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NDIA EGALL STORIES THAT COUNT
I
March23, 2020
JusticeVenkatachaliah,whoservedaschiefjusticeofIndia,isoneofIndia’smostrespectedjurists.Anavid
championofhumanvaluesandrights,hespoketo RAJSHRIRAI,MD,INDIALEGALonthejudiciary,religion,
Ayodhya,upbringingofchildrenandwhytheSupremeCourtshouldbetrustedtodotherightthing
JusticeVenkatachaliah
‘‘KeepFaithin
theJudiciary’’
Coronavirus:
India’s opportunity
Exclusive Interview
India legal 23 march 2020
India legal 23 march 2020
4 March 23, 2020
HE Media Today special section of the
prestigious Columbia Journalism Re-
view (CJR), often called the most res-
pected voice of press criticism, carries
in its latest edition a fascinating piece
by Jon Allsop on how the coronavirus could hurt
the news business. Since the one-of-a kind jour-
nalism carried in CJR (and at this juncture all-
ow me to boast that Columbia Journalism
School is my alma mater) is not widely available
to the general reader, I sometimes take the lib-
erty of summarising and sharing its contents—
of course with full credit to CJR—on the social
media.
In this article, Allsop, formerly with BuzzFeed
and also a grad of Columbia J-School, reports
that paywalls, which online media erect in order
to earn their bread and butter (“you have now
reached your limit of free reading please sub-
scribe in order to read on…” etc, etc), have
begun to crumble as more and more news out-
lets are freeing up content relating to news and
special features related to the coronavirus, which
Dean Baquet, the executive editor of The New
York Times has described in a recent staff call as
“the biggest story the world has seen
since 9/11”.
The New York Times, Bloomberg,
The Wall Street Journal, The Atlantic,
The Seattle Times and McClatchy are
some of the major organisations now
making available their virus coverage
available free of charge to non-sub-
scribers. In fact, reports Allsop, The
Times has “collated its free coron-
avirus content on a special landing
page; you’ll need to create an account to access
it, if you don’t have one already”.
It’s a great social service not just for the US
but, indeed, for the world, when rumours, mis-
information, fake news, denial modes, are cut-
ting a swath of confusion across the globe.
Universally available responsible and depend-
able information is of the essence at times such
as these. And in relaying it as a humanitarian
gesture of grace and goodwill, the news busi-
ness, already in the financial doldrums because
of declining revenues—McClatchy, for example
has filed for bankruptcy—risks taking a direct
fiscal blow to the gut.
But there could also be an upside. It may
even be good for business, some analysts believe.
Allsop quotes Tom Meyvis, a professor at New
York University, telling Adweek’s Sara Jerde that
for some outlets, freeing up information on the
coronavirus may reach new readers “who may
stick with the publication afterward and perhaps
be willing to pay later if they are impressed”.
Interest in news as against pure entertain-
ment is at a peak right now and major national
news organisations have moved quickly to capi-
CORONAVIRUS COULD
BE FATAL TO MEDIA
Inderjit Badhwar
T
Letter from the Editor
TheNewYorkTimes,Bloomberg,TheWallStreetJournal,The
Atlantic,TheSeattleTimesandMcClatchy aresomeofthemajor
organisationsmakingavailabletheirviruscoverageavailablefree
ofchargetonon-subscribers,thustakingadirectfiscalblow. Ajay Suresh from New York, NY, USA
| INDIA LEGAL | March 23, 2020 5
talise, writes Allsop. “Collectively, they’ve flooded
the market with coronavirus podcasts, newslet-
ters, and other products, many of them free.
BuzzFeed, for instance, launched a newsletter ca-
lled ‘Outbreak Today.’ Its logo is an emoji wearing
a face mask. The coronavirus has dominated
regular programming on cable news, as both CNN
and MSNBC have broadcast special programming
in which medical experts have answered viewers’
questions. Last week, CNN hosted a coronavirus
town hall with Dr Sanjay Gupta, its chief medical
correspondent; (earlier) it held another one, with
Facebook and Instagram users from around the
world asking questions. There was no studio
audience.”
Allsop makes several absorbing observations
which I reproduce verbatim in the larger public
interest of disseminating public awareness, with
some paraphrasing, in bulleted points below:
The disorder caused by the coronavirus risks
invading news organisations’ ability to function.
Routine reporting will become harder the more
society is walled off. And as Joshua Benton of
Nieman Lab has noted, the virus has the potential
to pull the bottom out of an advertising market
that has been tough on many media companies
for years. Last week, The Times said it was al-
ready seeing an advertising slowdown, which
executives attribute to uncertainty caused by the
virus—and that was before the rapid escalation of
recent days. If the economy tips into recession,
the effect on advertising could be dire.
As Benton has observed, the coronavirus could
prove to be a disaster for local outlets, in particu-
lar. Despite industry-wide declines in print circu-
lation, many newspapers still rely on dead-tree
products for the bulk of their revenue; what hap-
pens when newspaper carriers become virus car-
riers and get taken off their routes? Swathes of
the local news market are controlled by a handful
of financial firms that have already made painful
cuts to their media properties; if owning newspa-
pers becomes an (even more) unattractive propo-
sition, the moneymen could simply decide to bail,
and what then? Even the non-profit news mo-
del—which has often been held up as a viable
alternative to the caprices of private ownership—
is not immune. As markets sag, major foundation
funders might scale back their giving to protect
their endowments.
Some local outlets are hurting already. Yester-
day, Sarah Scire, Benton’s colleague at Nieman
Lab, pointed to the example of The Stranger, an
alt-weekly (which publishes biweekly) in Seattle,
Washington, where the coronavirus first caused
major problems on American soil. The Stranger
derives 90 percent of its revenue from holding its
own events and providing a marketplace for oth-
ers—in short, its survival depends on “people get-
ting together in groups”. On Wednesday, The
Stranger’s Twitter account urged readers to do-
nate to keep it afloat. “We pride ourselves on hav-
ing navigated many storms in the world of inde-
pendent local media,” the post read, “but this time
is different.”
Allsop ends his CJR article on a really sober-
ing note that will probably send chills down the
spines of most journalists: “In recent years, we’ve
gotten used to hearing dire prognostications ab-
out the complete erosion of the local news busi-
ness in the United States. The coronavirus risks
accelerating almost all of the malign trends. Its
impact could end up looking loosely analogous
to that of the virus itself. Big media companies
with healthy finances and growing subscriber
bases will likely survive, and could even profit.
Outlets with serious underlying health conditions
might die.”
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
DeanBaquet,theexecutiveeditor
ofTheNewYorkTimes has
observedthatthecoronavirus
couldprovetobeadisasterfor
localoutlets,inparticular.
JonAllsop,formerlywithBuzzFeed
andagradofColumbiaJ-School
observesthatthedisordercausedby
thecoronavirusrisksinvadingnews
organisations’abilitytofunction.
6 March 23, 2020
ContentsVOLUME XIII ISSUE19
MARCH23,2020
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Former Chief Justice of India MN Venkatachaliah imparts his wisdom on many legal
topics while talking to Rajshri Rai, MD, India Legal and Editor-in-Chief, APN
“The Judiciary Makes the World
a Better Place to Live In”
LEAD
16
In his latest book, From the Trenches,
eminent jurist, parliamentarian, columnist,
thinker and commentator Abhishek Singhvi
revisits eight defining cases of our times. An
excerpt from one of them, Naveen Jindal vs
the Union of India—the case that won all citi-
zens the right to fly the tricolour
Flying high 24
BOOKS
| INDIA LEGAL | March 23, 2020 7
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
REGULARS
Ringside............................8
Is That Legal...................10
Courts.............................12
Law Campus News........14
International Briefs ........44
Media Watch ..................50
Winners and
Losers 48
An increase in fraudulent transactions
related to trading in stocks should
make investors careful about their
investment with portfolio management
organisations and trading brokers as it
is better to be safe than sorry
Taken For a Ride
COMMERCE
New auditing rules, CARO 2020, should lead to greater transparency and faith in the
financial affairs of companies and bring the role of auditors and CFOs under the scanner
40No More Hide and Seek
26
According to a Bill, Andhra Pradesh will have an executive, a judicial
and a legislative capital. While this decentralisation may seem good,
there are legitimate concerns about additional costs and logistics
A Viable Development Model?
OPINION
30
The watchdog institution, Lokpal, conceived as a public bulwark
against corruption in high places, seems a charade. It is unwieldy and
top-heavy and chases petty bribe-takers while ignoring the big fish
A Fundamental
Right
Rajasthan has prepared a law
to ensure minimum water
supply to every household
and punishment for those
misusing or wasting this
precious resource
46
Even as the SC refused to refer Article 370’s scrapping to a larger
bench, it’s obvious that the abrogation of J&K’s special status was
achieved through legal fiction, showing the adroitness of the centre
Outmanoeuvred? 32
An Opportunity for India
With the import of pharmaceutical ingredients from China being hit
due to the coronavirus, India should revive its own market by setting
up fresh manufacturing centres and give incentives to this industry
Just an Eyewash? 36
LEGALEYE
In a smart move, President Gotabaya
Rajapaksa of Sri Lanka has dissolved the
parliament and called for early elections in
a bid to cash in on popular support even
as the UNP and SLFP are struggling to
stay relevant
STATES
GLOBALTRENDS
MYSPACE
42
8 March 23, 2020
Anthony Lawrence
RINGSIDE
The Last Resort
“Special discount
for
BJP MLAs”
“50% discount
for
Congress MLAs”
India legal 23 march 2020
What is the legal procedure
adopted for the dispersal of an
unlawful assembly?
Section 141 of the IPC defines
an unlawful assembly. Accor-
ding to the Section, whenever
five or more than five people
come together with a mutual
intent of disturbing the peace of
a place, it is considered an
unlawful assembly. This may
later lead to riots if the people
are not dispersed in time.
There are three sections in
the CrPC dealing with unlawful
assemblies—Sections 129, 130
and 131. Section 129 deals with
the dispersal of unlawful assem-
blies by using civil force. Under
this, an executive magistrate or
police officer in charge of a
police station or an officer not
below the rank of a sub inspec-
tor may issue directions to dis-
perse any unlawful assembly.
However, if the people ass-
embled do not disperse even af-
ter his order, the police may pro-
ceed to disperse it with the help
of force and if necessary even
detain and arrest people.
Section 130 says that if the
assembled people do not dis-
perse, the executive magistrate
of the highest rank may ask the
armed forces under his com-
mand to disperse the assembly.
Section 131 says that any ga-
zetted officer of the armed for-
ces may disperse such assem-
bly with the help of the armed
forces under his command.
Disturbing peace
Can lawyers refuse to appear
for the accused in court on
any grounds?
Recently the Karnataka High
Court observed that it is unethi-
cal and illegal for lawyers to not
represent the accused in court.
This was after the Hubli Bar
Association had objected to rep-
resenting the four students arr-
ested on charges of sedition in
the state.
According to Article 22(1) of
the Constitution every person
has the fundamental right to be
represented by a legal practition-
er of his or her choice. Equality
before the law and equal protec-
tion of the law are guaranteed by
Article 14. Article 39A states
that equal opportunity should be
provided to everyone to secure
justice. When all of these are
read together, it becomes clear
that it is the duty of the advo-
cates to represent the accused
before the court of law.
The Supreme Court in a
2010 judgment said refusing to
appear for the accused is illegal,
against all traditions of the Bar
as well as professional ethics.
The top court also said that
every person has a right to be
defended however “wicked”,
“depraved” or “vile” he may be.
Lawyers can’t refuse to appear
What is the life of a mercy petition?
It is an established fact that a death
row convict can’t be hanged until and
unless he has exhausted all his legal
remedies and the last legal remedy
that is available to him is a mercy
petition. A mercy petition is when a
death row convict approaches the
president of India to get his death
sentence commuted under Article 72
of the Constitution. The petition, once
submitted before the president, is
forwarded to the Union ministry of
home affairs.
A mercy petition must be filed
before the president within seven days
after the jail superintendent informs
the death row convict that all petitions
filed by him against the capital pun-
ishment have been dismissed by the
Supreme Court. On receiving the peti-
tion, the ministry of home affairs
scrutinises it and it is then sent to the
concerned state or Union Territory for
their opinion. On receiving the letter,
the state or the Union Territory is
bound to give its opinion on the mat-
ter. After receiving the opinion, the
home ministry prepares a “summary
for the president”. On receiving the
summary, the president goes through
it and takes a final decision.
ISTHAT
—By Deepankar Malviya
?
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
10 March 23, 2020
Pleading for mercy
Anil Shakya
Operated by State Tax (Commercial Tax) Department,
Uttar Pradesh
Trader relations campaign
Benefits from GST registration
With the inspiration of the Chief Minister, the state government strived to increase GST
registration base and the State Tax (Commercial Tax) Department, Uttar Pradesh conducted
a merchant contact campaign and also made business people aware of the
state and central government schemes for them
During the campaign, the officers and employees of the State Tax (Commercial Tax) Department personally
contacted the merchants in each market of each district of the state and provided them with the
characteristics of the GST tax system and the merchants by the State Government and the Central Government.
To make aware the business people, facilities were provided by the state govt and GST registration were
provided to the unregistered traders thereby realizing them their contribution in country’s advancement
During the campaign, the department
collected general information related to reg-
istered and unregistered traders in the state.
During the campaign, registration awareness
seminars were organized in all the districts of
the state.
During the connectivity campaign, the traders
of the state were made aware of the GST
registration, GST return admission and
composition scheme by the department.
PAN number, mobile number, e-mail address, Aadhaar or digital signature
Training was provided by the department in
relation to the process of registration and
return admission and technical problems of
traders were diagnosed.
GST registration a symbol of merchant honour.
Active participation of registered persons under GST in the
development plans of the country and the state.
GST registration the first step to the possibilities of
registering business growth.
Under the GST tax system all tax work can be done online.
There is no need to come to government office for any
work related to GST
Uninterrupted facility of I.T.C on goods purchased from
any state of the country
Samadhan Yojana for small and medium traders up who
have the turnover of Rs 1.5 crore annually
For traders registered in Uttar Pradesh, Rs 10 Lakh
Merchant Accident Insurance Scheme has been earmarked
No premium for insurance plan
Very simple and easy return form for small and medium
traders
Facility of filing zero-sales-related returns through SMS
Facility for filing Quarterly returns for traders who have an
annual turnover limit of up to 5 crores
Benefit of Central government-run pension scheme
Required
documents for
registration
Identity certificate Proof of Residence and business address
Proof of bank account
Website
State Tax (Commercial Tax) Department, Uttar Pradesh
E-mail
Helpline Control Room Toll-free
12 March 23, 2020
Courts
The Delhi High Court granted
the custody of a 10-year-old
boy to his NRI father, an industri-
alist living in Kenya, saying the
man was in a better position to
take care of the child.
A bench of Justices GS Sis-
tani (who has since retired) and
Jyoti Singh said that while the
woman, a Delhi-based lawyer,
may be well within her rights to
seek alimony from her husband,
using the minor as a “chattel to
be traded for alimony or other
benefits can never be in the best
interests of the child”.
The High Court dismissed an
appeal filed by the woman chal-
lenging a trial court’s order by
which the child’s custody was
granted to his father.
“We are of the view that the
father/respondent is in a better
position to take care of the child
and the best interests of the
child would be protected by
granting his custody to the
father. Accordingly, we find no
merit in the appeal and the same
is dismissed,” it said.
The Court said paramount
consideration has to be given to
the “welfare of the child” and the
“best interest” principle.
Minor’s custody given to NRI father
Atwo-judge vacation bench of the
SC refused to stay the Allahabad
HC order asking the UP government to
remove posters “naming and shaming”
protesters who demonstrated against
the Citizenship (Amendment) Act even
as it wanted to know under which law
the state government had publicly put
up the posters.
“There is no backing of law,” said
Justice UU Lalit while refusing to stay
the HC judgment but referring the
question of law to a larger bench. “The
matter requires further elaboration and
consideration,” the bench said.
Justice Lalit said that while there
should not be unruly behaviour, there
must be some law which backs the
action of putting up such hoardings.
Solicitor General Tushar Mehta, repre-
senting the UP government, then quot-
ed a precedent set by the Court in R
Rajagopal vs State of Tamil Nadu on
the issue of privacy. He contended that
people who resort to violence and
point guns during protests cannot
claim a right to privacy. The top court
was hearing a plea filed by the UP gov-
ernment challenging the HC’s March 9
order directing it to remove hoardings
containing photos and other personal
details of people who allegedly took
part in anti-CAA protests, on the gro-
unds that it was an infringement of
their privacy. The UP Police put up ho-
ardings across Lucknow on March 5.
The Karnataka High Court grant-
ed bail to 16 youths, accused
by the police of attacking the
Mangalore North police station in
the violence related to anti-CAA
protests on December 19, on the
grounds that the same people
were named in other similar
cases in different locations at the
same time.
Mohammed Suhal and 15 oth-
ers, accused of attacking the
police station, were also allegedly
part of a group of 21 persons
granted bail by the High Court on
February 17 after finding no prima
facie evidence to link them to
the mob violence last December.
High Court judge John Michael
Cunha granted bail to
the 21—Mohammed Ashik and
others—citing the partisan
behaviour of the police and failure
to register cases lodged against
the police by two victims of
alleged police firing.
Later, following an appeal by
the Karnataka government, the
Supreme Court on March 6 stayed
the bail of the 21 people.
Karnataka HC grants bail to
Mangalore anti-CAA protesters
SC refuses stay on Allahabad HC order on poster row
UNI
| INDIA LEGAL | March 23, 2020 13
AHubli court rejected the bail applica-
tion of three Kashmiri students, who
were booked for sedition after their video
allegedly raising pro-Pakistan slogans
went viral. The plea was filed under
Section 439 of the CrPC.
This comes after the Hubli Bar Asso-
ciation withdrew its resolution against
representing them and said that advo-
cates who wish to appear for them can
approach the Dharwad principal district
court to file bail pleas. The three stu-
dents are Basit Aashiq Sofi (22), Talib
Majeed (20) and Amir Mohi Uddin Wani
(20). They were booked under sedition
charges for raising pro-Pakistan slogans
in a video shared on social media.
They were earlier transferred to
Belgaum Hindalga jail from Hubli sub-jail
and the case, registered at Gokul Road
police station, was also transferred to
the rural police station because the video
was recorded in the college hostel room,
which lies in its jurisdiction.
The case had also become noticed as
after their alleged offence, the Hubli Bar
Association had vowed that none of its
lawyers would represent them in the dis-
trict court. The decision was later rever-
sed under pressure from the Karnataka
High Court and senior lawyers.
—Compiled by India Legal team
Delhi High Court issued a circular ask-
ing people to stay away from public
gatherings in the wake of the coronavirus
outbreak. “...advocates, general public
and litigants are requested to adhere to
the guidelines/advisory issued by the Govt
of NCT of Delhi and avoid unnecessary
overcrowding in the court premises,” the
advisory said.
The development came days after the
Delhi government had put out a public
advisory on the public gatherings.
As per the recent advisory issued by
the Government of NCT of Delhi, coron-
avirus is a contagious virus which causes
respiratory infection and can be trans-
ferred from human to human through air
by coughing, sneezing and personal con-
tact, such as touching or shaking hands,
touching an object or surface with the
virus on it and then touching mouth, nose
or eyes with unwashed hands. The circu-
lar also enclosed the advisory issued by
the Delhi government on the do’s and
don’ts to be kept in mind to prevent any
further spread of the virus.
The HC circular came even as the SC
which was on a week-long recess for Holi
began to consider extending the vacation
by another week in view of the virus. The
SC’s vacation bench is set up normally
during the summer break and it was for
the first time that the apex court set up a
short duration vacation bench.
The Bar Council of Delhi (BCD)
wrote to the Minister of Consumer
Affairs, Food and Public Distribution,
Ram Vilas Paswan, opposing the
inclusion of lawyers under the
Consumer Protection Act.
This followed media reports that
the government of India was contem-
plating including lawyers within the
ambit of the Act. In its letter, the BCD
said: “As per the information available,
your Ministry is framing Rules under
the Act and wants to surreptitiously
include lawyers under the proposed
Rules so as to bring lawyers across
the country within the jurisdiction of
Consumer Redressal Forum. This is
highly deplorable and the lawyers
across the country will never accept
their inclusion within the definition of
the provisions of the Consumer Pro-
tection Act."
Thus, requesting the minister not
to proceed with any proposal to in-
clude lawyers within the ambit of the
Act, the Council’s letter added: “The
legal profession is an integral part of
the justice delivery system and is not
a commercial or trade activity and the
legal professional cannot be included
for any purpose under the Consumer
Protection Act, 2019, or its Rules as
is being contemplated.”
Delhi Bar Council
says “no” to
lawyers in CPA
Sedition-charged
Kashmiri students’ bail
plea rejected
Delhi HC guards itself
against coronavirus
ranked in the QS World University
Subject Rankings 2020.
JGLS has been ranked in the 101-
150 band amongst the world’s top law
schools while NLSIU is in the QS 151-
200 band. Criteria on which the univer-
sities were ranked include academic re-
putation, employer reputation, H-Index
and citations per paper.
QS Subject Ranking in Law measures
the global relevance of institutions spe-
cifically in the area of research in law
along with combining reputation among
the academic community and employ-
ers. Out of 894 law schools shortlisted
only 300 were ranked by QS.
14 March 23, 2020
LAW
CAMPUSES / UPDATES
Jindal Law
School
ranked
No.1 in
India,
among
top in the
world, by
QS Survey
Afinal-year student of the Chanakya National
Law University (CNLU), Patna, filed a writ
petition in the Patna High Court challenging an
advertisement by the Bihar Public Service
Commission for the post of assistant prosecu-
tion officer.
The advertisement by BPSC inviting applica-
tions for the post said that only law graduates
on the date of application were eligible to apply.
However, the petitioners, who are final-year law
students and would be graduates on the date of
appointment, wanted to apply for the post.
The last date for application for the post was
March 6 and the petitioners are due to take their
final exams in April.
Justice Madhuresh Prasad passed an order
dismissing the writ petition and observed that
“the petitioners have no enforceable claim as it
is the admitted position that they have yet to
obtain their qualification as Law Graduates”.
Patna High Court
dismisses petition
by CNLU student
The Britain-based education informa-
tion firm Quacquarelli Symonds (QS)
has ranked the Jindal Global Law Sc-
hool (JGLS) of O.P. Jindal Global Univer-
sity in Sonipat, Haryana the No. 1 law
school in India. Along with JGLS the
National Law School of India University
(NLSIU), Bengaluru, has also been
Indrajit Dey
| INDIA LEGAL | March 23, 2020 15
—Compiled by Nupur Dogra
First national client
counseling competition
The special edition of the Law
Journal of National Law
University Odisha (NLUO) on the
theme of Election Laws aims to
foster discussion on legal issues
related to elections. This volume
aims to extend its scope beyond
the status quo, looking into the
future of elections in India in a
world of breakneck social, legal,
political and technological
development.
Submissions can be in the
form of long articles, short notes,
book reviews. The
article/note/case-comment/book
review may focus on any contem-
porary topic relating to election
laws such as–representation of
Anglo Indians in Parliament, post-
poll alliances and constitutionality,
election manifesto, electoral
bonds and political funding, NOTA
and its contemporary relevance,
electoral justice and participation
of under-represented groups, reg-
ulating election campaigning on
social media/online platforms,
application and analysis of the
model code of conduct, trans-
parency, disclosure of assets and
nominations, electronic voting
machines, role of civil society in
electoral process and so on.
Amity University Maharashtra, Mumbai is
hosting its first national client counselling
and drafting competition from April 17 to 19.
The competition is open to all students pursu-
ing the LLB three year/ five year courses dur-
ing the current academic year. Themes will be
based on the laws related to domestic vio-
lence, land laws, contracts, copyright and
law of tort.
Participating teams can win cash prizes
worth Rs 25000 with a one-month internship
and free publication online. Last date to regis-
ter is March 29.
NLUO invites papers for law
journal special issue
Himachal Pradesh
National Law
University (HPNLU),
Shimla, is hosting an
environment conclave
on June 5, 2020. The
Centre for Environment-
al and Disaster Manage-
ment of HPLNU is
organising the one-day
student conclave to
bring together several
eminent personalities in
the field of environment
law to give valuable
insights to the young
students who will put
forth different perspec-
tives and pertinent
questions relating to
contemporary issues in
environmental law.
HPNLU has invited
students enrolled in
undergraduate and
post-graduate pro-
grammes in any recog-
nised institution across
India. Students interest-
ed in submitting their
papers should submit
their original and un-
published work on rele-
vant topics by April 25.
Environmental
conclave at HPNLU
Lead/ Interview/ Former Chief Justice MN Venkatachaliah
16 March 23, 2020
People call you Non-age Narayan, a
person who doesn’t age. Once you
told us that the secret of your youth is
green tea and omega fatty acids. How
do you keep yourself young and
vibrant?
Once Sir Winston Churchill was asked
what was the secret of his durability.
He said enduring qualities of alcohol
and tobacco. (laughs) I don’t take
alcohol, but this is perhaps pure God’s
blessing that has given me longish life.
That’s all I can say.
dentship of the country. One of his min-
ister came here. I told him that the mo-
ment I signed this offer, I would bring
the edifice of the Supreme Court several
notches down. Therefore, I pleaded my
inability to respond to that offer. Other
judges can do arbitration. They are good
people. But the CJI should keep away
from it. This is my personal conviction.
As a patron of India Legal, how do you
see its role in the field of legal journal-
ism and what is your take on the current
When you retired, you refused to take
up any position offered to you by the
government. Instead you said that
you will study Indian spiritualism and
religion. Tell us about that decision
of yours.
I said I will study the Upanishads. I
didn’t want to take paid assignments or
arbitration because I thought that the
chief justice of India has some restric-
tions about his post-retirement options.
I was sounded by the then prime minis-
ter whether I will accept the vice-presi-
FORMER CHIEF JUSTICE OF INDIA (CJI) MN VENKATACHALIAH
needs no introduction. He served as the 25th CJI from February 12,
1993 to October 24, 1994. His tenure was marked by efforts to reduce
pendency. An avid champion of human values and rights, he served as
the chairman of the National Human Rights Commission. In 2000, he
headed the national commission to review the working of the
Constitution where he gave many valuable suggestions. Justice
Venkatachaliah was conferred the Padma Vibhushan in 2004.
Currently, he is the patron and guiding light of India Legal. He impart-
ed his wisdom on many topics—the judiciary, religion, Ayodhya,
upbringing of children...—to RAJSHRI RAI, MD, India Legal and
Editor-in-Chief, APN NEWS. Excerpts from the interview:
“The Judiciary
Makes the
World a Better
Place to Live In”
| INDIA LEGAL | March 23, 2020 17
Do you think that India Legal is main-
taining the standards of legal journal-
ism?
Sometimes I think that India Legal is
practising that virtue in excess. (laughs)
That’s good. As long as it is bonafide. As
every institution, the judiciary must also
be open to external assessment. The
judiciary must be open to assessment of
its social relevance and utility.
Your tenure is best remembered for your
initiative to enforce judicial accounta-
bility. You famously said that no one can
watch a watchman. You said that the
judiciary has to adopt a culture of acc-
ountability. Please elaborate.
My impression is judiciary down the
years in India has been treated as a holy
cow. but respect shouldn’t generate
immunity from criticism. This will bring
irresponsibility in the system. We should
constantly guard against it. If the judi-
cial system fails, the whole democratic
system fails. The problem in judiciary is
in the lack of speed in the disposal of
state of legal journalism in India?
Legal journalism has come of age. In
England once photograph of three
judges was published upside down and
captioned ‘three-old fools.’ That sort of
journalism was always there in the
West. The Indian press was very defer-
ential to the judicial system. Punch, the
comic journal of UK, never touched the
judges except one or two occasion. In
this country judiciary was treated as a
sacred cow. Now judiciary is more open
to scrutiny. That is good.
Lead/ Interview/ Former Chief Justice MN Venkatachaliah
18 March 23, 2020
cases. We concentrated on the problem
during my tenure. My team of judges
did enormous work. They worked half
an hour more daily. The result is for all
to see.
From 1991 to 1998 in eight years the
backlog of cases fell from four and a half
lakhs to 19 thousand. People said that it
is the most commendable work of any
post-Independence institution. That was
the collective work of all the judges.
There were great judges in our time. I
am not in touch with the system now
but I can say that those years were
very productive.
Pendency is a major problem facing
India’s judicial system. We are badly
understaffed in terms of judges. Now,
with the advent of Artificial Intelligence
(AI) and other high-end technologies,
will the judiciary embrace it to solve
pendency?
Pendency is a serious problem plaguing
our judicial system. There are 22,764
subordinate courts in the country. Each
court lists around 60 case per day. Ar-
ound one case per day is decided. There
are 250 footfalls on the either side of
advocates and clients. Multiply 22,764
by 300 footfalls everyday and then mul-
tiply that by 290 days of work. Then you
will know the enormity in terms of loss
of productivity and man hours. If you
calculate it at the rate of Rs 300 per
head, per day, it may amount to a lakh
and fifty thousand crore rupees per year.
This is the notional loss in addition to
the actual expense involved in it.
Talking about Artificial Intelligence
(AI), the scanner can read some four-
lakh pages in about three to four min-
utes. But the language platform must be
compatible with the material available
in courts. Only then the advantage of AI
solutions will accrue. AI has some limits
but it can be done.
You were part of the group formed to
review the working of the Constitution.
What changes are you looking for in the
Constitution?
We were part of the group which was
Take the example of Kerala where social
indices have dramatically improved. For
example, social welfare is exemplified in
maternal mortality figures which have
come down significantly.
You once said that you were the most
unpopular chief justice ever. What did
you mean by it?
A judge is unpopular in every sense. His
views and world pictures somehow in-
fluences his decisions. Sometimes preju-
dices enter into his principles. So grea-
ter wisdom is expected of judges than
mere technical knowledge and details.
He should have an idea that into what
kind of society he is administrating,
what kind of system. We coin beautiful
formed to assess the Constitution. It was
called the National Commission to
Review the Working of the Indian
Constitution. The Constitution provides
the framework and if there is good and
responsible governance, then the results
of growth and development are visible.
“Ididn’twanttotakeuppaid
assignments.Iwasoffered
vice-presidentshipbythethen
primeminister,butIrefused.Ifelt
thatbyacceptingit,Iwouldbring
theedificeoftheSupremeCourt
severalnotchesdown.”
| INDIA LEGAL | March 23, 2020 19
cendent of caveman. It is a new specie
in itself. It has immense potential. We
are not able to imagine the magnitude
of potential of the human brain. This is
my take on how system should change
to suit the present generation.
India is essentially a religious country.
Does inculcation of scientific temper as
envisaged in our Constitution preclude
its religious ethos and practices?
You can’t eliminate religion through sci-
entific thinking. Science can’t replace
religion. Both have a unique place and
can mutually coexist. Religious values
are of paramount importance and we
shouldn’t abandon them. We should
expose our children to religious values
and traditions. Development of a scien-
tific temper doesn’t in any way rule out
embracing religious values.
India is a land where diverse faiths have
flourished. But now with modernisation
and rapid social change, religious prac-
tices are being freely questioned and
challenged in courts of law. Women’s
rights and essential religious practices
are at odds. Sabarimala is a case in
point. What is your view about it?
Cases involving questions of religion,
essential religious practices and consti-
tutional rights are being brought to
courts more frequently. It’s being seen as
the rule of law versus tradition and cul-
tural practices. Courts have been adjudi-
cating such matters for some time now.
Arguments in such cases should be tele-
vised live and people, especially chil-
dren, should watch these proceedings.
The bottomline is that we should value
everything for the common good.
Our political system is under tremen-
dous strain. Deviant political behaviour
and electoral malpractices have created
havoc in the system. What solution do
you prescribe for the ills affecting the
political system so that it becomes
healthy once again?
BR Ambedkar once said: “Democracy in
India is only a top-dressing on an Indian
soil, which is essentially undemocratic.”
Democracy is a new soil and it has to be
nurtured carefully. In India, strict elec-
toral reforms are needed in order to
overhaul the political system. Laws for
the formation of political parties, funding
and public scrutiny of the workings of
political parties are needed. I worked
along with a group to draft a model legis-
lation to this effect. Sources of political
funding should be revealed by proper
audit. Cash and caste are a dangerous
mix, and if used wrongly can ruin
democracy. Dynastic politics should be
done away with. Holding party presi-
dentship on account of heredity is a
crime. We have to bring changes in these
areas. By political reform, we can nurture
the soil of democracy and make it
healthy and whole.
slogans, use expressions borrowed from
foreign experience and try to incorpo-
rate them in our system. Indian predica-
ment is totally different. It requires dif-
ferent solutions and one size doesn’t fit
all. There are regional differences, re-
gional imbalances and what is needed is
a kind of pervasive wisdom which can
assess the utility of any system appropri-
ate to any situation. That instinctively
should develop in a judge. It is very dif-
ficult to straitjacket everything every-
thing in one formula.
Somebody asked what does it take to
be a Lord Chancellor. The answer was
first and foremost he must be a gentle-
man. It doesn’t matter if he knows a lit-
tle also. So the importance of technical
knowledge is being emphasised today.
That also is important. Law is increas-
ingly becoming a junior branch of eco-
nomics. Economics is increasingly
becoming a junior branch of technology.
When explosion of technology is wit-
nessed then all other systems also have
to change to suit the demands of inno-
vation. That’s why every institution re-
quires introspection. Because the world
is changing rapidly. It should also suit
the mindset of the present generation.
According to me, the present generation
of Homo Sapiens is not a genetic des-
LEGAL ANGLE
Rajshri Rai is all ears as Justice
Venkatachaliah makes a point
Lead/ Interview/ Former Chief Justice MN Venkatachaliah
20 March 23, 2020
Today, the country is embroiled in
controversies and conflicts related to the
Citizenship (Amendment) Act, sedition
laws and the National Population
Register. What is your take on these
controversies?
Every nation has its laws and is free to
enact them. If some apprehension has
crept into the minds of a section of peo-
ple regarding some law, then these fears
need to be addressed. This can be best
addressed by debate and discussion. You
have to use the power of persuasion to
show that nothing is intrinsically wrong
with the laws. The apprehension that
laws will be applied discriminately is
probably creating problems.
We today operate in a polarised atmos-
phere. Conflict is common and often
leads to violence. In such a strife-ridden
atmosphere, the role of the police is often
under the scanner, and when matters
relating to communal conflict reach
courts, questions get raised on the judg-
ments. How justified is this?
We have to trust our judiciary and accept
its decisions on critical issues. If we don’t
trust the judiciary, we will lose confidence
in it and also in democracy. Judges are
aware of both sides of the matter. They
know what is horrific for the nation.
Don’t substitute their wisdom with your
impositions. Let the system work.
The judiciary must interpret the law
and apply the rule of law. It should do so
without taking sides or taking personali-
ties into consideration. That is the only
way in which it can gain public confi-
dence. We shouldn’t depend on the judi-
ciary for everything. It is a mark of a
weak society. This will prevent people
from settling disputes democratically.
For the protection of human and funda-
mental rights, the judiciary is the best
institution and we should trust it.
In times when executive action is found
wanting in important areas of public
concern and policy matters, the judici-
ary takes on a proactive role. This is
often termed as judicial activism. This
has been on the rise, and in many cases,
I don’t think so. There are limits of judi-
cial intervention. The courts can only
instruct and set goals. It is the executive
that has to execute the action plan. The
court sets the objective, for example,
protect the structure, but the executive
has to perform, taking into account all
the ground realities.
The Ayodhya judgment has now
become a case study of sorts. It was not
only one of the longest-running legal
battles, but the judgment touched upon
the sensitive issue of faith versus rule
of law. How do you see the verdict in
retrospect?
This case didn’t turn on pure legal logic,
but on the broader issue of national con-
ciliation and consensus. There is a
power peculiar to the Supreme Court
under Article 142. It empowers the
Court to pass such “decree or order as
may be necessary for doing complete
justice between the parties”. This power
was invoked during the Ayodhya judg-
ment. It was a broader exercise and not
limited to mere determining of the legal
rights of the land. It wasn’t an emotion-
al judgment, but based on wisdom.
You have given so many ideas to bring
about reforms in the social, political,
led to a face-off with the executive.
What are your views on this?
Judicial activism is a slippery slope. You
are acting in an area where legislators or
administrators should be doing their
duty. You see somewhere and somehow
some institutions are not performing
their constitutional duties and obliga-
tions. Then the courts have to intervene.
Someone else has to do the job so that
the demand of the Constitution is met.
The government has no choice. It has to
take the decision of the court in a gra-
cious way and work out democratic
equality.
Going back in history, you were criti-
cised for not acting to stop the appoint-
ment of a multi-member Election Co-
mmission and for allowing the symbolic
kar seva in Ayodhya. Given a chance,
would you have acted otherwise?
“Dynasticpoliticsshouldbedone
awaywith.Holdingpartypresi-
dentshiponaccountofheredityis
acrime.Bypoliticalreform,wecan
nurturethesoilofdemocracyand
makeithealthyandwhole.”
| INDIA LEGAL | March 23, 2020 21
should be a buffer between them. Civil
servants shouldn’t be misused by the
political class.
EVMs are seen as tools to correct elec-
toral malpractices. Now a question mark
is being raised over them also. Do you
think EVMs are a good solution?
There is an expansive message in the
paper trail of EVMs. By collaborative
evidence, model statistical analysis and
big data analysis, we can assess the
degree of divergence. It is working quite
well and the results are coinciding with
exit polls. It is one of the tests. You can’t
achieve perfection in assessment but
EVMs are better than paper ballots. I
have seen bunches of paper ballots
being manipulated. They are not reliable
and are more open to mischief than
EVMs. The paper trail analysis is signifi-
cant. Some margin of error is all right.
Swami Vivekananda said that if you are
very logical, you can’t be spiritual. What
is your view on this?
Vivekananda says so many things beau-
tifully. He talks about evolution and not
revolution. He talks about diversity of
religious traditions and the need for
coexistence. Vivekananda stresses unity
of religious values and their integration.
He doesn’t talk about one religion
for all, rather, to each according to his
own is his motto. This is relevant for
our times.
The new generation is very attached to
the internet which has become the pri-
mary mode of knowledge transmission
and interaction. However, the State has
clamped down on the internet in trou-
bled times. In this context, the Supreme
Court recently held that access to the
internet is a fundamental right.
We are now thinking of its ill-effects and
potential for misuse. The internet is one
of the greatest inventions mankind has
seen, almost next to the railroad. If the
question is how to protect children from
its ill-effects, the answer lies in the fact
that the internet is a protection against
itself. There lies a way in which the
internet can be manipulated to prevent
unwanted information reaching chil-
dren or vulnerable groups. AI is excit-
ing. It is based on logic and logic is a
friend of justice. Humanity has a lot to
look forward to. Spirituality and human
evolution are taking an upward course.
Can you expand on the underpinnings
of the judgment on internet access and
its importance?
Times have changed. Access to the
internet is equated with the right to
information, the right to knowledge.
It is an attribute of the human being
or human personality. Internet access
can be abused, but then everything can
be abused.
Social media has the potential for mis-
use. With current cyber laws, are we
ready to regulate the internet?
No, we are not conscious of the magni-
tude of the problem or the ill-effect it
judicial and constitutional arena. Now,
when optimism has become a political
war cry and Prime Minister Modi’s slo-
gan achhe din has been hailed as a
game-changing mantra, when do you
think the wait for better days will come?
For the judiciary, there will always be
achhe din. This is because they take the
responsibility to resolve tensions and
help people carry on with their lives.
They make the world a better place to
live in. It’s not their technicality but wis-
dom which we should respect. We
should trust the Supreme Court.
In the past and in recent times, inter-
community strife has led to bloodshed.
Politicians indulging in hate-mongering
have been let off without punitive
action. In this context, the political class
needs to be more responsible and
responsive.
Political parties have the responsibility
to evolve systems that go beyond their
interests. They should sit together and
evolve systems to improve electoral pol-
itics. Though the executive and the civil
servant work in tandem, pressure is
often brought on the bureaucracy by
the political class to serve its interests.
Hence, the executive and the civil serv-
ices should be separate and there
“Wehavetotrustourjudiciaryand
acceptitsdecisionson
criticalissues.Ifwedon’ttrust
thejudiciary,wewillloseconfi-
denceinitandalsoindemocracy.”
22 March 23, 2020
can produce. Take a kitchen knife. It can
cut vegetables and it can injure a human
being. Science is like that. The nuclear
bomb killed millions but when nuclear
science was used for medicine or con-
structive purposes, it enhanced the qual-
ity of life. How to minimise bad effects
and maximise good effects depends on
the genius of the man.
Religion seems to have become a divisive
tool and much hatred is being generated
in its name. Is the political system to be
blamed for this?
Religion per se doesn’t divide. No reli-
gion says that. Some religious practices
are peculiar to a certain social context
and when seen without that context,
they are construed to be divisive.
Nothing should be seen outside context.
When we understand this, then the mes-
sage of religious traditions is properly
understood. We should also assess the
potential of science and governance.
Today, human dignity is coming centre-
Finally, what message would you like to
give our readers?
Give kindness and understanding to one
and all. Admire people who do good and
can change the world. Take care of chil-
dren. Make them good citizens with
beautiful, blossoming minds. Give them
positive thoughts. I am the founding
chairman of Sarvodaya International
Trust. It is a beautiful institution. We
encourage that each Hindu boy should
have a Muslim friend and vice versa.
The families of boys meet every three
months and this promotes mutual
understanding and communal harmony.
It is this spirit which we should promote
in society. Be positive. Things will hap-
pen. There is so much of beauty and
goodness in the world.
You are the patron of India Legal. What
would you like to say to us?
India Legal is providing substantial
leadership and it will contribute in
making a better future. It is examining
critically every issue. Critical analysis is
the foundation of progress. The India
Legal conclaves are beautifully
arranged. People who have participated
in them are eminent personalities.
The thoughts expressed by them are so
relevant. There is no negative thinking
about the society. Thirty thousand
years back, we were cavemen. Now we
are civilised. We are constantly evolving
as human beings. People who consti-
tute India Legal have great responsibil-
ity for bringing an era of peace, con-
tentment and progress. We should aim
for a society where everybody is happy
and well looked after. We should aim
for creating a society where everyone
gets the best opportunity to develop
one’s higher self. India Legal should
aid this process.
stage. The great challenge before
today’s political leadership is how to
mobilise positive forces for the good of
one and all. Political leadership has the
immense task of synthesising the posi-
tive forces and taking it forward. That
can be done by the right-thinking sec-
tions of society. It is possible that some
day, science will lead to that. Internet,
AI will do that. Perhaps God will be
made manifest by the scientist. Scien-
tists will place before us the conception
of God.
Today, everyone has a mobile phone
and this can cause mischief. Have we
not properly harnessed the mobile
phone revolution?
A hand-held mobile phone is a
symbol of immense social and techno-
logical change. We not only communi-
cate through it but also access informa-
tion and control devices. The responsi-
bility to use it correctly lies with the
individual.
“IndiaLegalisprovidingleader-
shipandwillcontributeinmaking
abetterfuture.Itisexamining
criticallyeveryissue.Thecon-
clavesare beautifullyarranged.”
Lead/ Interview/ Former Chief Justice MN Venkatachaliah
Bringing You
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LawandDisorderCrucialmattersthatcameupintheSupremeCourtandDelhiHighCourtindicateacrisisinIndia’s
basicgovernance.TheCrPCandPoliceActsclearlylaydownthatitisthejobofDMsandSDMsto
maintainlawandorder,buttheirrolehasbeentakenoverbythepolicewithquestionableresults
Fast Track Courts:
New scheme
LYING the flag is an act of
patriotism. But it is important
to remember that our case was
not pegged on patriotism. It is
a victory for our democracy
that the constitutional basis on which it
was decided was not whether an act is
or is not patriotic. It is based on the
freedom of speech. We found a rooting
in a constitutional text and unless you
find a rooting in a juristic principle, you
are not making good law.
If the Supreme Court had said you
have a right to fly the flag because it is
24 March 23, 2020
patriotic to fly the flag, that would be
uncharted and leave us without a prin-
ciple to follow.
Therefore, I am happy that we
pegged it and rooted it in Article
19(1)(a), which is a well-known right.
Abhishek Singhvi, as one of
the top lawyers at the
Supreme Court, has helped
shape contemporary trends.
In his latest work, From the
Trenches (co-authored with
Satyajit Sarna), he revisits
eight defining cases of our
times, and presents a view,
as it were, from the trench-
es. Here is an excerpt from
one of them, Naveen Jindal
vs the Union of India—the
case that won all citizens the
right to fly the tricolour
F
twitter.com
Books/ Extract/ From the Trenches
Flying
high
NaveenJindalholdsaformal
flagfunctionon26January
everyyear,afterthejudgment
inNaveen Jindal vs Union of
India casecameout.
non-affiliated, not casteist, not sect
dominated, not race dominated; it is
the most secular symbol you can think
of. And while this is true for every
country, nowhere is it as true as in the
world’s most diverse country–India.
What drove Naveen Jindal to fight
this long, hard, principled fight?
After all, he is an industrialist, a busy
person who has plenty of important
things to deal with. Why did he fight
the government for years over such an
abstract principle?
I think maybe it was an eccentricity.
Society progresses on the backs of not
only sensible people but also eccentrics
and ordinary people who may have
one overriding obsession. You may be
a rational person, but it is the eccentric
kink in you which leads to change
and progress.
Naveen Jindal had an unusual inter-
est in the flag, an exceptional devotion
to the cause and he fought for the prin-
ciple he believed in. It is often this kind
of passion, usually irrational, that wins
us our rights and freedoms.
—Excerpt reproduced with the
permission of the publisher
| INDIA LEGAL | March 23, 2020 25
Patriotism may be the underlying
ethic but the judgement supports
also my freedom of expression
unrelated to patriotism. It is possi-
ble to use that right even in a criti-
cal sense, to use it to criticize the
state of the nation. One could fly
the flag at a demonstration, for
example, to point out that soldiers
are dying at the border for a poor
policy of a government. Whether
that is patriotic or not is open to
question and there are people who
would interpret it either way. But it
is one’s right–to the extent, of
course, that nobody burns the flag.
O
ne of the things I am most
grateful for in the Jindal
case is that the Court per-
mitted it to be heard and decided
on rights. The Union was not per-
mitted to take it back and fix the
gaps in the Flag Code, and put a soft
end to the dispute. Judges who are not
decisive prefer controversial disputes to
be worked out broadly by consensus.
That is simply a way for judges to
decide not to decide. My biggest fear
was the Court would back off from
deciding by saying we agree there is a
right, but let the government arrive at
some convenient solution.
It came very close to that many
times in those two to three years. These
things depend largely on the personality
of the judge in question. It is natural for
judges to want to avoid writing a judge-
ment if the government is telling them
the decision will yield unpoliceable
consequences.
But this time, Justice Khare, a little
uncharacteristically, stood his ground
and went on to decide the matter final-
ly, and strongly, in our favour. Equally,
even though the government had made
it clear that Naveen Jindal would not be
prosecuted, I am glad he decided not to
withdraw the case, and allow the gov-
ernment to go forward with a modified
Flag Code.
Naveen Jindal has invited me every
year after that on 26 January, when he
holds a formal flag function at his
house. He always sends me a flag and
also a lapel pin. I have often attended
the function. As a consequence of the
judgement, a flag movement started,
very much encouraged by Jindal.
It started with schools educating
children about the flag, then holding
functions, passing out small lapel pins
which children could wear. The flag
movement now has become a larger
movement of awareness, awareness
of the unity and integrity of India
through its diversity, a non-communal,
secular symbol.
The flag is our most secular symbol
not merely in religious terms, but also,
more broadly, where secular means
“OneofthethingsI
ammostgratefulfor
inthiscaseisthat
theCourtpermitted
ittobeheardand
decidedonrights.
TheUnionwasnot
permittedtotakeit
backandfixthe
gapsintheFlag
Code”—DrAbhishek
ManuSinghvi
From the
Trenches
Author: Abhishek Singhvi
& Satyajit Sarna
Publisher: Juggernaut
Pages: 225
Price: Rs 599
UNI
My Space/ Coronavirus Dr KK Aggarwal
26 March 23, 2020
NDIA produces a third of the
world’s medicines, mostly in the
form of generic drugs. But more
than 80 percent of the raw materi-
als or active pharmaceutical ingre-
dients (APIs) for these drugs are
imported from China. That gives it a
virtual monopoly over pricing and sup-
ply, so much so that there are no domes-
tic producers left for many essential
medicines in India.
An API, incidentally, is the most
basic building block or component of a
medicine. For example, acetaminophen
(paracetamol) is the chief therapeutic
entity in aspirin or crocin.
Latest statistics from the Directorate
General of Commercial Intelligence and
Statistics tabled in Parliament reveal
that in 2016-17, of the total import of
bulk drugs and drug intermediates of Rs
19,653.25 crore, China constituted 66.69
percent (Rs 13,107 crore). In 2017-18,
India imported Rs 21,481 crore worth of
bulk drugs and intermediates, and the
share of China increased to 68.36 per-
cent (Rs 14,755 crore). Chinese imports
levelled at 67.56 percent (Rs 17,263
crore) in 2018-19, still the largest share
in total Indian imports worth Rs 25,552
crore. Also, overall India’s dependence
on imports of bulk drugs and drug
intermediates has gone up by 23 percent
from 2016-17 to 2018-19.
The Department of Pharmaceuticals
(DoP) in the ministry of chemicals and
fertilisers said that the imports from
China are due to economic considera-
tions. This essentially means that
Chinese imports are cheaper and more
cost-effective for pharma manufactur-
ers. Though India looks at other sources
like the US, Italy, Singapore and Hong
Kong for such imports, there is fear of a
sharp spike in the price of finished
drugs when APIs are imported from
other countries apart from China. And
even as India’s dependence on imports
is considerable, policies formulated by
the government to minimise this and
give a fillip to indigenous manufacturing
have remained only on paper.
It was six years back that the
Congress instituted a high-level com-
mittee to fight the heavy dependence on
Chinese bulk drugs. Later, the National
Security Advisor had warned that this
dependence could be a national security
threat. Apart from the dependence on
legal imports, a large number of illegal
imports of APIs from China were also a
cause of worry for the regulator.
In another reply tabled in Parlia-
ment, the DoP informed that an inter-
ministerial task force was also constitut-
ed under the chairmanship of the minis-
ter of state (chemicals and fertilisers) on
April 18, 2018 to formulate a road map
for enhanced production of APIs in
India. Unfortunately, the task force has
not even met every alternate month
since August 2018, when ideally it was
supposed to meet every month to take
crucial decisions for boosting API pro-
duction in proposed bulk drug parks.
The DoP has a scheme—“Assistance
to Bulk Drug Industry for Common
Facility Centre”—for providing assis-
An Opportunity
for India
WiththeimportofactivepharmaceuticalingredientsfromChina
beinghit,Indiashouldreviveitsownmarketbysettingupfresh
manufacturingcentresandgiveincentivestothisindustry
I
0
10
20
30
40
50
60
70
2016-17
66.69% 68.36% 67.56%
2017-18 2018-19
Rs
13,107
crore
Rs
14,755
crore
Rs
17,263
crore
Source: Statistics from the Directorate General of
Commercial Intelligence and Statistics
tabled in Parliament
DrugImportsFromChinaas
a%ofTotalDrugImports
| INDIA LEGAL | March 23, 2020 27
tance to the bulk drug industry for a
common facility centre in any upcoming
drug park promoted by state govern-
ments or state corporations, the min-
istry stated.
Only in-principle approval was given
for constructing these parks now in
Himachal Pradesh, Telangana, Andhra
Pradesh and Assam. It will be a couple
of years before the projects see the light
of day.
India also more than doubled the
import of antibiotic drugs from China in
recent years and the trade is now worth
billions of dollars. There are now no
domestic producers left for penicillin
and its derivative. There was always a
fear of a public health crisis if China
were to ever stop its supply. This has
now come true after Covid-19 created a
shortage of essential medicines as India
has been dependent on China for many
APIs. Drug companies blame the gov-
ernment, saying that low-cost imports
have forced many manufacturers to
close down. Some have now given up
producing ingredients for other drug
manufacturers and gone on to produce
more complex formulations themselves,
which they then export to developed
markets in the US and Europe.
Bureaucracy and lack of environmental
clearances in India have also made it
uneconomical to produce raw materials
anymore.
However, switching back to mass
production of raw materials is not diffi-
cult or too late. If the government acts
quickly, things can turn around in less
than 10 years.
J
ust as India is dependent on China
for many APIs, other countries are
dependent on India for other APIs.
So there are companies which import
in bulk from China and export in small
amounts.
The Directorate General of Foreign
Trade (DGFT) has now restricted the
export of 26 APIs—paracetamol, tinida-
zole, metronidazole, acyclovir, Vitamins
B1, B6 and B12, progesterone, chloram-
phenicol, erythromycin and clindamycin
salts, neomycin and ornidazole—with
immediate effect as the Covid-19 epi-
demic in China is seen affecting their
supply. Companies planning to export
these products will have to secure a no-
objection certificate from the govern-
ment. The government’s list of 26 APIs
and medicines accounts for 10 percent
of all Indian pharmaceutical exports.
It is unclear how the restriction
would impact the availability of these
medicines in countries that import from
India and also depend on China. In the
US, for instance, Indian imports accou-
nted for 24 percent of medicines and 31
percent of medicine ingredients in 2018.
It is time to build infrastructure to
make them in India. The government
has decided to set up a 10-member tech-
nical committee to revive India’s lost
capacity to make certain crucial drug
ingredients. The committee is expected
to suggest ways to revive India’s API
segment, especially fermentation-based
APIs. One of the duties of the commit-
tee is to look into the cost of setting up
fresh API manufacturing capacities to
RATTLED BY COVID-19 OUTBREAK
A medical supplies factory in Linli, in China’s
Hunan province
ThoughIndialooksforimportsfromthe
US,Italy,SingaporeandHongKong,there
isfearofasharpspikeinthepriceof
finisheddrugswhenAPIsareimported
fromothercountriesapartfromChina.
UNI
STRATEGIC ADVANTAGE
India imports over 80 percent of the raw
materials for medicines from China
28 March 23, 2020
My Space/ Coronavirus/ Dr KK Aggarwal
wean India off its dependency on
imports of these products. Around 58
such ingredients had been identified,
including amoxicillin, Vitamin C,
neomycin, acyclovir and tetracycline.
T
he Drug Controller General of
India gave a list of these 58 key
drugs (for which India is heavily
dependent on China) to associations
such as the Indian Pharmaceutical
Alliance, Indian Drug Manufacturers
Association and the Organisation of
Pharmaceutical Producers of India and
asked them to inform the government
about the status of raw material stocks
for manufacturing these drugs. These
include blood pressure medication
Telmisartan, antibiotics such as Levo-
floxacin and Azithromycin, statins such
as Atorvastatin and Rosuvastatin and a
few vitamins.
The list also includes anti-retrovirals
such as Lopinavir and Ritonavir that
have been approved by the ICMR for
treating coronavirus affected patients.
The key concern was in the case of anti-
diarrheal drugs such as metronidazole
and ornidazole for which Indian manu-
facturers depended heavily on China for
APIs. To reduce the reliance on China, it
was important that the raw material
used for manufacturing APIs is also
made in India.
China offered many advantages such
as free land, low-cost utilities like water,
steam and power and negligible financ-
ing costs. China had reformed its drug
approval processes to shorten schedules.
It put in place a priority review process
for drugs for critical conditions and
reduced the time it took to approve
process changes in clinical trials. Medi-
cines for anemia and bowel cancer are
manufactured in China and imported
by India.
So what does India need to do?
Firstly, it should rationalise the prescrip-
tion of drugs. Medical Council of India
ethics regulation 1.5 on the use of gener-
ic names of drugs says: “Every physician
should prescribe drugs with generic
names legibly and preferably in capital
letters and he/she shall ensure that
there is a rational prescription and use
of drugs.” This would mean practising
only evidence-based medicine. Restrict
use of paracetamol for high fever and
don’t misuse tinidazole and metronida-
zole for acute diarrhoea and vitamins
B1, B6 and B12. Antibiotics such as
chloramphenicol, erythromycin, clin-
damycin salts and neomycin in any way
have restricted uses. The government
should make a list of non-essential
drugs in shortage so that all doctors are
aware about them and do not write
them if not essential.
To promote the API industry, the
government should give its manufactur-
ers free land, low-cost utilities such as
water, steam and power and negligible
financing costs. It should also liberalise
policies for clinical trials and approval of
already approved drugs in other coun-
tries. It should also liberalise the condi-
tions for clinical trials. What is the idea
of testing in India if the trials have
already taken place in China
(Mongolian population), Sri Lanka
(Dravidian population) and Nepal
(Aryan population)?
The new India effort will also imp-
rove the safety and quality of drugs. Last
year, the FDA issued an alert over a can-
cer-causing ingredient, NDMA, used in
the blood pressure medication losartan
and valsartan, made by Chinese compa-
ny Zhejiang Huahai.
This resulted in the recall of such
drugs all across the globe. Also, last year,
a scandal over tainted vaccine doses sold
in China led to the arrests of executives
of Changsheng Biotech, which was also
accused of forging data during the
production of a rabies vaccine given
to infants.
So it is time for India to become self-
reliant in APIs to prevent another short-
age like the one the coronavirus has
inflicted on it.
—The writer is President,
Confederation of Medical Associations of
Asia and Oceania, and Heart Care
Foundation of India
Thegovernmenthasdecidedtosetupa
10-membercommitteetoreviveIndia’s
lostcapacitytomakecrucialdrugingredi-
ents.Thepanelisexpectedtosuggest
waystoreviveIndia’sAPIsegment.
commons.wikimedia.org
India legal 23 march 2020
Amaravati, the legislative
capital, will also have the
camp offices of the governor
and the chief minister as well
as a bench of the High Court
The coastal city of
Visakhapatnam is the
executive capital,
comprising the Raj
Bhavan, the chief
minister’s office and the
secretariat, among others
Kurnool is the judicial
capital, where the High
Court will be located
Andhra
Pradesh
30 March 23, 2020
CCORDING to the Andh-
ra Pradesh Decentralisa-
tion and Inclusive Deve-
lopment of All Regions
(APDIDAR) Bill, 2020,
the state shall have three
capitals. Visakhapatnam Metropolitan
Region will host the executive capital
comprising the Raj Bhavan, the chief
minister's office, the secretariat and the
offices of heads of departments, the
summer session of the legislative assem-
bly and a bench of the High Court.
Amaravati-Mangalgiri Complex will be
the seat of the legislative assembly and
will inter alia accommodate camp
offices of the governor and the chief
minister as well as a bench of the High
Court. The winter session of the legisla-
tive assembly shall be held here.
Kurnool will be the judicial capital and
the seat of the state’s High Court. Thus,
the doctrine of separation of powers has
been given a geographical dimension.
A host of other administrative arr-
angements too have been proposed.
Thus, zonal planning and development
boards and offices of divisional revenue
commissioners shall be set up. The nu-
mber of districts is proposed to be in-
creased from 13 to 25. The offices of
village and ward secretariats, along
with village and ward volunteers, will
also be established.
Simultaneously, the Andhra Pradesh
Capital Region Development Authority
(APCRDA) Repeal Bill, 2020, proposes
to wind up this Authority. It will be
replaced by the Amaravati Metropolitan
Region Development Authority
(AMRDA).
It has been argued that lopsided
development of various regions of
Andhra Pradesh over the years sowed
the seeds for the separate Telangana
movement that ultimately led to the
bifurcation of the state in 2014. The new
arrangement is based on the recommen-
dations of professional agencies and
expert committees.
Over 20,000 farmers (70 percent of
them small and marginal) pooled
33,000 acres on the promise of various
benefits, all of which may not materi-
alise if Amaravati is replaced by three
capitals. The government has, of course,
promised to increase the annuity accru-
ing to the farmers from 10 to 15 years.
Monthly remuneration to the landless
poor is proposed to be increased from
Rs 2,500 to Rs 5,000. However, the
farmers consider the three-capital idea
a breach of trust. They and their depen-
dants may not get the promised jobs.
Social and physical infrastructure may
not develop as expected. Anticipated
appreciation in the price of land may
also not come about.
It has also been argued that Amara-
vati is neither Guntur nor Vijayawada,
which were front-runners for the loca-
AsperaBill,AndhraPradesh
willhaveanexecutive,a
judicialandalegislative
capital.Whilethis
decentralisationmayseem
good,therearelegitimate
concernsaboutadditional
costsandlogistics
Opinion/ Three Capitals in AP Vivek K Agnihotri
A Viable
Development
Model?
Over20,000farmersinAmaravatiregion
havebeenprotestingagainsttheAndhra
Pradeshgovernment’sintentiontoshift
thestatecapital.Theygaveuptheirfer-
tilelands,hopingfora“world-classcity”.
A
Rajender Kumar
| INDIA LEGAL | March 23, 2020 31
tion of the High Court and the executive
capital. The infrastructure required to
be created would entail an expenditure
of more than Rs 1 lakh crore. More-over,
if some of the construction activity is
not permitted by the National Green
Tribunal and River Conservation Act,
only about 5,000 acres would be avail-
able for the development of Amaravati
as a capital.
There are also legitimate concerns
about additional costs, as several facili-
ties created in Amaravati may have to be
re-established in Visakhapatnam and
Kurnool. The project cost of the Amara-
vati capital was estimated at about Rs
33,000 crore, of which almost Rs 5,500
crore has been spent, according to the
government. But according to the oppo-
sition, it is Rs 10,000 crore. Thus, apart
from the financial viability of the new
configuration, there are also concerns
relating to wastage.
Logistics too are a bother. The dis-
tance between Visakhapatnam and
Amaravati is 367 km; between Visakha-
patnam and Kurnool it is 692 km and
between Kurnool and Amaravati it is
343 km. Commuting between the three
capitals for the public and public ser-
vants (officers as well as legislators) may
be a strain—on their time as well as
the state’s resources.
It would also mean more legwork for
industry representatives to discuss and
pursue their projects.
Government employees, who moved
to Amaravati from Hyderabad only a
couple of years ago, would have to relo-
cate to Visakhapatnam and Kurnool.
Although the state government has
given a thought to it, the physical and
emotional ordeal cannot be avoided.
A
gain, in a government, the exec-
utive accounts for most of the
offices. If all the government
offices are to be located in the Visakha-
patnam Metropolitan Region, how will
the benefits of decentralisation percolate
to other regions?
The opposition has called the move a
conspiracy to “kill” the Amaravati proj-
ect. It is alleged that the ruling party
does not want the credit for the new
capital to go to N Chandrababu Naidu,
the chief architect of the venture.
Political observers are of the view that
this whole imbroglio is part of the
ingrained caste rivalries between the
coastal Kammas, represented by Naidu
and his followers, and the Reddys from
Rayalseema. The Kammas would have
gained from Amaravati. Chief Minister
Jagan Mohan Reddy is seeking to rebal-
ance the equation for the community
he represents.
Decentralisation and distribution of
government offices in various parts of
the state is not an idea to be dismissed
in limine. It is also not unique. Locating
the executive and the legislature at one
place and the judiciary at another place
is not uncommon. In Uttar Pradesh, the
executive and the legislative branches
are at Lucknow, whereas the High Court
of Allahabad is located in Prayagraj.
Similar is the situation in Rajasthan
(Jaipur and Jodhpur) as well as Madhya
Pradesh (Bhopal and Jabalpur).
It is also in vogue to have assembly
sessions at two venues during a year.
This is so in Maharashtra and Karna-
taka. However, locating the permanent
seat of the legislature away from the
executive capital of the state has not
been attempted in India. Equitable dis-
tribution of government offices across
the state in order to ensure “inclusive”
development is also not uncommon. For
instance, in Madhya Pradesh, of which
Bhopal is the executive and legislative
capital, the offices of the Board of Reve-
nue, Excise Commissioner, Transport
Commissioner and Commissioner of
Land Records are at Gwalior. Indore is
the seat of the Public Service Commi-
ssion, Commissioner of Commercial
Taxes and the Labour Commissioner.
Given the constraints and the politi-
cal compulsions, the objective of decen-
tralisation and inclusion can still be
achieved if the secretariat and the legis-
lature are located at one place, which, of
course, should be centrally situated.
The offices of heads of department and
other institutions may be distributed
equitably across the state on the lines of
other states, including Madhya Pradesh
as mentioned above. The legislative ass-
embly and the High Court cannot really
be envisaged as engines of growth for
regional development.
A business magnate, in the context of
corporate governance, had recently
observed that three engines can never
run a company successfully.
—The writer is a former
Secretary-General, Rajya Sabha, and a
retired IAS officer of the AP cadre
TheoppositioninAPhascalleditaconspiracyto“kill”theAmaravatiproject.Itis
allegedthatCMJaganMohanReddy’s(right)partydoesnotwantthecreditforthe
newcapitaltogotoChandrababuNaidu,thechiefarchitectoftheventure.
stated, inter alia, that the
continuation or cessation of
the operation of Article 370
after the dissolution of the
Constituent Assembly of the
state was not an issue before
the Supreme Court in the
Prem Nath Kaul case unlike
in the Sampat Prakash case.
To understand this issue,
we need to examine the rele-
vant provisions of Article
370 that governed the rela-
tionship between the gov-
ernment of India and the
state of J&K. India achieved
independence through the
Indian Independence Act,
1947 which provided that
from August 15, 1947, there
would be two independent
dominions of India and
Pakistan. The princely states
were to join either of them.
They were also given a third
option—to remain inde-
pendent. Quite a few of
them were toying with the
idea of remaining independent.
However, all but the state of J&K joined
India by August 15, 1947, or soon after.
But when Kashmir was invaded on
October 22, 1947, Maharaja Hari Singh
sought military help from Delhi and
simultaneously requested accession of
Kashmir to India. Thus, Kashmir was
acceded to India under exceptional cir-
cumstances on October 26, 1947. Yet, the
Maharaja slipped in certain clauses in
the Instrument of Accession of Kashmir
that would help him retain some extent
of sovereignty over the state. Thus, the
accession of Kashmir was different from
those of other princely states, and it was
a conditional one.
Opinion/ Article 370 Sumit Dutt Majumder
32 March 23, 2020
FIVE-judge Constitution
Bench of the Supreme
Court passed a judgment
on March 2, 2020, where
the petitioners prayed
that petitions challenging
the constitutional validity of scrapping
Article 370 in J&K be referred to a larger
bench. The ground for such a prayer was
that there were two conflicting judg-
ments of the Supreme Court on the sta-
tus of Article 370, and therefore, there
was a need to get the issue settled by a
larger bench.
In the Prem Nath Kaul case (1959),
the Supreme Court observed that Article
370 (2) shows that the continuance of
the exercise of powers conferred on
Parliament and the president by the pro-
visions of Article 370 (1) is “made condi-
tional on the final approval of the
Constituent Assembly of Kashmir”.
However, in the Sampat Prakash case
(1968), the apex court decided that
“Article 370 has never ceased to be oper-
ative” and it could be invoked even after
the dissolution of the Constituent
Assembly.
The present five-judge bench, howev-
er, held that there was no conflict
between the judgments of the Supreme
Court in the cases under reference and
therefore, there was no case for referring
the matter to a larger bench. The bench
Outmanoeuvred?
EvenastheSCrefusedtoreferArticle370’sscrappingtoalargerbench,it’sobviousthattheabrogation
ofJ&K’sspecialstatuswasachievedthroughlegalfiction,showingtheadroitnessofthecentre
A
Amitava Sen
| INDIA LEGAL | March 23, 2020 33
These facts had a bearing in the mak-
ing of Article 370. The effect of Article
370 read with Article 1 of the
Constitution can be summarised as
follows:
i) The act of accession of the state of
J&K was unequivocally given legal effect
by declaring J&K a part of the territory
of India by virtue of Article 1 read with
Serial No 15 of the First Schedule.
ii) The legislative authority of
Parliament over the state of J&K would
be such that in addition to defence,
external affairs and communication,
which are specified in the Instrument of
Accession of Kashmir, the Union
Parliament can also make laws with
regard to the items in the Union and
Concurrent Lists, but only with the con-
currence of the state government.
iii) Article 238 which concerns
application of certain provisions relating
to the princely states will have no effect
on J&K.
iv) In terms of Clause (3) of Article
370, the president may, on the recom-
mendations of the Constituent Assembly,
issue an order that Article 370 will either
cease to be operative or shall be opera-
tive only subject to such exceptions and
modifications as may be specified by the
president.
Very briefly, it can be said that Article
370 extends autonomy to J&K by mak-
ing it clear that except for the provisions
so specified in the Constitution, no other
provisions of the Indian Constitution
would be applicable to it.
A
rticle 35A, introduced later on
May 14, 1954, empowered the
J&K Legislature to do a few
things; these included defining “perma-
nent residents” of the state and empha-
sising exclusive and special rights and
privileges with regard to the acquisition
of immovable property in the state,
employment under the state govern-
ment, and so on. The idea was that the
benefits to which the residents of the
erstwhile princely state of Kashmir were
entitled were not to be withdrawn with
Kashmir joining the Indian Union. Thus,
Article 370 and Article 35A took care
of the restricted autonomy for Kashmir.
The elements of such autonomy were
also enshrined in the new Constitution
of the state of J&K that was introduced
in November 1956.
Let us now understand certain specif-
ic provisions of Articles 370 and 35A as
they stood before August 5, 2019.
Article 370 had barred application of
certain provisions of the Indian Const-
itution to the state of J&K. Article 370(1)
(c) and 370 (1) (d) deal with the applica-
bility of the Indian Constitution to the
state of J&K. In terms of Article 370 (1)
(c), the two articles, i.e. Article 1 and
Article 370 of the Constitution will apply
to J&K.
Article 370(1)(d) is important. Under
it, the Indian constitutional provisions
could be applied to J&K from time to
time, as modified through a presidential
order and, importantly, after the concur-
rence of the state government.
Another important provision of
Article 370 was the proviso to Clause 3.
This clause itself authorised the presi-
dent to pass an order removing or modi-
fying parts of Article 370. But, there is
an equally important proviso to it which
stated: “Provided that the recommenda-
tion of the Constituent Assembly of the
State referred to in Clause (2) shall be
necessary before the President issues
such a notification.”
The issue is that the Constituent
Assembly of J&K was dissolved and it
ceased to function from January 1957.
This led to a longstanding debate on
whether Article 370 has become perma-
nent effectively because there was no
Constituent Assembly to give consent. A
question was also raised whether it
would require a revival of the J&K State
Constituent Assembly to amend it or
whether it can be amended through the
normal amendment procedure under the
Constitution. Further, the state of J&K
was under President’s Rule from
December 2018. Therefore, obtaining
the concurrence of the state government
was an issue as it was non-existent dur-
ing this time.
ThestateofJ&KwasunderPresident’s
RulefromDecember2018.Therefore,
obtainingtheconcurrenceofthestate
governmentwasanissueasitwas
non-existentduringthistime.
WATERSHED MOMENT
A newspaper headline announcing Kashmir’s
accession to India on October 26, 1947
DECISIVE ACT
Maharaja Hari Singh had signed
the Instrument of Accession of
Kashmir
34 March 23, 2020
Opinion/ Article 370/ Sumit Dutt Majumder
In the present context, another
important article is Article 367 which
provides various guidelines about how
the Constitution may be interpreted. The
presidential order of August 5, 2019
added clause (4) with four sub-clauses to
Article 367 where “Sadar–I Riyasat” will
be construed as “governor of Jammu &
Kashmir” and “State Government” shall
include the governor. Further, the words
“Constituent Assembly” used in Article
370(3) must be read as “Legislative
Assembly of Jammu & Kashmir”.
So how was the special state status as
provided by Article 370 abrogated and
J&K bifurcated? First of all, the
Presidential Order C.O. 272 issued on
August 5, 2019, used Article 370(1) (d)
to apply all provisions of the Indian
Constitution other than Articles 1 and
370 to the state of J&K. As mentioned,
Articles 1 and 370 were already applica-
ble to J&K by virtue of Article 370 (1)(c).
Article 370(1)(d) does allow the presi-
dent to amend or modify various provi-
sions of the Constitution in relation to
J&K, but with the concurrence of the
government of J&K. Under Article
370(1)(b)(i) and (ii), similar concurrence
of the government of J&K is needed for
the president’s exercise of power in
respect of matters in the Union List and
the Concurrent List.
So, the Presidential Order C.O. 272
used the power of the president under
Article 370 (1) to indirectly amend
Article 370 (3) and Article 370 (1) itself
via a third constitutional provision i.e.
Article 367, which provides various
guidelines on the interpretation of the
Constitution.
By virtue of the aforesaid amend-
ments of Article 367 through Presid-
ential C.O. 272, the governor of J&K,
who is a representative of the central
government, became the government of
J&K. Further, the Legislative Assembly
became the Constituent Assembly. But
there being no Legislative Assembly
because the state was under President’s
Rule, it fell upon Parliament to make the
recommendations which were to come
from the J&K Legislative Assembly.
Thus, a number of legal fictions were
created in order to achieve various objec-
tives in respect of abrogation of special
status of the state of J&K.
F
inally, on the issue of breaking up
J&K, Article 3 of the Constitution
gives Parliament the power to
change the boundaries of a state and to
form a new one by simple majority. But
this change required that such a Bill be
first referred to the concerned state
assembly by the president for ascertain-
ing its views. But as there was no Legis-
lative Assembly, the Second Resolution
of the Parliament stated that the presi-
dent had referred the Jammu & Kashmir
Reorganisation Bill, 2019 to Parliament
for its views as it is vested
with the powers of the state
legislature of J&K. On pass-
ing by Parliament, the state of
J&K got bifurcated into two
Union Territories from
October 31, 2019.
In the best tradition of
Indian democracy, debate
started in various platforms
on the correctness or other-
wise of the government
actions. Broadly, five main
issues emerged out of them:
(1) Was Article 370 just a
temporary provision or has it
effectively become permanent
since there was no
Constituent Assembly in
Kashmir to give consent?
(2) Can Article 370 be
used first to amend Article
367, and thereafter the
amended Article 367 be used to amend
Article 370 itself, to call the Legislative
Assembly as the Constituent Assembly?
(3) Can the governor of the state
under President’s Rule be called the
state government?
(4) Have the conditions relating to
“sovereignty” in the Instrument of
Accession of Kashmir been violated, and
if so, are they valid?
(5) Is the reorganisation of the State
of J&K by bifurcating it and converting
the parts into Union Territories without
the approval of the state legislature and
the state government valid in law?
The jury is out on this. The Supreme
Court judgment of March 2, 2020, has
not gone into the merits of the issues.
The wait starts for the final verdict of the
Supreme Court on this.
—The writer is former Chairman,
Central Board of Excise Customs and
author of the book “Article 370 Explained
for the Common Man”
ThePresidentialOrderC.O.272usedthe
powerofthepresidentunderArticle370
(1)toindirectlyamendArticle370(3)
andArticle370(1)itselfviaathirdcon-
stitutionalprovisioni.e.Article367.
India legal 23 march 2020
36 March 23, 2020
year after the Lokpal
was formed, the govern-
ment notified the Lokpal
(Complaint) Rules 2020,
finally enabling the anti-
corruption ombudsman
to act on the pleas made before it.
According to the rules, a complaint filed
against a sitting or a former prime min-
ister will be considered at the admission
stage itself by a full bench of the Lokpal,
consisting of its chairperson and all
members, for assessing whether an
inquiry can be initiated. At least two-
thirds of the members have to approve
of the inquiry.
If there are complaints against a cur-
rent or former minister in the Union
cabinet or an MP of either House, a
bench consisting of not less than three
members of the Lokpal shall consider
every report that is received from the
inquiry wing of the ombudsman or any
agency. The bench will decide whether
there exists a prima facie case after giv-
ing the public servant an opportunity to
be heard. As per the rules, complaints
can be filed either electronically, by post
or in person.
The complaint has to be within seven
years of the alleged offence taking place
as per Section 53 of the Lokpal Act. It
has to be accompanied by an affidavit on
a non-judicial stamp paper. Complaints
whose contents are illegible, vague or
ambiguous, trivial or frivolous, do not
contain any allegation, are not filed
within the limitation period of seven
years or are pending before any other
court, tribunal or authority will have to
be disposed of within 30 days.
So far, so good. But the big question
is whether the Lokpal will ever function
effectively or be one more drain on the
public exchequer? To find out, we need
to go back to 2009 when UPA-II formed
the government with the Congress in a
stronger position. This was when some
serious cases of corruption and loot—
the Satyam scam, 2G scandal, Jharkand
mining—started surfacing. The big guns
boomed against “corruption in high
places”, creating an impression that ev-
entually the debilitating cancer afflicting
India’s governance and society would
meet its nemesis and the aam aadmi
could look forward to good and honest
governance in the future.
Prime Minister Manmohan Singh
himself led the charge. Addressing a
conference of CBI and anti-corruption
officials at the state level, he said:
“High-level corruption should be pur-
sued aggressively. There is a pervasive
feeling that while petty cases get tackled
quickly, the ‘big fish’ escape punishment.
This has to change.”
Chief Justice KG Balakrishnan even
sought confiscation of assets of persons
convicted of offences under the Preven-
tion of Corruption Act. The law minister
went a step further and called for the
amendment of Articles 309, 310 and 311
of the Constitution, thus removing pro-
tection and safeguards in prosecuting
corrupt public servants. As if in respon-
se to the cacophony, big scandals sur-
faced—Commonwealth Games, Coal-
gate, ISRO-Antrax, aircraft carrier
Gorshkov, Tatra truck, AgustaWestland,
NSEL, Air India purchase, etc. Many
more, like the KG Basin loot, were
churning too.
In the Indian context, “big fish”
means the prime minister, ministers,
MPs, judges, top-rung bureaucrats and
other constitutional/statutory func-
tionaries who wield enormous power
Just an
Eyewash?
Thiswatchdoginstitutionconceivedasapublicbulwark
againstcorruptioninhighplacesseemsacharade.Itis
unwieldyandtop-heavyandchasespettybribe-takerswhile
ignoringthebigfish
Opinion/ Lokpal (Complaint) Rules 2020 MG Devasahayam
A
Thebiggunsboomedagainst“corruption
inhighplaces”,creatinganimpression
thateventuallythecorruptiondebilitating
India’sgovernancewouldmeetitsneme-
sis,pavingthewayforgoodgovernance.
| INDIA LEGAL | March 23, 2020 37
and influence without corresponding
accountability or rules to regulate their
conduct. The Lokpal was precisely aim-
ed at reining in and punishing such
worthies. There are the CBI and CVC to
discipline the small fry.
The first Lokpal Bill was introduced
and passed in the fourth Lok Sabha in
1968-69. However, while it was pending
in the Rajya Sabha, the Lok Sabha was
dissolved, resulting in the first demise of
the Bill. It was revived in 1971, 1977,
1985, 1989, 1996, 1998, 2001, 2005 and
2008. On every occasion, the Bill was
referred to some committee or other for
“improvements”, and before the govern-
ment could take a final call on the issue,
the House got dissolved.
Even 45 years after its initiation, this
eminent “watchdog institution” conceiv-
ed as the public bulwark against corrup-
tion in high places did not take off. In
the event, while the venal and the cor-
rupt strode this land like colossuses,
dominating its political, administrative,
judicial and business spectrum, the con-
scientious and the honest shrunk and
faded away. This has been India’s true
tragedy and the harbinger of
state kleptocracy.
T
he renewed struggle for Lokpal
was started by the Gandhian
Satyagraha Brigade, part of the
Servants of the People Society founded
by Lala Lajpat Rai in 1921 and inaugu-
rated by Mahatma Gandhi. The struggle
was led by nonagenarian Shambhu Dutt
of Quit India vintage, and stalwart of
the JP movement of the 1970s. He start-
ed his “fast unto death” on January 30,
2010, but was promptly dissuaded. This
struggle was taken up by civil society led
by Anna Hazare, Swami Agnivesh,
Justice Santosh Hegde, Kiran Bedi and
Arvind Kejriwal under the India Against
Corruption (IAC) banner. Out of this
emerged the draft Jan Lokpal Bill which
was released in December 2010.
After carpet-bombing the airwaves
with anti-corruption rhetoric in full
media glare, Kejriwal declared that civil
society was impotent and the only way
to combat corruption was to capture
political power. Accordingly, he and his
entourage morphed into a political party
and he was propelled as the chief minis-
ter. Soon after, Kejriwal came out with
the “rogues’ gallery” (Kejriwal List)
of the most corrupt politicians
and oligarchs.
The Lokpal Act that came out of this
glare is testimony to India’s immense
propensity for jugaad—dramatise
things, but achieve little. The Act is
more of a charade. The institution, as
contemplated, is unwieldy, top-heavy,
and the focus has been heavily diluted
by including millions of Class III and
Class IV government employees within
WATCHDOG IN A LIMBO
Justice Pinaki Chandra Ghose (centre),
chairperson of the Lokpal, along with other
members of the Lokpal
UNI
Opinion/ Lokpal (Complaint) Rules 2020/ MG Devasahayam
38 March 23, 2020
its ambit, though action on their corrup-
tion would be the responsibility of the
CVC. This serious aberration would pro-
tect the corrupt “big fish” while chasing
petty bribe-takers. In the event, the very
purpose of setting up the high-profile
ombudsman stands defeated. That
probably was the intention behind all
the theatrics.
T
he Lokpal Act received presiden-
tial assent on January 1, 2014
and became the law of the land.
By the time the process of appointment
of the Lokpal was put in place, the UPA
government became a lame-duck one
and lost power in May 2014. And when
the NDA government appointed the
Lokpal after five years in March 2019, it
had also become lame-duck. From one
lame-duck government to another,
India’s Lokpal had a chequered history
which by no means is edifying.
Ironically, the watchdog of India’s gover-
nance and integrity was born out of
gross impropriety, being appointed by a
caretaker government after the general
election 2019 was announced. That was
not a good omen. Justice Pinaki Chan-
dra Ghose was sworn in as the chairper-
son, Lokpal. Other judicial members
were Justices Dilip B Bhosale, Pradip
Kumar Mohanty, Abhilasha Kumari and
Ajay Kumar Tripathi. Non-judicial me-
mbers were former IAS officers Dinesh
Kumar Jain and Indrajeet Prasad Gau-
tam, former IPS officer Archana Rama-
sundaram and former IRS officer Ma-
hender Singh. Since then, it has been
waiting for the complaint rules to be
notified by the government to start wor-
king. In the meantime, it received over
1,100 complaints, most of which have
been disposed of without initiation of
any inquiry. Among them was probably
included the case of Karnataka Chief
Minister BS Yeddyurappa who had
allegedly paid bribes to the tune of Rs
1,800 crore to the BJP’s top leadership.
The Congress party pushed this, saying
it was a fit case to be investigated by the
newly appointed Lokpal, thereby setting
the stage for its first acid test. Nothing
has been heard of this since then.
The fact that the Lokpal was not
constituted for over five years after the
law was enacted and it took one year to
notify the rules, shows the NDA govern-
ment’s real intentions. During this peri-
od, massive scandals in which “big-fish”
were invariably involved got swept
under the carpet. And courts dealt with
such scandals with a “sealed cover”.
Rafale and the ever-spiralling bank-
ing scams are typical examples. And in
the last five to six years, all “institutions
of integrity”, including the ones embed-
ded in the Constitution, are under se-
vere assault, rendering them almost im-
potent. Even the 18 Lokayukts (state-
level ombudsmen) are non-functional
and ineffective against the “big fish.” The
Lokpal, appointed by this government,
cannot be any different. As for combat-
ting corruption, the “Kejriwal List” had
several “bigfish”. The question is: Where
have these corrupt oligarchs and klepto-
crats gone and where has Kejriwal van-
ished? By all accounts, by adopting a
“neither-fish-nor-fowl” political philoso-
phy, he is prospering politically. With the
rules in place, will the Lokpal at least
look at the “Kejriwal List”? Or would it
turn out to be just another sinecure at
taxpayers’ expense while shadowboxing
on corruption continues to play out?
—The writer is a former Army &
IAS officer
ThisstruggleforLokpalwastakenupby
civilsocietyledbyAnnaHazare,Swami
Agnivesh,JusticeSantoshHegde,Kiran
BediandArvindKejriwalundertheIndia
AgainstCorruption(IAC)banner.
Rajeev Tyagi
India legal 23 march 2020
India legal 23 march 2020
India legal 23 march 2020
India legal 23 march 2020
India legal 23 march 2020
India legal 23 march 2020
India legal 23 march 2020
India legal 23 march 2020
India legal 23 march 2020
India legal 23 march 2020
India legal 23 march 2020
India legal 23 march 2020
India legal 23 march 2020
India legal 23 march 2020

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India legal 23 march 2020

  • 1. NDIA EGALL STORIES THAT COUNT I March23, 2020 JusticeVenkatachaliah,whoservedaschiefjusticeofIndia,isoneofIndia’smostrespectedjurists.Anavid championofhumanvaluesandrights,hespoketo RAJSHRIRAI,MD,INDIALEGALonthejudiciary,religion, Ayodhya,upbringingofchildrenandwhytheSupremeCourtshouldbetrustedtodotherightthing JusticeVenkatachaliah ‘‘KeepFaithin theJudiciary’’ Coronavirus: India’s opportunity Exclusive Interview
  • 4. 4 March 23, 2020 HE Media Today special section of the prestigious Columbia Journalism Re- view (CJR), often called the most res- pected voice of press criticism, carries in its latest edition a fascinating piece by Jon Allsop on how the coronavirus could hurt the news business. Since the one-of-a kind jour- nalism carried in CJR (and at this juncture all- ow me to boast that Columbia Journalism School is my alma mater) is not widely available to the general reader, I sometimes take the lib- erty of summarising and sharing its contents— of course with full credit to CJR—on the social media. In this article, Allsop, formerly with BuzzFeed and also a grad of Columbia J-School, reports that paywalls, which online media erect in order to earn their bread and butter (“you have now reached your limit of free reading please sub- scribe in order to read on…” etc, etc), have begun to crumble as more and more news out- lets are freeing up content relating to news and special features related to the coronavirus, which Dean Baquet, the executive editor of The New York Times has described in a recent staff call as “the biggest story the world has seen since 9/11”. The New York Times, Bloomberg, The Wall Street Journal, The Atlantic, The Seattle Times and McClatchy are some of the major organisations now making available their virus coverage available free of charge to non-sub- scribers. In fact, reports Allsop, The Times has “collated its free coron- avirus content on a special landing page; you’ll need to create an account to access it, if you don’t have one already”. It’s a great social service not just for the US but, indeed, for the world, when rumours, mis- information, fake news, denial modes, are cut- ting a swath of confusion across the globe. Universally available responsible and depend- able information is of the essence at times such as these. And in relaying it as a humanitarian gesture of grace and goodwill, the news busi- ness, already in the financial doldrums because of declining revenues—McClatchy, for example has filed for bankruptcy—risks taking a direct fiscal blow to the gut. But there could also be an upside. It may even be good for business, some analysts believe. Allsop quotes Tom Meyvis, a professor at New York University, telling Adweek’s Sara Jerde that for some outlets, freeing up information on the coronavirus may reach new readers “who may stick with the publication afterward and perhaps be willing to pay later if they are impressed”. Interest in news as against pure entertain- ment is at a peak right now and major national news organisations have moved quickly to capi- CORONAVIRUS COULD BE FATAL TO MEDIA Inderjit Badhwar T Letter from the Editor TheNewYorkTimes,Bloomberg,TheWallStreetJournal,The Atlantic,TheSeattleTimesandMcClatchy aresomeofthemajor organisationsmakingavailabletheirviruscoverageavailablefree ofchargetonon-subscribers,thustakingadirectfiscalblow. Ajay Suresh from New York, NY, USA
  • 5. | INDIA LEGAL | March 23, 2020 5 talise, writes Allsop. “Collectively, they’ve flooded the market with coronavirus podcasts, newslet- ters, and other products, many of them free. BuzzFeed, for instance, launched a newsletter ca- lled ‘Outbreak Today.’ Its logo is an emoji wearing a face mask. The coronavirus has dominated regular programming on cable news, as both CNN and MSNBC have broadcast special programming in which medical experts have answered viewers’ questions. Last week, CNN hosted a coronavirus town hall with Dr Sanjay Gupta, its chief medical correspondent; (earlier) it held another one, with Facebook and Instagram users from around the world asking questions. There was no studio audience.” Allsop makes several absorbing observations which I reproduce verbatim in the larger public interest of disseminating public awareness, with some paraphrasing, in bulleted points below: The disorder caused by the coronavirus risks invading news organisations’ ability to function. Routine reporting will become harder the more society is walled off. And as Joshua Benton of Nieman Lab has noted, the virus has the potential to pull the bottom out of an advertising market that has been tough on many media companies for years. Last week, The Times said it was al- ready seeing an advertising slowdown, which executives attribute to uncertainty caused by the virus—and that was before the rapid escalation of recent days. If the economy tips into recession, the effect on advertising could be dire. As Benton has observed, the coronavirus could prove to be a disaster for local outlets, in particu- lar. Despite industry-wide declines in print circu- lation, many newspapers still rely on dead-tree products for the bulk of their revenue; what hap- pens when newspaper carriers become virus car- riers and get taken off their routes? Swathes of the local news market are controlled by a handful of financial firms that have already made painful cuts to their media properties; if owning newspa- pers becomes an (even more) unattractive propo- sition, the moneymen could simply decide to bail, and what then? Even the non-profit news mo- del—which has often been held up as a viable alternative to the caprices of private ownership— is not immune. As markets sag, major foundation funders might scale back their giving to protect their endowments. Some local outlets are hurting already. Yester- day, Sarah Scire, Benton’s colleague at Nieman Lab, pointed to the example of The Stranger, an alt-weekly (which publishes biweekly) in Seattle, Washington, where the coronavirus first caused major problems on American soil. The Stranger derives 90 percent of its revenue from holding its own events and providing a marketplace for oth- ers—in short, its survival depends on “people get- ting together in groups”. On Wednesday, The Stranger’s Twitter account urged readers to do- nate to keep it afloat. “We pride ourselves on hav- ing navigated many storms in the world of inde- pendent local media,” the post read, “but this time is different.” Allsop ends his CJR article on a really sober- ing note that will probably send chills down the spines of most journalists: “In recent years, we’ve gotten used to hearing dire prognostications ab- out the complete erosion of the local news busi- ness in the United States. The coronavirus risks accelerating almost all of the malign trends. Its impact could end up looking loosely analogous to that of the virus itself. Big media companies with healthy finances and growing subscriber bases will likely survive, and could even profit. Outlets with serious underlying health conditions might die.” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com DeanBaquet,theexecutiveeditor ofTheNewYorkTimes has observedthatthecoronavirus couldprovetobeadisasterfor localoutlets,inparticular. JonAllsop,formerlywithBuzzFeed andagradofColumbiaJ-School observesthatthedisordercausedby thecoronavirusrisksinvadingnews organisations’abilitytofunction.
  • 6. 6 March 23, 2020 ContentsVOLUME XIII ISSUE19 MARCH23,2020 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Junior Sub-editor Nupur Dogra Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographer Anil Shakya Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Former Chief Justice of India MN Venkatachaliah imparts his wisdom on many legal topics while talking to Rajshri Rai, MD, India Legal and Editor-in-Chief, APN “The Judiciary Makes the World a Better Place to Live In” LEAD 16 In his latest book, From the Trenches, eminent jurist, parliamentarian, columnist, thinker and commentator Abhishek Singhvi revisits eight defining cases of our times. An excerpt from one of them, Naveen Jindal vs the Union of India—the case that won all citi- zens the right to fly the tricolour Flying high 24 BOOKS
  • 7. | INDIA LEGAL | March 23, 2020 7 Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE REGULARS Ringside............................8 Is That Legal...................10 Courts.............................12 Law Campus News........14 International Briefs ........44 Media Watch ..................50 Winners and Losers 48 An increase in fraudulent transactions related to trading in stocks should make investors careful about their investment with portfolio management organisations and trading brokers as it is better to be safe than sorry Taken For a Ride COMMERCE New auditing rules, CARO 2020, should lead to greater transparency and faith in the financial affairs of companies and bring the role of auditors and CFOs under the scanner 40No More Hide and Seek 26 According to a Bill, Andhra Pradesh will have an executive, a judicial and a legislative capital. While this decentralisation may seem good, there are legitimate concerns about additional costs and logistics A Viable Development Model? OPINION 30 The watchdog institution, Lokpal, conceived as a public bulwark against corruption in high places, seems a charade. It is unwieldy and top-heavy and chases petty bribe-takers while ignoring the big fish A Fundamental Right Rajasthan has prepared a law to ensure minimum water supply to every household and punishment for those misusing or wasting this precious resource 46 Even as the SC refused to refer Article 370’s scrapping to a larger bench, it’s obvious that the abrogation of J&K’s special status was achieved through legal fiction, showing the adroitness of the centre Outmanoeuvred? 32 An Opportunity for India With the import of pharmaceutical ingredients from China being hit due to the coronavirus, India should revive its own market by setting up fresh manufacturing centres and give incentives to this industry Just an Eyewash? 36 LEGALEYE In a smart move, President Gotabaya Rajapaksa of Sri Lanka has dissolved the parliament and called for early elections in a bid to cash in on popular support even as the UNP and SLFP are struggling to stay relevant STATES GLOBALTRENDS MYSPACE 42
  • 8. 8 March 23, 2020 Anthony Lawrence RINGSIDE The Last Resort “Special discount for BJP MLAs” “50% discount for Congress MLAs”
  • 10. What is the legal procedure adopted for the dispersal of an unlawful assembly? Section 141 of the IPC defines an unlawful assembly. Accor- ding to the Section, whenever five or more than five people come together with a mutual intent of disturbing the peace of a place, it is considered an unlawful assembly. This may later lead to riots if the people are not dispersed in time. There are three sections in the CrPC dealing with unlawful assemblies—Sections 129, 130 and 131. Section 129 deals with the dispersal of unlawful assem- blies by using civil force. Under this, an executive magistrate or police officer in charge of a police station or an officer not below the rank of a sub inspec- tor may issue directions to dis- perse any unlawful assembly. However, if the people ass- embled do not disperse even af- ter his order, the police may pro- ceed to disperse it with the help of force and if necessary even detain and arrest people. Section 130 says that if the assembled people do not dis- perse, the executive magistrate of the highest rank may ask the armed forces under his com- mand to disperse the assembly. Section 131 says that any ga- zetted officer of the armed for- ces may disperse such assem- bly with the help of the armed forces under his command. Disturbing peace Can lawyers refuse to appear for the accused in court on any grounds? Recently the Karnataka High Court observed that it is unethi- cal and illegal for lawyers to not represent the accused in court. This was after the Hubli Bar Association had objected to rep- resenting the four students arr- ested on charges of sedition in the state. According to Article 22(1) of the Constitution every person has the fundamental right to be represented by a legal practition- er of his or her choice. Equality before the law and equal protec- tion of the law are guaranteed by Article 14. Article 39A states that equal opportunity should be provided to everyone to secure justice. When all of these are read together, it becomes clear that it is the duty of the advo- cates to represent the accused before the court of law. The Supreme Court in a 2010 judgment said refusing to appear for the accused is illegal, against all traditions of the Bar as well as professional ethics. The top court also said that every person has a right to be defended however “wicked”, “depraved” or “vile” he may be. Lawyers can’t refuse to appear What is the life of a mercy petition? It is an established fact that a death row convict can’t be hanged until and unless he has exhausted all his legal remedies and the last legal remedy that is available to him is a mercy petition. A mercy petition is when a death row convict approaches the president of India to get his death sentence commuted under Article 72 of the Constitution. The petition, once submitted before the president, is forwarded to the Union ministry of home affairs. A mercy petition must be filed before the president within seven days after the jail superintendent informs the death row convict that all petitions filed by him against the capital pun- ishment have been dismissed by the Supreme Court. On receiving the peti- tion, the ministry of home affairs scrutinises it and it is then sent to the concerned state or Union Territory for their opinion. On receiving the letter, the state or the Union Territory is bound to give its opinion on the mat- ter. After receiving the opinion, the home ministry prepares a “summary for the president”. On receiving the summary, the president goes through it and takes a final decision. ISTHAT —By Deepankar Malviya ? Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis 10 March 23, 2020 Pleading for mercy Anil Shakya
  • 11. Operated by State Tax (Commercial Tax) Department, Uttar Pradesh Trader relations campaign Benefits from GST registration With the inspiration of the Chief Minister, the state government strived to increase GST registration base and the State Tax (Commercial Tax) Department, Uttar Pradesh conducted a merchant contact campaign and also made business people aware of the state and central government schemes for them During the campaign, the officers and employees of the State Tax (Commercial Tax) Department personally contacted the merchants in each market of each district of the state and provided them with the characteristics of the GST tax system and the merchants by the State Government and the Central Government. To make aware the business people, facilities were provided by the state govt and GST registration were provided to the unregistered traders thereby realizing them their contribution in country’s advancement During the campaign, the department collected general information related to reg- istered and unregistered traders in the state. During the campaign, registration awareness seminars were organized in all the districts of the state. During the connectivity campaign, the traders of the state were made aware of the GST registration, GST return admission and composition scheme by the department. PAN number, mobile number, e-mail address, Aadhaar or digital signature Training was provided by the department in relation to the process of registration and return admission and technical problems of traders were diagnosed. GST registration a symbol of merchant honour. Active participation of registered persons under GST in the development plans of the country and the state. GST registration the first step to the possibilities of registering business growth. Under the GST tax system all tax work can be done online. There is no need to come to government office for any work related to GST Uninterrupted facility of I.T.C on goods purchased from any state of the country Samadhan Yojana for small and medium traders up who have the turnover of Rs 1.5 crore annually For traders registered in Uttar Pradesh, Rs 10 Lakh Merchant Accident Insurance Scheme has been earmarked No premium for insurance plan Very simple and easy return form for small and medium traders Facility of filing zero-sales-related returns through SMS Facility for filing Quarterly returns for traders who have an annual turnover limit of up to 5 crores Benefit of Central government-run pension scheme Required documents for registration Identity certificate Proof of Residence and business address Proof of bank account Website State Tax (Commercial Tax) Department, Uttar Pradesh E-mail Helpline Control Room Toll-free
  • 12. 12 March 23, 2020 Courts The Delhi High Court granted the custody of a 10-year-old boy to his NRI father, an industri- alist living in Kenya, saying the man was in a better position to take care of the child. A bench of Justices GS Sis- tani (who has since retired) and Jyoti Singh said that while the woman, a Delhi-based lawyer, may be well within her rights to seek alimony from her husband, using the minor as a “chattel to be traded for alimony or other benefits can never be in the best interests of the child”. The High Court dismissed an appeal filed by the woman chal- lenging a trial court’s order by which the child’s custody was granted to his father. “We are of the view that the father/respondent is in a better position to take care of the child and the best interests of the child would be protected by granting his custody to the father. Accordingly, we find no merit in the appeal and the same is dismissed,” it said. The Court said paramount consideration has to be given to the “welfare of the child” and the “best interest” principle. Minor’s custody given to NRI father Atwo-judge vacation bench of the SC refused to stay the Allahabad HC order asking the UP government to remove posters “naming and shaming” protesters who demonstrated against the Citizenship (Amendment) Act even as it wanted to know under which law the state government had publicly put up the posters. “There is no backing of law,” said Justice UU Lalit while refusing to stay the HC judgment but referring the question of law to a larger bench. “The matter requires further elaboration and consideration,” the bench said. Justice Lalit said that while there should not be unruly behaviour, there must be some law which backs the action of putting up such hoardings. Solicitor General Tushar Mehta, repre- senting the UP government, then quot- ed a precedent set by the Court in R Rajagopal vs State of Tamil Nadu on the issue of privacy. He contended that people who resort to violence and point guns during protests cannot claim a right to privacy. The top court was hearing a plea filed by the UP gov- ernment challenging the HC’s March 9 order directing it to remove hoardings containing photos and other personal details of people who allegedly took part in anti-CAA protests, on the gro- unds that it was an infringement of their privacy. The UP Police put up ho- ardings across Lucknow on March 5. The Karnataka High Court grant- ed bail to 16 youths, accused by the police of attacking the Mangalore North police station in the violence related to anti-CAA protests on December 19, on the grounds that the same people were named in other similar cases in different locations at the same time. Mohammed Suhal and 15 oth- ers, accused of attacking the police station, were also allegedly part of a group of 21 persons granted bail by the High Court on February 17 after finding no prima facie evidence to link them to the mob violence last December. High Court judge John Michael Cunha granted bail to the 21—Mohammed Ashik and others—citing the partisan behaviour of the police and failure to register cases lodged against the police by two victims of alleged police firing. Later, following an appeal by the Karnataka government, the Supreme Court on March 6 stayed the bail of the 21 people. Karnataka HC grants bail to Mangalore anti-CAA protesters SC refuses stay on Allahabad HC order on poster row UNI
  • 13. | INDIA LEGAL | March 23, 2020 13 AHubli court rejected the bail applica- tion of three Kashmiri students, who were booked for sedition after their video allegedly raising pro-Pakistan slogans went viral. The plea was filed under Section 439 of the CrPC. This comes after the Hubli Bar Asso- ciation withdrew its resolution against representing them and said that advo- cates who wish to appear for them can approach the Dharwad principal district court to file bail pleas. The three stu- dents are Basit Aashiq Sofi (22), Talib Majeed (20) and Amir Mohi Uddin Wani (20). They were booked under sedition charges for raising pro-Pakistan slogans in a video shared on social media. They were earlier transferred to Belgaum Hindalga jail from Hubli sub-jail and the case, registered at Gokul Road police station, was also transferred to the rural police station because the video was recorded in the college hostel room, which lies in its jurisdiction. The case had also become noticed as after their alleged offence, the Hubli Bar Association had vowed that none of its lawyers would represent them in the dis- trict court. The decision was later rever- sed under pressure from the Karnataka High Court and senior lawyers. —Compiled by India Legal team Delhi High Court issued a circular ask- ing people to stay away from public gatherings in the wake of the coronavirus outbreak. “...advocates, general public and litigants are requested to adhere to the guidelines/advisory issued by the Govt of NCT of Delhi and avoid unnecessary overcrowding in the court premises,” the advisory said. The development came days after the Delhi government had put out a public advisory on the public gatherings. As per the recent advisory issued by the Government of NCT of Delhi, coron- avirus is a contagious virus which causes respiratory infection and can be trans- ferred from human to human through air by coughing, sneezing and personal con- tact, such as touching or shaking hands, touching an object or surface with the virus on it and then touching mouth, nose or eyes with unwashed hands. The circu- lar also enclosed the advisory issued by the Delhi government on the do’s and don’ts to be kept in mind to prevent any further spread of the virus. The HC circular came even as the SC which was on a week-long recess for Holi began to consider extending the vacation by another week in view of the virus. The SC’s vacation bench is set up normally during the summer break and it was for the first time that the apex court set up a short duration vacation bench. The Bar Council of Delhi (BCD) wrote to the Minister of Consumer Affairs, Food and Public Distribution, Ram Vilas Paswan, opposing the inclusion of lawyers under the Consumer Protection Act. This followed media reports that the government of India was contem- plating including lawyers within the ambit of the Act. In its letter, the BCD said: “As per the information available, your Ministry is framing Rules under the Act and wants to surreptitiously include lawyers under the proposed Rules so as to bring lawyers across the country within the jurisdiction of Consumer Redressal Forum. This is highly deplorable and the lawyers across the country will never accept their inclusion within the definition of the provisions of the Consumer Pro- tection Act." Thus, requesting the minister not to proceed with any proposal to in- clude lawyers within the ambit of the Act, the Council’s letter added: “The legal profession is an integral part of the justice delivery system and is not a commercial or trade activity and the legal professional cannot be included for any purpose under the Consumer Protection Act, 2019, or its Rules as is being contemplated.” Delhi Bar Council says “no” to lawyers in CPA Sedition-charged Kashmiri students’ bail plea rejected Delhi HC guards itself against coronavirus
  • 14. ranked in the QS World University Subject Rankings 2020. JGLS has been ranked in the 101- 150 band amongst the world’s top law schools while NLSIU is in the QS 151- 200 band. Criteria on which the univer- sities were ranked include academic re- putation, employer reputation, H-Index and citations per paper. QS Subject Ranking in Law measures the global relevance of institutions spe- cifically in the area of research in law along with combining reputation among the academic community and employ- ers. Out of 894 law schools shortlisted only 300 were ranked by QS. 14 March 23, 2020 LAW CAMPUSES / UPDATES Jindal Law School ranked No.1 in India, among top in the world, by QS Survey Afinal-year student of the Chanakya National Law University (CNLU), Patna, filed a writ petition in the Patna High Court challenging an advertisement by the Bihar Public Service Commission for the post of assistant prosecu- tion officer. The advertisement by BPSC inviting applica- tions for the post said that only law graduates on the date of application were eligible to apply. However, the petitioners, who are final-year law students and would be graduates on the date of appointment, wanted to apply for the post. The last date for application for the post was March 6 and the petitioners are due to take their final exams in April. Justice Madhuresh Prasad passed an order dismissing the writ petition and observed that “the petitioners have no enforceable claim as it is the admitted position that they have yet to obtain their qualification as Law Graduates”. Patna High Court dismisses petition by CNLU student The Britain-based education informa- tion firm Quacquarelli Symonds (QS) has ranked the Jindal Global Law Sc- hool (JGLS) of O.P. Jindal Global Univer- sity in Sonipat, Haryana the No. 1 law school in India. Along with JGLS the National Law School of India University (NLSIU), Bengaluru, has also been Indrajit Dey
  • 15. | INDIA LEGAL | March 23, 2020 15 —Compiled by Nupur Dogra First national client counseling competition The special edition of the Law Journal of National Law University Odisha (NLUO) on the theme of Election Laws aims to foster discussion on legal issues related to elections. This volume aims to extend its scope beyond the status quo, looking into the future of elections in India in a world of breakneck social, legal, political and technological development. Submissions can be in the form of long articles, short notes, book reviews. The article/note/case-comment/book review may focus on any contem- porary topic relating to election laws such as–representation of Anglo Indians in Parliament, post- poll alliances and constitutionality, election manifesto, electoral bonds and political funding, NOTA and its contemporary relevance, electoral justice and participation of under-represented groups, reg- ulating election campaigning on social media/online platforms, application and analysis of the model code of conduct, trans- parency, disclosure of assets and nominations, electronic voting machines, role of civil society in electoral process and so on. Amity University Maharashtra, Mumbai is hosting its first national client counselling and drafting competition from April 17 to 19. The competition is open to all students pursu- ing the LLB three year/ five year courses dur- ing the current academic year. Themes will be based on the laws related to domestic vio- lence, land laws, contracts, copyright and law of tort. Participating teams can win cash prizes worth Rs 25000 with a one-month internship and free publication online. Last date to regis- ter is March 29. NLUO invites papers for law journal special issue Himachal Pradesh National Law University (HPNLU), Shimla, is hosting an environment conclave on June 5, 2020. The Centre for Environment- al and Disaster Manage- ment of HPLNU is organising the one-day student conclave to bring together several eminent personalities in the field of environment law to give valuable insights to the young students who will put forth different perspec- tives and pertinent questions relating to contemporary issues in environmental law. HPNLU has invited students enrolled in undergraduate and post-graduate pro- grammes in any recog- nised institution across India. Students interest- ed in submitting their papers should submit their original and un- published work on rele- vant topics by April 25. Environmental conclave at HPNLU
  • 16. Lead/ Interview/ Former Chief Justice MN Venkatachaliah 16 March 23, 2020 People call you Non-age Narayan, a person who doesn’t age. Once you told us that the secret of your youth is green tea and omega fatty acids. How do you keep yourself young and vibrant? Once Sir Winston Churchill was asked what was the secret of his durability. He said enduring qualities of alcohol and tobacco. (laughs) I don’t take alcohol, but this is perhaps pure God’s blessing that has given me longish life. That’s all I can say. dentship of the country. One of his min- ister came here. I told him that the mo- ment I signed this offer, I would bring the edifice of the Supreme Court several notches down. Therefore, I pleaded my inability to respond to that offer. Other judges can do arbitration. They are good people. But the CJI should keep away from it. This is my personal conviction. As a patron of India Legal, how do you see its role in the field of legal journal- ism and what is your take on the current When you retired, you refused to take up any position offered to you by the government. Instead you said that you will study Indian spiritualism and religion. Tell us about that decision of yours. I said I will study the Upanishads. I didn’t want to take paid assignments or arbitration because I thought that the chief justice of India has some restric- tions about his post-retirement options. I was sounded by the then prime minis- ter whether I will accept the vice-presi- FORMER CHIEF JUSTICE OF INDIA (CJI) MN VENKATACHALIAH needs no introduction. He served as the 25th CJI from February 12, 1993 to October 24, 1994. His tenure was marked by efforts to reduce pendency. An avid champion of human values and rights, he served as the chairman of the National Human Rights Commission. In 2000, he headed the national commission to review the working of the Constitution where he gave many valuable suggestions. Justice Venkatachaliah was conferred the Padma Vibhushan in 2004. Currently, he is the patron and guiding light of India Legal. He impart- ed his wisdom on many topics—the judiciary, religion, Ayodhya, upbringing of children...—to RAJSHRI RAI, MD, India Legal and Editor-in-Chief, APN NEWS. Excerpts from the interview: “The Judiciary Makes the World a Better Place to Live In”
  • 17. | INDIA LEGAL | March 23, 2020 17 Do you think that India Legal is main- taining the standards of legal journal- ism? Sometimes I think that India Legal is practising that virtue in excess. (laughs) That’s good. As long as it is bonafide. As every institution, the judiciary must also be open to external assessment. The judiciary must be open to assessment of its social relevance and utility. Your tenure is best remembered for your initiative to enforce judicial accounta- bility. You famously said that no one can watch a watchman. You said that the judiciary has to adopt a culture of acc- ountability. Please elaborate. My impression is judiciary down the years in India has been treated as a holy cow. but respect shouldn’t generate immunity from criticism. This will bring irresponsibility in the system. We should constantly guard against it. If the judi- cial system fails, the whole democratic system fails. The problem in judiciary is in the lack of speed in the disposal of state of legal journalism in India? Legal journalism has come of age. In England once photograph of three judges was published upside down and captioned ‘three-old fools.’ That sort of journalism was always there in the West. The Indian press was very defer- ential to the judicial system. Punch, the comic journal of UK, never touched the judges except one or two occasion. In this country judiciary was treated as a sacred cow. Now judiciary is more open to scrutiny. That is good.
  • 18. Lead/ Interview/ Former Chief Justice MN Venkatachaliah 18 March 23, 2020 cases. We concentrated on the problem during my tenure. My team of judges did enormous work. They worked half an hour more daily. The result is for all to see. From 1991 to 1998 in eight years the backlog of cases fell from four and a half lakhs to 19 thousand. People said that it is the most commendable work of any post-Independence institution. That was the collective work of all the judges. There were great judges in our time. I am not in touch with the system now but I can say that those years were very productive. Pendency is a major problem facing India’s judicial system. We are badly understaffed in terms of judges. Now, with the advent of Artificial Intelligence (AI) and other high-end technologies, will the judiciary embrace it to solve pendency? Pendency is a serious problem plaguing our judicial system. There are 22,764 subordinate courts in the country. Each court lists around 60 case per day. Ar- ound one case per day is decided. There are 250 footfalls on the either side of advocates and clients. Multiply 22,764 by 300 footfalls everyday and then mul- tiply that by 290 days of work. Then you will know the enormity in terms of loss of productivity and man hours. If you calculate it at the rate of Rs 300 per head, per day, it may amount to a lakh and fifty thousand crore rupees per year. This is the notional loss in addition to the actual expense involved in it. Talking about Artificial Intelligence (AI), the scanner can read some four- lakh pages in about three to four min- utes. But the language platform must be compatible with the material available in courts. Only then the advantage of AI solutions will accrue. AI has some limits but it can be done. You were part of the group formed to review the working of the Constitution. What changes are you looking for in the Constitution? We were part of the group which was Take the example of Kerala where social indices have dramatically improved. For example, social welfare is exemplified in maternal mortality figures which have come down significantly. You once said that you were the most unpopular chief justice ever. What did you mean by it? A judge is unpopular in every sense. His views and world pictures somehow in- fluences his decisions. Sometimes preju- dices enter into his principles. So grea- ter wisdom is expected of judges than mere technical knowledge and details. He should have an idea that into what kind of society he is administrating, what kind of system. We coin beautiful formed to assess the Constitution. It was called the National Commission to Review the Working of the Indian Constitution. The Constitution provides the framework and if there is good and responsible governance, then the results of growth and development are visible. “Ididn’twanttotakeuppaid assignments.Iwasoffered vice-presidentshipbythethen primeminister,butIrefused.Ifelt thatbyacceptingit,Iwouldbring theedificeoftheSupremeCourt severalnotchesdown.”
  • 19. | INDIA LEGAL | March 23, 2020 19 cendent of caveman. It is a new specie in itself. It has immense potential. We are not able to imagine the magnitude of potential of the human brain. This is my take on how system should change to suit the present generation. India is essentially a religious country. Does inculcation of scientific temper as envisaged in our Constitution preclude its religious ethos and practices? You can’t eliminate religion through sci- entific thinking. Science can’t replace religion. Both have a unique place and can mutually coexist. Religious values are of paramount importance and we shouldn’t abandon them. We should expose our children to religious values and traditions. Development of a scien- tific temper doesn’t in any way rule out embracing religious values. India is a land where diverse faiths have flourished. But now with modernisation and rapid social change, religious prac- tices are being freely questioned and challenged in courts of law. Women’s rights and essential religious practices are at odds. Sabarimala is a case in point. What is your view about it? Cases involving questions of religion, essential religious practices and consti- tutional rights are being brought to courts more frequently. It’s being seen as the rule of law versus tradition and cul- tural practices. Courts have been adjudi- cating such matters for some time now. Arguments in such cases should be tele- vised live and people, especially chil- dren, should watch these proceedings. The bottomline is that we should value everything for the common good. Our political system is under tremen- dous strain. Deviant political behaviour and electoral malpractices have created havoc in the system. What solution do you prescribe for the ills affecting the political system so that it becomes healthy once again? BR Ambedkar once said: “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.” Democracy is a new soil and it has to be nurtured carefully. In India, strict elec- toral reforms are needed in order to overhaul the political system. Laws for the formation of political parties, funding and public scrutiny of the workings of political parties are needed. I worked along with a group to draft a model legis- lation to this effect. Sources of political funding should be revealed by proper audit. Cash and caste are a dangerous mix, and if used wrongly can ruin democracy. Dynastic politics should be done away with. Holding party presi- dentship on account of heredity is a crime. We have to bring changes in these areas. By political reform, we can nurture the soil of democracy and make it healthy and whole. slogans, use expressions borrowed from foreign experience and try to incorpo- rate them in our system. Indian predica- ment is totally different. It requires dif- ferent solutions and one size doesn’t fit all. There are regional differences, re- gional imbalances and what is needed is a kind of pervasive wisdom which can assess the utility of any system appropri- ate to any situation. That instinctively should develop in a judge. It is very dif- ficult to straitjacket everything every- thing in one formula. Somebody asked what does it take to be a Lord Chancellor. The answer was first and foremost he must be a gentle- man. It doesn’t matter if he knows a lit- tle also. So the importance of technical knowledge is being emphasised today. That also is important. Law is increas- ingly becoming a junior branch of eco- nomics. Economics is increasingly becoming a junior branch of technology. When explosion of technology is wit- nessed then all other systems also have to change to suit the demands of inno- vation. That’s why every institution re- quires introspection. Because the world is changing rapidly. It should also suit the mindset of the present generation. According to me, the present generation of Homo Sapiens is not a genetic des- LEGAL ANGLE Rajshri Rai is all ears as Justice Venkatachaliah makes a point
  • 20. Lead/ Interview/ Former Chief Justice MN Venkatachaliah 20 March 23, 2020 Today, the country is embroiled in controversies and conflicts related to the Citizenship (Amendment) Act, sedition laws and the National Population Register. What is your take on these controversies? Every nation has its laws and is free to enact them. If some apprehension has crept into the minds of a section of peo- ple regarding some law, then these fears need to be addressed. This can be best addressed by debate and discussion. You have to use the power of persuasion to show that nothing is intrinsically wrong with the laws. The apprehension that laws will be applied discriminately is probably creating problems. We today operate in a polarised atmos- phere. Conflict is common and often leads to violence. In such a strife-ridden atmosphere, the role of the police is often under the scanner, and when matters relating to communal conflict reach courts, questions get raised on the judg- ments. How justified is this? We have to trust our judiciary and accept its decisions on critical issues. If we don’t trust the judiciary, we will lose confidence in it and also in democracy. Judges are aware of both sides of the matter. They know what is horrific for the nation. Don’t substitute their wisdom with your impositions. Let the system work. The judiciary must interpret the law and apply the rule of law. It should do so without taking sides or taking personali- ties into consideration. That is the only way in which it can gain public confi- dence. We shouldn’t depend on the judi- ciary for everything. It is a mark of a weak society. This will prevent people from settling disputes democratically. For the protection of human and funda- mental rights, the judiciary is the best institution and we should trust it. In times when executive action is found wanting in important areas of public concern and policy matters, the judici- ary takes on a proactive role. This is often termed as judicial activism. This has been on the rise, and in many cases, I don’t think so. There are limits of judi- cial intervention. The courts can only instruct and set goals. It is the executive that has to execute the action plan. The court sets the objective, for example, protect the structure, but the executive has to perform, taking into account all the ground realities. The Ayodhya judgment has now become a case study of sorts. It was not only one of the longest-running legal battles, but the judgment touched upon the sensitive issue of faith versus rule of law. How do you see the verdict in retrospect? This case didn’t turn on pure legal logic, but on the broader issue of national con- ciliation and consensus. There is a power peculiar to the Supreme Court under Article 142. It empowers the Court to pass such “decree or order as may be necessary for doing complete justice between the parties”. This power was invoked during the Ayodhya judg- ment. It was a broader exercise and not limited to mere determining of the legal rights of the land. It wasn’t an emotion- al judgment, but based on wisdom. You have given so many ideas to bring about reforms in the social, political, led to a face-off with the executive. What are your views on this? Judicial activism is a slippery slope. You are acting in an area where legislators or administrators should be doing their duty. You see somewhere and somehow some institutions are not performing their constitutional duties and obliga- tions. Then the courts have to intervene. Someone else has to do the job so that the demand of the Constitution is met. The government has no choice. It has to take the decision of the court in a gra- cious way and work out democratic equality. Going back in history, you were criti- cised for not acting to stop the appoint- ment of a multi-member Election Co- mmission and for allowing the symbolic kar seva in Ayodhya. Given a chance, would you have acted otherwise? “Dynasticpoliticsshouldbedone awaywith.Holdingpartypresi- dentshiponaccountofheredityis acrime.Bypoliticalreform,wecan nurturethesoilofdemocracyand makeithealthyandwhole.”
  • 21. | INDIA LEGAL | March 23, 2020 21 should be a buffer between them. Civil servants shouldn’t be misused by the political class. EVMs are seen as tools to correct elec- toral malpractices. Now a question mark is being raised over them also. Do you think EVMs are a good solution? There is an expansive message in the paper trail of EVMs. By collaborative evidence, model statistical analysis and big data analysis, we can assess the degree of divergence. It is working quite well and the results are coinciding with exit polls. It is one of the tests. You can’t achieve perfection in assessment but EVMs are better than paper ballots. I have seen bunches of paper ballots being manipulated. They are not reliable and are more open to mischief than EVMs. The paper trail analysis is signifi- cant. Some margin of error is all right. Swami Vivekananda said that if you are very logical, you can’t be spiritual. What is your view on this? Vivekananda says so many things beau- tifully. He talks about evolution and not revolution. He talks about diversity of religious traditions and the need for coexistence. Vivekananda stresses unity of religious values and their integration. He doesn’t talk about one religion for all, rather, to each according to his own is his motto. This is relevant for our times. The new generation is very attached to the internet which has become the pri- mary mode of knowledge transmission and interaction. However, the State has clamped down on the internet in trou- bled times. In this context, the Supreme Court recently held that access to the internet is a fundamental right. We are now thinking of its ill-effects and potential for misuse. The internet is one of the greatest inventions mankind has seen, almost next to the railroad. If the question is how to protect children from its ill-effects, the answer lies in the fact that the internet is a protection against itself. There lies a way in which the internet can be manipulated to prevent unwanted information reaching chil- dren or vulnerable groups. AI is excit- ing. It is based on logic and logic is a friend of justice. Humanity has a lot to look forward to. Spirituality and human evolution are taking an upward course. Can you expand on the underpinnings of the judgment on internet access and its importance? Times have changed. Access to the internet is equated with the right to information, the right to knowledge. It is an attribute of the human being or human personality. Internet access can be abused, but then everything can be abused. Social media has the potential for mis- use. With current cyber laws, are we ready to regulate the internet? No, we are not conscious of the magni- tude of the problem or the ill-effect it judicial and constitutional arena. Now, when optimism has become a political war cry and Prime Minister Modi’s slo- gan achhe din has been hailed as a game-changing mantra, when do you think the wait for better days will come? For the judiciary, there will always be achhe din. This is because they take the responsibility to resolve tensions and help people carry on with their lives. They make the world a better place to live in. It’s not their technicality but wis- dom which we should respect. We should trust the Supreme Court. In the past and in recent times, inter- community strife has led to bloodshed. Politicians indulging in hate-mongering have been let off without punitive action. In this context, the political class needs to be more responsible and responsive. Political parties have the responsibility to evolve systems that go beyond their interests. They should sit together and evolve systems to improve electoral pol- itics. Though the executive and the civil servant work in tandem, pressure is often brought on the bureaucracy by the political class to serve its interests. Hence, the executive and the civil serv- ices should be separate and there “Wehavetotrustourjudiciaryand acceptitsdecisionson criticalissues.Ifwedon’ttrust thejudiciary,wewillloseconfi- denceinitandalsoindemocracy.”
  • 22. 22 March 23, 2020 can produce. Take a kitchen knife. It can cut vegetables and it can injure a human being. Science is like that. The nuclear bomb killed millions but when nuclear science was used for medicine or con- structive purposes, it enhanced the qual- ity of life. How to minimise bad effects and maximise good effects depends on the genius of the man. Religion seems to have become a divisive tool and much hatred is being generated in its name. Is the political system to be blamed for this? Religion per se doesn’t divide. No reli- gion says that. Some religious practices are peculiar to a certain social context and when seen without that context, they are construed to be divisive. Nothing should be seen outside context. When we understand this, then the mes- sage of religious traditions is properly understood. We should also assess the potential of science and governance. Today, human dignity is coming centre- Finally, what message would you like to give our readers? Give kindness and understanding to one and all. Admire people who do good and can change the world. Take care of chil- dren. Make them good citizens with beautiful, blossoming minds. Give them positive thoughts. I am the founding chairman of Sarvodaya International Trust. It is a beautiful institution. We encourage that each Hindu boy should have a Muslim friend and vice versa. The families of boys meet every three months and this promotes mutual understanding and communal harmony. It is this spirit which we should promote in society. Be positive. Things will hap- pen. There is so much of beauty and goodness in the world. You are the patron of India Legal. What would you like to say to us? India Legal is providing substantial leadership and it will contribute in making a better future. It is examining critically every issue. Critical analysis is the foundation of progress. The India Legal conclaves are beautifully arranged. People who have participated in them are eminent personalities. The thoughts expressed by them are so relevant. There is no negative thinking about the society. Thirty thousand years back, we were cavemen. Now we are civilised. We are constantly evolving as human beings. People who consti- tute India Legal have great responsibil- ity for bringing an era of peace, con- tentment and progress. We should aim for a society where everybody is happy and well looked after. We should aim for creating a society where everyone gets the best opportunity to develop one’s higher self. India Legal should aid this process. stage. The great challenge before today’s political leadership is how to mobilise positive forces for the good of one and all. Political leadership has the immense task of synthesising the posi- tive forces and taking it forward. That can be done by the right-thinking sec- tions of society. It is possible that some day, science will lead to that. Internet, AI will do that. Perhaps God will be made manifest by the scientist. Scien- tists will place before us the conception of God. Today, everyone has a mobile phone and this can cause mischief. Have we not properly harnessed the mobile phone revolution? A hand-held mobile phone is a symbol of immense social and techno- logical change. We not only communi- cate through it but also access informa- tion and control devices. The responsi- bility to use it correctly lies with the individual. “IndiaLegalisprovidingleader- shipandwillcontributeinmaking abetterfuture.Itisexamining criticallyeveryissue.Thecon- clavesare beautifullyarranged.” Lead/ Interview/ Former Chief Justice MN Venkatachaliah
  • 23. Bringing You The Stories That Count An ENC Publication To Stay Abreast With Today, Pick Up Yesterday’s India Legal ONLY THE STORIES THAT COUNT Every week India Legal will bring you news, analyses and opinion from the sharpest investigative reporters and most incisive legal minds in the nation on matters that matter to you Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends NDIA EGALL STORIES THAT COUNT I March16, 2020 LawandDisorderCrucialmattersthatcameupintheSupremeCourtandDelhiHighCourtindicateacrisisinIndia’s basicgovernance.TheCrPCandPoliceActsclearlylaydownthatitisthejobofDMsandSDMsto maintainlawandorder,buttheirrolehasbeentakenoverbythepolicewithquestionableresults Fast Track Courts: New scheme
  • 24. LYING the flag is an act of patriotism. But it is important to remember that our case was not pegged on patriotism. It is a victory for our democracy that the constitutional basis on which it was decided was not whether an act is or is not patriotic. It is based on the freedom of speech. We found a rooting in a constitutional text and unless you find a rooting in a juristic principle, you are not making good law. If the Supreme Court had said you have a right to fly the flag because it is 24 March 23, 2020 patriotic to fly the flag, that would be uncharted and leave us without a prin- ciple to follow. Therefore, I am happy that we pegged it and rooted it in Article 19(1)(a), which is a well-known right. Abhishek Singhvi, as one of the top lawyers at the Supreme Court, has helped shape contemporary trends. In his latest work, From the Trenches (co-authored with Satyajit Sarna), he revisits eight defining cases of our times, and presents a view, as it were, from the trench- es. Here is an excerpt from one of them, Naveen Jindal vs the Union of India—the case that won all citizens the right to fly the tricolour F twitter.com Books/ Extract/ From the Trenches Flying high NaveenJindalholdsaformal flagfunctionon26January everyyear,afterthejudgment inNaveen Jindal vs Union of India casecameout.
  • 25. non-affiliated, not casteist, not sect dominated, not race dominated; it is the most secular symbol you can think of. And while this is true for every country, nowhere is it as true as in the world’s most diverse country–India. What drove Naveen Jindal to fight this long, hard, principled fight? After all, he is an industrialist, a busy person who has plenty of important things to deal with. Why did he fight the government for years over such an abstract principle? I think maybe it was an eccentricity. Society progresses on the backs of not only sensible people but also eccentrics and ordinary people who may have one overriding obsession. You may be a rational person, but it is the eccentric kink in you which leads to change and progress. Naveen Jindal had an unusual inter- est in the flag, an exceptional devotion to the cause and he fought for the prin- ciple he believed in. It is often this kind of passion, usually irrational, that wins us our rights and freedoms. —Excerpt reproduced with the permission of the publisher | INDIA LEGAL | March 23, 2020 25 Patriotism may be the underlying ethic but the judgement supports also my freedom of expression unrelated to patriotism. It is possi- ble to use that right even in a criti- cal sense, to use it to criticize the state of the nation. One could fly the flag at a demonstration, for example, to point out that soldiers are dying at the border for a poor policy of a government. Whether that is patriotic or not is open to question and there are people who would interpret it either way. But it is one’s right–to the extent, of course, that nobody burns the flag. O ne of the things I am most grateful for in the Jindal case is that the Court per- mitted it to be heard and decided on rights. The Union was not per- mitted to take it back and fix the gaps in the Flag Code, and put a soft end to the dispute. Judges who are not decisive prefer controversial disputes to be worked out broadly by consensus. That is simply a way for judges to decide not to decide. My biggest fear was the Court would back off from deciding by saying we agree there is a right, but let the government arrive at some convenient solution. It came very close to that many times in those two to three years. These things depend largely on the personality of the judge in question. It is natural for judges to want to avoid writing a judge- ment if the government is telling them the decision will yield unpoliceable consequences. But this time, Justice Khare, a little uncharacteristically, stood his ground and went on to decide the matter final- ly, and strongly, in our favour. Equally, even though the government had made it clear that Naveen Jindal would not be prosecuted, I am glad he decided not to withdraw the case, and allow the gov- ernment to go forward with a modified Flag Code. Naveen Jindal has invited me every year after that on 26 January, when he holds a formal flag function at his house. He always sends me a flag and also a lapel pin. I have often attended the function. As a consequence of the judgement, a flag movement started, very much encouraged by Jindal. It started with schools educating children about the flag, then holding functions, passing out small lapel pins which children could wear. The flag movement now has become a larger movement of awareness, awareness of the unity and integrity of India through its diversity, a non-communal, secular symbol. The flag is our most secular symbol not merely in religious terms, but also, more broadly, where secular means “OneofthethingsI ammostgratefulfor inthiscaseisthat theCourtpermitted ittobeheardand decidedonrights. TheUnionwasnot permittedtotakeit backandfixthe gapsintheFlag Code”—DrAbhishek ManuSinghvi From the Trenches Author: Abhishek Singhvi & Satyajit Sarna Publisher: Juggernaut Pages: 225 Price: Rs 599 UNI
  • 26. My Space/ Coronavirus Dr KK Aggarwal 26 March 23, 2020 NDIA produces a third of the world’s medicines, mostly in the form of generic drugs. But more than 80 percent of the raw materi- als or active pharmaceutical ingre- dients (APIs) for these drugs are imported from China. That gives it a virtual monopoly over pricing and sup- ply, so much so that there are no domes- tic producers left for many essential medicines in India. An API, incidentally, is the most basic building block or component of a medicine. For example, acetaminophen (paracetamol) is the chief therapeutic entity in aspirin or crocin. Latest statistics from the Directorate General of Commercial Intelligence and Statistics tabled in Parliament reveal that in 2016-17, of the total import of bulk drugs and drug intermediates of Rs 19,653.25 crore, China constituted 66.69 percent (Rs 13,107 crore). In 2017-18, India imported Rs 21,481 crore worth of bulk drugs and intermediates, and the share of China increased to 68.36 per- cent (Rs 14,755 crore). Chinese imports levelled at 67.56 percent (Rs 17,263 crore) in 2018-19, still the largest share in total Indian imports worth Rs 25,552 crore. Also, overall India’s dependence on imports of bulk drugs and drug intermediates has gone up by 23 percent from 2016-17 to 2018-19. The Department of Pharmaceuticals (DoP) in the ministry of chemicals and fertilisers said that the imports from China are due to economic considera- tions. This essentially means that Chinese imports are cheaper and more cost-effective for pharma manufactur- ers. Though India looks at other sources like the US, Italy, Singapore and Hong Kong for such imports, there is fear of a sharp spike in the price of finished drugs when APIs are imported from other countries apart from China. And even as India’s dependence on imports is considerable, policies formulated by the government to minimise this and give a fillip to indigenous manufacturing have remained only on paper. It was six years back that the Congress instituted a high-level com- mittee to fight the heavy dependence on Chinese bulk drugs. Later, the National Security Advisor had warned that this dependence could be a national security threat. Apart from the dependence on legal imports, a large number of illegal imports of APIs from China were also a cause of worry for the regulator. In another reply tabled in Parlia- ment, the DoP informed that an inter- ministerial task force was also constitut- ed under the chairmanship of the minis- ter of state (chemicals and fertilisers) on April 18, 2018 to formulate a road map for enhanced production of APIs in India. Unfortunately, the task force has not even met every alternate month since August 2018, when ideally it was supposed to meet every month to take crucial decisions for boosting API pro- duction in proposed bulk drug parks. The DoP has a scheme—“Assistance to Bulk Drug Industry for Common Facility Centre”—for providing assis- An Opportunity for India WiththeimportofactivepharmaceuticalingredientsfromChina beinghit,Indiashouldreviveitsownmarketbysettingupfresh manufacturingcentresandgiveincentivestothisindustry I 0 10 20 30 40 50 60 70 2016-17 66.69% 68.36% 67.56% 2017-18 2018-19 Rs 13,107 crore Rs 14,755 crore Rs 17,263 crore Source: Statistics from the Directorate General of Commercial Intelligence and Statistics tabled in Parliament DrugImportsFromChinaas a%ofTotalDrugImports
  • 27. | INDIA LEGAL | March 23, 2020 27 tance to the bulk drug industry for a common facility centre in any upcoming drug park promoted by state govern- ments or state corporations, the min- istry stated. Only in-principle approval was given for constructing these parks now in Himachal Pradesh, Telangana, Andhra Pradesh and Assam. It will be a couple of years before the projects see the light of day. India also more than doubled the import of antibiotic drugs from China in recent years and the trade is now worth billions of dollars. There are now no domestic producers left for penicillin and its derivative. There was always a fear of a public health crisis if China were to ever stop its supply. This has now come true after Covid-19 created a shortage of essential medicines as India has been dependent on China for many APIs. Drug companies blame the gov- ernment, saying that low-cost imports have forced many manufacturers to close down. Some have now given up producing ingredients for other drug manufacturers and gone on to produce more complex formulations themselves, which they then export to developed markets in the US and Europe. Bureaucracy and lack of environmental clearances in India have also made it uneconomical to produce raw materials anymore. However, switching back to mass production of raw materials is not diffi- cult or too late. If the government acts quickly, things can turn around in less than 10 years. J ust as India is dependent on China for many APIs, other countries are dependent on India for other APIs. So there are companies which import in bulk from China and export in small amounts. The Directorate General of Foreign Trade (DGFT) has now restricted the export of 26 APIs—paracetamol, tinida- zole, metronidazole, acyclovir, Vitamins B1, B6 and B12, progesterone, chloram- phenicol, erythromycin and clindamycin salts, neomycin and ornidazole—with immediate effect as the Covid-19 epi- demic in China is seen affecting their supply. Companies planning to export these products will have to secure a no- objection certificate from the govern- ment. The government’s list of 26 APIs and medicines accounts for 10 percent of all Indian pharmaceutical exports. It is unclear how the restriction would impact the availability of these medicines in countries that import from India and also depend on China. In the US, for instance, Indian imports accou- nted for 24 percent of medicines and 31 percent of medicine ingredients in 2018. It is time to build infrastructure to make them in India. The government has decided to set up a 10-member tech- nical committee to revive India’s lost capacity to make certain crucial drug ingredients. The committee is expected to suggest ways to revive India’s API segment, especially fermentation-based APIs. One of the duties of the commit- tee is to look into the cost of setting up fresh API manufacturing capacities to RATTLED BY COVID-19 OUTBREAK A medical supplies factory in Linli, in China’s Hunan province ThoughIndialooksforimportsfromthe US,Italy,SingaporeandHongKong,there isfearofasharpspikeinthepriceof finisheddrugswhenAPIsareimported fromothercountriesapartfromChina. UNI
  • 28. STRATEGIC ADVANTAGE India imports over 80 percent of the raw materials for medicines from China 28 March 23, 2020 My Space/ Coronavirus/ Dr KK Aggarwal wean India off its dependency on imports of these products. Around 58 such ingredients had been identified, including amoxicillin, Vitamin C, neomycin, acyclovir and tetracycline. T he Drug Controller General of India gave a list of these 58 key drugs (for which India is heavily dependent on China) to associations such as the Indian Pharmaceutical Alliance, Indian Drug Manufacturers Association and the Organisation of Pharmaceutical Producers of India and asked them to inform the government about the status of raw material stocks for manufacturing these drugs. These include blood pressure medication Telmisartan, antibiotics such as Levo- floxacin and Azithromycin, statins such as Atorvastatin and Rosuvastatin and a few vitamins. The list also includes anti-retrovirals such as Lopinavir and Ritonavir that have been approved by the ICMR for treating coronavirus affected patients. The key concern was in the case of anti- diarrheal drugs such as metronidazole and ornidazole for which Indian manu- facturers depended heavily on China for APIs. To reduce the reliance on China, it was important that the raw material used for manufacturing APIs is also made in India. China offered many advantages such as free land, low-cost utilities like water, steam and power and negligible financ- ing costs. China had reformed its drug approval processes to shorten schedules. It put in place a priority review process for drugs for critical conditions and reduced the time it took to approve process changes in clinical trials. Medi- cines for anemia and bowel cancer are manufactured in China and imported by India. So what does India need to do? Firstly, it should rationalise the prescrip- tion of drugs. Medical Council of India ethics regulation 1.5 on the use of gener- ic names of drugs says: “Every physician should prescribe drugs with generic names legibly and preferably in capital letters and he/she shall ensure that there is a rational prescription and use of drugs.” This would mean practising only evidence-based medicine. Restrict use of paracetamol for high fever and don’t misuse tinidazole and metronida- zole for acute diarrhoea and vitamins B1, B6 and B12. Antibiotics such as chloramphenicol, erythromycin, clin- damycin salts and neomycin in any way have restricted uses. The government should make a list of non-essential drugs in shortage so that all doctors are aware about them and do not write them if not essential. To promote the API industry, the government should give its manufactur- ers free land, low-cost utilities such as water, steam and power and negligible financing costs. It should also liberalise policies for clinical trials and approval of already approved drugs in other coun- tries. It should also liberalise the condi- tions for clinical trials. What is the idea of testing in India if the trials have already taken place in China (Mongolian population), Sri Lanka (Dravidian population) and Nepal (Aryan population)? The new India effort will also imp- rove the safety and quality of drugs. Last year, the FDA issued an alert over a can- cer-causing ingredient, NDMA, used in the blood pressure medication losartan and valsartan, made by Chinese compa- ny Zhejiang Huahai. This resulted in the recall of such drugs all across the globe. Also, last year, a scandal over tainted vaccine doses sold in China led to the arrests of executives of Changsheng Biotech, which was also accused of forging data during the production of a rabies vaccine given to infants. So it is time for India to become self- reliant in APIs to prevent another short- age like the one the coronavirus has inflicted on it. —The writer is President, Confederation of Medical Associations of Asia and Oceania, and Heart Care Foundation of India Thegovernmenthasdecidedtosetupa 10-membercommitteetoreviveIndia’s lostcapacitytomakecrucialdrugingredi- ents.Thepanelisexpectedtosuggest waystoreviveIndia’sAPIsegment. commons.wikimedia.org
  • 30. Amaravati, the legislative capital, will also have the camp offices of the governor and the chief minister as well as a bench of the High Court The coastal city of Visakhapatnam is the executive capital, comprising the Raj Bhavan, the chief minister’s office and the secretariat, among others Kurnool is the judicial capital, where the High Court will be located Andhra Pradesh 30 March 23, 2020 CCORDING to the Andh- ra Pradesh Decentralisa- tion and Inclusive Deve- lopment of All Regions (APDIDAR) Bill, 2020, the state shall have three capitals. Visakhapatnam Metropolitan Region will host the executive capital comprising the Raj Bhavan, the chief minister's office, the secretariat and the offices of heads of departments, the summer session of the legislative assem- bly and a bench of the High Court. Amaravati-Mangalgiri Complex will be the seat of the legislative assembly and will inter alia accommodate camp offices of the governor and the chief minister as well as a bench of the High Court. The winter session of the legisla- tive assembly shall be held here. Kurnool will be the judicial capital and the seat of the state’s High Court. Thus, the doctrine of separation of powers has been given a geographical dimension. A host of other administrative arr- angements too have been proposed. Thus, zonal planning and development boards and offices of divisional revenue commissioners shall be set up. The nu- mber of districts is proposed to be in- creased from 13 to 25. The offices of village and ward secretariats, along with village and ward volunteers, will also be established. Simultaneously, the Andhra Pradesh Capital Region Development Authority (APCRDA) Repeal Bill, 2020, proposes to wind up this Authority. It will be replaced by the Amaravati Metropolitan Region Development Authority (AMRDA). It has been argued that lopsided development of various regions of Andhra Pradesh over the years sowed the seeds for the separate Telangana movement that ultimately led to the bifurcation of the state in 2014. The new arrangement is based on the recommen- dations of professional agencies and expert committees. Over 20,000 farmers (70 percent of them small and marginal) pooled 33,000 acres on the promise of various benefits, all of which may not materi- alise if Amaravati is replaced by three capitals. The government has, of course, promised to increase the annuity accru- ing to the farmers from 10 to 15 years. Monthly remuneration to the landless poor is proposed to be increased from Rs 2,500 to Rs 5,000. However, the farmers consider the three-capital idea a breach of trust. They and their depen- dants may not get the promised jobs. Social and physical infrastructure may not develop as expected. Anticipated appreciation in the price of land may also not come about. It has also been argued that Amara- vati is neither Guntur nor Vijayawada, which were front-runners for the loca- AsperaBill,AndhraPradesh willhaveanexecutive,a judicialandalegislative capital.Whilethis decentralisationmayseem good,therearelegitimate concernsaboutadditional costsandlogistics Opinion/ Three Capitals in AP Vivek K Agnihotri A Viable Development Model? Over20,000farmersinAmaravatiregion havebeenprotestingagainsttheAndhra Pradeshgovernment’sintentiontoshift thestatecapital.Theygaveuptheirfer- tilelands,hopingfora“world-classcity”. A Rajender Kumar
  • 31. | INDIA LEGAL | March 23, 2020 31 tion of the High Court and the executive capital. The infrastructure required to be created would entail an expenditure of more than Rs 1 lakh crore. More-over, if some of the construction activity is not permitted by the National Green Tribunal and River Conservation Act, only about 5,000 acres would be avail- able for the development of Amaravati as a capital. There are also legitimate concerns about additional costs, as several facili- ties created in Amaravati may have to be re-established in Visakhapatnam and Kurnool. The project cost of the Amara- vati capital was estimated at about Rs 33,000 crore, of which almost Rs 5,500 crore has been spent, according to the government. But according to the oppo- sition, it is Rs 10,000 crore. Thus, apart from the financial viability of the new configuration, there are also concerns relating to wastage. Logistics too are a bother. The dis- tance between Visakhapatnam and Amaravati is 367 km; between Visakha- patnam and Kurnool it is 692 km and between Kurnool and Amaravati it is 343 km. Commuting between the three capitals for the public and public ser- vants (officers as well as legislators) may be a strain—on their time as well as the state’s resources. It would also mean more legwork for industry representatives to discuss and pursue their projects. Government employees, who moved to Amaravati from Hyderabad only a couple of years ago, would have to relo- cate to Visakhapatnam and Kurnool. Although the state government has given a thought to it, the physical and emotional ordeal cannot be avoided. A gain, in a government, the exec- utive accounts for most of the offices. If all the government offices are to be located in the Visakha- patnam Metropolitan Region, how will the benefits of decentralisation percolate to other regions? The opposition has called the move a conspiracy to “kill” the Amaravati proj- ect. It is alleged that the ruling party does not want the credit for the new capital to go to N Chandrababu Naidu, the chief architect of the venture. Political observers are of the view that this whole imbroglio is part of the ingrained caste rivalries between the coastal Kammas, represented by Naidu and his followers, and the Reddys from Rayalseema. The Kammas would have gained from Amaravati. Chief Minister Jagan Mohan Reddy is seeking to rebal- ance the equation for the community he represents. Decentralisation and distribution of government offices in various parts of the state is not an idea to be dismissed in limine. It is also not unique. Locating the executive and the legislature at one place and the judiciary at another place is not uncommon. In Uttar Pradesh, the executive and the legislative branches are at Lucknow, whereas the High Court of Allahabad is located in Prayagraj. Similar is the situation in Rajasthan (Jaipur and Jodhpur) as well as Madhya Pradesh (Bhopal and Jabalpur). It is also in vogue to have assembly sessions at two venues during a year. This is so in Maharashtra and Karna- taka. However, locating the permanent seat of the legislature away from the executive capital of the state has not been attempted in India. Equitable dis- tribution of government offices across the state in order to ensure “inclusive” development is also not uncommon. For instance, in Madhya Pradesh, of which Bhopal is the executive and legislative capital, the offices of the Board of Reve- nue, Excise Commissioner, Transport Commissioner and Commissioner of Land Records are at Gwalior. Indore is the seat of the Public Service Commi- ssion, Commissioner of Commercial Taxes and the Labour Commissioner. Given the constraints and the politi- cal compulsions, the objective of decen- tralisation and inclusion can still be achieved if the secretariat and the legis- lature are located at one place, which, of course, should be centrally situated. The offices of heads of department and other institutions may be distributed equitably across the state on the lines of other states, including Madhya Pradesh as mentioned above. The legislative ass- embly and the High Court cannot really be envisaged as engines of growth for regional development. A business magnate, in the context of corporate governance, had recently observed that three engines can never run a company successfully. —The writer is a former Secretary-General, Rajya Sabha, and a retired IAS officer of the AP cadre TheoppositioninAPhascalleditaconspiracyto“kill”theAmaravatiproject.Itis allegedthatCMJaganMohanReddy’s(right)partydoesnotwantthecreditforthe newcapitaltogotoChandrababuNaidu,thechiefarchitectoftheventure.
  • 32. stated, inter alia, that the continuation or cessation of the operation of Article 370 after the dissolution of the Constituent Assembly of the state was not an issue before the Supreme Court in the Prem Nath Kaul case unlike in the Sampat Prakash case. To understand this issue, we need to examine the rele- vant provisions of Article 370 that governed the rela- tionship between the gov- ernment of India and the state of J&K. India achieved independence through the Indian Independence Act, 1947 which provided that from August 15, 1947, there would be two independent dominions of India and Pakistan. The princely states were to join either of them. They were also given a third option—to remain inde- pendent. Quite a few of them were toying with the idea of remaining independent. However, all but the state of J&K joined India by August 15, 1947, or soon after. But when Kashmir was invaded on October 22, 1947, Maharaja Hari Singh sought military help from Delhi and simultaneously requested accession of Kashmir to India. Thus, Kashmir was acceded to India under exceptional cir- cumstances on October 26, 1947. Yet, the Maharaja slipped in certain clauses in the Instrument of Accession of Kashmir that would help him retain some extent of sovereignty over the state. Thus, the accession of Kashmir was different from those of other princely states, and it was a conditional one. Opinion/ Article 370 Sumit Dutt Majumder 32 March 23, 2020 FIVE-judge Constitution Bench of the Supreme Court passed a judgment on March 2, 2020, where the petitioners prayed that petitions challenging the constitutional validity of scrapping Article 370 in J&K be referred to a larger bench. The ground for such a prayer was that there were two conflicting judg- ments of the Supreme Court on the sta- tus of Article 370, and therefore, there was a need to get the issue settled by a larger bench. In the Prem Nath Kaul case (1959), the Supreme Court observed that Article 370 (2) shows that the continuance of the exercise of powers conferred on Parliament and the president by the pro- visions of Article 370 (1) is “made condi- tional on the final approval of the Constituent Assembly of Kashmir”. However, in the Sampat Prakash case (1968), the apex court decided that “Article 370 has never ceased to be oper- ative” and it could be invoked even after the dissolution of the Constituent Assembly. The present five-judge bench, howev- er, held that there was no conflict between the judgments of the Supreme Court in the cases under reference and therefore, there was no case for referring the matter to a larger bench. The bench Outmanoeuvred? EvenastheSCrefusedtoreferArticle370’sscrappingtoalargerbench,it’sobviousthattheabrogation ofJ&K’sspecialstatuswasachievedthroughlegalfiction,showingtheadroitnessofthecentre A Amitava Sen
  • 33. | INDIA LEGAL | March 23, 2020 33 These facts had a bearing in the mak- ing of Article 370. The effect of Article 370 read with Article 1 of the Constitution can be summarised as follows: i) The act of accession of the state of J&K was unequivocally given legal effect by declaring J&K a part of the territory of India by virtue of Article 1 read with Serial No 15 of the First Schedule. ii) The legislative authority of Parliament over the state of J&K would be such that in addition to defence, external affairs and communication, which are specified in the Instrument of Accession of Kashmir, the Union Parliament can also make laws with regard to the items in the Union and Concurrent Lists, but only with the con- currence of the state government. iii) Article 238 which concerns application of certain provisions relating to the princely states will have no effect on J&K. iv) In terms of Clause (3) of Article 370, the president may, on the recom- mendations of the Constituent Assembly, issue an order that Article 370 will either cease to be operative or shall be opera- tive only subject to such exceptions and modifications as may be specified by the president. Very briefly, it can be said that Article 370 extends autonomy to J&K by mak- ing it clear that except for the provisions so specified in the Constitution, no other provisions of the Indian Constitution would be applicable to it. A rticle 35A, introduced later on May 14, 1954, empowered the J&K Legislature to do a few things; these included defining “perma- nent residents” of the state and empha- sising exclusive and special rights and privileges with regard to the acquisition of immovable property in the state, employment under the state govern- ment, and so on. The idea was that the benefits to which the residents of the erstwhile princely state of Kashmir were entitled were not to be withdrawn with Kashmir joining the Indian Union. Thus, Article 370 and Article 35A took care of the restricted autonomy for Kashmir. The elements of such autonomy were also enshrined in the new Constitution of the state of J&K that was introduced in November 1956. Let us now understand certain specif- ic provisions of Articles 370 and 35A as they stood before August 5, 2019. Article 370 had barred application of certain provisions of the Indian Const- itution to the state of J&K. Article 370(1) (c) and 370 (1) (d) deal with the applica- bility of the Indian Constitution to the state of J&K. In terms of Article 370 (1) (c), the two articles, i.e. Article 1 and Article 370 of the Constitution will apply to J&K. Article 370(1)(d) is important. Under it, the Indian constitutional provisions could be applied to J&K from time to time, as modified through a presidential order and, importantly, after the concur- rence of the state government. Another important provision of Article 370 was the proviso to Clause 3. This clause itself authorised the presi- dent to pass an order removing or modi- fying parts of Article 370. But, there is an equally important proviso to it which stated: “Provided that the recommenda- tion of the Constituent Assembly of the State referred to in Clause (2) shall be necessary before the President issues such a notification.” The issue is that the Constituent Assembly of J&K was dissolved and it ceased to function from January 1957. This led to a longstanding debate on whether Article 370 has become perma- nent effectively because there was no Constituent Assembly to give consent. A question was also raised whether it would require a revival of the J&K State Constituent Assembly to amend it or whether it can be amended through the normal amendment procedure under the Constitution. Further, the state of J&K was under President’s Rule from December 2018. Therefore, obtaining the concurrence of the state government was an issue as it was non-existent dur- ing this time. ThestateofJ&KwasunderPresident’s RulefromDecember2018.Therefore, obtainingtheconcurrenceofthestate governmentwasanissueasitwas non-existentduringthistime. WATERSHED MOMENT A newspaper headline announcing Kashmir’s accession to India on October 26, 1947
  • 34. DECISIVE ACT Maharaja Hari Singh had signed the Instrument of Accession of Kashmir 34 March 23, 2020 Opinion/ Article 370/ Sumit Dutt Majumder In the present context, another important article is Article 367 which provides various guidelines about how the Constitution may be interpreted. The presidential order of August 5, 2019 added clause (4) with four sub-clauses to Article 367 where “Sadar–I Riyasat” will be construed as “governor of Jammu & Kashmir” and “State Government” shall include the governor. Further, the words “Constituent Assembly” used in Article 370(3) must be read as “Legislative Assembly of Jammu & Kashmir”. So how was the special state status as provided by Article 370 abrogated and J&K bifurcated? First of all, the Presidential Order C.O. 272 issued on August 5, 2019, used Article 370(1) (d) to apply all provisions of the Indian Constitution other than Articles 1 and 370 to the state of J&K. As mentioned, Articles 1 and 370 were already applica- ble to J&K by virtue of Article 370 (1)(c). Article 370(1)(d) does allow the presi- dent to amend or modify various provi- sions of the Constitution in relation to J&K, but with the concurrence of the government of J&K. Under Article 370(1)(b)(i) and (ii), similar concurrence of the government of J&K is needed for the president’s exercise of power in respect of matters in the Union List and the Concurrent List. So, the Presidential Order C.O. 272 used the power of the president under Article 370 (1) to indirectly amend Article 370 (3) and Article 370 (1) itself via a third constitutional provision i.e. Article 367, which provides various guidelines on the interpretation of the Constitution. By virtue of the aforesaid amend- ments of Article 367 through Presid- ential C.O. 272, the governor of J&K, who is a representative of the central government, became the government of J&K. Further, the Legislative Assembly became the Constituent Assembly. But there being no Legislative Assembly because the state was under President’s Rule, it fell upon Parliament to make the recommendations which were to come from the J&K Legislative Assembly. Thus, a number of legal fictions were created in order to achieve various objec- tives in respect of abrogation of special status of the state of J&K. F inally, on the issue of breaking up J&K, Article 3 of the Constitution gives Parliament the power to change the boundaries of a state and to form a new one by simple majority. But this change required that such a Bill be first referred to the concerned state assembly by the president for ascertain- ing its views. But as there was no Legis- lative Assembly, the Second Resolution of the Parliament stated that the presi- dent had referred the Jammu & Kashmir Reorganisation Bill, 2019 to Parliament for its views as it is vested with the powers of the state legislature of J&K. On pass- ing by Parliament, the state of J&K got bifurcated into two Union Territories from October 31, 2019. In the best tradition of Indian democracy, debate started in various platforms on the correctness or other- wise of the government actions. Broadly, five main issues emerged out of them: (1) Was Article 370 just a temporary provision or has it effectively become permanent since there was no Constituent Assembly in Kashmir to give consent? (2) Can Article 370 be used first to amend Article 367, and thereafter the amended Article 367 be used to amend Article 370 itself, to call the Legislative Assembly as the Constituent Assembly? (3) Can the governor of the state under President’s Rule be called the state government? (4) Have the conditions relating to “sovereignty” in the Instrument of Accession of Kashmir been violated, and if so, are they valid? (5) Is the reorganisation of the State of J&K by bifurcating it and converting the parts into Union Territories without the approval of the state legislature and the state government valid in law? The jury is out on this. The Supreme Court judgment of March 2, 2020, has not gone into the merits of the issues. The wait starts for the final verdict of the Supreme Court on this. —The writer is former Chairman, Central Board of Excise Customs and author of the book “Article 370 Explained for the Common Man” ThePresidentialOrderC.O.272usedthe powerofthepresidentunderArticle370 (1)toindirectlyamendArticle370(3) andArticle370(1)itselfviaathirdcon- stitutionalprovisioni.e.Article367.
  • 36. 36 March 23, 2020 year after the Lokpal was formed, the govern- ment notified the Lokpal (Complaint) Rules 2020, finally enabling the anti- corruption ombudsman to act on the pleas made before it. According to the rules, a complaint filed against a sitting or a former prime min- ister will be considered at the admission stage itself by a full bench of the Lokpal, consisting of its chairperson and all members, for assessing whether an inquiry can be initiated. At least two- thirds of the members have to approve of the inquiry. If there are complaints against a cur- rent or former minister in the Union cabinet or an MP of either House, a bench consisting of not less than three members of the Lokpal shall consider every report that is received from the inquiry wing of the ombudsman or any agency. The bench will decide whether there exists a prima facie case after giv- ing the public servant an opportunity to be heard. As per the rules, complaints can be filed either electronically, by post or in person. The complaint has to be within seven years of the alleged offence taking place as per Section 53 of the Lokpal Act. It has to be accompanied by an affidavit on a non-judicial stamp paper. Complaints whose contents are illegible, vague or ambiguous, trivial or frivolous, do not contain any allegation, are not filed within the limitation period of seven years or are pending before any other court, tribunal or authority will have to be disposed of within 30 days. So far, so good. But the big question is whether the Lokpal will ever function effectively or be one more drain on the public exchequer? To find out, we need to go back to 2009 when UPA-II formed the government with the Congress in a stronger position. This was when some serious cases of corruption and loot— the Satyam scam, 2G scandal, Jharkand mining—started surfacing. The big guns boomed against “corruption in high places”, creating an impression that ev- entually the debilitating cancer afflicting India’s governance and society would meet its nemesis and the aam aadmi could look forward to good and honest governance in the future. Prime Minister Manmohan Singh himself led the charge. Addressing a conference of CBI and anti-corruption officials at the state level, he said: “High-level corruption should be pur- sued aggressively. There is a pervasive feeling that while petty cases get tackled quickly, the ‘big fish’ escape punishment. This has to change.” Chief Justice KG Balakrishnan even sought confiscation of assets of persons convicted of offences under the Preven- tion of Corruption Act. The law minister went a step further and called for the amendment of Articles 309, 310 and 311 of the Constitution, thus removing pro- tection and safeguards in prosecuting corrupt public servants. As if in respon- se to the cacophony, big scandals sur- faced—Commonwealth Games, Coal- gate, ISRO-Antrax, aircraft carrier Gorshkov, Tatra truck, AgustaWestland, NSEL, Air India purchase, etc. Many more, like the KG Basin loot, were churning too. In the Indian context, “big fish” means the prime minister, ministers, MPs, judges, top-rung bureaucrats and other constitutional/statutory func- tionaries who wield enormous power Just an Eyewash? Thiswatchdoginstitutionconceivedasapublicbulwark againstcorruptioninhighplacesseemsacharade.Itis unwieldyandtop-heavyandchasespettybribe-takerswhile ignoringthebigfish Opinion/ Lokpal (Complaint) Rules 2020 MG Devasahayam A Thebiggunsboomedagainst“corruption inhighplaces”,creatinganimpression thateventuallythecorruptiondebilitating India’sgovernancewouldmeetitsneme- sis,pavingthewayforgoodgovernance.
  • 37. | INDIA LEGAL | March 23, 2020 37 and influence without corresponding accountability or rules to regulate their conduct. The Lokpal was precisely aim- ed at reining in and punishing such worthies. There are the CBI and CVC to discipline the small fry. The first Lokpal Bill was introduced and passed in the fourth Lok Sabha in 1968-69. However, while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, resulting in the first demise of the Bill. It was revived in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and 2008. On every occasion, the Bill was referred to some committee or other for “improvements”, and before the govern- ment could take a final call on the issue, the House got dissolved. Even 45 years after its initiation, this eminent “watchdog institution” conceiv- ed as the public bulwark against corrup- tion in high places did not take off. In the event, while the venal and the cor- rupt strode this land like colossuses, dominating its political, administrative, judicial and business spectrum, the con- scientious and the honest shrunk and faded away. This has been India’s true tragedy and the harbinger of state kleptocracy. T he renewed struggle for Lokpal was started by the Gandhian Satyagraha Brigade, part of the Servants of the People Society founded by Lala Lajpat Rai in 1921 and inaugu- rated by Mahatma Gandhi. The struggle was led by nonagenarian Shambhu Dutt of Quit India vintage, and stalwart of the JP movement of the 1970s. He start- ed his “fast unto death” on January 30, 2010, but was promptly dissuaded. This struggle was taken up by civil society led by Anna Hazare, Swami Agnivesh, Justice Santosh Hegde, Kiran Bedi and Arvind Kejriwal under the India Against Corruption (IAC) banner. Out of this emerged the draft Jan Lokpal Bill which was released in December 2010. After carpet-bombing the airwaves with anti-corruption rhetoric in full media glare, Kejriwal declared that civil society was impotent and the only way to combat corruption was to capture political power. Accordingly, he and his entourage morphed into a political party and he was propelled as the chief minis- ter. Soon after, Kejriwal came out with the “rogues’ gallery” (Kejriwal List) of the most corrupt politicians and oligarchs. The Lokpal Act that came out of this glare is testimony to India’s immense propensity for jugaad—dramatise things, but achieve little. The Act is more of a charade. The institution, as contemplated, is unwieldy, top-heavy, and the focus has been heavily diluted by including millions of Class III and Class IV government employees within WATCHDOG IN A LIMBO Justice Pinaki Chandra Ghose (centre), chairperson of the Lokpal, along with other members of the Lokpal UNI
  • 38. Opinion/ Lokpal (Complaint) Rules 2020/ MG Devasahayam 38 March 23, 2020 its ambit, though action on their corrup- tion would be the responsibility of the CVC. This serious aberration would pro- tect the corrupt “big fish” while chasing petty bribe-takers. In the event, the very purpose of setting up the high-profile ombudsman stands defeated. That probably was the intention behind all the theatrics. T he Lokpal Act received presiden- tial assent on January 1, 2014 and became the law of the land. By the time the process of appointment of the Lokpal was put in place, the UPA government became a lame-duck one and lost power in May 2014. And when the NDA government appointed the Lokpal after five years in March 2019, it had also become lame-duck. From one lame-duck government to another, India’s Lokpal had a chequered history which by no means is edifying. Ironically, the watchdog of India’s gover- nance and integrity was born out of gross impropriety, being appointed by a caretaker government after the general election 2019 was announced. That was not a good omen. Justice Pinaki Chan- dra Ghose was sworn in as the chairper- son, Lokpal. Other judicial members were Justices Dilip B Bhosale, Pradip Kumar Mohanty, Abhilasha Kumari and Ajay Kumar Tripathi. Non-judicial me- mbers were former IAS officers Dinesh Kumar Jain and Indrajeet Prasad Gau- tam, former IPS officer Archana Rama- sundaram and former IRS officer Ma- hender Singh. Since then, it has been waiting for the complaint rules to be notified by the government to start wor- king. In the meantime, it received over 1,100 complaints, most of which have been disposed of without initiation of any inquiry. Among them was probably included the case of Karnataka Chief Minister BS Yeddyurappa who had allegedly paid bribes to the tune of Rs 1,800 crore to the BJP’s top leadership. The Congress party pushed this, saying it was a fit case to be investigated by the newly appointed Lokpal, thereby setting the stage for its first acid test. Nothing has been heard of this since then. The fact that the Lokpal was not constituted for over five years after the law was enacted and it took one year to notify the rules, shows the NDA govern- ment’s real intentions. During this peri- od, massive scandals in which “big-fish” were invariably involved got swept under the carpet. And courts dealt with such scandals with a “sealed cover”. Rafale and the ever-spiralling bank- ing scams are typical examples. And in the last five to six years, all “institutions of integrity”, including the ones embed- ded in the Constitution, are under se- vere assault, rendering them almost im- potent. Even the 18 Lokayukts (state- level ombudsmen) are non-functional and ineffective against the “big fish.” The Lokpal, appointed by this government, cannot be any different. As for combat- ting corruption, the “Kejriwal List” had several “bigfish”. The question is: Where have these corrupt oligarchs and klepto- crats gone and where has Kejriwal van- ished? By all accounts, by adopting a “neither-fish-nor-fowl” political philoso- phy, he is prospering politically. With the rules in place, will the Lokpal at least look at the “Kejriwal List”? Or would it turn out to be just another sinecure at taxpayers’ expense while shadowboxing on corruption continues to play out? —The writer is a former Army & IAS officer ThisstruggleforLokpalwastakenupby civilsocietyledbyAnnaHazare,Swami Agnivesh,JusticeSantoshHegde,Kiran BediandArvindKejriwalundertheIndia AgainstCorruption(IAC)banner. Rajeev Tyagi