of
GST” and the “extent of achievement
TheCAGAuditReport,whileappreciatingtheintroductionoftheGoodsandServicesTax,
exposessomedeficienciesthatneedtobefixed
By Sumit Dutt Majumdar
Win Some, Lose Some
T
TheCAGReportstatesthatthegaps
ortheshortcomingsaretobe
taken“inthespiritofconstructive
suggestionstorealisethefullpotential
ofthismajorreform”.
and the fallout”, the CAG Report has
stated that the objective of unifying
multiple central and state taxes has been
mostly achieved. As for the “simplified
tax structure”, the objective of “eliminat-
ing multiplicity of tax rates” has also
been mostly achieved. But, the objective
of “simplified forms and procedures”
was found to be not achieved. It was
observed that the key monthly returns
like GSTR-2 and GSTR-3 were kept on
hold, and the new simplified returns
were yet to be rolled out.
It may be mentioned here that on its
third year of implementation, the GST
Council has notified the revised simpli-
fied returns which will be implemented
from October 2019, after a pilot run of
three months. On the objective of hav-
ing “system verified seamless flow of
Input Tax Credit (ITC)” through filing of
GSTR 1, 2 and 3 by taxpayers, it was
observed that this did not work with the
GSTN and the IT infrastructure, and
therefore, the filing of GSTR 1 & 2 was
suspended, and instead a self-assessed
Summary Return (GSTR 3B) was desig-
ned. Thus, in the absence of GSTR 1 &
2, the key mechanism of system-verified
ITC and invoice matching was not
achieved. With the delay in framing a
revised return mechanism, the
“Summary Return GSTR-3B”, which is
more of a self-declaration, continued
instead of the system-generated return

based on verified invoices. This objective
was therefore marked as “not achieved”.
It has also been observed that the unve-
rified ITC had led to complications in
the finalisation of Annual Returns.
These observations are correct.
As for providing a “single IT-based
Interface for Tax Payers”, it was observed
that the system was still evolving and
the processing of refunds was still man-
ual. On the objective of creating an “IT
based Tax Administration”, the Report
commented that it was partly achieved,
since certain modules like Refund,
Adjudication, Appeal and so on, were
yet to be built.
While generally appreciating the
implementation of GST as a “landmark
achievement”, the Report pointed out
that one significant area where the full
potential of the GST roll-out was not
achieved was that of the “simplified tax
compliance regime”. It was observed
that even after two years of roll-out of
the GST, the system-validated ITC
through “invoice matching” was not in
place, and that a non-intrusive e-tax sys-
tem remained elusive. It pointed out
that due to the complexity of the return
mechanism and the technical glitches in
the GSTN, the IT infrastructure resulted
in a roll-back of invoice-matching, ren-
dering the system prone to fraud.
O
n the revenue front, the Report
observed that the growth of
indirect taxes slowed down to
5.80 percent in 2017-18 over 2016-17,
while this growth rate was 21.33 percent
during 2016-17. After the implementa-
tion of GST, the centre’s revenue of
goods and services (excluding central
excise on petroleum and tobacco) regis-
tered a decline of 10 percent in 2017-18
as compared to the revenue of sub-
sumed taxes in 2016-17.
The CAG Report also pointed out a
serious lapse with regard to “distribu-
tion of funds”. During 2017-18, the
Government of India resorted to devolu-
tion of the IGST year-end balance to the
states as per the Finance Commission
formula. This was in contravention of
Article 270 (1) of the Constitution in
terms of which the duties levied under
Article 269 (A) i.e. IGST will be exclud-
ed from the Finance Commission for-
mula. Thus the CAG correctly observed
that this impacted the
distribution of IGST
funds to the states since it
was not based on the con-
cept of “Place of Supply”
as envisaged in the IGST
Act.
The Report said that
as per different provisions
of Article 266 of the
Constitution like “the
GST Compensation Act”
and the accounting proce-
dure for “Compensation
Cess”, the cess was to be
transferred to the “Public
Account”. However, from
the Finance Accounts
2017-18, it was noticed
that there was a short
transfer of `6,466 crore of
Compensation Cess to the
Public Account. On this, the reply of the
Ministry was still awaited.
Further, the statistical data on
Transitional Credits and Refunds which
were processed and pending and also
the cost of collection which were called
for, were not provided by the Ministry.
Hence, these aspects could not be
analysed and the same could not be
included in this Report.
These aspects would need the
Ministry’s prompt action. The CAG
Report critically commented on certain
IT modules of the GSTN.
On “Registration Modules”, it was
observed that system validations were
not aligned to the provisions of the GST
Acts and Rules which resulted in certain
crucial gaps in that module. The system
failed to validate and debar ineligible
taxpayers from availing of the Compo-
sition Levy Scheme. Mandatory fields
were made optional or were accepting
junk values. Tax Deduction at Source
(TDS) registrations were allowed under
invalid categories. There was also a lack
of validation with the Central Board of
Direct Taxes (CBDT) and the Ministry
of Corporate Affairs (MCA) databases of
key fields in Registrations like legal
name, type of business and CIN, etc.
SIMPLIFYING PROCEDURES
Finance Minister Nirmala Sitharaman chairing
the 35th GST Council meeting in New Delhi
Theobjectiveof“simplifiedformsandprocedures”was
foundtobenotachieved;itwasobservedthatthekey
monthlyreturnslikeGSTR-2andGSTR-3wereonhold,
andnewsimplifiedreturnswereyettoberolledout.PIB

The “Payment Module” was also
fraught with certain operational defi-
ciencies. There was delay in updating
the “Electronic Cash Ledger (ECL)” even
after successful payment of tax by the
taxpayer. Facility of payment through
debit/credit cards was not made avail-
able. There were certain issues in recon-
ciliation of the GST receipts. The Report
observed that in a system with an auto-
mated interface between the IT applica-
tions of banks and the GST portal, there
should have been no scope for errors
such as invalid GSTIN and expiry of
CPIN which had led to “non-reconcilia-
tion of GST receipts”.
On IGST Settlement, the Report
pointed out that all the “IGST
Settlement Ledgers” were not being gen-
erated for various reasons like non-
implementation of corresponding GST
modules like imports and appeals, limi-
tations in capturing data from GSTR-3B
Returns, and so on. This had a bearing
on the inaccurate settlement of funds
between the centre and different states.
The Report pointed out certain “sys-
tem design deficiencies”. For example,
the IGST algorithm was found to be
defective in picking up entries from
wrong reports in the IGST module. A
field like turnover limit which was
prone to changes was not made config-
urable. There was no system of issuing
alarm when the threshold turnover
prescribed for the Composition Levy
was crossed.
W
hile summing up the “IT
Audit findings”, the Report
stated that due care was not
taken both in development and in test-
ing of the system before the roll-out.
The failure to map business rules cor-
rectly and the absence of key validations
in the rolled out system point to inade-
quacies in the functioning of GSTN. The
issues brought out in the “IT Audit find-
ings” pointed towards the need for
GSTN to reexamine prioritisation of
development of various functionalities,
strengthening the “root-cause analysis”
and the testing process of the discrepan-
cies, to ensure that critical deficiencies
in application are detected and rectified.
It is true that no proper “test run” of
all the modules could be undertaken
before the GST roll-out, in order to meet
the target date. The Report pointed out
that in the absence of unhindered and
full access to pan-India data, the conclu-
sions made on the “Compliance Audit of
GST” were based on limited audits.
Even then, the issues brought out point
to systemic deficiencies that need to be
addressed by the Department. Transi-
tion Credits, Registrations and Refunds
were the critical deficiencies.
Finally, it was emphasised that the
“system of payment” and “settlement of
tax”, including the “settlement of IGST”
that was envisaged for GST was based
on one hundred percent “invoice match-
ing” and “availment of Input Tax Credit”.
Invoice matching is the critical require-
ment that would yield the full benefits
of this major tax reform.
It would protect tax revenues and
would lead to proper settlement of
IGST, and minimise the tax official-
assessee interface. Besides, it will facili-
tate detection of tax evasion by applying
analytical tools and Artificial
Intelligence (AI) to the massive data
that crores of invoices generate.
While there cannot be any dispute
regarding these observations, it is also to
be appreciated that the time given for
kickstarting GST was not sufficient to
instal the system for one hundred per-
cent “invoice matching”. Overall, the
CAG Report on GST implementation is
hugely objective, based on correct analy-
sis of law and procedures, and it’s a
laudable one.
—The author is former Chairman,
Central Board of Excise & Customs, and
author of four books on GST including
GST Explained for Common Man
28 August 19, 2019
SINGLE-TAX REGIME
Shoppers at a supermarket offering
discounted prices but with GST
Commerce/ GST Compliance
Itistruethatnoproper“testrun”ofall
themodulescouldbeundertakenbefore
theGSTroll-out,inordertomeetthe
targetdate.Theissuesbroughtoutpoint
toserioussystemicdeficiencies.

T
here’s a vacancy at Rashtrapati
Bhavan for the post of Press
Secretary to the President,
recently vacated by pro-BJP journalist
Ashok Malik. He completed his two-
year term as the first person from out-
side the civil services to be appointed
to the post. As of now, there is no
news of his replacement and Malik has
returned to his earlier avatar, at the
Observer Research Foundation.
However, the Lutyens buzz is that
he is likely to join the
government, probably in
a top position in the
BJP’s social media
set-up. The current
head, Amit Malviya,
is a close friend
of Malik.
I
nevitably, the dramatic developments
involving Jammu and Kashmir have given
rise to a flood of rumours and fake news
on social media, fuelled by BJP/RSS-inspired
nationalism and chest-thumping. The most
bizarre of these is a Facebook post by one
Rajdeep Roy who posted a photo purportedly
of Pakistani Rangers waving a white flag
while Indian soldiers look on.
Roy’s post says the photo is of Pakistan
army personnel and his caption claims they
are seeking surrender
after the latest govern-
ment move on Jammu
and Kashmir. He goes on
to praise Prime Minister
Narendra Modi and
Home Minister Amit
Shah, crediting them with
having scared Pakistan
army regulars into seek-
ing a truce.
The post garnered a
huge number of likes on
Facebook till a website
devoted to exposing fake news revealed that
the photo was actually shot last month when
Indian soldiers handed over the body of a
seven-year-old boy who was swept away in a
river from Pakistan-occupied Kashmir and
washed ashore on the Indian side in the
Gurez valley. The photo shows the formal
exchange process with the Pakistani army
during which a white flag is raised to denote
a temporary ceasefire.
Social media is creating new monsters
every day as right-wing supporters discover
its power as a propaganda platform.
Media Watch
W
hether in television
news or print, fe-
male journalists
seem to be the most visible
or widely read, which is why
it is a bit of a surprise to see
the latest report by the UN
titled “Gender Inequality in
Indian Media”, which says
that female journalists “con-
tinue to be denied their fair
share” at major media orga-
nisations in India.
The report found that
women were better repre-
sented online than in news-
papers and TV. While 26.3
percent of top jobs were
held by women at online por-
tals, TV channels employed
20.9 percent and magazines
13.6 percent of women in
leadership positions—defi-
ned as someone designated
as editor-in-chief, managing
editor, executive editor, bu-
reau chief, or input/output
editor. The report, which sa-
mpled 13 Indian newspa-
pers, Hindi and English,
found that only one had a
female boss.
The newspapers were
selected on the basis of their
position in the Indian Read-
ership Survey 2018. The rep-
ort concludes: “The media
today is largely male-domi-
nated in India and across the
world. Women are often ass-
igned to cover ‘soft beats’
such as lifestyle and fashion
while men predominate in
the ‘hard beats’ of politics,
economy and sports…. Men
also occupy the majority of
leadership positions.” Digital
media was the only excep-
tion where women comprise
over 35 percent of the writers
who received bylines.
Gender Bender
Press Advisory
Strange Encounters
F
requently voted the Most Trusted Media
brand, NDTV seems to have turned a
crucial corner. After years of losses, for
the first time in its history, NDTV’s television
business (NDTV Limited) has recorded five
consecutive profitable quarters, which includes
its best quarter in six years, recording a profit
of `15.2 crore; the company’s television busi-
ness has earned a profit of `9 crore. At the
group level, this translates into a turnaround of
`25.3 crore for the television business, an
improvement of `8.4 crore over the same time
last year. This is also partly to do with a persist-
ent focus on reducing operating costs, a pro-
cess the media company began some three
years ago. Meanwhile, NDTV Convergence, the
online section of the company, has recorded
its highest-ever revenue in the last quarter.
Taking Trust to the Bank

Crime/ Vehicle Thefts
30 August 19, 2019
TOLEN vehicles are big
business worldwide, giving
a good livelihood to mil-
lions of smart crooks. That’s
why automotive companies
spend millions to provide
their cars with safety features such as
fancy keys and security chips in the igni-
tion systems to stop thieves from driving
off with them. Unfortunately, thieves
have also become very clever, especially
the tech-savvy ones, and they have been
able to invent new ways to get around
all obstacles.
In India, 2,14,000 vehicles were re-
portedly stolen in 2018, which comes to
approximately 600 vehicles per day.
This would mean a business worth ab-
out `10,000 crore. And that is no
mean feat by any standards. The num-
bers mentioned above are mostly for
cars, but many bikes, trucks and buses
were also stolen, so the business is
even bigger.
The crooks mainly target new or fair-
ly new cars or bikes, which are then re-
sold second hand in some other city to
avoid police notifications. But many
older vehicles are also snitched and bro-
ken up and sold in the thriving compo-
nents’ market.
The owner of a Toyota Innova had
been assured by his car dealer that the
chip-controlled ignition system in his
vehicle made it absolutely safe from
theft. One morning, he heard noises
from under his window and saw some
people in his vehicle. They ran away
when he started shouting. He discov-
ered that they had dismantled his entire
ignition system. He could not start the
vehicle and had it towed to the dealer
who could not believe what he saw.
Toyota then sent a service engineer from
here and one from Japan to examine the
problem. They had to modify their glob-
al safety systems.
Who said that Indians are not smart?
They are also inventive in other ways. A
friend working for a foreign embassy
also bought an Innova. One day, his
driver was routinely washing and clean-
ing it outside his house with the key left
carelessly in the ignition. Two young
men on a motorcycle came and told him
that the rear tyre was punctured. The
gullible driver went to the back to see
and one of the bikers got off and drove
away with the car. The poor owner did
not even get compensation from the
insurance company as they said that the
vehicle had been lost because of his
carelessness.
The auto industry breeds smart
crooks in every country. Some years ago,
a notorious Italian car thief had boasted
that he could steal any car when he was
arrested. His statement raised consider-
able debate and one of their TV stations
took up his challenge to break into a car
specially equipped with every available
safety gadget. He demanded that he
have his special tool kit and TV viewers
were then fascinated as they watched his
inventiveness as he systematically by-
passed every mechanical and electronic
device and defeated all the barriers after
two hours.
The Delhi police reported that des-
pite computerisation of all their systems
and computer linking with the police
stations in other states, auto thefts have
continued to rise and increased by 13
percent to 44,158 units in 2018. Motor-
cycles and scooters were 75 percent of
these, but cars at 18 percent were the
most valuable targets. Only 4,600 vehi-
cles or just 10.4 percent were recovered.
Electronic surveillance with increasing
numbers of CCTV cameras have made
the thieves more cautious, but the im-
pact has not been great as the crooks are
professionals in a lucrative business and
carefully check out the places where
With600theftsinIndiaeveryday,thegovernmenthas
approvedthenewuniqueidentificationtechnologyand
proposedthatitshouldbemandatoryforallautomanufacturers
By Murad Ali Baig
Microdots
to Rein in
Crooks
S
Microdottechnologyinvolvesspraying
tiny,nearlytransparentsquaresofabout
halfamillimetreinsizeonacarorbike.
Everyvehicleanditspartcanbeeasily
tracedtoitsownerlateron.

they plan to strike and know where the
cameras are located. GSP-using tracking
devices like “find my phone” features in
many smart phones are now available
but have not been used much in auto-
mobiles. Crooks can also get devices to
locate these hidden chips. A few clever
gadgets are even available
on Amazon.
There is, however, a new technology
that the crooks will find much more dif-
ficult to dodge and that is microdots.
Here, thousands of tiny, nearly transpar-
ent squares of about half a millimetre in
size can be sprayed everywhere on a car
or bike. These amazing microchips are
etched to carry a tiny VIN (Vehicle
Identification Number) and PIN
(Personal Identification Number) so
that every vehicle and component can
easily be traced to its owner later on.
The application is easy—a small spray
painting device will spray a water-based
adhesive containing the microdots to
any part of a car or bike. The dots are
almost invisible and no trace of the
adhesive solution will interfere with the
vehicle owner’s comfort. A small magni-
fication device is all that is needed to
read the VIN and PIN numbers under
ultraviolet light. It is a simple and inex-
pensive technology.
South Africa began using this tech-
nology in 2012 and it is also being used
in many states of the US. The results are
reportedly very satisfactory but the sys-
tem has not been adopted by many
other countries. While auto companies
will instal the microdots in all their new
cars, citizens can also have their old cars
treated. In fact, they can also spray
microdots onto jewellery, paintings and
other treasures. The process is not
expensive and an investment of about
`1,000 is something that many vehicle
owners would happily pay.
Auto theft is a major worry for every
citizen. And that is why the Ministry of
Road Transport and Highways issued a
draft notification for motor vehicle rules
that proposes to make these microdot
patches mandatory for all Indian auto-
motive manufacturers. The complete
system is being finalised by the techni-
cal standing body for framing central
motor vehicle rules. Amending Indian
law requires debate and time-consum-
ing reviews before the new rules are
notified.
This is a matter that is so obvious-
ly of public benefit and non-controver-
sial that the government needs to fast-
track the process so that this system
becomes available soon. The crooks had
better watch out now.
Amitava Sen
T
he Union Ministry of Road Trans-
port and Highways issued a draft
notification last month proposing
the mandatory use of permanent and
almost invisible laser-oriented micro-
dots—a proven technology worldwide—
for vehicles and their parts. For this pur-
pose, the Central Motor Vehicles
Rules,1989, have been amended.
“The Ministry of Road Transport &
Highways (MoRTH) has issued a draft
notification GSR 521(E) ... amending
Central Motor Vehicle Rules, allowing
motor vehicles and their parts, compo-
nents, assemblies, sub-assemblies to
be affixed with permanent and nearly
invisible microdots that can be read
physically with a microscope and identi-
fied with an ultraviolet light source,”
said a statement issued by the ministry.
“The microdots and adhesive will
become permanent fixtures/affixation
which cannot be removed without dam-
aging the asset that is the vehicle itself,”
the statement said.
The ministry sought comments and
objections, if any, within 30 days. The
government has taken the stand that
identifying stolen vehicles will no longer
be an onerous task after microdots are
used. It will also help consumers to dif-
ferentiate between original and spurious
motor parts.
However, the microdots affixed must
conform to Automotive Industry Standard
155 requirements. These standards are
set by the Automotive
Industry Standards
Committee set up
under the Central
Motor Vehicles Rules–
Technical Standing
Committee of the
transport ministry.
—Compiled by India
Legal team
Foolproof
technology

Legal Eye/ / Rampur Dispute
32 August 19, 2019
HE Supreme Court has
given a major decision on
the succession of princely
states which merged with
the Indian Republic post-
Independence. The judg-
ment came as an answer to the predica-
ment placed before the Court over the
succession of private properties of
Nawab Raza Ali Khan, ruler of Rampur.
Rampur, a princely state of British
India, was merged with India on May
15, 1949. The state, which was birthed
out of a treaty with Oudh in 1774, was
merged with the Indian Union along
with other nearby princely states such as
Benares and Tehri-Garhwal. The state of
Rampur was established by Nawab
Faizullah Khan and remained a pliant
state under British protection thereafter.
Khan, a great patron of music and art,
ruled for 20 years. The Nawabs of
Rampur sided with the British during
the Indian Rebellion of 1857 and contin-
ued to play a role in the social, political
and cultural life of northern India.
The case was one of India’s longest
running civil suits, which the Supreme
Court finally brought to a close after 47
years of trial and tribulation. It was
appealed that the private property of a
Nawab cannot be treated as the person-
al property of any other common citizen.
Therefore, the property should be pass-
ed on to the “eldest male heir” while
others should not get any stake in it.
The bench rejected this argument and
said that the decision has to be as per
the Muslim Personal Law (Shariah)
Application Act, 1937, as Nawab Raza
Ali Khan was a Shia.
Khan, who acceded to the Indian
Union in 1949, was, in turn, entitled to
the full ownership of all private proper-
ties belonging to him on the date of the
accession. The government also guaran-
teed succession to the “gaddi” or ruler-
ship of the state based on the customary
law which conferred the property rights
solely on the eldest son. Royal families
that had acceded to India were also to
receive a payment from the government
known as the privy purse. Khan died in
1966, leaving behind three wives, three
sons and six daughters.
As per the custom, his eldest son,
Murtaza Ali Khan Bahadur, succeeded
as the head of the state. The government
also recognised him as the sole inheritor
of all his father’s private properties, issu-
ing a certificate to this effect. However,
his younger brother challenged this in a
civil court and was later joined by three
of his sisters. Thus began the great
Indian royal property dispute in which
the courts were to decide if the inheri-
tance should be based on Muslim per-
sonal law or the customary “gaddi” sys-
tem followed by the royal family.
In December 1969, the Delhi High
Court quashed the certificate. This was
challenged by Murtaza Ali Khan Baha-
dur in the Supreme Court. The apex
court chose not to intervene. Mean-
while, in 1970, using the Delhi High
Court judgment, Talat Fatima Hasan,
daughter of one of Raza Ali Khan’s
daughters, moved a petition in a civil
court in Rampur, requesting a division
of the properties. This court then issued
an interim order freezing all the assets.
The family squabble went into a fur-
ther downward spiral: in December
Theapexcourthasbroughttoclosureoneof
India’slongestrunningcivilcasesandgivenits
consenttosplittheprivatepropertiesoftheruler
ofRampurstateamongallhisheirs
By Govind Pant Raju
in Lucknow
The Great Indian
Property Row
T
Photos: geni.com
AftertheformerNawabdiedin1966,his
eldestsonsucceededhimastheheadof
thestate.However,hisyoungerbrother
challengedthisinacivilcourtandwas
laterjoinedbythreeofhissisters.

1971, Prime Minister Indira Gandhi
amended the Constitution and abol-
ished privy purses. Murtaza Ali Khan
Bahadur lost out on his income, in addi-
tion to the estate being stuck in litiga-
tion. For the next 20 years, the suit rem-
ained pending before the civil court. In
1995, the Allahabad High Court with-
drew the suit from the civil court and
placed it before itself but Murtaza Ali
Khan Bahadur had died by then.
The Instrument of Accession made a
distinction between Rampur state’s pub-
lic properties, which had been acquired
by the government of India, and the
Nawab’s private properties, which were
part of his inheritance. Lawyers repre-
senting Murtaza Ali Khan and his legal
heirs argued that the private properties
of the ruler were not entirely private—
they were attached to the gaddi or the
rulership. Therefore, their rightful own-
ership lay with the person nominated by
the Nawab.
T
he apex court has now given its
consent to split the private prop-
erties of the ruler of Rampur
state among all his heirs. This means
that now the women of the family are
also entitled to a share in the inheri-
tance. The Court stated that after the
merger of the Indian Union, the rulers
of princely states were Maharajas with-
out sovereignty, and the state and other
princely states had received the benefit
of privy purses, personal property and
privileges due to the provisions of the
Constitution; otherwise they were
equivalent to ordinary citizens. The
Court said: “When they were actual sov-
ereigns, their entire State was attached
to the gaddi and not any particular pro-
perty. There are no specific properties
which can be attached to the gaddi. It
has to be the entire ‘State’ or nothing.
Since, we have held that they were
rulers only as a matter of courtesy, to
protect their erstwhile titles, the pro-
perties which were declared to be their
personal properties had to be treated
as their personal properties and could
not be treated as properties attached to
the gaddi.”
The Court has asked the trial court to
appoint a commissioner for the division
of the movable assets. It also said that
the trial court may appoint a commis-
sioner for disposal of the immovable
properties. After the Supreme Court’s
order, the property is likely to be divided
into more than eight parts. However,
many family members of the current
generation have left Rampur. Moham-
mad Ali Khan, one of the members of
Murtaza Ali Khan’s family, said in a
media interview that if the decision of
the apex court had gone in their favour,
they could have done a lot with the
property. But now that the decision has
changed, the future seems uncertain.
Rampur estate is imbued with histo-
ry and culture. The successors of Mirza
Ghalib, Begum Akhtar and Tansen con-
tinued to get shelter in the state, res-
onating the claim of “Ganga Jamuni
Tehzeeb”. There has always been an
almost equal population of Hindus and
Muslims here, but no riots have ever
taken place. Murtaza Ali Khan Bahadur
and Murad Ali Khan Bahadur were the
last two heirs of this family, from whom
the Nawabat was taken away in 1971.
Now many palaces and buildings of this
Nawabi clan are almost desolate or
deserted. Some buildings such as Noor
Mahal still have a few members of the
royal family, including Murtaza’s broth-
er, Marhum Zulfiqar Ali Khan alias
Mikki Mian’s wife, Noor Bano, and her
son, Kazim Ali Khan.
The fall of this once all-powerful
dynasty is etched in Indian court
procedures.
GLORIOUS PAST
(L-R) The last Nawab of Rampur, Nawab Raza
Ali Khan, and his eldest son, Murtaza Ali Khan
Bahadur; the Raza Library (below) in Rampur
is named after the former Nawab
livehistoryindia.com

Acts & Bills/ House Sessions
34 August 19, 2019
T is a claim made universally, but
grudgingly acknowledged by some.
The recently concluded first
session of the 17th Lok Sabha and
the corresponding 249th session of
the Rajya Sabha have been the
most “productive”.
According to the valedictory address
of the chairman, Rajya Sabha, during
the concluding sitting, its productivity
this session was 104.92 percent; 32
Bills were passed and 151 starred ques-
tions were answered. Similarly, the
speaker of the Lok Sabha in his valedic-
tory remarks stated that the productivity
of the session was 125 percent; 36
Bills were passed and 189 starred ques-
tions answered.
However, not all saw it that way.
Some leaders of the Opposition in the
Rajya Sabha presented a letter to the
chairman of the House on July 25
objecting to the “hurried” passage of
Bills without adequate scrutiny in the
ongoing Parliament session. Derek
O’Brien of the Trinamool Congress
observed: “Three days, three bills. It’s
like delivering pizza.”
On July 29, Chairman of the Rajya
Sabha Venkaiah Naidu made a detailed
observation regarding grievances about
the “hasty” passage of the Bills. He said:
“As the Chairman of the Rajya Sabha, I
can only speak for the last two years I
have presided.... as far as referring the
Bills to the concerned Department-rela-
ted Parliamentary Standing Committees
for a detailed scrutiny is concerned, [du-
ring] 244th to 248th Sessions, ten Bills
have been first introduced by the Gove-
Pizza Delivery in Parliament?
Therecentlyconcludedmonsoonsessionhasbeenseenasthe
mostproductivewiththepassageofmanybills.Continuityof
governmentandOppositioncooperationhelped
By Vivek K Agnihotri
I

India Legal -19 August 2019

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