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NDIA EGALL STORIES THAT COUNT
I
February3, 2020
TheSupremeCourthasrevivedfaithintheconstitutionalideasoffreedomofexpression
intheirjudgmentoninternetshutdowninKashmir,saysProfUpendraBaxi
Justice Narendra Chapalgaonkar:
Ways to fast-track justice
| INDIA LEGAL | February 3, 2020 3
OR the first time in recent memory,
there is no feel-good “India Story” from
Davos. In 2020, the Swiss mountain re-
sort, home to the annual World Econo-
mic Forum (WEF), the globe’s most po-
werful influential confab of business and politi-
cal leaders, where India got its “story” as the
most promising democratic developing nation
with its enviable double-digit growth, did not
star the country as in previous years.
Driven out of the spotlight, India mostly
sulked in the shadows, its representatives and
spin doctors searching uncomfortably for ans-
wers to tough questions about its rapidly plung-
ing economy, growing social unrest, the Citi-
zenship Act and Jammu and Kashmir.
Davos was happening in the backdrop of In-
dia’s projected growth rate plummeting to 4.2
percent and its dropping 10 places to rank 51
out of 167 in the recently released 2019 Demo-
cracy Index, formulated and compiled by the
prestigious research firm Economist Intelligence
Unit (EIU). The country ranked 41 in 2018.
India’s overall democracy score also fell from
7.23 out of a possible 10 in 2018 to 6.90 in 2019.
“The primary cause of the democratic regression
was an erosion of civil liberties in the country,”
the EIU report said. It said that along with the
revocation of Article 370 in August last year,
stripping Jammu and Kashmir of its special sta-
tus, India “deployed a large number of troops in
J&K, imposed various other security measures
and placed local leaders under house arrest,
including those with pro-India credentials…The
government also restricted internet access in the
state”, the report said.
It also noted that the newly amended citizen-
ship law “has enraged the Muslim population,
stoked communal tensions and generated large
protests in major cities”. But despite large-scale
protests, “the EIU expects the ruling Bharatiya
Janata Party (BJP) to maintain its focus on pop-
ular Hindu nationalist themes, seeking to re-
bound from poor results in recent state elec-
tions. Fiscal and monetary policy constraints
and an uncertain business environment in some
states will keep the economy from reaching its
growth potential in the years ahead”.
A
ctually, India’s slide, which came more
sharply into focus this year because of
the concomitant social protests and stu-
dent unrest which have hogged world headlines,
was apparent at Davos last year as well. Poor
health conditions and low healthy life expectan-
cy were listed as the biggest curse for India. The
country has slipped 10 rungs to end up at 68th
rank on the WEF annual Global Competitive-
ness Index. It was ranked 58th in this Index last
year but is among the worst performing BRICS
nations this year, along with Brazil which has
fallen even further to 71st position.
The Economist, which is rated as the most
widely read journal by political leaders and cap-
tains of commerce and industry across the
world, had, not too long ago, run a cover story
calling India a “caged tiger” which was ready to
overtake China in global economic performance
and set an example for even the more advanced
economies. In last week’s cover story, it was dis-
heartening to read this same journal editori-
alise: “Alas, what has been electoral nectar for
SLIDING INDIA
Inderjit Badhwar
F
In2020,theannual
WorldEconomic
Forum,whereIndia
gotits“story”asthe
mostpromising
democratic
developingnation
withitsenviable
double-digitgrowth,
didnotstarthe
countryasin
previousyears.
Letter from the Editor
4 February 3, 2020
the BJP is political poison for India. By under-
mining the secular principles of the constitution,
Mr Modi’s latest initiatives threaten to do damage
to India’s democracy that could last for decades.
They are also likely to lead to bloodshed.
“The sad truth is that Mr Modi and the BJP
are likely to benefit politically by creating divi-
sions over religion and national identity. Such
subjects keep the party’s activists and their allies
in Hindu-nationalist groups energised—always a
boon, given India’s relentless sequence of state
elections. They also distract attention from awk-
ward topics such as the economy, which has
struggled since the BJP’s thumping election victo-
ry last year. Most important, Mr Modi seems to
calculate that a sizeable minority of Indian voters
are sympathetic to his constant insinuation that
Muslims are dangerous fifth-columnists, always
scheming to do Hindus down and sell out their
country to Pakistan. That is enough to keep him
in office. Because of India’s first-past-the-post
electoral system and a divided opposition, the
BJP won its outright majority in parliament with
just 37% of the vote.”
The article ends: “Happily, many Indians have
already had enough, as the recent protests show.
The Supreme Court, which this week declined to
suspend the citizenship law, should heed this…
And rather than stoke hostility between two of
the world’s great religions, Mr Modi should look
for other paths to voters’ hearts.”
I
n its most recent judgment on the legal chal-
lenges, the Supreme Court refused any stay
on the CAA without hearing the government
and also barred High Courts—which have been
quite liberal in granting bail to citizens arrested
and detained by the police under
various charges for participating in
anti-CAA demonstrations—from
hearing petitions challenging the
constitutional validity of the Act. It
is likely that all these matters will be
clubbed before a larger constitution-
al bench.
But academics and political
thought leaders like Balveer Arora
have asked: “Is there a precedent for
gagging the High Courts, preventing
them from hearing challenges to
central laws? Some High Courts
have handed down remarkably pro-
gressive judgments….”
The answer to this question which also has
relevance to the controversy over whether states
can refuse to obey central diktats they consider
detrimental to constitutional propriety, may lie
in this summary—taken from the Supreme Court
website—regarding the powers of the apex court.
Excerpts:
The Supreme Court has original, appellate and
advisory jurisdiction. Its exclusive original juris-
diction extends to any dispute between the Go-
vernment of India and one or more States or
between the Government of India and any State
or States on one side and one or more States on
the other or between two or more States, if and
insofar as the dispute involves any question (whe-
ther of law or of fact) on which the existence or
extent of a legal right depends.
In addition, Article 32 of the Constitution gives
an extensive original jurisdiction to the Supreme
Court in regard to enforcement of Fundamental
Rights. It is empowered to issue directions, orders
or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto
and certiorari to enforce them. The Supreme
Court has been conferred with power to direct
transfer of any civil or criminal case from one
State High Court to another State High Court or
from a Court subordinate to another State High
Court. The Supreme Court, if satisfied that cases
involving the same or substantially the same
questions of law are pending before it and one or
more High Courts or before two or more High
Courts and that such questions are substantial
questions of general importance, may withdraw a
case or cases pending before the High Court or
High Courts and dispose of all such cases itself.
The appellate jurisdiction of the Supreme Court
Therecently
released2019
DemocracyIndex
saidthatalongwith
therevocationof
Article370inJ&K
inAugustlastyear,
Indiadeployeda
largenumberof
troopsinJ&K
(aboveright),
imposedother
securitymeasures
andrestricted
internetaccess.It
alsosaidthatCAA
hasenragedthe
Muslimpopulation
andstokedcommu-
naltensionsinIndia
andgeneratedlarge
protestsin
majorcities.
Letter from the Editor
UNI
| INDIA LEGAL | February 3, 2020 5
can be invoked by a certificate granted by the
High Court concerned under Article 132(1),
133(1) or 134 of the Constitution in respect of any
judgement, decree or final order of a High Court
in both civil and criminal cases, involving sub-
stantial questions of law as to the interpretation
of the Constitution.
Under Articles 129 and 142 of the Constitution
the Supreme Court has been vested with power to
punish for contempt of Court including the power
to punish for contempt of itself. In case of con-
tempt other than the contempt referred to in
Rule 2, Part-I of the Rules to Regulate Procee-
dings for Contempt of the Supreme Court, 1975,
the Court may take action (a) Suo motu, or (b) on
a petition made by Attorney General, or Solicitor
General, or (c) on a petition made by any person,
and in the case of a criminal contempt with the
consent in writing of the Attorney General or the
Solicitor General.
Although the proceedings in the Supreme Court
arise out of the judgments or orders made by the
Subordinate Courts including the High Courts,
but of late the Supreme Court has started enter-
taining matters in which interest of the public at
large is involved and the Court can be moved by
any individual or group of persons either by filing
a Writ Petition at the Filing Counter of the Court
or by addressing a letter to Hon'ble the Chief
Justice of India highlighting the question of pub-
lic importance for invoking this jurisdiction. Such
concept is popularly known as ‘Public Interest
Litigation’ and several matters of public impor-
tance have become landmark cases. This concept
is unique to the Supreme Court of India only and
perhaps no other Court in the world has been
exercising this extraordinary jurisdiction. A Writ
Petition filed at the Filing Counter is dealt with
like any other Writ Petition and processed as
such. In case of a letter addressed to Hon'ble the
Chief Justice of India the same is dealt with in
accordance with the guidelines framed for the
purpose.
Each High Court has power to issue to any per-
son within its jurisdiction directions, orders, or
writs including writs which are in the nature of
habeas corpus, mandamus, prohibition, quo war-
ranto and certiorari for enforcement of Funda-
mental Rights and for any other purpose. This
power may also be exercised by any High Court
exercising jurisdiction in relation to territories
within which the cause of action, wholly or in
part, arises for exercise of such power, notwith-
standing that the seat of such Government or
authority or residence of such person is not with-
in those territories.
Each High Court has powers of superinten-
dence over all Courts within its jurisdiction. It
can call for returns from such Courts, make and
issue general rules and prescribe forms to regu-
late their practice and proceedings and determine
the manner and form in which book entries and
accounts shall be kept.
F
rom the above, an argument may well be
made that the Supreme Court’s jurisdiction
is both appellate as well as original. But
does that mean it can circumvent the power of
High Courts by pre-empting, in advance, a mat-
ter, say, of fundamental rights from even being
heard by a High Court? Can the Supreme Court,
for example, issue a decree that all matters con-
cerning bail for citizens arrested by the police
under various charges for participating in public
protests be referred only to the Supreme Court
and all lower courts be barred from adjudicating
these appeals because they arise from the
same set of circumstances, ie, challenges to a
central law?
But the central issue as Balveer Arora posits, is
that the apex court should, alternatively, decide
constitutional matters on priority. “Can you have
constitutional uncertainty for prolonged periods
of time, leaving the executive in the dark on
whether the laws it continues to apply are consti-
tutionally valid or not?”
The2019Demo-
cracyIndexalsosaid
thatIndia’soverall
democracyscorefell
from7.23outofa
possible10in2018
to6.90in2019and
theprimarycauseof
thedemocraticreg-
ressionwasanero-
sionofcivilliberties
inIndia.Butdespite
this,thereportsays,
therulingBJPisex-
pectedtomaintain
itsfocusonpopular
Hindunationalist
themes,seekingto
reboundfrompoor
resultsinrecent
stateelections.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
UNI
6 February 3, 2020
ContentsVOLUME XIII ISSUE12
FEBRUARY3,2020
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Senior Content Writer Punit Mishra
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Never were constitutionalism and judicial duties articulated more accurately than in the J&K inter-
net shutdown case heard by the Supreme Court recently, which reaffirmed constitutional rights
and freedom of speech. An analysis of the judgment by Prof Upendra Baxi
A Boost for Liberty 14
LEAD
The government is
yet to allot official
accommodation to
four new judges
appointed to the
Supreme Court, forc-
ing them to work out
of makeshift premis-
es in the capital
Houses Full 18
LEGALEYE
| INDIA LEGAL | February 3, 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.....................9
Courts.............................10
Law Campus News........12
International Briefs ........26
Media Watch ..................35
Love Jihad
Controversy
The Kerala Syro-Malabar Church’s assertion
that the IS engaged Muslim men to feign love
and lure Christian women for terror activities
has been denied by the government and
questioned by priests
FOCUS
A country-wide organisation of lawyers has been actively helping anti-
CAA protesters who have been detained or face harassment and
prosecution, all for free. This is a historic mobilisation. Who are they
and what is their motivation?
People’s Advocates 28
GLOBALTRENDS
44
This could well be the plea of rabies patients who undergo great pain and want
euthanasia. Though the apex court has sought the centre’s response to a PIL
seeking this right, the disease is often treatable
40Please Release Me…
22
The centre’s three projects—CAA, NPR and NRC—are unimple-
mentable and extremely costly. When the needed data is already
available through Aadhaar, why incur such a massive expenditure?
A Bridge too Far
In a welcome development, the Rajasthan Public Accountability Bill
will make state government officials accountable for giving services
to citizens and promises fast redressal of their grievances
Under the Scanner 25
Twenty-three years after Goa initiated
the process for an international airport at
Mopa, about 43 km from Panaji, the
Supreme Court gave its nod after laying
down rigorous guidelines. But will these
be followed?
36
32
Project Takes Off
ACTS&BILLS
OPINION
STATES
NCRB data has shown that only 22 percent of cases were disposed
of by fast-track courts in less than a year. If this is to be speeded up,
there should be proper infrastructure and personnel, says Justice
Narendra Chapalgaonkar
Iron Out the Glitches
COLUMN
By keeping key ministries
within the family, Sri Lanka’s
president, Gotabaya
Rajapaksa, may have
ensured a tight grip over the
administration, but chal-
lenges remain on other fronts
Hits And
Misses
20
8 February 3, 2020
Anthony Lawrence
RINGSIDE
Investment: $2 bn
Jobs: 1 mn
Buzz
off!!
Commerce minister Piyush Goyal
| INDIA LEGAL | February 3, 2020 9
ISTHAT
— Compiled by India Legal team
A young woman, whose husband
died of a heart attack, leaves her
in-laws’ house in a huff, though
there were no instances of any
kind of harassment when the hus-
band was alive. The in-laws are
old and want her to return, but
she wants the family property to
be divided. Can she claim a share
in her deceased husband’s prop-
erty legally?
A woman is entitled to the share
of her deceased husband in the
joint family property after his
death and can claim the same by
filing a suit for partition of the pro-
perty. Under the Hindu Succ-
ession Act, she is entitled to a
share as an heir under Section 8
read with Schedule I. The Act
defines ‘widow’ as a female who
has been united in marriage re-
cognised by law and survives the
husband without remarriage...
In Muthammal (died) vs V
Pavunambal case (2012), it was
held that on the death of her hus-
band, the widowed woman can
claim a share in the joint family
properties along with her father-
in-law, mother-in-law and brother-
in-law. She becomes one of the
sharers along with other heirs and
gets her right to a share in the
joint family properties.
?
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
An office employee’s email
account is hacked by his col-
league, who then uses it to
send objectionable mails to
women in the office. The
employee is unable to prove
his innocence and loses his
job. What legal recourse does
he have to get his job back?
The employee should file a
complaint with the cyber cell
of the police under the IT Act,
and Section 509 of the IPC.
Thereafter, the police will
investigate and trace the col-
league from the details of the
IP address and server address
received from the emails of
the women in the office. A
criminal case will be initiated
against the colleague who had
hacked and misused the
account. Thereafter, the em-
ployee should try to resolve
the matter by approaching the
company’s management and
providing them a copy of the
FIR and explaining the whole
episode. If the company still
refuses to reinstate him, the
employee can file a case
against the employer.
Perils of Hacking
A healthy youngster becomes
partially blind after a brain
surgery. He has 40 percent
vision. Is he entitled to a
government job under the
handicap quota?
Yes, he is entitled to a govern-
ment job under the handicap
quota, if he can establish that
he has visual impairment even
after treatment or standard
refractive correction, and uses
or is potentially capable of
using vision for the planning
or execution of a task with
appropriate assistive device.
He will also come under the
category of persons with dis-
ability for suffering from not
less than 40 percent of any
disability as certified by a
medical authority.
According to The Persons
with Disabilities (Equal
Opportunities, Protection of
Rights and Full Participation)
Act, 1995, the government
has reserved in every estab-
lishment vacancies not less
than three percent for persons
with disability, of which one
percent each is reserved for
people suffering from blind-
ness or low vision; hearing
impairment; and locomotor
disability or cerebral palsy.
Share in Family
Property
Jobs for Visually
Impaired
A doctor, who is working in a
government hospital, joins a
popular anti-corruption move-
ment against the government.
To his dismay, he is suspend-
ed for his participation. Is he
on sound legal ground if he
moves the court?
Yes, the doctor can approach
the court of law for seeking
appropriate compensation for
being suspended in
an arbitrary manner.
In the matter of
Delhi Transport Corpo-
ration vs DTC Mazdoor Cong-
ress (1990), it was held that
the management cannot
have unrestricted and unqual-
ified power of terminating the
services of the employees.
Although in the interest of
efficiency of the public bo-
dies, they should have the
authority to terminate the
employment of undesirable,
inefficient, corrupt, indolent
and disobedient employees,
the management must ensure
that the right is exercised fair-
ly. There should be adequate
reason for the use of such
power and arbitrariness
should be avoided.
Rules of
Suspension
10 February 3, 2020
Courts
The apex court refused to
stay the Citizenship (Am-
endment) Act (CAA) or post-
pone the implementation of the
National Population Register
(NPR). It also indicated that the
matter may be referred to a
Constitution bench and asked
the centre to file its reply to
more than 140 petitions chal-
lenging the contentious orders.
On a petition by the centre,
the bench headed by Chief
Justice of India (CJI) SA Bobde
and comprising Justices S Ab-
dul Nazeer and Sanjiv Khanna
also restrained all high courts
from passing any order on the
CAA. The Court said that the
petitions, filed by individuals
and organisations, would be
heard by a Constitution bench.
Attorney-general KK Venu-
gopal, appearing for the centre,
opposed any stay on the CAA
or postponement of the NPR,
seen as the first step towards
implementing the proposed
National Register of Citizens
(NRC). But senior advocates
Kapil Sibal and Abhishek Manu
Singhvi, who were among an
army of lawyers representing
various petitioners, argued that
there should be at least a
“postponement” of the NPR till
the adjudication of the dispute
by the Court. When Singhvi
said that the UP government
had already started the pro-
cess of identifying “doubtful”
citizens, the CJI replied: “The
matter is uppermost in every-
body’s mind. We will form a
five-judge bench and then list
the case.”
Courts
The Tripura High Court held that a gov-
ernment servant could not be deprived
of his right to free speech which was a
fundamental right enshrined in the Cons-
titution. The Court said this while quash-
ing a departmental charge sheet against a
petitioner who worked as an upper divi-
sion clerk (UDC) in the state government.
On December 31, 2017, she had
attended a rally organised by a political
party following which she was served a
memorandum alleging that while working
as a UDC, she had canvassed against a
political party by making defamatory and
Tripura HC: Govt servants have right to free speech
Atwo-judge bench of the SC
issued notice to the centre
on a PIL challenging the con-
stitutional validity of the estab-
lishment of the National Com-
mission for Minorities Act,
1972. The petitioners, follow-
ers of the Sanatan Vedic
Dharam, argued that Parlia-
ment could not make any law
for the benefit of a particular
religion. They also sought
direction that the centre had no
power to grant benefits in sch-
emes framed in favour of the
notified religious minority com-
munities from taxpayers’
money. The petitioners stated
that the Hindu community was
being discriminated against on
the grounds of religion as a
number of beneficiary
schemes, with a budget of
`4,700 crore, had been initiat-
ed in favour of religious minori-
ties. They said that the govern-
ment was showing undue
favour to waqf and its proper-
ties while denying the same to
institutions of the Hindu com-
munity like trusts, mutts, akha-
ras and other religious denomi-
nations. “From taxpayers”
money, no religion or religious
groups can be promoted and
therefore, no Minority
Commission can be created to
achieve the purposes enumer-
ated in the Act,” they said.
PIL against Minority Commission: SC issues notice
SC: No stay on CAA; no delay
on NPR implementation
UNI
| INDIA LEGAL | February 3, 2020 11
The centre moved the Supreme Court
seeking that guidelines be framed to exe-
cute the death penalty awarded to convicted
prisoners within seven days of rejection of
their mercy petitions. The move follows a
flurry of petitions that came up in various
courts filed on behalf of the four convicts
sentenced to death in the Nirbhaya gang rape
case. The four have been on death row since
2013 after a trial court ruled they were guilty
and in the years since, several curative peti-
tions have been rejected including mercy
pleas before the president of India.
The Ministry of Home Affairs filed the
application in the top court on January 22
seeking “appropriate clarification/modification
and directions” that defined procedures pre-
scribed for prisoners on death row. It told the
Court that if convicts sentenced to death
wanted to file mercy petitions, it would be
mandatory to do so only within a period of
seven days from the date of receipt of death
warrants issued by competent courts.
Govt seeks cap on
death row petitions
—Compiled by India Legal team
Advocates queue up
for student arrested
for sedition
Despite a diktat from the Mysuru Bar
Association asking its members not
to represent her, over 170 advocates
from across Karnataka have signed
vakalatnama for Nalini Balakumar
(below), the college student who was
arrested for sedition for expressing her
opinion by holding a placard that said,
“Free Kashmir” during an anti-CAA
protest at the Mysore University cam-
pus earlier this month.
One lawyer had appeared for Nalini
when some others wrote to the associ-
ation that it should pass a resolution
against appearing in such a case since
it would amount to supporting what
was on that placard. Responding to
this, a group of Bengaluru lawyers
issued a statement condemning the
decision. “It is not only against profes-
sional ethics and duties of lawyers
under the Bar Council of India Rules,
but also as being antithetical to the val-
ues embedded in the Constitution of
India. Every person has the right to be
represented in a Court and any attempt
to subvert such right is a blatant attack
on the Constitution,” they said.
indecent comments against political lead-
ers contesting election in the state elec-
tions of 2018. She challenged the order
issued by the Director of Fisheries which
placed her under suspension.
The High Court said that mere pre-
sence in the audience during a rally does
not mean participation in it nor does it
establish her political affiliation.
On the issue of canvassing against a
political party with a Facebook post, the
Court held that nothing contained in the
said post suggested that she cam-
paigned.
“As a Government servant, the peti-
tioner is not devoid of her right of free
speech, a fundamental right,” Chief
Justice Akil Kureshi (pictured) said.
The Allahabad High
Court refused to quash
an order from the Jaunpur
district administration
which refused permission
to two mosques to use
loudspeakers for azaan—a
call to prayer for Muslims.
A sub-divisional magistrate
(SDM) had issued the
order last year.
A division bench of
Justice Pankaj Mithal and
Justice VC Dixit dismissed
the petition filed by one
Masroor Ahmad stating: “It
becomes quite evident that
the petitioners have been
refused permission to use
sound amplifying system
at the mosque not only for
the inherent reason of noi-
se pollution but in order to
maintain peace and tran-
quility in the area.” Ahmad
said that the order be qua-
shed so that they were
able to offer their prayers,
“in accordance with their
religion”.
Citing an SC judgment,
the bench said that no one
can claim a fundamental
right to create noise pollu-
tion by amplifying sound.
Dismissing the petition, the
Court lamented that people
do not understand the haz-
ardous effects of noise
pollution. “No religion pre-
scribes or preaches that
prayers are required to be
performed through voice
amplifiers or by beating of
drums. If there is such a
practice, it should not
adversely affect rights of
others, including that of
not being disturbed,” the
Court observed.
HC upholds
SDM order on
loudspeakers
12 February 3, 2020
LAW
CAMPUSES / UPDATES
NLUD releases a report on
death penalty
Astudy, “Death Penalty in India: Annual Sta-
tistics Report, 2019”, has been released
by Project 39A of the National Law University,
Delhi. According to the report, 2019 saw an
increase in the proportion of death sentences
given for sexual offences.
Around 53 percent of the death sentences
imposed in trial courts and 65.38 percent in
high courts involved sexual offences along
with murder. The report also says that out of
the 54 cases of sexual offences for which the
death penalty was given in 2019, 40 involved
a victim below 12 years.
The report further highlights that no death
sentence was awarded in 11 states—Andhra
Pradesh, Himachal Pradesh, Haryana, Delhi,
Jammu and Kashmir, Arunachal Pradesh,
Goa, Meghalaya, Mizoram, Nagaland and Sik-
kim—in 2019, while Rajasthan topped the list
with 13 death sentences. It shows a drop in
the number of prisoners being sentenced to
death from 426 in 2018 to 378 as on Decem-
ber 31, 2019.The report also observed that
the Supreme Court, during the tenure of for-
mer Chief Justice Ranjan Gogoi, listed and
heard the maximum number of capital cases
(27) since 2001.
The annual report attempts to create com-
prehensive year-by-year documentation of
movement in the death row population in
India. The publication tracks important devel-
opments in the administration of the death
penalty and criminal justice in 2019.
No fresh courses: BCI
In an attempt to restrict the number
of institutions offering undergraduate
legal courses, the Bar Council of India
rejected 55 applications by colleges
seeking permission to start fresh law
courses. A majority of the applications
were from institutions in Uttar Pradesh.
Map courtesy: Death
Penalty in India: Annual
Statistics Report, 2019 by
Project 39A, NLU, Delhi
—Compiled by Nupur Dogra
NLUD students
protest for
worker’s rights
The General Council of
NLU Odisha in its spe-
cial meeting held in Jan-
uary 2020 approved 25
percent horizontal reseva-
tion for students who are
domiciled in Odisha acro-
ss categories for admissi-
on to its undergraduate
and postgraduate pro-
grammes.The Council also
laid down the criterion
that candidates who have
passed class XII or an
equivalent examination
from Odisha with at least
60 percent marks (or its
equivalent grade) are eligi-
ble to apply for its under-
graduate courses. Candid-
ates who have passed the
undergraduate law course
with at least 50 percent
marks (or its equivalent
grade) in the said exami-
nation from any recogni-
sed college/university in
Odisha can apply for its
postgraduate programme.
The BCI’s decision is a part of its sus-
tained efforts to regulate and improve
the standards of existing colleges.
Earlier, the BCI had faced severe critic-
ism for approving institutions that fail-
ed to meet UGC (University Grants
Commission) standards.
“We are expecting the colleges to
go to the court but we are ready with
our counter argument. There is no
need for new colleges and the existing
ones are sufficient to feed the legal
system at present,” said BCI co-chair-
man Ved Prakash Sharma.
In August 2019, the BCI imposed a
moratorium on opening of new col-
leges, except National Law Univer-
sities, if proposed by a state.
Currently, there are 1,500 law col-
leges in India.
The students of
National Law
University, Delhi
(NLUD) have been
protesting daily on
its campus after
the university,
removed 55 of its
workers. The stu-
dents have alleged
that the university,
without giving any
prior notice to the-
se workers, stop-
ped them from
making any entry
in the register
since December
2019.
“These are
outsourced serv-
ices. We hire a
contractor and
then they hire the
workers. Since the
contractor had not
been changed in
the last 12 years,
we were forced to
hire a new one,”
said Ranbir Singh,
vice-chancellor of
NLUD. “The stu-
dents want 100
percent retention
of workers in the
university, which
is not possible.
However, I have
already assured
them that I will
ensure that each
and every worker
finds some sort of
employability so-
mewhere else.”
The students have
been protesting
for the past 16
days on Campus.
Reservations
at NLU Odisha
| INDIA LEGAL | February 3, 2020 13
Cyber Forensic Lab (Ctrl
Z) at NALSAR has annou-
nced three short-term
courses for law students:
Hands On Forensic
(HOF) from February 26 to
February 28, 2020
Practical hands-on experi-
ence will be provided on
topics like understanding
hard disks and how a hard
disk should be viewed for
forensics, the process in-
volved in understanding
file systems, types of file
systems and so on.
Application and Email
forensic (AEF) from March
6 to March 8, 2020
This course offers practi-
cal hands-on experience
on topics like Application
Log Analysis and why it is
important to analyse app-
lication logs, where to find
the logs, format analysis
of logs, how to read and
present forensic reports,
types of attacks and
so on.
Cyber Investigation
Forensics from March 13
to March 15, 2020
This course offers an in-
troduction to various me-
thods and tools used for
cyber forensics investiga-
tion, e-discovery, collec-
tion and preservation of
digital evidence and email
recovery, tracking & in-
vestigation, IP tracking,
extraction of deleted digi-
tal evidence, and so on.
The fee for each course is
`10,000 for a three-day
course. NALSAR students
will get a discount and will
pay `6,000.
NALSAR University of Law
offers short-term courses
Lead/ Column/ Supreme Court/ J&K Internet Shutdown Prof Upendra Baxi
14 February 3, 2020
N the eve of the 70th cen-
tenary of the Republic
Day, the apex court, spea-
king through Justices NV
Ramana, R Subhash Re-
ddy and BR Gavai, has
again revived faith in the constitutional
ideals of liberty and dignity. In Anu-
radha Bhasin (January 10, 2020), the
Court describes J&K as a “land of inher-
ent contradiction” torn between violence
and “incredible beauty”. But it makes no
judgements on “political propriety” of
parliamentary law but carefully delin-
eates its jural scope. And the tasks of
doing justice although no less difficult
than the political, is stated as that of
balancing “security and liberty concerns
so that the right to life is secured and
enjoyed in the best possible manner”.
The Court did not invalidate the
present orders under Section 144 CrPC
and internet shutdown but laid down
some criteria of validity for these. Critics
may be right to express constitutional
anxiety because experience shows that
the negotiation of judicial labyrinth is
very time-consuming in a citizen’s strug-
gle to ensure constitutionality in State
action. Even so, one hopes that the very
enunciation of norms and standards will
have a positive democratising effect.
And we all must still await the final de-
cision on the matter of constitutionality
of the repeal of Article 370, yet to be
heard by the Court.
That said, the self-discipline of the
Court is worthy of applause. It affirms
A Blow for Liberty
Neverwereconstitutionalismandjudicialdutiesarticulatedmoreaccuratelythaninthecase
dealingwiththeissue.OnehopesthatthejudicialvoiceisheardbyallorgansoftheStateand
representativesofthepeople
LEGAL POSITION
The SC agreed that internet access is a “tool”
of the right to freedom of expression
O
UNI
| INDIA LEGAL | February 3, 2020 15
that constitutional adjudication requires
a reasoned elaboration and a justifiable
judicial discourse, in the arena of viola-
tion of basic human rights. Of course, as
I demonstrated long ago (in my book
Supreme Court and Politics) constitu-
tional politics—the politics of interpre-
tation—is different from competitive
power politics because the latter is self-
interested reason while the former is
disinterested in the outcomes. Another
way is to say that what we have in con-
stitutional adjudicative politics is the
conflict of values rather than conflict of
rival interests.
The presumption of constitutionality
of legislative action will remain in place
based on the premise that the political
class, in making and enforcing the law,
respects the basic rights guaranteed in
part 111 of the Constitution, including
new rights—standards that emerge as
necessary emanations from the doctrine
of the basic structure and essential fea-
tures of the Constitution. While the
Court categorically says that it is not our
“forte to answer whether it is better to
be free than secure or be secure rather
than free”, it will always respond to
“ensure that citizens are provided all the
rights and liberty to the highest extent
in a given situation while ensuring secu-
rity at the same time”.
Upon hearing the vigorous conten-
tions advanced by the State (through
attorney general and the additional
solicitor general) and by Vrinda Grover,
Kapil Sibal, Dushyant Dave, Sanjay
Hegde and other distinguished lawyers
for the petitioners and interveners, the
Court framed five issues. First, whether
the “Government can claim exemption
from producing all the orders passed
under Section 144, CrPC, and other or-
ders under the Suspension Rules?” Se-
cond, whether the freedom of speech
and expression and freedom to practise
any profession or to carry on any occu-
pation, trade or business over the
internet is a part of the fundamental
rights under Part III of the Constitu-
tion. Third, whether the government’s
action of prohibiting internet access
is valid. Fourth, whether the imposition
of restrictions under Section 144, CrPC
was valid. And fifth whether freedom
of press was “violated due to the
restrictions”.
I
n a far-reaching ruling on the first
issue, the Court decided that the
State must produce all orders under
Section 144 of the CrPC, together with a
statement of objective grounds, because
a “democracy, which is sworn to trans-
parency and accountability, necessarily
mandates the production of orders as it
is the right of an individual to know”
and the State “has to act in a responsi-
ble manner to uphold Part III of the
Constitution” and not “take away these
rights in an implied fashion or in casual
and cavalier manner”.
As if this was not strong enough, the
Court goes further to state that this nor-
mative constitutional expectation is also
“a requirement under natural law, that
no law should be passed in a clandestine
manner”. These are strong words given
the fact that the judicial doctrine of con-
stitutional expectations is in its infan-
TheSC,throughJusticesNVRamana
(left),RSubhashReddy(belowleft)and
BRGavai,hasrevivedfaithintheconstitu-
tionalidealsoflibertyanddignity.Whileit
saysthatitisnotour“fortetoanswer
whetheritisbettertobefreethansecure
orbesecureratherthanfree”,itwill
alwaysrespondto“ensurethatcitizens
areprovidedalltherightsandlibertyto
thehighestextentinagivensituation
whileensuringsecurityatthesametime”.
Lead/ Column/ Supreme Court/ J&K Internet Shutdown/ Prof Upendra Baxi
16 February 3, 2020
cy. Besides, the recent judicial tendency,
on a high growth curve, to rely on natu-
ral law should be tempered with the
recall that it has acted historically as
an agent of emancipation as well as
of repression.
The difficulties of invoking the prin-
ciples of natural law are soon manifest
in the adroit judicial handling of the
second issue. While agreeing with the
view that internet access is a “tool” of
the right to freedom of expression and
the right to freedom of trade and busi-
ness, the Court clearly rules (in para-
graph 28) that as it has not been specifi-
cally argued by any counsel that “the
right to access the internet” be declared
as a“fundamental right…we are not
expressing any view on the same”. In
other words, internet access is not a
fundamental human right, it may be
protected merely as an aspect of Article
19 rights. The media and informed pub-
lic opinion, however, have perpetuated
the view that the right to access to
internet is a fundamental and natural
right! Surely, natural rights may not
depend on what counsel chose to argue!
Why did the Court stop short of a nor-
mative declaration of the right to inter-
net access?
T
he power of imposing reasonable
restriction is well analysed under
the newly fangled doctrine of
proportionality. Even the relatively un-
initiated may well appreciate the facts
that the power to “restrict” does not
include the power to altogether abro-
gate the right and the State should
make the showing that out of a range of
alternatives, measures least restrictive
to the rights declared by the Consti-
tution have been adopted. But, of cou-
rse, the Court chooses to reiterate and
refine the “proportionality” test as signi-
fying that:
“A law interfering with fundamental
rights must be in pursuance of a legiti-
mate State aim… The justification for
rights-infringing measures that interfere
with or limit the exercise of fundamen-
tal rights and liberties must be based on
the existence of a rational connection
between those measures, the situation
in fact and the object sought to be ach-
ieved.… The measures must be neces-
sary to achieve the object and must not
infringe rights to an extent greater than
is necessary to fulfil the aim.… Restric-
tions must not only serve legitimate
purposes; they must also be necessary to
protect them” and “the State must pro-
vide sufficient safeguards relating to the
storing and protection of centrally
stored data.”
The orders passed under Section 144
of the CrPC fail to meet this test, and
rendering the right to constitutional
remedies infructuous by non-disclosure
of reasonable grounds based on a full
“application of mind” and stating objec-
tive reasons which citizens may contest.
The Court has done a great service in
saying that collective security is not
best served by rank arbitrariness of
blanket orders.
Very much the same reasoning
extends to the last issue, which is dis-
cussed largely in terms of the “chilling
effects” on freedom of the press. Import-
antly, the Court enunciated the test of
“comparative harm”, under which the
judiciary is “required to see whether the
impugned restrictions, due to their
broad-based nature, have had a restric-
tive effect on similarly placed individu-
als during the period”. May be, the ins-
tant petitioner failed to prove such
harm as other newspapers were not dis-
abled and the ban on her newspaper
itself was not long-lasting. But subjec-
tive dimensions of the experience of the
“chilling effect” should not have been so
readily dismissed.
The judicial discourse in this case
has to be read in the light of the wise
words uttered in Lt Governor, Delhi
(2018) where (speaking through Dipak
Misra, CJI), the apex court enunciated
a doctrine of “constitutional trust”. The
Court said that the “representative form
of government should not become a
government by elites where the repre-
sentatives so elected do nothing to give
effect to the will of the sovereign. The
elected representatives must not have
an ulterior motive for representing
their constituents and they should not
misuse the popular mandate awarded
to them by covertly transforming it
into ‘own rule’. The inherent value of
public accountability can never be
brushed aside.”
Never were Indian constitutionalism
and judicial duties articulated so accu-
rately and acutely and one hopes that
the judicial voice is heard by all organs
of the State and the representatives
of people.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
Thejudicialdiscourseinthiscasehasto
bereadinthelightofthewordsuttered
inLtGovernor,Delhi where(speaking
throughDipakMisra,CJI),theSCenunci-
atedadoctrineof“constitutionaltrust”.
Legal Eye/ Homes for Judges
18 February 3, 2020
day after President Ram
Nath Kovind appointed
four new judges to the
Supreme Court last Sep-
tember, and four days
before they were actually
sworn in, the Court registry announced
that two new courtrooms were being
added within the premises.
The registry note said: “It is hereby
circulated for the information of all con-
cerned that as per the orders of Chief
Justice of India, two additional court-
rooms have been created near the exist-
ing court number 10 which have been
numbered as court number 16 and court
number 17.”
But even as more courtrooms were
made for the judges and litigants, at a
personal level, the four judges are yet to
be given official accommodation more
than four months after they were sworn
in. The judges are former Punjab and
Haryana High Court Chief Justice
Krishna Murari, former Rajasthan High
Court Chief Justice S Ravindra Bhat,
former Himachal Pradesh High Court
Chief Justice V Ramasubramanian and
former Kerala High Court Chief Justice
Hrishikesh Roy. They continue to work
out of guest houses of the states where
they last served before their elevation to
the apex court.
This strange situation came about
following the government decision to
increase the number of judges in the
apex court, keeping in mind the huge
backlog of cases across the country in all
courts. According to official figures,
there are over three crore cases pending
in district and subordinate courts, 44
lakh cases in the 25 High Courts and
nearly 60,000 cases in the apex court.
According to the Economic Survey two
years ago, an additional 2,279 judges
would be needed to clear all the fresh
cases that the lower courts receive in a
year, while it would take an additional
8,152 judges to clear the backlog of
nearly three crore cases.
The government in its wisdom decid-
ed to tackle the problem from the top. It
Houses FullThegovernmentisyettoallotofficialaccommodationtofournewjudgesappointedtothe
SupremeCourt,forcingthemtoworkoutofmakeshiftpremisesinthecapital
By India Legal Bureau
A
NO OFFICIAL ROOF
Supreme Court judges (from left) Justices
Krishna Murari, S Ravindra Bhat, V
Ramasubramanian and Hrishikesh Roy
| INDIA LEGAL | February 3, 2020 19
was with a view to clear the backlog in
the Supreme Court that the strength of
its judges was increased from 31 to 34,
including the chief justice of India (CJI).
The government took this step after the
then CJI, Ranjan Gogoi, wrote to Prime
Minister Narendra Modi to increase the
number of judges in the top court. The
CJI reasoned that due to the paucity of
judges, the required number of Consti-
tution benches to decide important ca-
ses involving questions of law were not
being formed.
T
he Supreme Court (Number of
Judges) Act, 1956 originally pro-
vided for a maximum of 10 jud-
ges (excluding the CJI). This number
was increased to 13 by the Supreme
Court (Number of Judges) Amendment
Act, 1960, and to 17 in 1977. The work-
ing strength of the Supreme Court was,
however, restricted to 15 judges by the
cabinet (excluding the CJI) till the end
of 1979. But the restriction was with-
drawn at the request of the CJI.
Though the strength of the SC has
increased by 60 percent in the last three
decades, no thought has apparently
been given to the accommodation for
the judges. In 1988, its strength was
increased from 18 to 26 and more than
20 years later, in 2009, it went up to 31.
However, provision of accommoda-
tion for the judges has not kept pace
with the increase in their numbers.
Supreme Court and High Court judges
are entitled to Type VIII and Type VII
bungalows. These have four to five bed-
rooms, besides servant quarters, front
and rear lawns and garage. These are
mostly located in Lutyens’ Zone—Akbar
Road, Ashoka Road, Krishna Menon
Marg, Moti Lal Nehru Marg, Tughlak
Road and the newly-built New Moti
Bagh Complex. It is learnt that there are
32 bungalows allotted to Supreme Court
judges and 45 set aside for judges of the
Delhi High Court. Technically, that
means that only two of the four new
judges appointed should be without an
official roof over their heads. But the
reality is that all four are yet to be allot-
ted official accommodation.
The problem has cropped up due to
many retired judges being appointed as
heads of watchdog bodies, tribunals, re-
gulatory bodies and such like. Since
there is no separate quota for retired
judges appointed to head tribunals, they
are generally allotted houses from the
pool reserved for judges. This has creat-
ed a housing crunch.
Delhi is already home to over 40 tri-
bunals and other bodies presided over
by former judges of the Supreme Court.
In most cases, they are appointed to the
new posts immediately after retirement.
Thus they seldom feel the need to pack
up and move to new premises. They
continue to stay in their old accommo-
dation, leaving officials of the housing
ministry in a quandary.
In some cases, such situations have
even led to stand-offs between various
wings of the government. A few years
back, there was the celebrated case of a
Union minister in the UPA government
and a retired judge of the Supreme
Court wrangling over prized accommo-
dation on Krishna Menon Marg, just
a stone’s throw from North and
South Blocks.
A telling example is that of a panel
headed by a retired Supreme Court
judge set up to resolve the water dispute
between Punjab and Haryana under the
Punjab Accord of 1985. After 24 years,
the panel—the Eradi Commission—
which cost the exchequer `9 crore, was
wound up with the dispute still unre-
solved. All the while, Justice V
Balakrishna Eradi who had retired from
the apex court 22 years earlier, contin-
ued to stay in the Lutyens’ Delhi bunga-
low that was allotted to him when he
became an apex court judge.
The Law Commission had two years
ago suggested that merely increasing the
number of judges without improving the
infrastructure in courts would do little
to help address delays. Among the steps
recommended was the creation of a spe-
cialised service to provide critical admi-
nistrative support to judges so that they
would be able to devote their time and
energy to judicial activity.
While such plans remain on paper,
the four new judges of the apex court
continue without an official roof over
their heads.
NO HURRY TO PACK UP
SC judges continue to occupy official
accommodation even after retirement as they
are often appointed heads of tribunals
Thereare32bungalowsallottedtoSC
judgesand45forDelhiHCjudges.
Technically,thatmeansthatonlytwoof
thefournewjudgesappointedshouldbe
withoutanofficialroofovertheirheads.
Column/ Fast-Track Courts Justice Narendra Chapalgaonkar
20 February 3, 2020
T has been almost 20 years since
the idea of fast-track courts for
quick disposal of certain cases was
initiated. The proposal was wel-
comed in judicial quarters as well
as by the people at large. The cre-
ation of a new set of courts for specified
cases was not meant to be a remedy for
the huge pendency in different courts in
India, which is believed to be three crore
cases. Rather, fast-track courts were to
deal with criminal cases involving major
offences against women or those belong-
ing to the underprivileged class such as
sexual assault and murder. These off-
ences create anger and insecurity in the
general public. When cases arising out
of such heinous or ghastly offences take
years to reach a final verdict, most of the
effectiveness of deterrent punishment is
lost. Faith in the State in general and
judiciary in particular gets weakened.
When an accused guilty of commit-
ting a grave offence is punished, it is not
only for the satisfaction of the victim or
her family. It also reassures society that
the law is effectively implemented. A
verdict of guilty after the passage of ye-
ars loses its incisiveness and impor-
tance. Delay in investigation, charge
sheet filing, hearings and final judgment
inflicts irreparable damage on the sys-
tem. If the case is heard after two/three
years and witnesses live in the same to-
wn or locality, there is every likelihood
of them being pressured by the accused.
This leads to witnesses becoming hostile
and the accused getting the benefit of it.
The only exception, perhaps, is near rel-
atives or witnesses having strong inimi-
cal relations with the accused. It is vital
and necessary for the investigation to be
completed within the shortest possible
time and for the case to be listed for
hearing. But nowadays, such things hap-
pen in Perry Mason novels only. In an
exceptional departure, I remember a
case where a court understood the diffi-
culty of a foreign tourist who was raped
in India and directed that the case be
Iron Out the Glitches
NCRBdatahasshownthatonly22percentofcasesweredisposedofbythesecourtsinless
thanayear.Ifthisistobespeededup,thereshouldbeproperinfrastructureandpersonnel
I
FOR SPEEDY TRIAL
A fast-track court was set up in the
Saket District Court complex to try the
accused in the Nirbhaya case. It took
nine months to award the death penal-
ty to the four convicts
| INDIA LEGAL | February 3, 2020 21
disposed of within a short time. It was
disposed of in a month.
As per the recommendations of the
14th Finance Commission, the centre
had proposed setting up 1,800 fast-track
courts. However, it is believed that 60
percent of proposed fast-track courts are
yet to be set up and many states and
Union Territories don’t have even a sin-
gle fast-track court.
If the scheme of fast-track courts is
properly implemented, it will help res-
tore people’s faith in the criminal justice
system. However, 2018 data of the Na-
tional Crime Records Bureau tells a dif-
ferent story. In 2018, 28,000 cases were
disposed of in fast-track courts in India.
Out of these, only 22 percent were dis-
posed of in less than a year, 42 percent
took more than three years and 17 per-
cent more than five years. This can hard-
ly be expected from fast-track courts. A
researcher has found that the aggregate
time taken by a regular court to dispose
of a case was less than that taken by a
fast-track court. It is not proper to blame
the scheme and permit the government
to scrap it. The reasons behind such a
state of affairs should be considered.
F
irstly, there are not enough judges
to man fast-track courts. In addi-
tion, to act speedily, a judge needs
a suitable temperament and proper ass-
istance. In some states, judges who have
recently retired were re-employed and
appointed in fast-track courts. When
this proved to be inadequate, some jud-
ges working in the district judiciary
were designated as fast-track court jud-
ges. Drafting judges from the existing
judiciary is no remedy either for speedy
disposal of cases or for lessoning pen-
dency. The district judiciary is also short
of judges. Even the sanctioned strength
is not filled in many states, saving the
government more expenditure.
Courts also face another practical
difficulty in the disposal of cases. Most
of the work is concentrated in the hands
of a few advocates. It is difficult to com-
pel or seek their presence at the conven-
ience of the court. Judges too have to
accommodate them. Sometimes, even
sessions cases cannot be heard on a day-
to-day basis as required by law.
After the introduction of the scheme
in 2000, central and state governments
provided finances for these courts, par-
ticularly the salaries of the judges. Whe-
ther the amount disbursed was suffici-
ent or not is a different question. A jud-
ge cannot work in isolation. He needs
accommodation to sit, clerical assistance
and minimum office equipment. To try
and get all these done with the existing
amenities cannot be a proper approach.
Fast-track courts are treated as a tem-
porary measure by governments. Con-
sidering that all efforts to clear pendency
have not been very successful, we will
have to bear with the problem for anoth-
er 20 years. Why not give a semi-perma-
nent status to the fast-track court scheme
and make regular appointments? It is
true that such a step would increase the
allocated budget for law and judiciary.
Unfortunately, this is not a priority for
political parties. But they should under-
stand that increasing the number of
courts and disposal of long- pending
cases will have a salutary effect on society.
But it will not fetch immediate political
gain. Only those who care for long-term
benefits and are courageous to stand by
measures in this regard can do it.
If we believe that fast disposal of at
least criminal cases will help restore
confidence in the people about their
safety and ensure peace in society, let a
law be framed to provide for fast-track
courts and make a permanent arrange-
ment for their survival. It should be uni-
formly applicable to the whole of India
and should depend only on central
funding. The law may provide a dura-
tion of some 20 years for the existence
of fast-track courts as it is hoped that
this is sufficient to wipe out the arrears
and there would be no need for fast-
track courts. They should function
under the supervision of relevant High
Courts. Public prosecutors should be
appointed for a certain period and the
appointment should be given to lawyers
with experience in conducting criminal
cases.
Let us see where the lacunae lie so
that these courts can help society.
—The author is former judge,
Bombay High Court
Fast-trackcourtswereconceivedto
dealwithcriminalcasesinvolvingmajor
offencesagainstwomenorthose
belongingtotheunderprivilegedclass,
suchassexualassaultandmurder.
Column/ CAA/ NPR/ NRC MG Devasahayam
22 February 3, 2020
HE nation is on the boil
over the Citizenship (Ame-
ndment) Act (CAA), Nat-
ional Population Register
(NPR) and National
Register of Citizens (NRC).
People see these as communal and
unconstitutional. They see these as
threatening to turn Muslim citizens into
“infiltrators” and non-Muslim citizens
into “refugees” which will make them
stateless. There is intense resistance
throughout the country with students
and young women in the vanguard. In
many places, the internet has been
banned, road and rail traffic restricted,
Section 144, CrPC, imposed in BJP-
ruled states and students and other pro-
testers brutally thrashed, shot at, blind-
ed, maimed, even killed.
India has not witnessed such a wide-
spread upsurge leading to State oppres-
sion and repression in recent history. All
in the pursuit of an unnecessary and
unimplementable agenda.
Both the NPR and NRC exercises
flow out of the 2003 amendments to the
Citizenship Act, 1955, and the Citizen-
ship (Registration of Citizens and Issue
of National Identity Cards) Rules, 2003,
thrust by the then BJP-led NDA-1 gov-
ernment. The NPR has nothing to do
with the Census of India, which is con-
ducted every 10 years and is due next in
2021. While the Census collects infor-
A Bridge Too Far
Thecentre’sthreeprojectsareunimplementableandextremelycostly.Whentheneeded
dataisalreadyavailablethroughAadhaar,whyincursuchamassiveexpenditure?
GROUND ZERO
People gather at Shaheen Bagh in New Delhi
for an anti-CAA protest
T
Anil Shakya
| INDIA LEGAL | February 3, 2020 23
mation about all residents of India with-
out listing their names, the NPR is a list
of names of all persons usually residing
within a specified local area for over six
months, regardless of their nationality.
The NRC will effectively be a subset
of the NPR. The 2003 Rules provide for
verification of the details by the local
registrar (normally a taluka or town
functionary) who will segregate cases of
doubtful citizenship and conduct further
inquiries. Based on the inquiries he will
prepare a draft local register of Indian
citizens, which would exclude those not
able to establish, through documentary
proof, their claim to be citizens of India.
This is where the real danger lurks
because, as brought out by the experi-
ence in Assam, citizens are required to
establish their citizenship, irrespective
of their religious affiliation. NPR 2020,
unlike NPR 2010, asks not only for the
names of the parents of the resident, but
also their date and place of birth. A per-
son who is unable to furnish these
details of his parents or, for that matter,
of himself, could well be classified a
“doubtful citizen”.
The 2003 amendments to the 1955
Act and the consequent introduction of
the 2003 Rules reveal an undue obses-
sion with illegal migrants, without any
factual basis. Nationwide identification
of “illegal migrants”, which is what the
NRC in effect amounts to, is an unnec-
essary and futile exercise when Census
statistics over the past seven decades do
not show any major demographic shifts,
except in certain small pockets of north-
eastern and eastern India adjoining our
neighbouring countries. It is eminently
unimplementable and extremely costly.
Based on the expenses in Assam (`1,600
crore), a pan-India NRC could cost aro-
und `70,000 crore. When the needed
data is already available through the
Aadhaar system, there is no need to inc-
ur such a massive expenditure towards
NPR or NRC.
T
he vast powers vested in the
bureaucracy at junior levels to
include or exclude a person from
the local register have the scope to
unleash arbitrariness, discrimination
and corruption. Added to this is the pro-
vision for objections to the draft local
register from any person. The Assam
NRC exercise, with a three-crore popu-
lation, has thrown up the dangers of
such a large-scale exercise: millions of
citizens have been made to spend their
life’s savings running from pillar to post
to establish their citizenship credentials.
Doing so at the national level with a
130-crore population can be cataclys-
mic, particularly so with our highly
chaotic and inefficient birth registration
systems.
Within a day of the BJP forming the
NDA-2 government, the home ministry
directed governments and district mag-
istrates of all states and Union
Territories to set up tribunals to identify
“foreigners” living in India illegally. This
was followed by directions to set up
detention centres. The experience with
these tribunals in Assam has been trau-
matic for those at the receiving end.
After running in panic to gather docu-
ments to prove their citizenship, “doubt-
ful citizens” had to contend with these
tribunals, the composition and function-
ing of which were highly discretionary
and arbitrary. Consequently, several citi-
zens lost their lives or had to suffer the
indignity of incarceration in detention
TheAssamNRC
exercise,witha
three-crorepopula-
tion,hasthrownup
thedangersofsuch
alarge-scale
exercise:millionsof
citizenshavebeen
madetospend
theirlife’ssavings
runningfrompillar
toposttoestablish
theircitizenship
credentials.UNI
Column/ CAA/ NPR/ NRC/ MG Devasahayam
24 February 3, 2020
camps. When there is no need for the
NRC, why set up foreigners’ tribunals
and detention camps in the manner of
Nazi Germany?
The stated purpose of the CAA is to
allow non-Muslim immigrants from
Pakistan, Bangladesh and Afghanistan
who have entered India before
December 31, 2014, a faster route to
become Indian citizens. According to an
Intelligence Bureau report in 2016,
there were 31,313 of them. As per the
Standard Operating Procedure notified
in 2011, any refugee could apply for
Long Term Visa (LTV). Those who get
LTVs can obtain a PAN card, Aadhaar
card, driving licence and even buy prop-
erty. Between 2011 and 2018, LTVs were
granted to some 45,000 persons.
So, most of the proposed beneficiar-
ies of the CAA can and have already got
LTVs to stay and earn in India and can
get these cards and driving licences, and
buy a house. Finance Minister Nirmala
Sitharaman has stated that in the last
six years, as many as 2,838 Pakistani,
914 Afghan and 172 Bangladeshi
refugees, including Muslims, have been
given Indian citizenship.
I
f this is the case, why this autocratic
exercise of CAA, NPR and NRC?
The “brains” behind this agenda
have planned it meticulously. First bull-
doze a CAA to implement NRC
throughout the country, then introduce
a clause to give one’s parent’s place and
date of birth in NPR, which many can-
not do, and mark them as “doubtful” to
be hounded and disenfranchised
through NRC. This design came out
when a majority of states asked for
removal of this clause. Instead of doing
so, the home ministry advised that those
who do not have this information can
skip this column. This is a clear trap to
bring the maximum number of people
under the “doubtful” category and then
deprive them of citizenship.
There is another dubious ploy. While
people are up in arms and even before
the formal commencement of the NPR
process, the ever-obliging RBI issued
directions to banks to treat the letter
issued by NPR as an Officially Valid
Document for Know Your Customer
purposes. IDBI Bank and Central Bank
of India have already complied with this
direction. This is obviously meant to
force bank customers to enrol in the
NPR by making it mandatory later as
was done in the case of Aadhaar thro-
ugh blackmailing and intimidation like
“freezing of accounts” or “no withdrawal
of money until Aadhaar card is linked to
the bank account”. Repeating the same
to force through an unconstitutional
government agenda can aggravate the
credibility of the RBI and the banking
sector that started with demonetisation
and is continuing with mounting Non-
Performing-Assets.
The real purpose of this farce was
revealed when immediately after the
enactment of the CAA, BJP’s WhatsApp
messages unleashed a “four-step”
process for India becoming a Hindu
Rashtra—starting with the CAA, fol-
lowed by the NRC, then a law to control
population, ultimately followed by a
Uniform Civil Code.
The arrogance of the politicians who
are leading this questionable venture is
revealed from statements of the home
minister on the ruthless implementation
of the NRC and throwing out of all “ter-
mites” from the country. In an interview
by Times Now, he was asked whether a
passport, Aadhaar or Voter ID consti-
tute proof of citizenship. He replied:
“Bilkul nahin. Aadhaar jarasa bhi nahin.
(Not at all, Aadhaar, absolutely not).”
All these incomprehensible happen-
ings raise one basic question. Is the BJP
copying Hitler’s Citizenship Laws? Just
two years after Adolf Hitler came to
power in Germany, he introduced laws
to redefine its citizenship. The Nurem-
berg Laws may have started with the
segregation of Jews from non-Jews, but
there were further supplementations
that included all manner of “undesir-
ables”. These finally paved the way for
massive disenfranchisement and even
murder of not only Jews, but Comm-
unists, indigenous people, the disabled
and anyone who criticised the Nazi
establishment and those the German
State saw as Staatsfeind, an enemy of
the State. Nazi propaganda had already
prepared the ground and saw the
construction of ghettoes and concentra-
tion camps.
The RSS has always ignored India’s
Constitution and admired Hitler’s fascist
policies. Its Sarsanghchalak and icon,
Madhav Sadashiv Golwalkar, described
Hitler’s purging of Germany’s Jews as
“race pride” and “a good lesson for us in
Hindustan to learn and profit by”.
In the event, CAA, NPR and NRC
are outright Nazi projects and should be
rejected. And the massive outrage only
proves that the vast majority has already
done so.
—The writer is a former Army
& IAS officer
InaninterviewbyTimesNow,Home
MinisterAmitShahwasasked
whetherapassport,AadhaarorVoterID
constituteproofofcitizenship.He
replied:“Bilkulnahin (Notatall).”
| INDIA LEGAL | February 3, 2020 25
Acts and Bills/ Rajasthan Public Accountability Bill
HE Congress government
in Rajasthan is all set to
introduce a unique bill—
the Rajasthan Public Acco-
untability Bill—that will
make the state government
officials accountable for providing serv-
ice to citizens. It will bring government
officials in 28 departments providing
225 services under the scanner.
These services are water supply, irri-
gation, civil supplies, law, panchayati
raj, local self-government, public works
department, transport, agriculture, agri-
culture marketing, all municipal bodies,
social welfare, health, rural develop-
ment, state roadways and all services
under the district collector’s office.
The Bill is being brought in to ensure
transparency through the free flow of
information using modern, electronic
and information technology tools, as
well as offline modes of dissemination
through an effective Janata Information
System.
The Bill will lay out a comprehensive
citizens’ charter by each department,
enumerating rights and entitlements,
including public goods and services, to
be provided to the people and detailed
job charts of public functionaries to
identify their specific responsibilities in
ensuring efficient delivery of people’s
rights and entitlements. It will seek
accountability of public functionaries for
timely delivery of services.
The Bill also provides for a decen-
tralised grievance redressal mechanism
with a facility for filing and tracking
grievances and independent appellate
structures to ensure fairness and credi-
bility. It will also initiate monitoring of
programmes and policies through social
audit facilitation units. This will help in
the conduct of community score cards,
citizens’ report card, expenditure track-
ing and statutory social audit covering
all social sector programmes.
The Bill provides for the right to be
informed of the obligations and duties
of public functionaries, the right to
examine records pertaining to the func-
tioning of public authority, including its
powers, duties, and norms applicable to
monitoring, financial planning, budget-
ing, allocation and expenditure through
open information dissemination. It also
provides for the right to file a complaint
specifying a grievance, and obtain a
dated acknowledgement receipt, prompt
redressal of the grievance and the right
to participate in a public hearing within
14 days of filing the complaint.
The Gehlot government involved the
Mazdoor Kisan Shakti Sangathan
(MKSS) to provide inputs for drafting
the Bill.
The MKSS under Aruna Roy has
worked intensely in the areas of Right
To Information, Mahatma Gandhi
National Rural Employment Guarantee
Act, the Lokpal Bill, Right to Food and
human rights issues. The MKSS was
largely entrusted the job of providing
inputs for the Jan Soochna portal.
The state government formed a
committee to advise it on the Bill. It
included former bureaucrat Ram
Lubhaya as its chairman, Nikhil De, an
activist with MKSS, and Prof Dev
Kothari, a population expert. De had
submitted the draft Bill which was
accepted as the ideal Bill.
“The Bill envisions making grass-
roots democracy a reality,” said De.
After the approval of the cabinet, the
Bill will be enacted by the Rajasthan
Vidhan Sabha.
Under the Scanner
Inawelcomedevelopment,theBillwillmakestategovernment
officialsaccountableforgivingservicestocitizensand
promisesfastredressaloftheirgrievances
By Prakash Bhandari in Jaipur
MAKING A DIFFERENCE
Nikhil De, an activist with the Mazdoor Kisan
Shakti Sangathan that provided vital inputs
T
TheBillisbeingbroughttoensure
transparencythroughthefreeflowof
informationusingmodern,electronicand
informationtechnologytools,aswellas
offlinemodesofdissemination.
26 February 3, 2020
Leaders from across the globe gathered in Jeru-
salem last week for the World Holocaust Forum
on the 75th anniversary of the liberation of the infa-
mous Auschwitz death camp where thousands of
Jews were exterminated. They included Russia’s
Vladimir Putin, Emmanuel Macron from France,
Britain’s Prince Charles, and the presidents of
Germany and Italy, among other dignitaries.
The visit to the Wailing Wall and the Holocaust
Memorial which recalls the genocide of Jews under
Hitler’s Germany was obligatory but it comes amid
a global spike in anti-Jewish violence around the
world, including America and Britain where recent
anti-Semitic violence has raised concerns, as it has
across Europe. In France, anti-Semitic acts rose by
74 percent in 2018, according to the UN Commi-
ssioner for Human Rights. Moreover, one in four
Europeans harbour strong negative attitudes to-
ward Jews, according to a 2019 poll on anti-Semi-
tism by the Anti-Defamation League.
The report showed countries in central and east-
ern Europe registered an increase in anti-Semitic
beliefs, with stereotypes about Jews controlling
business and finance, and being more loyal to Israel
than their home country, still firmly entrenched.
Jews across the world are hoping that the gathering
of leaders in Jerusalem does not end up as just a
photo-op.
Wailing Wall
International Briefs
The global fashion world went into shock
when celebrated French designer Jean-
Paul Gaultier announced that he was end-
ing his 50-year career. Celebrities from all
over the world landed in Paris last week for
his final show, “Haute Couture Spring/Su-
mmer 2020”. They included former French
First Lady Carla Bruni, American actress
Larsen Thompson, supermodel Eva Her-
zigova, French designer Christian Loubou-
tin—known for his signature red-soled
stiletto shoes—and pop singer Mika.
Gaultier, 67, has designed for stars
from Nicole Kidman and Cate Blanchett to
Lady Gaga, Rihanna and Madonna.
Madonna wore his famous “cone bra” corset
for her Blonde Ambition world tour. The
designer said his final show in Paris would
feature his “first upcycling haute couture
collection” and urged the audience to recy-
cle their clothes.
Fashion’s Farewell
Twitter
Flash 90 2020
| INDIA LEGAL | February 3, 2020 27
There’s one big status symbol you can dis-
play when you walk into a room—the
keys to your car. Some years ago, they all
looked the same so it was no big deal till
BMW, Ferrari, Bentley and Mercedes put
their logo on their keys.
Now, it has gone a step further, with
technology allowing them to do more than
just open the car door by pressing a button.
The latest is the disc-shaped key for the
Lexus LF-30 which is still to hit showrooms.
It is like a mobile phone with data the owner
wants at hand, plus preset directions for
how you want the car to drive. It’s also a
beautiful piece of jewellery.
Aston Martin’s key fob is called the
“Emotional Control Unit”. Made of sapphire,
it has a glass top that displays the logo
underneath and doubles as a start button
once entered into the ignition port. Another
gorgeous key design is the BMW 7-Series
LCD Key (below) which tells the driver how
much gas is in the tank at all times. Bugatti’s
Veyron supercar which costs $3 million
comes with two monogrammed keys, one to
start the car and another to push the car to
its top speed of over 248 mph. The Top
Speed Key can be inserted behind the driv-
er’s seat and is only meant for use in extreme
conditions. The ultimate car key is the col-
laboration between Aston Martin and
watchmaker Jaeger-LeCoultre, producer of
some of the world’s most desirable sport
watches. The sapphire crystal watch has but-
tons on the side to lock or open the car, and
perform other functions.
Keys to Car Kingdom
She is widely considered
the richest woman in
Africa but now the Inter-
national Consortium of
Investigative Journalists
have accused Isabel dos
Santos (above) of using
“unscrupulous deals” to
build her fortune, estimat-
ed at $2 billion. The
charges say dos Santos,
daughter of the former
Angolan president,
siphoned off millions of
dollars during her time
with Angola’s state-run
oil company.
Now, Angola, the dia-
mond - and oil-rich coun-
try, has launched a formal
investigation into the
scandal. Angolan authori-
ties say they are reaching
out to other countries for
help in tackling corruption
that critics say has robbed
millions of citizens of
basic needs.
Last week, Portuguese
bank EuroBic said it will
stop doing business with
companies and people
linked to dos Santos, its
main shareholder. The
allegations are based on
more than 715,000 confi-
dential financial records
provided by the Platform
to Protect Whistleblowers
in Africa, an advocacy
group based in Paris, as
well as hundreds of inter-
views. The cache of docu-
ments is known as Luanda
Leaks. Jose Eduardo dos
Santos, Isabel’s father,
ruled Angola for 38 years
until 2017. He too is acc-
used of stealing vast am-
ounts of state money dur-
ing his rule and before
stepping down, he app-
ointed his daughter head
of the state oil company,
Sonangol.
Last December, a
Luanda court froze Isabel
dos Santos’ major assets,
which include banks and a
telecom company. Dos
Santos, who lives in
London, has said the legal
action against her is a
“witch hunt”.
The Luanda Leaks
Nuno Coimbra/ wikimedia.org
Focus/ Legal Aid
28 February 3, 2020
ISHIKA Singh, a lawy-
er, had gone to attend
the protests against
the December 15 crack-
down on Jamia Millia
Islamia (JMI) by Delhi
police at Jantar Mantar. When police
started detaining peaceful protesters she
spontaneously made a WhatsApp group
called “Lawyers for detainees” which
added the contact numbers of lawyers
who had volunteered to help the detain-
ees. Soon, what started as a peer-to-peer
lawyers’ group in Delhi became a strong
network of around 200-plus lawyers
across the country almost overnight.
Her name and number along with a list
of mobile numbers of other lawyers
ready to help detainees went viral on
Instagram, Facebook and Twitter.
What followed was a historic coun-
trywide mobilisation of lawyers. During
Union Home Minister Amit Shah’s out-
reach in an area of Delhi on January 5,
to promote the governments’ Citizen-
ship (Amendment) Act, two women dis-
played a banner on their balcony that
read, “Shame; CAA and NRC”, while his
rally was passing by. Within minutes,
they found a 150-plus angry mob,
including their landlord, banging at
their doors. Surya Rajappan, one of the
People’s Advocates
Acountry-wideorganisationoflawyershasbeenactivelyhelpinganti-CAAprotesterswhohave
beendetainedorfaceharassmentandprosecution,allforfree.Thisisahistoricmobilisation.
Whoaretheyandwhatistheirmotivation?
By Nupur Dogra
M
PRESERVING RIGHT TO PROTEST
In the wake of the crackdown on anti- CAA
protesters, Indian lawyers take charge.
Anil Shakya
| INDIA LEGAL | February 3, 2020 29
two women stuck in the apartment and
an advocate by profession, immediately
put out an SOS message from her
phone. Within a few hours a bunch of
lawyers gathered outside her house and
managed safe passage for the girls.
I
n Chennai, on January 17, around
250 lawyers including senior ad-
vocates R Vaigai and Nalini Chid-
ambaram, and advocate NGR Prasad
formed a human chain in and around
the Madras High Court premises and
read aloud from the Constitution of
India in protest against the Citizenship
(Amendment) Act.
Since the protests against the CAA
have erupted across the country, SOS
messages like “lawyers needed urgently”
have become a common sight on social
media. Advisories on how to deal with
the police in case of detention, messages
like; “Don’t be silent. Don’t be violent”
and “Educate, Agitate, Organize” have
been shared excessively amongst neti-
zens, including celebrities and politi-
cians. Detailed and simplified “To do
lists” were circulated across the social
media prepared by lawyers to guide
protesters on how to agitate peace-
fully and what to do in case of deten-
tion by police.
Mishika Singh, who is at the fore-
front of the lawyers' movement, has
received calls from lawyers actively
working on the ground from across the
country to help detainees and protest-
ers. She has been coordinating lawyers
across the country for over a month.
She told India Legal: “The network
of lawyers working on the ground has
become so strong that it not only reach-
es the protest sites and police stations
when needed but is also successful in
immediately dispensing any kind of
false rumours and fake news being
spread about the movement through
counter facts being shared through
social media.”
Another historic instance of lawyer
activism in India was witnessed on 20
December. That afternoon, a picture of a
young girl offering a rose to police per-
sonnel while protesting went viral.
However, within a few hours, news of
violent clashes between the police and
anti-CAA protesters started doing the
rounds. Following the clashes, news of
detention of injured protesters including
minors reached this network of lawyers
who gathered outside the Daryaganj
police station with a team of doctors.
Advocate Mohd. Faris was one of the
lawyers who answered the call to gather
outside the Daryaganj police station in
Delhi. While recalling the harrowing
event, he told India Legal that around 8
pm in news of a lathi charge by Delhi
Police on protesters who had gathered
at Delhi Gate and were trying to march
towards Jantar Mantar came in.
Protesters who were detained included
injured people and minors. The lawyers
were barred from entering the police
station for hours and none of them was
allowed to meet any detainee. This
group of lawyers along with a team of
doctors persisted and stood outside the
police station through the night to help
the detainees and their families. “After
trying to convince the police for four to
five hours, only one lawyer was allowed
inside the police station and around 4
am eight to nine minors were released
and an FIR was lodged for a few
detainees with the help of senior
lawyers.” said Faris.
These lawyers have been braving the
system and trolls for the past month,
24/7. They, especially women lawyers,
have faced unpleasant and unnecessary
calls since their mobile numbers were
made public. They went on with their
“Wehavepeopleworkingontheground
everywhereincludinglawyersaswellas
non-lawyerswhovolunteertocoordinate
withprotestersinneedoflegalhelp.”
—AdvocateMishikaSingh
“Onelawyerwasletinsidethepolicesta-
tionafter4-5hours.Later,afew minors
werereleasedandFIRs lodgedforsome
detaineeswithseniorlawyers’help.”
—AdvocateMohd.Faris
“Twitter,Instagram,andWhatsApphave
becometoolsforspeedymobilisation
withcallsforlawyersgoingoutthrough
stories,tweets,andvoicenotes.”
—SukhnidhKaur,Researcher&Blogger
30 February 3, 2020
job despite all this, guided by their
desire to preserve the constitutional
right to protest.
Lawyer Akshita Manocha told India
Legal: “The lawyer community has dis-
played tremendous unity and strength
while helping the common man protest-
ing on the ground in every way possible.
Though lawyers working to help detain-
ees are doing a fabulous job, there are
also a huge number of lawyers who are
working in the background through si-
mple legal advisories and extending em-
otional support to people protesting.”
“A lot of protesters were first-timers
and were unaware on the legality of de-
tentions and their limits as protesters.
When people were detained in buses
and dropped off on the outskirts of
Delhi, they were caught by surprise.
Lawyers provided them with assurances
on their rights and continuously kept
reminding them to stay calm and not
indulge in violence or any activity that
might further aggravate the situation,”
Manocha adds.
Many lawyers use social media to cir-
culate easy-to-understand explanations
of the CAA and NRC to counter myths
and rumours being spread about the Act
and its implications. Instagram accounts
of bloggers played a significant part in
taking the voices of these lawyers to mil-
lions of people. “Anti-CAA protests have
strengthened the intersection of social
media and legal justice. Twitter,
Instagram, and WhatsApp have become
tools for speedy mobilisation with calls
for lawyers going out through stories,
tweets, and voice notes. Legal advice
regarding detention and arrest is trans-
lated to shareable content. Lawyers are
organising themselves through resource
lists and web portals. India’s legal frater-
nity has come together to create a struc-
ture of support around the protesters
like never before,” says Sukhnidh Kaur, a
student and researcher, whose Insta-
gram account and blog have been docu-
menting every protest taking place
across the country and who has been
instrumental in connecting lawyers’ to
the masses through her huge following.
Many such accounts of social media
influencers and bloggers have forwarded
lawyers advice to millions across India.
After the JMI crackdown, a Google doc-
ument has been circulating which con-
tains spreadsheets with contact numbe-
rs of lawyers, journalists, psychologists
and doctors who have volunteered to
help protesters.
Lawyers have become the backbone
of mass anti-CAA protests. They are
coming forward to defend the rights of
people to protest peacefully. Many of
them are fighting cases and helping in
release of detainees for free.
J
ust because they are lawyers does-
n't mean that their struggle is easy.
They are constantly at risk of hara-
ssment and targeted police action. On
January 18, a Rajasthan-based lawyer,
Mohammad Faisal, alleged that he was
wrongly picked up by the SOG team of
the Uttar Pradesh Police from inside
Kairana Court. He had gone at the beh-
est of the National Confederation of
Human Rights (NCHR) to find facts
regarding alleged illegal detentions at
Shamli. Later, he told reporters that he
was in judicial custody for 13 to 14 days
and was physically tortured by the UP
police, including electric shocks
being given.
The kind of activism displayed by
lawyers in India is unprecedented and
shows the depth of feeling against the
CAA and its constitutional and legal
loopholes and the impending nation-
wide National Register of Citizens.
Many of these lawyers as well as the
protesting youth are essentially those
who have grown up in a post-independ-
ence India and have cultivated the sense
of “constitutional morality” which Dr.
BR Ambedkar had envisioned when he
drafted the Constitution and called for
developing social democracy in “tem-
perament rather than just in theory”. He
had declared that citizens should “have a
natural inclination to liberty, a natural
respect for law, good humour, intoleran-
ce of foul play, the knowledge of how
and when to compromise and distrust…”
It is safe to say that Indian lawyers
are taking his exhortations to heart.
Focus/ Legal Aid
AftertheJMIcrackdown,aGoogledocu-
mentwithspreadsheetsofnumbersof
lawyers,journalists,psychologistsand
doctorswhohavevolunteeredtohelp
protestorshasbeencirculated.
LAWYERS UNITE AGAINST THE CAA
Lawyers form a human chain at Madrass
High Court to register protest.
Global Trends/ Sri Lanka
32 February 3, 2020
ITH the swearing in
of Gotabaya Rajapak-
sa, the Eelam war he-
ro and controversial
former defence secre-
tary, as the president
of Sri Lanka, the Rajapaksas are back in
power at a critical time in the country.
Only five years back, the people of Sri
Lanka had thwarted then president Ma-
hinda Rajapaksa’s bid for a third term in
office. His authoritarian style coupled
with allegations of corruption and mis-
use of office clouded his success in end-
ing the Tamil Tigers’ separatist insur-
gency. However, the last five-year rule of
President Maithripala Sirisena and
prime minister Ranil Wickremesinghe
fell far short of people’s expectations in
delivering good governance which they
had promised, with their endless squab-
bles virtually paralysing government
functioning in the island nation.
Perhaps the main reason why most
of the Sinhalas voted for Gotabaya was
the Easter Sunday massacre of 259 peo-
ple by ISIS-inspired and home-grown
Jihadi terrorists last April. It created a
huge scare among the people who are
yet to fully recover from the after-effects
of fighting Tamil separatist insurgency
for nearly three decades. The terrorist
attack created a ripple effect. It exposed
huge gaps in the national security fabric.
People were shocked to learn that the
government failed to act upon receiving
information on the impending terrorist
attack, two weeks in advance. Further
inquiry into the attack revealed that
both Sirisena and Wickremesinghe fai-
led to nip jihadi terrorism in the bud
when the first indications of Islamist
extremist activity were brought to
their attention.
Public opinion thus swung in favour
of electing Gotabaya as he was seen as a
Hits And Misses
BykeepingkeyministrieswithinthefamilyPresidentGotabayaRajapaksamayhave
ensuredatightgripovertheadministration,butchallengesremainonotherfronts
By Col R Hariharan
W
BURDEN OF EXPECTATIONS
Gotabaya Rajapaksa took charge as the
president of Sri Lanka last year at a critical
time for the country
UNI
| INDIA LEGAL | February 3, 2020 33
strong man who will revamp the nation-
al security structure to make it more
effective. Gotabaya’s winning chances
further improved as the terrorist attack
became a rallying call for conservative
Buddhists to defend the land they con-
sider the last bastion of Theravada
Buddhism. In their previous tenure, the
Rajapaksas had pampered Sinhala
Buddhist nationalism and soft-pedalled
on fringe elements spouting anti-Mus-
lim hate rhetoric and attacking Mus-
lims. Their votes were naturally his.
One of the first actions that Gota-
baya—who completed two months in
office on January 17, 2020—took was to
instal his brother, Mahinda, as the inter-
im prime minister even as he placed
another brother, Chamal, as the minis-
ter of agriculture. The three brothers,
between them, control the ministries of
defence, public security, finance, econo-
my and policy development, Buddha-
sasana and cultural and religious affairs,
urban development, water supply and
residential facilities.
President Gotabaya has acknowled-
ged that the Sinhala majority vote “all-
owed me to win the presidency”. He will
thus come under pressure from the Sin-
hala majority to deliver upon his pre-
election promises. For that, he will need
his party, the Sri Lanka Podujana Pera-
muna (SLPP) to win an absolute majori-
ty in the parliamentary polls to be held
in March 2020.
In an interview, Gotabaya said that
the 19th amendment that curbed the
powers of the president was “a failure
and if we get 2/3 majority in parliament
we will drop it from the constitution”. So
in the near term, Gotabaya’s actions will
be aimed at securing an absolute major-
ity in the parliamentary elections.
S
oon after Gotabaya came to po-
wer, there were disturbing trends
reminiscent of the past Rajapaksa
authoritarian rule, with some smacking
of vindictiveness. A Special Presidential
Commission (SPC) was appointed to
probe those responsible for falsely im-
plicating people in murders or related
investigations. State investigative agen-
cies like the Criminal Investigation Dep-
artment (CID) and the Financial Crimes
Investigation Division (FCID) had been
investigating a number of cases involv-
ing the Rajapaksas.
Even before the SPC probe started,
Chief Inspector Nishantha de Silva,
head of the organised crimes division of
the CID, fled with his family to Switzer-
land to seek asylum. He was handling
high-profile cases involving members of
the Rajapaksa family which included
important ones like the killing of
Lasantha Wickrematunga, the editor of
The Sunday Leader. After the police
officer fled, there was a nasty backlash
when a Sri Lankan woman staffer of the
Swiss embassy alleged that she was
abducted, questioned and tortured by
unknown persons. In the police investi-
gations that followed, the woman was
arrested for making false allegations..
The arrest of two former ministers,
Dr Ranjitha Senaratne and Champika
Ranawaka, of the Sirisena government,
who were at the forefront of the cam-
paign to defeat Mahinda Rajapaksa in
the 2015 presidential elections, appears
to be another example of vindictiveness.
While Ranawaka was arrested in a case
of accident of 2016 vintage, Senaratne
was arrested in connection with a news
conference he held two days before the
presidential elections in which he pro-
duced two persons who claimed to be
drivers of white vans that carried out
abductions during the Rajapaksa rule.
Though both leaders have been released
on bail, the action sends a strong mes-
sage to the opposition that the Rajapak-
sas will neither forget nor forgive.
Administratively, Gotabaya has
shown that he is the master of his own
actions. He has introduced steep tax
cuts in income tax which he had prom-
ised during campaigning. He ordered
the removal of portraits of all politi-
cians, including the president and min-
isters, from the walls of ministerial
offices. He drastically pruned defence
personnel assigned on presidential and
ministerial security duties.
The number of security vehicles
accompanying VIP convoys was also
slashed and authorities were directed
not to hold up traffic on roads unneces-
sarily when VIP convoys moved. Newly
inducted ministers were advised to ass-
ume their duties immediately after they
were sworn in. Ministers have been
advised not to take their spouses when
they go abroad on official duties. All
these have reinforced his popular image
as a man of action.
Unlike his brother, Mahinda, Gota-
baya has appointed qualified and experi-
enced persons to head state institutions,
instead of political people. Dr PB Jaya-
sundara, an economist, was appointed
secretary for revamping the country’s
sinking economy. The president has
OneofthefirstactionsthatGotabayatookafterbecomingpresidentwastoinstalhis
brothers,MahindaRajapaksa(right)andChamalRajapaksa,asinterimPMandminister
ofagriculture,respectively.Thethreebrothers,betweenthem,holdcrucialportfolios.
Global Trends/ Sri Lanka
34 February 3, 2020
chosen Dr DWD Lakshman, an econo-
mist not tainted by the infamous bond
scam, as the governor of the Central
Bank of Sri Lanka. Similarly, Gotabaya
appointed Prince Sarojini Manmatha-
rajah Charles, a senior Tamil civil ser-
vant with vast experience, as the gover-
nor of the Northern Province. During
the conflict in 2009, Charles was in
charge of the refugee camps in Vavu-
niya, housing about 2,90,000 people
from the war-torn districts.
T
he president presented the “Vis-
ion for Progress” policy statement
when he addressed the parlia-
ment for the first time on January 3.
Read with his earlier statements, the key
elements of the policy include national
security concerns, particularly relating
to jihadi terrorism, tax cuts and incen-
tives for small and medium enterprises,
skill-building, reducing inflation and
beefing up economy and actions to “curb
corruption and prosecuting the corrupt”.
He had also proposed other structural
changes to revamp the economy and
strengthen security apparatus, including
the intelligence set-up.
There is a sense of déjà vu among
civil society and minorities who fear that
the country could see the return of
authoritarianism. P Sampanthan, leader
of the Tamil National Alliance, has said
the president’s statement that develop-
ment would be prioritised in resolving
the ethnic conflict, would not fulfil the
long-standing desire of the Tamils to
develop within a united Sri Lanka on
their own terms. They are also dismayed
at Gotabaya’s assertion that there was
“no problem of missing persons to be
resolved” except those who fell on the
battlefields. This statement neutralises
what little progress was made in 2017,
when the government created the Office
of the Missing Persons to expeditiously
deal with cases of missing persons and
enforced disappearance.
The Tamils are shocked at the ann-
ouncement that the national anthem
would be sung only in Sinhala and not
in Tamil at the Independence Day cele-
brations in the country. The fringe ele-
ments among the Buddhist clergy had
welcomed the move. After a lot of public
outcry over the issue, the prime minister
clarified that no decision had been taken
on the issue.
On the international front, the presi-
dent’s priority appears to be to improve
relations with India and Prime Minister
Narendra Modi in particular, perhaps to
use India to improve his bargaining
position with China. He responded posi-
tively to Modi’s invitation to visit New
Delhi. The invitation was extended soon
after he became president. For India,
the visit was strategically significant as
the Rajapaksas were seen as close to
China. Gotabaya needs India’s support
to improve national security, combat
Islamist terrorism and enable economic
recovery. Though Modi had raised the
issue of the full implementation of the
13th Amendment giving limited autono-
my to Tamils, Gotabaya later said the
13th Amendment could not be imple-
mented “against the wishes and feelings
of the majority community”.
China had been watching with con-
cern after Gotabaya during his visit to
India termed the agreement with China
on the Hambantota Port as a “mistake”
and called for it to be negotiated. How-
ever, Gotabaya felt the fallout of the
statement after returning home. He
later told foreign correspondents in
Colombo that there was no need to re-
negotiate the Hambantota agreement
but the security aspects needed to be
looked into.
Though the Chinese reacted quickly
with a statement reminding that the
agreement could not be renegotiated,
the president is expected to take up
the issue of redrafting some clauses
of the agreement when he visits
Beijing shortly.
Overall, Gotabaya has, by keeping
control of key ministries within the
dynasty, ensured a tight grip over
the country.
—The writer served as the head of
intelligence of the IPKF in Sri Lanka. He
is associated with the Chennai Centre for
China Studies, South Asia Analysis
Group and the International Law and
Strategic Analysis
Gotabayawantstoimproverelationswith
IndiaandPMModiinparticular,perhaps
tousethebilateraltiestoimprovehis
bargainingpositionwithChina.Hevisited
Indiashortlyafterbecomingpresident.
UNI
India Legal - 3 February 2020
India Legal - 3 February 2020
India Legal - 3 February 2020
India Legal - 3 February 2020
India Legal - 3 February 2020
India Legal - 3 February 2020
India Legal - 3 February 2020
India Legal - 3 February 2020
India Legal - 3 February 2020
India Legal - 3 February 2020
India Legal - 3 February 2020
India Legal - 3 February 2020
India Legal - 3 February 2020
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India Legal - 3 February 2020

  • 1. NDIA EGALL STORIES THAT COUNT I February3, 2020 TheSupremeCourthasrevivedfaithintheconstitutionalideasoffreedomofexpression intheirjudgmentoninternetshutdowninKashmir,saysProfUpendraBaxi Justice Narendra Chapalgaonkar: Ways to fast-track justice
  • 2.
  • 3. | INDIA LEGAL | February 3, 2020 3 OR the first time in recent memory, there is no feel-good “India Story” from Davos. In 2020, the Swiss mountain re- sort, home to the annual World Econo- mic Forum (WEF), the globe’s most po- werful influential confab of business and politi- cal leaders, where India got its “story” as the most promising democratic developing nation with its enviable double-digit growth, did not star the country as in previous years. Driven out of the spotlight, India mostly sulked in the shadows, its representatives and spin doctors searching uncomfortably for ans- wers to tough questions about its rapidly plung- ing economy, growing social unrest, the Citi- zenship Act and Jammu and Kashmir. Davos was happening in the backdrop of In- dia’s projected growth rate plummeting to 4.2 percent and its dropping 10 places to rank 51 out of 167 in the recently released 2019 Demo- cracy Index, formulated and compiled by the prestigious research firm Economist Intelligence Unit (EIU). The country ranked 41 in 2018. India’s overall democracy score also fell from 7.23 out of a possible 10 in 2018 to 6.90 in 2019. “The primary cause of the democratic regression was an erosion of civil liberties in the country,” the EIU report said. It said that along with the revocation of Article 370 in August last year, stripping Jammu and Kashmir of its special sta- tus, India “deployed a large number of troops in J&K, imposed various other security measures and placed local leaders under house arrest, including those with pro-India credentials…The government also restricted internet access in the state”, the report said. It also noted that the newly amended citizen- ship law “has enraged the Muslim population, stoked communal tensions and generated large protests in major cities”. But despite large-scale protests, “the EIU expects the ruling Bharatiya Janata Party (BJP) to maintain its focus on pop- ular Hindu nationalist themes, seeking to re- bound from poor results in recent state elec- tions. Fiscal and monetary policy constraints and an uncertain business environment in some states will keep the economy from reaching its growth potential in the years ahead”. A ctually, India’s slide, which came more sharply into focus this year because of the concomitant social protests and stu- dent unrest which have hogged world headlines, was apparent at Davos last year as well. Poor health conditions and low healthy life expectan- cy were listed as the biggest curse for India. The country has slipped 10 rungs to end up at 68th rank on the WEF annual Global Competitive- ness Index. It was ranked 58th in this Index last year but is among the worst performing BRICS nations this year, along with Brazil which has fallen even further to 71st position. The Economist, which is rated as the most widely read journal by political leaders and cap- tains of commerce and industry across the world, had, not too long ago, run a cover story calling India a “caged tiger” which was ready to overtake China in global economic performance and set an example for even the more advanced economies. In last week’s cover story, it was dis- heartening to read this same journal editori- alise: “Alas, what has been electoral nectar for SLIDING INDIA Inderjit Badhwar F In2020,theannual WorldEconomic Forum,whereIndia gotits“story”asthe mostpromising democratic developingnation withitsenviable double-digitgrowth, didnotstarthe countryasin previousyears. Letter from the Editor
  • 4. 4 February 3, 2020 the BJP is political poison for India. By under- mining the secular principles of the constitution, Mr Modi’s latest initiatives threaten to do damage to India’s democracy that could last for decades. They are also likely to lead to bloodshed. “The sad truth is that Mr Modi and the BJP are likely to benefit politically by creating divi- sions over religion and national identity. Such subjects keep the party’s activists and their allies in Hindu-nationalist groups energised—always a boon, given India’s relentless sequence of state elections. They also distract attention from awk- ward topics such as the economy, which has struggled since the BJP’s thumping election victo- ry last year. Most important, Mr Modi seems to calculate that a sizeable minority of Indian voters are sympathetic to his constant insinuation that Muslims are dangerous fifth-columnists, always scheming to do Hindus down and sell out their country to Pakistan. That is enough to keep him in office. Because of India’s first-past-the-post electoral system and a divided opposition, the BJP won its outright majority in parliament with just 37% of the vote.” The article ends: “Happily, many Indians have already had enough, as the recent protests show. The Supreme Court, which this week declined to suspend the citizenship law, should heed this… And rather than stoke hostility between two of the world’s great religions, Mr Modi should look for other paths to voters’ hearts.” I n its most recent judgment on the legal chal- lenges, the Supreme Court refused any stay on the CAA without hearing the government and also barred High Courts—which have been quite liberal in granting bail to citizens arrested and detained by the police under various charges for participating in anti-CAA demonstrations—from hearing petitions challenging the constitutional validity of the Act. It is likely that all these matters will be clubbed before a larger constitution- al bench. But academics and political thought leaders like Balveer Arora have asked: “Is there a precedent for gagging the High Courts, preventing them from hearing challenges to central laws? Some High Courts have handed down remarkably pro- gressive judgments….” The answer to this question which also has relevance to the controversy over whether states can refuse to obey central diktats they consider detrimental to constitutional propriety, may lie in this summary—taken from the Supreme Court website—regarding the powers of the apex court. Excerpts: The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original juris- diction extends to any dispute between the Go- vernment of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whe- ther of law or of fact) on which the existence or extent of a legal right depends. In addition, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them. The Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court. The Supreme Court, if satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, may withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself. The appellate jurisdiction of the Supreme Court Therecently released2019 DemocracyIndex saidthatalongwith therevocationof Article370inJ&K inAugustlastyear, Indiadeployeda largenumberof troopsinJ&K (aboveright), imposedother securitymeasures andrestricted internetaccess.It alsosaidthatCAA hasenragedthe Muslimpopulation andstokedcommu- naltensionsinIndia andgeneratedlarge protestsin majorcities. Letter from the Editor UNI
  • 5. | INDIA LEGAL | February 3, 2020 5 can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving sub- stantial questions of law as to the interpretation of the Constitution. Under Articles 129 and 142 of the Constitution the Supreme Court has been vested with power to punish for contempt of Court including the power to punish for contempt of itself. In case of con- tempt other than the contempt referred to in Rule 2, Part-I of the Rules to Regulate Procee- dings for Contempt of the Supreme Court, 1975, the Court may take action (a) Suo motu, or (b) on a petition made by Attorney General, or Solicitor General, or (c) on a petition made by any person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General. Although the proceedings in the Supreme Court arise out of the judgments or orders made by the Subordinate Courts including the High Courts, but of late the Supreme Court has started enter- taining matters in which interest of the public at large is involved and the Court can be moved by any individual or group of persons either by filing a Writ Petition at the Filing Counter of the Court or by addressing a letter to Hon'ble the Chief Justice of India highlighting the question of pub- lic importance for invoking this jurisdiction. Such concept is popularly known as ‘Public Interest Litigation’ and several matters of public impor- tance have become landmark cases. This concept is unique to the Supreme Court of India only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction. A Writ Petition filed at the Filing Counter is dealt with like any other Writ Petition and processed as such. In case of a letter addressed to Hon'ble the Chief Justice of India the same is dealt with in accordance with the guidelines framed for the purpose. Each High Court has power to issue to any per- son within its jurisdiction directions, orders, or writs including writs which are in the nature of habeas corpus, mandamus, prohibition, quo war- ranto and certiorari for enforcement of Funda- mental Rights and for any other purpose. This power may also be exercised by any High Court exercising jurisdiction in relation to territories within which the cause of action, wholly or in part, arises for exercise of such power, notwith- standing that the seat of such Government or authority or residence of such person is not with- in those territories. Each High Court has powers of superinten- dence over all Courts within its jurisdiction. It can call for returns from such Courts, make and issue general rules and prescribe forms to regu- late their practice and proceedings and determine the manner and form in which book entries and accounts shall be kept. F rom the above, an argument may well be made that the Supreme Court’s jurisdiction is both appellate as well as original. But does that mean it can circumvent the power of High Courts by pre-empting, in advance, a mat- ter, say, of fundamental rights from even being heard by a High Court? Can the Supreme Court, for example, issue a decree that all matters con- cerning bail for citizens arrested by the police under various charges for participating in public protests be referred only to the Supreme Court and all lower courts be barred from adjudicating these appeals because they arise from the same set of circumstances, ie, challenges to a central law? But the central issue as Balveer Arora posits, is that the apex court should, alternatively, decide constitutional matters on priority. “Can you have constitutional uncertainty for prolonged periods of time, leaving the executive in the dark on whether the laws it continues to apply are consti- tutionally valid or not?” The2019Demo- cracyIndexalsosaid thatIndia’soverall democracyscorefell from7.23outofa possible10in2018 to6.90in2019and theprimarycauseof thedemocraticreg- ressionwasanero- sionofcivilliberties inIndia.Butdespite this,thereportsays, therulingBJPisex- pectedtomaintain itsfocusonpopular Hindunationalist themes,seekingto reboundfrompoor resultsinrecent stateelections. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com UNI
  • 6. 6 February 3, 2020 ContentsVOLUME XIII ISSUE12 FEBRUARY3,2020 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. Senior Content Writer Punit Mishra (Web) Never were constitutionalism and judicial duties articulated more accurately than in the J&K inter- net shutdown case heard by the Supreme Court recently, which reaffirmed constitutional rights and freedom of speech. An analysis of the judgment by Prof Upendra Baxi A Boost for Liberty 14 LEAD The government is yet to allot official accommodation to four new judges appointed to the Supreme Court, forc- ing them to work out of makeshift premis- es in the capital Houses Full 18 LEGALEYE
  • 7. | INDIA LEGAL | February 3, 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.....................9 Courts.............................10 Law Campus News........12 International Briefs ........26 Media Watch ..................35 Love Jihad Controversy The Kerala Syro-Malabar Church’s assertion that the IS engaged Muslim men to feign love and lure Christian women for terror activities has been denied by the government and questioned by priests FOCUS A country-wide organisation of lawyers has been actively helping anti- CAA protesters who have been detained or face harassment and prosecution, all for free. This is a historic mobilisation. Who are they and what is their motivation? People’s Advocates 28 GLOBALTRENDS 44 This could well be the plea of rabies patients who undergo great pain and want euthanasia. Though the apex court has sought the centre’s response to a PIL seeking this right, the disease is often treatable 40Please Release Me… 22 The centre’s three projects—CAA, NPR and NRC—are unimple- mentable and extremely costly. When the needed data is already available through Aadhaar, why incur such a massive expenditure? A Bridge too Far In a welcome development, the Rajasthan Public Accountability Bill will make state government officials accountable for giving services to citizens and promises fast redressal of their grievances Under the Scanner 25 Twenty-three years after Goa initiated the process for an international airport at Mopa, about 43 km from Panaji, the Supreme Court gave its nod after laying down rigorous guidelines. But will these be followed? 36 32 Project Takes Off ACTS&BILLS OPINION STATES NCRB data has shown that only 22 percent of cases were disposed of by fast-track courts in less than a year. If this is to be speeded up, there should be proper infrastructure and personnel, says Justice Narendra Chapalgaonkar Iron Out the Glitches COLUMN By keeping key ministries within the family, Sri Lanka’s president, Gotabaya Rajapaksa, may have ensured a tight grip over the administration, but chal- lenges remain on other fronts Hits And Misses 20
  • 8. 8 February 3, 2020 Anthony Lawrence RINGSIDE Investment: $2 bn Jobs: 1 mn Buzz off!! Commerce minister Piyush Goyal
  • 9. | INDIA LEGAL | February 3, 2020 9 ISTHAT — Compiled by India Legal team A young woman, whose husband died of a heart attack, leaves her in-laws’ house in a huff, though there were no instances of any kind of harassment when the hus- band was alive. The in-laws are old and want her to return, but she wants the family property to be divided. Can she claim a share in her deceased husband’s prop- erty legally? A woman is entitled to the share of her deceased husband in the joint family property after his death and can claim the same by filing a suit for partition of the pro- perty. Under the Hindu Succ- ession Act, she is entitled to a share as an heir under Section 8 read with Schedule I. The Act defines ‘widow’ as a female who has been united in marriage re- cognised by law and survives the husband without remarriage... In Muthammal (died) vs V Pavunambal case (2012), it was held that on the death of her hus- band, the widowed woman can claim a share in the joint family properties along with her father- in-law, mother-in-law and brother- in-law. She becomes one of the sharers along with other heirs and gets her right to a share in the joint family properties. ? Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis An office employee’s email account is hacked by his col- league, who then uses it to send objectionable mails to women in the office. The employee is unable to prove his innocence and loses his job. What legal recourse does he have to get his job back? The employee should file a complaint with the cyber cell of the police under the IT Act, and Section 509 of the IPC. Thereafter, the police will investigate and trace the col- league from the details of the IP address and server address received from the emails of the women in the office. A criminal case will be initiated against the colleague who had hacked and misused the account. Thereafter, the em- ployee should try to resolve the matter by approaching the company’s management and providing them a copy of the FIR and explaining the whole episode. If the company still refuses to reinstate him, the employee can file a case against the employer. Perils of Hacking A healthy youngster becomes partially blind after a brain surgery. He has 40 percent vision. Is he entitled to a government job under the handicap quota? Yes, he is entitled to a govern- ment job under the handicap quota, if he can establish that he has visual impairment even after treatment or standard refractive correction, and uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device. He will also come under the category of persons with dis- ability for suffering from not less than 40 percent of any disability as certified by a medical authority. According to The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the government has reserved in every estab- lishment vacancies not less than three percent for persons with disability, of which one percent each is reserved for people suffering from blind- ness or low vision; hearing impairment; and locomotor disability or cerebral palsy. Share in Family Property Jobs for Visually Impaired A doctor, who is working in a government hospital, joins a popular anti-corruption move- ment against the government. To his dismay, he is suspend- ed for his participation. Is he on sound legal ground if he moves the court? Yes, the doctor can approach the court of law for seeking appropriate compensation for being suspended in an arbitrary manner. In the matter of Delhi Transport Corpo- ration vs DTC Mazdoor Cong- ress (1990), it was held that the management cannot have unrestricted and unqual- ified power of terminating the services of the employees. Although in the interest of efficiency of the public bo- dies, they should have the authority to terminate the employment of undesirable, inefficient, corrupt, indolent and disobedient employees, the management must ensure that the right is exercised fair- ly. There should be adequate reason for the use of such power and arbitrariness should be avoided. Rules of Suspension
  • 10. 10 February 3, 2020 Courts The apex court refused to stay the Citizenship (Am- endment) Act (CAA) or post- pone the implementation of the National Population Register (NPR). It also indicated that the matter may be referred to a Constitution bench and asked the centre to file its reply to more than 140 petitions chal- lenging the contentious orders. On a petition by the centre, the bench headed by Chief Justice of India (CJI) SA Bobde and comprising Justices S Ab- dul Nazeer and Sanjiv Khanna also restrained all high courts from passing any order on the CAA. The Court said that the petitions, filed by individuals and organisations, would be heard by a Constitution bench. Attorney-general KK Venu- gopal, appearing for the centre, opposed any stay on the CAA or postponement of the NPR, seen as the first step towards implementing the proposed National Register of Citizens (NRC). But senior advocates Kapil Sibal and Abhishek Manu Singhvi, who were among an army of lawyers representing various petitioners, argued that there should be at least a “postponement” of the NPR till the adjudication of the dispute by the Court. When Singhvi said that the UP government had already started the pro- cess of identifying “doubtful” citizens, the CJI replied: “The matter is uppermost in every- body’s mind. We will form a five-judge bench and then list the case.” Courts The Tripura High Court held that a gov- ernment servant could not be deprived of his right to free speech which was a fundamental right enshrined in the Cons- titution. The Court said this while quash- ing a departmental charge sheet against a petitioner who worked as an upper divi- sion clerk (UDC) in the state government. On December 31, 2017, she had attended a rally organised by a political party following which she was served a memorandum alleging that while working as a UDC, she had canvassed against a political party by making defamatory and Tripura HC: Govt servants have right to free speech Atwo-judge bench of the SC issued notice to the centre on a PIL challenging the con- stitutional validity of the estab- lishment of the National Com- mission for Minorities Act, 1972. The petitioners, follow- ers of the Sanatan Vedic Dharam, argued that Parlia- ment could not make any law for the benefit of a particular religion. They also sought direction that the centre had no power to grant benefits in sch- emes framed in favour of the notified religious minority com- munities from taxpayers’ money. The petitioners stated that the Hindu community was being discriminated against on the grounds of religion as a number of beneficiary schemes, with a budget of `4,700 crore, had been initiat- ed in favour of religious minori- ties. They said that the govern- ment was showing undue favour to waqf and its proper- ties while denying the same to institutions of the Hindu com- munity like trusts, mutts, akha- ras and other religious denomi- nations. “From taxpayers” money, no religion or religious groups can be promoted and therefore, no Minority Commission can be created to achieve the purposes enumer- ated in the Act,” they said. PIL against Minority Commission: SC issues notice SC: No stay on CAA; no delay on NPR implementation UNI
  • 11. | INDIA LEGAL | February 3, 2020 11 The centre moved the Supreme Court seeking that guidelines be framed to exe- cute the death penalty awarded to convicted prisoners within seven days of rejection of their mercy petitions. The move follows a flurry of petitions that came up in various courts filed on behalf of the four convicts sentenced to death in the Nirbhaya gang rape case. The four have been on death row since 2013 after a trial court ruled they were guilty and in the years since, several curative peti- tions have been rejected including mercy pleas before the president of India. The Ministry of Home Affairs filed the application in the top court on January 22 seeking “appropriate clarification/modification and directions” that defined procedures pre- scribed for prisoners on death row. It told the Court that if convicts sentenced to death wanted to file mercy petitions, it would be mandatory to do so only within a period of seven days from the date of receipt of death warrants issued by competent courts. Govt seeks cap on death row petitions —Compiled by India Legal team Advocates queue up for student arrested for sedition Despite a diktat from the Mysuru Bar Association asking its members not to represent her, over 170 advocates from across Karnataka have signed vakalatnama for Nalini Balakumar (below), the college student who was arrested for sedition for expressing her opinion by holding a placard that said, “Free Kashmir” during an anti-CAA protest at the Mysore University cam- pus earlier this month. One lawyer had appeared for Nalini when some others wrote to the associ- ation that it should pass a resolution against appearing in such a case since it would amount to supporting what was on that placard. Responding to this, a group of Bengaluru lawyers issued a statement condemning the decision. “It is not only against profes- sional ethics and duties of lawyers under the Bar Council of India Rules, but also as being antithetical to the val- ues embedded in the Constitution of India. Every person has the right to be represented in a Court and any attempt to subvert such right is a blatant attack on the Constitution,” they said. indecent comments against political lead- ers contesting election in the state elec- tions of 2018. She challenged the order issued by the Director of Fisheries which placed her under suspension. The High Court said that mere pre- sence in the audience during a rally does not mean participation in it nor does it establish her political affiliation. On the issue of canvassing against a political party with a Facebook post, the Court held that nothing contained in the said post suggested that she cam- paigned. “As a Government servant, the peti- tioner is not devoid of her right of free speech, a fundamental right,” Chief Justice Akil Kureshi (pictured) said. The Allahabad High Court refused to quash an order from the Jaunpur district administration which refused permission to two mosques to use loudspeakers for azaan—a call to prayer for Muslims. A sub-divisional magistrate (SDM) had issued the order last year. A division bench of Justice Pankaj Mithal and Justice VC Dixit dismissed the petition filed by one Masroor Ahmad stating: “It becomes quite evident that the petitioners have been refused permission to use sound amplifying system at the mosque not only for the inherent reason of noi- se pollution but in order to maintain peace and tran- quility in the area.” Ahmad said that the order be qua- shed so that they were able to offer their prayers, “in accordance with their religion”. Citing an SC judgment, the bench said that no one can claim a fundamental right to create noise pollu- tion by amplifying sound. Dismissing the petition, the Court lamented that people do not understand the haz- ardous effects of noise pollution. “No religion pre- scribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums. If there is such a practice, it should not adversely affect rights of others, including that of not being disturbed,” the Court observed. HC upholds SDM order on loudspeakers
  • 12. 12 February 3, 2020 LAW CAMPUSES / UPDATES NLUD releases a report on death penalty Astudy, “Death Penalty in India: Annual Sta- tistics Report, 2019”, has been released by Project 39A of the National Law University, Delhi. According to the report, 2019 saw an increase in the proportion of death sentences given for sexual offences. Around 53 percent of the death sentences imposed in trial courts and 65.38 percent in high courts involved sexual offences along with murder. The report also says that out of the 54 cases of sexual offences for which the death penalty was given in 2019, 40 involved a victim below 12 years. The report further highlights that no death sentence was awarded in 11 states—Andhra Pradesh, Himachal Pradesh, Haryana, Delhi, Jammu and Kashmir, Arunachal Pradesh, Goa, Meghalaya, Mizoram, Nagaland and Sik- kim—in 2019, while Rajasthan topped the list with 13 death sentences. It shows a drop in the number of prisoners being sentenced to death from 426 in 2018 to 378 as on Decem- ber 31, 2019.The report also observed that the Supreme Court, during the tenure of for- mer Chief Justice Ranjan Gogoi, listed and heard the maximum number of capital cases (27) since 2001. The annual report attempts to create com- prehensive year-by-year documentation of movement in the death row population in India. The publication tracks important devel- opments in the administration of the death penalty and criminal justice in 2019. No fresh courses: BCI In an attempt to restrict the number of institutions offering undergraduate legal courses, the Bar Council of India rejected 55 applications by colleges seeking permission to start fresh law courses. A majority of the applications were from institutions in Uttar Pradesh. Map courtesy: Death Penalty in India: Annual Statistics Report, 2019 by Project 39A, NLU, Delhi
  • 13. —Compiled by Nupur Dogra NLUD students protest for worker’s rights The General Council of NLU Odisha in its spe- cial meeting held in Jan- uary 2020 approved 25 percent horizontal reseva- tion for students who are domiciled in Odisha acro- ss categories for admissi- on to its undergraduate and postgraduate pro- grammes.The Council also laid down the criterion that candidates who have passed class XII or an equivalent examination from Odisha with at least 60 percent marks (or its equivalent grade) are eligi- ble to apply for its under- graduate courses. Candid- ates who have passed the undergraduate law course with at least 50 percent marks (or its equivalent grade) in the said exami- nation from any recogni- sed college/university in Odisha can apply for its postgraduate programme. The BCI’s decision is a part of its sus- tained efforts to regulate and improve the standards of existing colleges. Earlier, the BCI had faced severe critic- ism for approving institutions that fail- ed to meet UGC (University Grants Commission) standards. “We are expecting the colleges to go to the court but we are ready with our counter argument. There is no need for new colleges and the existing ones are sufficient to feed the legal system at present,” said BCI co-chair- man Ved Prakash Sharma. In August 2019, the BCI imposed a moratorium on opening of new col- leges, except National Law Univer- sities, if proposed by a state. Currently, there are 1,500 law col- leges in India. The students of National Law University, Delhi (NLUD) have been protesting daily on its campus after the university, removed 55 of its workers. The stu- dents have alleged that the university, without giving any prior notice to the- se workers, stop- ped them from making any entry in the register since December 2019. “These are outsourced serv- ices. We hire a contractor and then they hire the workers. Since the contractor had not been changed in the last 12 years, we were forced to hire a new one,” said Ranbir Singh, vice-chancellor of NLUD. “The stu- dents want 100 percent retention of workers in the university, which is not possible. However, I have already assured them that I will ensure that each and every worker finds some sort of employability so- mewhere else.” The students have been protesting for the past 16 days on Campus. Reservations at NLU Odisha | INDIA LEGAL | February 3, 2020 13 Cyber Forensic Lab (Ctrl Z) at NALSAR has annou- nced three short-term courses for law students: Hands On Forensic (HOF) from February 26 to February 28, 2020 Practical hands-on experi- ence will be provided on topics like understanding hard disks and how a hard disk should be viewed for forensics, the process in- volved in understanding file systems, types of file systems and so on. Application and Email forensic (AEF) from March 6 to March 8, 2020 This course offers practi- cal hands-on experience on topics like Application Log Analysis and why it is important to analyse app- lication logs, where to find the logs, format analysis of logs, how to read and present forensic reports, types of attacks and so on. Cyber Investigation Forensics from March 13 to March 15, 2020 This course offers an in- troduction to various me- thods and tools used for cyber forensics investiga- tion, e-discovery, collec- tion and preservation of digital evidence and email recovery, tracking & in- vestigation, IP tracking, extraction of deleted digi- tal evidence, and so on. The fee for each course is `10,000 for a three-day course. NALSAR students will get a discount and will pay `6,000. NALSAR University of Law offers short-term courses
  • 14. Lead/ Column/ Supreme Court/ J&K Internet Shutdown Prof Upendra Baxi 14 February 3, 2020 N the eve of the 70th cen- tenary of the Republic Day, the apex court, spea- king through Justices NV Ramana, R Subhash Re- ddy and BR Gavai, has again revived faith in the constitutional ideals of liberty and dignity. In Anu- radha Bhasin (January 10, 2020), the Court describes J&K as a “land of inher- ent contradiction” torn between violence and “incredible beauty”. But it makes no judgements on “political propriety” of parliamentary law but carefully delin- eates its jural scope. And the tasks of doing justice although no less difficult than the political, is stated as that of balancing “security and liberty concerns so that the right to life is secured and enjoyed in the best possible manner”. The Court did not invalidate the present orders under Section 144 CrPC and internet shutdown but laid down some criteria of validity for these. Critics may be right to express constitutional anxiety because experience shows that the negotiation of judicial labyrinth is very time-consuming in a citizen’s strug- gle to ensure constitutionality in State action. Even so, one hopes that the very enunciation of norms and standards will have a positive democratising effect. And we all must still await the final de- cision on the matter of constitutionality of the repeal of Article 370, yet to be heard by the Court. That said, the self-discipline of the Court is worthy of applause. It affirms A Blow for Liberty Neverwereconstitutionalismandjudicialdutiesarticulatedmoreaccuratelythaninthecase dealingwiththeissue.OnehopesthatthejudicialvoiceisheardbyallorgansoftheStateand representativesofthepeople LEGAL POSITION The SC agreed that internet access is a “tool” of the right to freedom of expression O UNI
  • 15. | INDIA LEGAL | February 3, 2020 15 that constitutional adjudication requires a reasoned elaboration and a justifiable judicial discourse, in the arena of viola- tion of basic human rights. Of course, as I demonstrated long ago (in my book Supreme Court and Politics) constitu- tional politics—the politics of interpre- tation—is different from competitive power politics because the latter is self- interested reason while the former is disinterested in the outcomes. Another way is to say that what we have in con- stitutional adjudicative politics is the conflict of values rather than conflict of rival interests. The presumption of constitutionality of legislative action will remain in place based on the premise that the political class, in making and enforcing the law, respects the basic rights guaranteed in part 111 of the Constitution, including new rights—standards that emerge as necessary emanations from the doctrine of the basic structure and essential fea- tures of the Constitution. While the Court categorically says that it is not our “forte to answer whether it is better to be free than secure or be secure rather than free”, it will always respond to “ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring secu- rity at the same time”. Upon hearing the vigorous conten- tions advanced by the State (through attorney general and the additional solicitor general) and by Vrinda Grover, Kapil Sibal, Dushyant Dave, Sanjay Hegde and other distinguished lawyers for the petitioners and interveners, the Court framed five issues. First, whether the “Government can claim exemption from producing all the orders passed under Section 144, CrPC, and other or- ders under the Suspension Rules?” Se- cond, whether the freedom of speech and expression and freedom to practise any profession or to carry on any occu- pation, trade or business over the internet is a part of the fundamental rights under Part III of the Constitu- tion. Third, whether the government’s action of prohibiting internet access is valid. Fourth, whether the imposition of restrictions under Section 144, CrPC was valid. And fifth whether freedom of press was “violated due to the restrictions”. I n a far-reaching ruling on the first issue, the Court decided that the State must produce all orders under Section 144 of the CrPC, together with a statement of objective grounds, because a “democracy, which is sworn to trans- parency and accountability, necessarily mandates the production of orders as it is the right of an individual to know” and the State “has to act in a responsi- ble manner to uphold Part III of the Constitution” and not “take away these rights in an implied fashion or in casual and cavalier manner”. As if this was not strong enough, the Court goes further to state that this nor- mative constitutional expectation is also “a requirement under natural law, that no law should be passed in a clandestine manner”. These are strong words given the fact that the judicial doctrine of con- stitutional expectations is in its infan- TheSC,throughJusticesNVRamana (left),RSubhashReddy(belowleft)and BRGavai,hasrevivedfaithintheconstitu- tionalidealsoflibertyanddignity.Whileit saysthatitisnotour“fortetoanswer whetheritisbettertobefreethansecure orbesecureratherthanfree”,itwill alwaysrespondto“ensurethatcitizens areprovidedalltherightsandlibertyto thehighestextentinagivensituation whileensuringsecurityatthesametime”.
  • 16. Lead/ Column/ Supreme Court/ J&K Internet Shutdown/ Prof Upendra Baxi 16 February 3, 2020 cy. Besides, the recent judicial tendency, on a high growth curve, to rely on natu- ral law should be tempered with the recall that it has acted historically as an agent of emancipation as well as of repression. The difficulties of invoking the prin- ciples of natural law are soon manifest in the adroit judicial handling of the second issue. While agreeing with the view that internet access is a “tool” of the right to freedom of expression and the right to freedom of trade and busi- ness, the Court clearly rules (in para- graph 28) that as it has not been specifi- cally argued by any counsel that “the right to access the internet” be declared as a“fundamental right…we are not expressing any view on the same”. In other words, internet access is not a fundamental human right, it may be protected merely as an aspect of Article 19 rights. The media and informed pub- lic opinion, however, have perpetuated the view that the right to access to internet is a fundamental and natural right! Surely, natural rights may not depend on what counsel chose to argue! Why did the Court stop short of a nor- mative declaration of the right to inter- net access? T he power of imposing reasonable restriction is well analysed under the newly fangled doctrine of proportionality. Even the relatively un- initiated may well appreciate the facts that the power to “restrict” does not include the power to altogether abro- gate the right and the State should make the showing that out of a range of alternatives, measures least restrictive to the rights declared by the Consti- tution have been adopted. But, of cou- rse, the Court chooses to reiterate and refine the “proportionality” test as signi- fying that: “A law interfering with fundamental rights must be in pursuance of a legiti- mate State aim… The justification for rights-infringing measures that interfere with or limit the exercise of fundamen- tal rights and liberties must be based on the existence of a rational connection between those measures, the situation in fact and the object sought to be ach- ieved.… The measures must be neces- sary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim.… Restric- tions must not only serve legitimate purposes; they must also be necessary to protect them” and “the State must pro- vide sufficient safeguards relating to the storing and protection of centrally stored data.” The orders passed under Section 144 of the CrPC fail to meet this test, and rendering the right to constitutional remedies infructuous by non-disclosure of reasonable grounds based on a full “application of mind” and stating objec- tive reasons which citizens may contest. The Court has done a great service in saying that collective security is not best served by rank arbitrariness of blanket orders. Very much the same reasoning extends to the last issue, which is dis- cussed largely in terms of the “chilling effects” on freedom of the press. Import- antly, the Court enunciated the test of “comparative harm”, under which the judiciary is “required to see whether the impugned restrictions, due to their broad-based nature, have had a restric- tive effect on similarly placed individu- als during the period”. May be, the ins- tant petitioner failed to prove such harm as other newspapers were not dis- abled and the ban on her newspaper itself was not long-lasting. But subjec- tive dimensions of the experience of the “chilling effect” should not have been so readily dismissed. The judicial discourse in this case has to be read in the light of the wise words uttered in Lt Governor, Delhi (2018) where (speaking through Dipak Misra, CJI), the apex court enunciated a doctrine of “constitutional trust”. The Court said that the “representative form of government should not become a government by elites where the repre- sentatives so elected do nothing to give effect to the will of the sovereign. The elected representatives must not have an ulterior motive for representing their constituents and they should not misuse the popular mandate awarded to them by covertly transforming it into ‘own rule’. The inherent value of public accountability can never be brushed aside.” Never were Indian constitutionalism and judicial duties articulated so accu- rately and acutely and one hopes that the judicial voice is heard by all organs of the State and the representatives of people. —The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer Thejudicialdiscourseinthiscasehasto bereadinthelightofthewordsuttered inLtGovernor,Delhi where(speaking throughDipakMisra,CJI),theSCenunci- atedadoctrineof“constitutionaltrust”.
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  • 18. Legal Eye/ Homes for Judges 18 February 3, 2020 day after President Ram Nath Kovind appointed four new judges to the Supreme Court last Sep- tember, and four days before they were actually sworn in, the Court registry announced that two new courtrooms were being added within the premises. The registry note said: “It is hereby circulated for the information of all con- cerned that as per the orders of Chief Justice of India, two additional court- rooms have been created near the exist- ing court number 10 which have been numbered as court number 16 and court number 17.” But even as more courtrooms were made for the judges and litigants, at a personal level, the four judges are yet to be given official accommodation more than four months after they were sworn in. The judges are former Punjab and Haryana High Court Chief Justice Krishna Murari, former Rajasthan High Court Chief Justice S Ravindra Bhat, former Himachal Pradesh High Court Chief Justice V Ramasubramanian and former Kerala High Court Chief Justice Hrishikesh Roy. They continue to work out of guest houses of the states where they last served before their elevation to the apex court. This strange situation came about following the government decision to increase the number of judges in the apex court, keeping in mind the huge backlog of cases across the country in all courts. According to official figures, there are over three crore cases pending in district and subordinate courts, 44 lakh cases in the 25 High Courts and nearly 60,000 cases in the apex court. According to the Economic Survey two years ago, an additional 2,279 judges would be needed to clear all the fresh cases that the lower courts receive in a year, while it would take an additional 8,152 judges to clear the backlog of nearly three crore cases. The government in its wisdom decid- ed to tackle the problem from the top. It Houses FullThegovernmentisyettoallotofficialaccommodationtofournewjudgesappointedtothe SupremeCourt,forcingthemtoworkoutofmakeshiftpremisesinthecapital By India Legal Bureau A NO OFFICIAL ROOF Supreme Court judges (from left) Justices Krishna Murari, S Ravindra Bhat, V Ramasubramanian and Hrishikesh Roy
  • 19. | INDIA LEGAL | February 3, 2020 19 was with a view to clear the backlog in the Supreme Court that the strength of its judges was increased from 31 to 34, including the chief justice of India (CJI). The government took this step after the then CJI, Ranjan Gogoi, wrote to Prime Minister Narendra Modi to increase the number of judges in the top court. The CJI reasoned that due to the paucity of judges, the required number of Consti- tution benches to decide important ca- ses involving questions of law were not being formed. T he Supreme Court (Number of Judges) Act, 1956 originally pro- vided for a maximum of 10 jud- ges (excluding the CJI). This number was increased to 13 by the Supreme Court (Number of Judges) Amendment Act, 1960, and to 17 in 1977. The work- ing strength of the Supreme Court was, however, restricted to 15 judges by the cabinet (excluding the CJI) till the end of 1979. But the restriction was with- drawn at the request of the CJI. Though the strength of the SC has increased by 60 percent in the last three decades, no thought has apparently been given to the accommodation for the judges. In 1988, its strength was increased from 18 to 26 and more than 20 years later, in 2009, it went up to 31. However, provision of accommoda- tion for the judges has not kept pace with the increase in their numbers. Supreme Court and High Court judges are entitled to Type VIII and Type VII bungalows. These have four to five bed- rooms, besides servant quarters, front and rear lawns and garage. These are mostly located in Lutyens’ Zone—Akbar Road, Ashoka Road, Krishna Menon Marg, Moti Lal Nehru Marg, Tughlak Road and the newly-built New Moti Bagh Complex. It is learnt that there are 32 bungalows allotted to Supreme Court judges and 45 set aside for judges of the Delhi High Court. Technically, that means that only two of the four new judges appointed should be without an official roof over their heads. But the reality is that all four are yet to be allot- ted official accommodation. The problem has cropped up due to many retired judges being appointed as heads of watchdog bodies, tribunals, re- gulatory bodies and such like. Since there is no separate quota for retired judges appointed to head tribunals, they are generally allotted houses from the pool reserved for judges. This has creat- ed a housing crunch. Delhi is already home to over 40 tri- bunals and other bodies presided over by former judges of the Supreme Court. In most cases, they are appointed to the new posts immediately after retirement. Thus they seldom feel the need to pack up and move to new premises. They continue to stay in their old accommo- dation, leaving officials of the housing ministry in a quandary. In some cases, such situations have even led to stand-offs between various wings of the government. A few years back, there was the celebrated case of a Union minister in the UPA government and a retired judge of the Supreme Court wrangling over prized accommo- dation on Krishna Menon Marg, just a stone’s throw from North and South Blocks. A telling example is that of a panel headed by a retired Supreme Court judge set up to resolve the water dispute between Punjab and Haryana under the Punjab Accord of 1985. After 24 years, the panel—the Eradi Commission— which cost the exchequer `9 crore, was wound up with the dispute still unre- solved. All the while, Justice V Balakrishna Eradi who had retired from the apex court 22 years earlier, contin- ued to stay in the Lutyens’ Delhi bunga- low that was allotted to him when he became an apex court judge. The Law Commission had two years ago suggested that merely increasing the number of judges without improving the infrastructure in courts would do little to help address delays. Among the steps recommended was the creation of a spe- cialised service to provide critical admi- nistrative support to judges so that they would be able to devote their time and energy to judicial activity. While such plans remain on paper, the four new judges of the apex court continue without an official roof over their heads. NO HURRY TO PACK UP SC judges continue to occupy official accommodation even after retirement as they are often appointed heads of tribunals Thereare32bungalowsallottedtoSC judgesand45forDelhiHCjudges. Technically,thatmeansthatonlytwoof thefournewjudgesappointedshouldbe withoutanofficialroofovertheirheads.
  • 20. Column/ Fast-Track Courts Justice Narendra Chapalgaonkar 20 February 3, 2020 T has been almost 20 years since the idea of fast-track courts for quick disposal of certain cases was initiated. The proposal was wel- comed in judicial quarters as well as by the people at large. The cre- ation of a new set of courts for specified cases was not meant to be a remedy for the huge pendency in different courts in India, which is believed to be three crore cases. Rather, fast-track courts were to deal with criminal cases involving major offences against women or those belong- ing to the underprivileged class such as sexual assault and murder. These off- ences create anger and insecurity in the general public. When cases arising out of such heinous or ghastly offences take years to reach a final verdict, most of the effectiveness of deterrent punishment is lost. Faith in the State in general and judiciary in particular gets weakened. When an accused guilty of commit- ting a grave offence is punished, it is not only for the satisfaction of the victim or her family. It also reassures society that the law is effectively implemented. A verdict of guilty after the passage of ye- ars loses its incisiveness and impor- tance. Delay in investigation, charge sheet filing, hearings and final judgment inflicts irreparable damage on the sys- tem. If the case is heard after two/three years and witnesses live in the same to- wn or locality, there is every likelihood of them being pressured by the accused. This leads to witnesses becoming hostile and the accused getting the benefit of it. The only exception, perhaps, is near rel- atives or witnesses having strong inimi- cal relations with the accused. It is vital and necessary for the investigation to be completed within the shortest possible time and for the case to be listed for hearing. But nowadays, such things hap- pen in Perry Mason novels only. In an exceptional departure, I remember a case where a court understood the diffi- culty of a foreign tourist who was raped in India and directed that the case be Iron Out the Glitches NCRBdatahasshownthatonly22percentofcasesweredisposedofbythesecourtsinless thanayear.Ifthisistobespeededup,thereshouldbeproperinfrastructureandpersonnel I FOR SPEEDY TRIAL A fast-track court was set up in the Saket District Court complex to try the accused in the Nirbhaya case. It took nine months to award the death penal- ty to the four convicts
  • 21. | INDIA LEGAL | February 3, 2020 21 disposed of within a short time. It was disposed of in a month. As per the recommendations of the 14th Finance Commission, the centre had proposed setting up 1,800 fast-track courts. However, it is believed that 60 percent of proposed fast-track courts are yet to be set up and many states and Union Territories don’t have even a sin- gle fast-track court. If the scheme of fast-track courts is properly implemented, it will help res- tore people’s faith in the criminal justice system. However, 2018 data of the Na- tional Crime Records Bureau tells a dif- ferent story. In 2018, 28,000 cases were disposed of in fast-track courts in India. Out of these, only 22 percent were dis- posed of in less than a year, 42 percent took more than three years and 17 per- cent more than five years. This can hard- ly be expected from fast-track courts. A researcher has found that the aggregate time taken by a regular court to dispose of a case was less than that taken by a fast-track court. It is not proper to blame the scheme and permit the government to scrap it. The reasons behind such a state of affairs should be considered. F irstly, there are not enough judges to man fast-track courts. In addi- tion, to act speedily, a judge needs a suitable temperament and proper ass- istance. In some states, judges who have recently retired were re-employed and appointed in fast-track courts. When this proved to be inadequate, some jud- ges working in the district judiciary were designated as fast-track court jud- ges. Drafting judges from the existing judiciary is no remedy either for speedy disposal of cases or for lessoning pen- dency. The district judiciary is also short of judges. Even the sanctioned strength is not filled in many states, saving the government more expenditure. Courts also face another practical difficulty in the disposal of cases. Most of the work is concentrated in the hands of a few advocates. It is difficult to com- pel or seek their presence at the conven- ience of the court. Judges too have to accommodate them. Sometimes, even sessions cases cannot be heard on a day- to-day basis as required by law. After the introduction of the scheme in 2000, central and state governments provided finances for these courts, par- ticularly the salaries of the judges. Whe- ther the amount disbursed was suffici- ent or not is a different question. A jud- ge cannot work in isolation. He needs accommodation to sit, clerical assistance and minimum office equipment. To try and get all these done with the existing amenities cannot be a proper approach. Fast-track courts are treated as a tem- porary measure by governments. Con- sidering that all efforts to clear pendency have not been very successful, we will have to bear with the problem for anoth- er 20 years. Why not give a semi-perma- nent status to the fast-track court scheme and make regular appointments? It is true that such a step would increase the allocated budget for law and judiciary. Unfortunately, this is not a priority for political parties. But they should under- stand that increasing the number of courts and disposal of long- pending cases will have a salutary effect on society. But it will not fetch immediate political gain. Only those who care for long-term benefits and are courageous to stand by measures in this regard can do it. If we believe that fast disposal of at least criminal cases will help restore confidence in the people about their safety and ensure peace in society, let a law be framed to provide for fast-track courts and make a permanent arrange- ment for their survival. It should be uni- formly applicable to the whole of India and should depend only on central funding. The law may provide a dura- tion of some 20 years for the existence of fast-track courts as it is hoped that this is sufficient to wipe out the arrears and there would be no need for fast- track courts. They should function under the supervision of relevant High Courts. Public prosecutors should be appointed for a certain period and the appointment should be given to lawyers with experience in conducting criminal cases. Let us see where the lacunae lie so that these courts can help society. —The author is former judge, Bombay High Court Fast-trackcourtswereconceivedto dealwithcriminalcasesinvolvingmajor offencesagainstwomenorthose belongingtotheunderprivilegedclass, suchassexualassaultandmurder.
  • 22. Column/ CAA/ NPR/ NRC MG Devasahayam 22 February 3, 2020 HE nation is on the boil over the Citizenship (Ame- ndment) Act (CAA), Nat- ional Population Register (NPR) and National Register of Citizens (NRC). People see these as communal and unconstitutional. They see these as threatening to turn Muslim citizens into “infiltrators” and non-Muslim citizens into “refugees” which will make them stateless. There is intense resistance throughout the country with students and young women in the vanguard. In many places, the internet has been banned, road and rail traffic restricted, Section 144, CrPC, imposed in BJP- ruled states and students and other pro- testers brutally thrashed, shot at, blind- ed, maimed, even killed. India has not witnessed such a wide- spread upsurge leading to State oppres- sion and repression in recent history. All in the pursuit of an unnecessary and unimplementable agenda. Both the NPR and NRC exercises flow out of the 2003 amendments to the Citizenship Act, 1955, and the Citizen- ship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, thrust by the then BJP-led NDA-1 gov- ernment. The NPR has nothing to do with the Census of India, which is con- ducted every 10 years and is due next in 2021. While the Census collects infor- A Bridge Too Far Thecentre’sthreeprojectsareunimplementableandextremelycostly.Whentheneeded dataisalreadyavailablethroughAadhaar,whyincursuchamassiveexpenditure? GROUND ZERO People gather at Shaheen Bagh in New Delhi for an anti-CAA protest T Anil Shakya
  • 23. | INDIA LEGAL | February 3, 2020 23 mation about all residents of India with- out listing their names, the NPR is a list of names of all persons usually residing within a specified local area for over six months, regardless of their nationality. The NRC will effectively be a subset of the NPR. The 2003 Rules provide for verification of the details by the local registrar (normally a taluka or town functionary) who will segregate cases of doubtful citizenship and conduct further inquiries. Based on the inquiries he will prepare a draft local register of Indian citizens, which would exclude those not able to establish, through documentary proof, their claim to be citizens of India. This is where the real danger lurks because, as brought out by the experi- ence in Assam, citizens are required to establish their citizenship, irrespective of their religious affiliation. NPR 2020, unlike NPR 2010, asks not only for the names of the parents of the resident, but also their date and place of birth. A per- son who is unable to furnish these details of his parents or, for that matter, of himself, could well be classified a “doubtful citizen”. The 2003 amendments to the 1955 Act and the consequent introduction of the 2003 Rules reveal an undue obses- sion with illegal migrants, without any factual basis. Nationwide identification of “illegal migrants”, which is what the NRC in effect amounts to, is an unnec- essary and futile exercise when Census statistics over the past seven decades do not show any major demographic shifts, except in certain small pockets of north- eastern and eastern India adjoining our neighbouring countries. It is eminently unimplementable and extremely costly. Based on the expenses in Assam (`1,600 crore), a pan-India NRC could cost aro- und `70,000 crore. When the needed data is already available through the Aadhaar system, there is no need to inc- ur such a massive expenditure towards NPR or NRC. T he vast powers vested in the bureaucracy at junior levels to include or exclude a person from the local register have the scope to unleash arbitrariness, discrimination and corruption. Added to this is the pro- vision for objections to the draft local register from any person. The Assam NRC exercise, with a three-crore popu- lation, has thrown up the dangers of such a large-scale exercise: millions of citizens have been made to spend their life’s savings running from pillar to post to establish their citizenship credentials. Doing so at the national level with a 130-crore population can be cataclys- mic, particularly so with our highly chaotic and inefficient birth registration systems. Within a day of the BJP forming the NDA-2 government, the home ministry directed governments and district mag- istrates of all states and Union Territories to set up tribunals to identify “foreigners” living in India illegally. This was followed by directions to set up detention centres. The experience with these tribunals in Assam has been trau- matic for those at the receiving end. After running in panic to gather docu- ments to prove their citizenship, “doubt- ful citizens” had to contend with these tribunals, the composition and function- ing of which were highly discretionary and arbitrary. Consequently, several citi- zens lost their lives or had to suffer the indignity of incarceration in detention TheAssamNRC exercise,witha three-crorepopula- tion,hasthrownup thedangersofsuch alarge-scale exercise:millionsof citizenshavebeen madetospend theirlife’ssavings runningfrompillar toposttoestablish theircitizenship credentials.UNI
  • 24. Column/ CAA/ NPR/ NRC/ MG Devasahayam 24 February 3, 2020 camps. When there is no need for the NRC, why set up foreigners’ tribunals and detention camps in the manner of Nazi Germany? The stated purpose of the CAA is to allow non-Muslim immigrants from Pakistan, Bangladesh and Afghanistan who have entered India before December 31, 2014, a faster route to become Indian citizens. According to an Intelligence Bureau report in 2016, there were 31,313 of them. As per the Standard Operating Procedure notified in 2011, any refugee could apply for Long Term Visa (LTV). Those who get LTVs can obtain a PAN card, Aadhaar card, driving licence and even buy prop- erty. Between 2011 and 2018, LTVs were granted to some 45,000 persons. So, most of the proposed beneficiar- ies of the CAA can and have already got LTVs to stay and earn in India and can get these cards and driving licences, and buy a house. Finance Minister Nirmala Sitharaman has stated that in the last six years, as many as 2,838 Pakistani, 914 Afghan and 172 Bangladeshi refugees, including Muslims, have been given Indian citizenship. I f this is the case, why this autocratic exercise of CAA, NPR and NRC? The “brains” behind this agenda have planned it meticulously. First bull- doze a CAA to implement NRC throughout the country, then introduce a clause to give one’s parent’s place and date of birth in NPR, which many can- not do, and mark them as “doubtful” to be hounded and disenfranchised through NRC. This design came out when a majority of states asked for removal of this clause. Instead of doing so, the home ministry advised that those who do not have this information can skip this column. This is a clear trap to bring the maximum number of people under the “doubtful” category and then deprive them of citizenship. There is another dubious ploy. While people are up in arms and even before the formal commencement of the NPR process, the ever-obliging RBI issued directions to banks to treat the letter issued by NPR as an Officially Valid Document for Know Your Customer purposes. IDBI Bank and Central Bank of India have already complied with this direction. This is obviously meant to force bank customers to enrol in the NPR by making it mandatory later as was done in the case of Aadhaar thro- ugh blackmailing and intimidation like “freezing of accounts” or “no withdrawal of money until Aadhaar card is linked to the bank account”. Repeating the same to force through an unconstitutional government agenda can aggravate the credibility of the RBI and the banking sector that started with demonetisation and is continuing with mounting Non- Performing-Assets. The real purpose of this farce was revealed when immediately after the enactment of the CAA, BJP’s WhatsApp messages unleashed a “four-step” process for India becoming a Hindu Rashtra—starting with the CAA, fol- lowed by the NRC, then a law to control population, ultimately followed by a Uniform Civil Code. The arrogance of the politicians who are leading this questionable venture is revealed from statements of the home minister on the ruthless implementation of the NRC and throwing out of all “ter- mites” from the country. In an interview by Times Now, he was asked whether a passport, Aadhaar or Voter ID consti- tute proof of citizenship. He replied: “Bilkul nahin. Aadhaar jarasa bhi nahin. (Not at all, Aadhaar, absolutely not).” All these incomprehensible happen- ings raise one basic question. Is the BJP copying Hitler’s Citizenship Laws? Just two years after Adolf Hitler came to power in Germany, he introduced laws to redefine its citizenship. The Nurem- berg Laws may have started with the segregation of Jews from non-Jews, but there were further supplementations that included all manner of “undesir- ables”. These finally paved the way for massive disenfranchisement and even murder of not only Jews, but Comm- unists, indigenous people, the disabled and anyone who criticised the Nazi establishment and those the German State saw as Staatsfeind, an enemy of the State. Nazi propaganda had already prepared the ground and saw the construction of ghettoes and concentra- tion camps. The RSS has always ignored India’s Constitution and admired Hitler’s fascist policies. Its Sarsanghchalak and icon, Madhav Sadashiv Golwalkar, described Hitler’s purging of Germany’s Jews as “race pride” and “a good lesson for us in Hindustan to learn and profit by”. In the event, CAA, NPR and NRC are outright Nazi projects and should be rejected. And the massive outrage only proves that the vast majority has already done so. —The writer is a former Army & IAS officer InaninterviewbyTimesNow,Home MinisterAmitShahwasasked whetherapassport,AadhaarorVoterID constituteproofofcitizenship.He replied:“Bilkulnahin (Notatall).”
  • 25. | INDIA LEGAL | February 3, 2020 25 Acts and Bills/ Rajasthan Public Accountability Bill HE Congress government in Rajasthan is all set to introduce a unique bill— the Rajasthan Public Acco- untability Bill—that will make the state government officials accountable for providing serv- ice to citizens. It will bring government officials in 28 departments providing 225 services under the scanner. These services are water supply, irri- gation, civil supplies, law, panchayati raj, local self-government, public works department, transport, agriculture, agri- culture marketing, all municipal bodies, social welfare, health, rural develop- ment, state roadways and all services under the district collector’s office. The Bill is being brought in to ensure transparency through the free flow of information using modern, electronic and information technology tools, as well as offline modes of dissemination through an effective Janata Information System. The Bill will lay out a comprehensive citizens’ charter by each department, enumerating rights and entitlements, including public goods and services, to be provided to the people and detailed job charts of public functionaries to identify their specific responsibilities in ensuring efficient delivery of people’s rights and entitlements. It will seek accountability of public functionaries for timely delivery of services. The Bill also provides for a decen- tralised grievance redressal mechanism with a facility for filing and tracking grievances and independent appellate structures to ensure fairness and credi- bility. It will also initiate monitoring of programmes and policies through social audit facilitation units. This will help in the conduct of community score cards, citizens’ report card, expenditure track- ing and statutory social audit covering all social sector programmes. The Bill provides for the right to be informed of the obligations and duties of public functionaries, the right to examine records pertaining to the func- tioning of public authority, including its powers, duties, and norms applicable to monitoring, financial planning, budget- ing, allocation and expenditure through open information dissemination. It also provides for the right to file a complaint specifying a grievance, and obtain a dated acknowledgement receipt, prompt redressal of the grievance and the right to participate in a public hearing within 14 days of filing the complaint. The Gehlot government involved the Mazdoor Kisan Shakti Sangathan (MKSS) to provide inputs for drafting the Bill. The MKSS under Aruna Roy has worked intensely in the areas of Right To Information, Mahatma Gandhi National Rural Employment Guarantee Act, the Lokpal Bill, Right to Food and human rights issues. The MKSS was largely entrusted the job of providing inputs for the Jan Soochna portal. The state government formed a committee to advise it on the Bill. It included former bureaucrat Ram Lubhaya as its chairman, Nikhil De, an activist with MKSS, and Prof Dev Kothari, a population expert. De had submitted the draft Bill which was accepted as the ideal Bill. “The Bill envisions making grass- roots democracy a reality,” said De. After the approval of the cabinet, the Bill will be enacted by the Rajasthan Vidhan Sabha. Under the Scanner Inawelcomedevelopment,theBillwillmakestategovernment officialsaccountableforgivingservicestocitizensand promisesfastredressaloftheirgrievances By Prakash Bhandari in Jaipur MAKING A DIFFERENCE Nikhil De, an activist with the Mazdoor Kisan Shakti Sangathan that provided vital inputs T TheBillisbeingbroughttoensure transparencythroughthefreeflowof informationusingmodern,electronicand informationtechnologytools,aswellas offlinemodesofdissemination.
  • 26. 26 February 3, 2020 Leaders from across the globe gathered in Jeru- salem last week for the World Holocaust Forum on the 75th anniversary of the liberation of the infa- mous Auschwitz death camp where thousands of Jews were exterminated. They included Russia’s Vladimir Putin, Emmanuel Macron from France, Britain’s Prince Charles, and the presidents of Germany and Italy, among other dignitaries. The visit to the Wailing Wall and the Holocaust Memorial which recalls the genocide of Jews under Hitler’s Germany was obligatory but it comes amid a global spike in anti-Jewish violence around the world, including America and Britain where recent anti-Semitic violence has raised concerns, as it has across Europe. In France, anti-Semitic acts rose by 74 percent in 2018, according to the UN Commi- ssioner for Human Rights. Moreover, one in four Europeans harbour strong negative attitudes to- ward Jews, according to a 2019 poll on anti-Semi- tism by the Anti-Defamation League. The report showed countries in central and east- ern Europe registered an increase in anti-Semitic beliefs, with stereotypes about Jews controlling business and finance, and being more loyal to Israel than their home country, still firmly entrenched. Jews across the world are hoping that the gathering of leaders in Jerusalem does not end up as just a photo-op. Wailing Wall International Briefs The global fashion world went into shock when celebrated French designer Jean- Paul Gaultier announced that he was end- ing his 50-year career. Celebrities from all over the world landed in Paris last week for his final show, “Haute Couture Spring/Su- mmer 2020”. They included former French First Lady Carla Bruni, American actress Larsen Thompson, supermodel Eva Her- zigova, French designer Christian Loubou- tin—known for his signature red-soled stiletto shoes—and pop singer Mika. Gaultier, 67, has designed for stars from Nicole Kidman and Cate Blanchett to Lady Gaga, Rihanna and Madonna. Madonna wore his famous “cone bra” corset for her Blonde Ambition world tour. The designer said his final show in Paris would feature his “first upcycling haute couture collection” and urged the audience to recy- cle their clothes. Fashion’s Farewell Twitter Flash 90 2020
  • 27. | INDIA LEGAL | February 3, 2020 27 There’s one big status symbol you can dis- play when you walk into a room—the keys to your car. Some years ago, they all looked the same so it was no big deal till BMW, Ferrari, Bentley and Mercedes put their logo on their keys. Now, it has gone a step further, with technology allowing them to do more than just open the car door by pressing a button. The latest is the disc-shaped key for the Lexus LF-30 which is still to hit showrooms. It is like a mobile phone with data the owner wants at hand, plus preset directions for how you want the car to drive. It’s also a beautiful piece of jewellery. Aston Martin’s key fob is called the “Emotional Control Unit”. Made of sapphire, it has a glass top that displays the logo underneath and doubles as a start button once entered into the ignition port. Another gorgeous key design is the BMW 7-Series LCD Key (below) which tells the driver how much gas is in the tank at all times. Bugatti’s Veyron supercar which costs $3 million comes with two monogrammed keys, one to start the car and another to push the car to its top speed of over 248 mph. The Top Speed Key can be inserted behind the driv- er’s seat and is only meant for use in extreme conditions. The ultimate car key is the col- laboration between Aston Martin and watchmaker Jaeger-LeCoultre, producer of some of the world’s most desirable sport watches. The sapphire crystal watch has but- tons on the side to lock or open the car, and perform other functions. Keys to Car Kingdom She is widely considered the richest woman in Africa but now the Inter- national Consortium of Investigative Journalists have accused Isabel dos Santos (above) of using “unscrupulous deals” to build her fortune, estimat- ed at $2 billion. The charges say dos Santos, daughter of the former Angolan president, siphoned off millions of dollars during her time with Angola’s state-run oil company. Now, Angola, the dia- mond - and oil-rich coun- try, has launched a formal investigation into the scandal. Angolan authori- ties say they are reaching out to other countries for help in tackling corruption that critics say has robbed millions of citizens of basic needs. Last week, Portuguese bank EuroBic said it will stop doing business with companies and people linked to dos Santos, its main shareholder. The allegations are based on more than 715,000 confi- dential financial records provided by the Platform to Protect Whistleblowers in Africa, an advocacy group based in Paris, as well as hundreds of inter- views. The cache of docu- ments is known as Luanda Leaks. Jose Eduardo dos Santos, Isabel’s father, ruled Angola for 38 years until 2017. He too is acc- used of stealing vast am- ounts of state money dur- ing his rule and before stepping down, he app- ointed his daughter head of the state oil company, Sonangol. Last December, a Luanda court froze Isabel dos Santos’ major assets, which include banks and a telecom company. Dos Santos, who lives in London, has said the legal action against her is a “witch hunt”. The Luanda Leaks Nuno Coimbra/ wikimedia.org
  • 28. Focus/ Legal Aid 28 February 3, 2020 ISHIKA Singh, a lawy- er, had gone to attend the protests against the December 15 crack- down on Jamia Millia Islamia (JMI) by Delhi police at Jantar Mantar. When police started detaining peaceful protesters she spontaneously made a WhatsApp group called “Lawyers for detainees” which added the contact numbers of lawyers who had volunteered to help the detain- ees. Soon, what started as a peer-to-peer lawyers’ group in Delhi became a strong network of around 200-plus lawyers across the country almost overnight. Her name and number along with a list of mobile numbers of other lawyers ready to help detainees went viral on Instagram, Facebook and Twitter. What followed was a historic coun- trywide mobilisation of lawyers. During Union Home Minister Amit Shah’s out- reach in an area of Delhi on January 5, to promote the governments’ Citizen- ship (Amendment) Act, two women dis- played a banner on their balcony that read, “Shame; CAA and NRC”, while his rally was passing by. Within minutes, they found a 150-plus angry mob, including their landlord, banging at their doors. Surya Rajappan, one of the People’s Advocates Acountry-wideorganisationoflawyershasbeenactivelyhelpinganti-CAAprotesterswhohave beendetainedorfaceharassmentandprosecution,allforfree.Thisisahistoricmobilisation. Whoaretheyandwhatistheirmotivation? By Nupur Dogra M PRESERVING RIGHT TO PROTEST In the wake of the crackdown on anti- CAA protesters, Indian lawyers take charge. Anil Shakya
  • 29. | INDIA LEGAL | February 3, 2020 29 two women stuck in the apartment and an advocate by profession, immediately put out an SOS message from her phone. Within a few hours a bunch of lawyers gathered outside her house and managed safe passage for the girls. I n Chennai, on January 17, around 250 lawyers including senior ad- vocates R Vaigai and Nalini Chid- ambaram, and advocate NGR Prasad formed a human chain in and around the Madras High Court premises and read aloud from the Constitution of India in protest against the Citizenship (Amendment) Act. Since the protests against the CAA have erupted across the country, SOS messages like “lawyers needed urgently” have become a common sight on social media. Advisories on how to deal with the police in case of detention, messages like; “Don’t be silent. Don’t be violent” and “Educate, Agitate, Organize” have been shared excessively amongst neti- zens, including celebrities and politi- cians. Detailed and simplified “To do lists” were circulated across the social media prepared by lawyers to guide protesters on how to agitate peace- fully and what to do in case of deten- tion by police. Mishika Singh, who is at the fore- front of the lawyers' movement, has received calls from lawyers actively working on the ground from across the country to help detainees and protest- ers. She has been coordinating lawyers across the country for over a month. She told India Legal: “The network of lawyers working on the ground has become so strong that it not only reach- es the protest sites and police stations when needed but is also successful in immediately dispensing any kind of false rumours and fake news being spread about the movement through counter facts being shared through social media.” Another historic instance of lawyer activism in India was witnessed on 20 December. That afternoon, a picture of a young girl offering a rose to police per- sonnel while protesting went viral. However, within a few hours, news of violent clashes between the police and anti-CAA protesters started doing the rounds. Following the clashes, news of detention of injured protesters including minors reached this network of lawyers who gathered outside the Daryaganj police station with a team of doctors. Advocate Mohd. Faris was one of the lawyers who answered the call to gather outside the Daryaganj police station in Delhi. While recalling the harrowing event, he told India Legal that around 8 pm in news of a lathi charge by Delhi Police on protesters who had gathered at Delhi Gate and were trying to march towards Jantar Mantar came in. Protesters who were detained included injured people and minors. The lawyers were barred from entering the police station for hours and none of them was allowed to meet any detainee. This group of lawyers along with a team of doctors persisted and stood outside the police station through the night to help the detainees and their families. “After trying to convince the police for four to five hours, only one lawyer was allowed inside the police station and around 4 am eight to nine minors were released and an FIR was lodged for a few detainees with the help of senior lawyers.” said Faris. These lawyers have been braving the system and trolls for the past month, 24/7. They, especially women lawyers, have faced unpleasant and unnecessary calls since their mobile numbers were made public. They went on with their “Wehavepeopleworkingontheground everywhereincludinglawyersaswellas non-lawyerswhovolunteertocoordinate withprotestersinneedoflegalhelp.” —AdvocateMishikaSingh “Onelawyerwasletinsidethepolicesta- tionafter4-5hours.Later,afew minors werereleasedandFIRs lodgedforsome detaineeswithseniorlawyers’help.” —AdvocateMohd.Faris “Twitter,Instagram,andWhatsApphave becometoolsforspeedymobilisation withcallsforlawyersgoingoutthrough stories,tweets,andvoicenotes.” —SukhnidhKaur,Researcher&Blogger
  • 30. 30 February 3, 2020 job despite all this, guided by their desire to preserve the constitutional right to protest. Lawyer Akshita Manocha told India Legal: “The lawyer community has dis- played tremendous unity and strength while helping the common man protest- ing on the ground in every way possible. Though lawyers working to help detain- ees are doing a fabulous job, there are also a huge number of lawyers who are working in the background through si- mple legal advisories and extending em- otional support to people protesting.” “A lot of protesters were first-timers and were unaware on the legality of de- tentions and their limits as protesters. When people were detained in buses and dropped off on the outskirts of Delhi, they were caught by surprise. Lawyers provided them with assurances on their rights and continuously kept reminding them to stay calm and not indulge in violence or any activity that might further aggravate the situation,” Manocha adds. Many lawyers use social media to cir- culate easy-to-understand explanations of the CAA and NRC to counter myths and rumours being spread about the Act and its implications. Instagram accounts of bloggers played a significant part in taking the voices of these lawyers to mil- lions of people. “Anti-CAA protests have strengthened the intersection of social media and legal justice. Twitter, Instagram, and WhatsApp have become tools for speedy mobilisation with calls for lawyers going out through stories, tweets, and voice notes. Legal advice regarding detention and arrest is trans- lated to shareable content. Lawyers are organising themselves through resource lists and web portals. India’s legal frater- nity has come together to create a struc- ture of support around the protesters like never before,” says Sukhnidh Kaur, a student and researcher, whose Insta- gram account and blog have been docu- menting every protest taking place across the country and who has been instrumental in connecting lawyers’ to the masses through her huge following. Many such accounts of social media influencers and bloggers have forwarded lawyers advice to millions across India. After the JMI crackdown, a Google doc- ument has been circulating which con- tains spreadsheets with contact numbe- rs of lawyers, journalists, psychologists and doctors who have volunteered to help protesters. Lawyers have become the backbone of mass anti-CAA protests. They are coming forward to defend the rights of people to protest peacefully. Many of them are fighting cases and helping in release of detainees for free. J ust because they are lawyers does- n't mean that their struggle is easy. They are constantly at risk of hara- ssment and targeted police action. On January 18, a Rajasthan-based lawyer, Mohammad Faisal, alleged that he was wrongly picked up by the SOG team of the Uttar Pradesh Police from inside Kairana Court. He had gone at the beh- est of the National Confederation of Human Rights (NCHR) to find facts regarding alleged illegal detentions at Shamli. Later, he told reporters that he was in judicial custody for 13 to 14 days and was physically tortured by the UP police, including electric shocks being given. The kind of activism displayed by lawyers in India is unprecedented and shows the depth of feeling against the CAA and its constitutional and legal loopholes and the impending nation- wide National Register of Citizens. Many of these lawyers as well as the protesting youth are essentially those who have grown up in a post-independ- ence India and have cultivated the sense of “constitutional morality” which Dr. BR Ambedkar had envisioned when he drafted the Constitution and called for developing social democracy in “tem- perament rather than just in theory”. He had declared that citizens should “have a natural inclination to liberty, a natural respect for law, good humour, intoleran- ce of foul play, the knowledge of how and when to compromise and distrust…” It is safe to say that Indian lawyers are taking his exhortations to heart. Focus/ Legal Aid AftertheJMIcrackdown,aGoogledocu- mentwithspreadsheetsofnumbersof lawyers,journalists,psychologistsand doctorswhohavevolunteeredtohelp protestorshasbeencirculated. LAWYERS UNITE AGAINST THE CAA Lawyers form a human chain at Madrass High Court to register protest.
  • 31.
  • 32. Global Trends/ Sri Lanka 32 February 3, 2020 ITH the swearing in of Gotabaya Rajapak- sa, the Eelam war he- ro and controversial former defence secre- tary, as the president of Sri Lanka, the Rajapaksas are back in power at a critical time in the country. Only five years back, the people of Sri Lanka had thwarted then president Ma- hinda Rajapaksa’s bid for a third term in office. His authoritarian style coupled with allegations of corruption and mis- use of office clouded his success in end- ing the Tamil Tigers’ separatist insur- gency. However, the last five-year rule of President Maithripala Sirisena and prime minister Ranil Wickremesinghe fell far short of people’s expectations in delivering good governance which they had promised, with their endless squab- bles virtually paralysing government functioning in the island nation. Perhaps the main reason why most of the Sinhalas voted for Gotabaya was the Easter Sunday massacre of 259 peo- ple by ISIS-inspired and home-grown Jihadi terrorists last April. It created a huge scare among the people who are yet to fully recover from the after-effects of fighting Tamil separatist insurgency for nearly three decades. The terrorist attack created a ripple effect. It exposed huge gaps in the national security fabric. People were shocked to learn that the government failed to act upon receiving information on the impending terrorist attack, two weeks in advance. Further inquiry into the attack revealed that both Sirisena and Wickremesinghe fai- led to nip jihadi terrorism in the bud when the first indications of Islamist extremist activity were brought to their attention. Public opinion thus swung in favour of electing Gotabaya as he was seen as a Hits And Misses BykeepingkeyministrieswithinthefamilyPresidentGotabayaRajapaksamayhave ensuredatightgripovertheadministration,butchallengesremainonotherfronts By Col R Hariharan W BURDEN OF EXPECTATIONS Gotabaya Rajapaksa took charge as the president of Sri Lanka last year at a critical time for the country UNI
  • 33. | INDIA LEGAL | February 3, 2020 33 strong man who will revamp the nation- al security structure to make it more effective. Gotabaya’s winning chances further improved as the terrorist attack became a rallying call for conservative Buddhists to defend the land they con- sider the last bastion of Theravada Buddhism. In their previous tenure, the Rajapaksas had pampered Sinhala Buddhist nationalism and soft-pedalled on fringe elements spouting anti-Mus- lim hate rhetoric and attacking Mus- lims. Their votes were naturally his. One of the first actions that Gota- baya—who completed two months in office on January 17, 2020—took was to instal his brother, Mahinda, as the inter- im prime minister even as he placed another brother, Chamal, as the minis- ter of agriculture. The three brothers, between them, control the ministries of defence, public security, finance, econo- my and policy development, Buddha- sasana and cultural and religious affairs, urban development, water supply and residential facilities. President Gotabaya has acknowled- ged that the Sinhala majority vote “all- owed me to win the presidency”. He will thus come under pressure from the Sin- hala majority to deliver upon his pre- election promises. For that, he will need his party, the Sri Lanka Podujana Pera- muna (SLPP) to win an absolute majori- ty in the parliamentary polls to be held in March 2020. In an interview, Gotabaya said that the 19th amendment that curbed the powers of the president was “a failure and if we get 2/3 majority in parliament we will drop it from the constitution”. So in the near term, Gotabaya’s actions will be aimed at securing an absolute major- ity in the parliamentary elections. S oon after Gotabaya came to po- wer, there were disturbing trends reminiscent of the past Rajapaksa authoritarian rule, with some smacking of vindictiveness. A Special Presidential Commission (SPC) was appointed to probe those responsible for falsely im- plicating people in murders or related investigations. State investigative agen- cies like the Criminal Investigation Dep- artment (CID) and the Financial Crimes Investigation Division (FCID) had been investigating a number of cases involv- ing the Rajapaksas. Even before the SPC probe started, Chief Inspector Nishantha de Silva, head of the organised crimes division of the CID, fled with his family to Switzer- land to seek asylum. He was handling high-profile cases involving members of the Rajapaksa family which included important ones like the killing of Lasantha Wickrematunga, the editor of The Sunday Leader. After the police officer fled, there was a nasty backlash when a Sri Lankan woman staffer of the Swiss embassy alleged that she was abducted, questioned and tortured by unknown persons. In the police investi- gations that followed, the woman was arrested for making false allegations.. The arrest of two former ministers, Dr Ranjitha Senaratne and Champika Ranawaka, of the Sirisena government, who were at the forefront of the cam- paign to defeat Mahinda Rajapaksa in the 2015 presidential elections, appears to be another example of vindictiveness. While Ranawaka was arrested in a case of accident of 2016 vintage, Senaratne was arrested in connection with a news conference he held two days before the presidential elections in which he pro- duced two persons who claimed to be drivers of white vans that carried out abductions during the Rajapaksa rule. Though both leaders have been released on bail, the action sends a strong mes- sage to the opposition that the Rajapak- sas will neither forget nor forgive. Administratively, Gotabaya has shown that he is the master of his own actions. He has introduced steep tax cuts in income tax which he had prom- ised during campaigning. He ordered the removal of portraits of all politi- cians, including the president and min- isters, from the walls of ministerial offices. He drastically pruned defence personnel assigned on presidential and ministerial security duties. The number of security vehicles accompanying VIP convoys was also slashed and authorities were directed not to hold up traffic on roads unneces- sarily when VIP convoys moved. Newly inducted ministers were advised to ass- ume their duties immediately after they were sworn in. Ministers have been advised not to take their spouses when they go abroad on official duties. All these have reinforced his popular image as a man of action. Unlike his brother, Mahinda, Gota- baya has appointed qualified and experi- enced persons to head state institutions, instead of political people. Dr PB Jaya- sundara, an economist, was appointed secretary for revamping the country’s sinking economy. The president has OneofthefirstactionsthatGotabayatookafterbecomingpresidentwastoinstalhis brothers,MahindaRajapaksa(right)andChamalRajapaksa,asinterimPMandminister ofagriculture,respectively.Thethreebrothers,betweenthem,holdcrucialportfolios.
  • 34. Global Trends/ Sri Lanka 34 February 3, 2020 chosen Dr DWD Lakshman, an econo- mist not tainted by the infamous bond scam, as the governor of the Central Bank of Sri Lanka. Similarly, Gotabaya appointed Prince Sarojini Manmatha- rajah Charles, a senior Tamil civil ser- vant with vast experience, as the gover- nor of the Northern Province. During the conflict in 2009, Charles was in charge of the refugee camps in Vavu- niya, housing about 2,90,000 people from the war-torn districts. T he president presented the “Vis- ion for Progress” policy statement when he addressed the parlia- ment for the first time on January 3. Read with his earlier statements, the key elements of the policy include national security concerns, particularly relating to jihadi terrorism, tax cuts and incen- tives for small and medium enterprises, skill-building, reducing inflation and beefing up economy and actions to “curb corruption and prosecuting the corrupt”. He had also proposed other structural changes to revamp the economy and strengthen security apparatus, including the intelligence set-up. There is a sense of déjà vu among civil society and minorities who fear that the country could see the return of authoritarianism. P Sampanthan, leader of the Tamil National Alliance, has said the president’s statement that develop- ment would be prioritised in resolving the ethnic conflict, would not fulfil the long-standing desire of the Tamils to develop within a united Sri Lanka on their own terms. They are also dismayed at Gotabaya’s assertion that there was “no problem of missing persons to be resolved” except those who fell on the battlefields. This statement neutralises what little progress was made in 2017, when the government created the Office of the Missing Persons to expeditiously deal with cases of missing persons and enforced disappearance. The Tamils are shocked at the ann- ouncement that the national anthem would be sung only in Sinhala and not in Tamil at the Independence Day cele- brations in the country. The fringe ele- ments among the Buddhist clergy had welcomed the move. After a lot of public outcry over the issue, the prime minister clarified that no decision had been taken on the issue. On the international front, the presi- dent’s priority appears to be to improve relations with India and Prime Minister Narendra Modi in particular, perhaps to use India to improve his bargaining position with China. He responded posi- tively to Modi’s invitation to visit New Delhi. The invitation was extended soon after he became president. For India, the visit was strategically significant as the Rajapaksas were seen as close to China. Gotabaya needs India’s support to improve national security, combat Islamist terrorism and enable economic recovery. Though Modi had raised the issue of the full implementation of the 13th Amendment giving limited autono- my to Tamils, Gotabaya later said the 13th Amendment could not be imple- mented “against the wishes and feelings of the majority community”. China had been watching with con- cern after Gotabaya during his visit to India termed the agreement with China on the Hambantota Port as a “mistake” and called for it to be negotiated. How- ever, Gotabaya felt the fallout of the statement after returning home. He later told foreign correspondents in Colombo that there was no need to re- negotiate the Hambantota agreement but the security aspects needed to be looked into. Though the Chinese reacted quickly with a statement reminding that the agreement could not be renegotiated, the president is expected to take up the issue of redrafting some clauses of the agreement when he visits Beijing shortly. Overall, Gotabaya has, by keeping control of key ministries within the dynasty, ensured a tight grip over the country. —The writer served as the head of intelligence of the IPKF in Sri Lanka. He is associated with the Chennai Centre for China Studies, South Asia Analysis Group and the International Law and Strategic Analysis Gotabayawantstoimproverelationswith IndiaandPMModiinparticular,perhaps tousethebilateraltiestoimprovehis bargainingpositionwithChina.Hevisited Indiashortlyafterbecomingpresident. UNI