India Legal - 6 January 2020

2019
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www.indialegallive.com
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YEAR-END SPECIAL

LETTERFROMTHEEDITOR
JANUARY 6, 2020 3
A Momentous Year
HERE is a safety warn-
ing etched on the side
mirrors of motor vehi-
cles—objects in mirror
are closer than they ap-
pear. So it is with the
transition to a New Ye-
ar. Even as we cele-
brate the coming of
2020, it also brings the awareness that a
year does not come with full stops. Ev-
ents and trends that emerged in the year
gone by will have their impact on the
year before us. Which is why, we at India
Legal take such care in compiling our
year-end issue. It was an extraordinarily
challenging year for the judiciary, a year
in which we saw a change of guard at the
top with Chief Justice Ranjan Gogoi
making way for Sharad Arvind Bobde
who will serve as chief justice till April
2021. Justice Gogoi presided over some
of the most significant judgments of
2019—from a closure on the longest ru-
nning Ayodhya case to the anti-defec-
tion law as it related to the Karnataka
state elections. He also addressed multi-
ple cases involving builders who had
cheated home owners.
It was also the year when the office of
the chief justice of India came under the
RTI Act but, reflected through that rear
view mirror, the year was significant for
the judgments that were avoided or po-
stponed rather than those that were gi-
ven. From the crackdown in Kashmir to
the spreading wildfire of the protest mo-
vement against the National Register of
Citizens and the Citizenship Amend-
ment Act, the Supreme Court decided
that discretion was the better part of val-
our. For all that, our year-end special
captured the legal events of 2019 as ana-
lysed by some of the leading names in
the country. We had professor Upendra
Baxi writing on federalism and accelera-
ted central dominance; the late great
Madhav Menon wrote on overdue refor-
ms in the judiciary; the prolific Shiv Vis-
vanathan on dissent and the judiciary;
and an analysis of the India Justice Re-
port 2019 which gave us some sobering
facts and figures pertaining to the deliv-
ery of justice in India.
It was also a year in which our Legal
Leadership Conclave made a major im-
pact. This issue features one of the series
of discussions and events on a range of
contemporary legal issues with the par-
ticipation of sitting judges of the Sup-
reme Court and High Courts and several
other legal luminaries. They provided
much food for thought, as, we hope, will
the contents of this special issue.
Here’s wishing all our readers, con-
tributors and well-wishers a Happy New
Year.
T

Contents
Important Judgments
January-December 2019
6
10
14
16
20
THEBESTOFINDIALEGAL2019
A Long Overdue Reform
January 21, 2019
Has Anything
Changed?
February 4, 2019
The Diverse Colours of Federalism
February 18, 2019
The Life of Riley
March 25, 2019
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VOLUME XIII ISSUE8
JANUARY6,2020
4 JANUARY 6, 2020

CALENDARS FROM
SELECT COURTS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Supreme Court of India ............9
Delhi High Court ....................29
Bombay High Court ...............35
Calcutta High Court ...............43
Madras High Court ................50
Cover Design: ANTHONY LAWRENCE
40
44
48
26
30
38
36
Article 370 and All That
July 15, 2019
RTI...R.I.P.
August 5, 2019
Arbitration and Mediation:
Need of the hour
September 2, 2019
Re-igniting Debate
October 21, 2019
The CJI’s Crown of Thorns
November 4, 2019
A Verdict at Last
November 18, 2019
Scales of
Justice
November 25, 2019
Profiles in
Courage
December 2, 2019
22
JANUARY 6, 2020 5

LOOKBACK
SUPREMECOURT
6 JANUARY 6, 2020
The Justice Arun Mishra-led three-judge bench of the Supreme
Court accepted the centre’s definition of Adjusted Gross Revenue
to also include non-core actives like dividends, handset sales,
rent and profit from the sale of scrap, apart from revenue from
services. Private telecom service providers were, thus, supposed
to dole out higher sums towards licence fee and usage fee which
are based on their revenue sharing agreement with the govern-
ment as per the National Telecom Policy 1994. With payments
overdue, and penalties levied on the same, the telecom compa-
nies owe the government `92,000 crore.
Important Judgments of 2019
TELECOM
Scope of Adjusted Gross Revenue expanded
Date of Judgment: October 24, 2019
The apex court said that justice dem-
ands that courts should impose pun-
ishment befitting the crime so that it
reflects public abhorrence of crimes.
It also observed that undue sympathy
shown while imposing adequate sen-
tence would do more harm to the jus-
tice delivery system and severely
undermine public confidence in the
efficacy of the law. In this case, the
apex court took objection to the High
Court reducing the sentence for
“attempt to murder” from seven to five
years.
Interests of victim and
society to be kept in
view while sentencing
convicts
Date of Judgment:
July 30, 2019
A five-judge Supreme Court bench led by then Chief
Justice of India Ranjan Gogoi agreed to bring the
office of the chief justice within the ambit of RTI on a
case-to-case basis, subject to RTI safeguards. Judges
are not above the law, the bench said.
As part of the bench, Justice Sanjiv Khanna said
that independence and accountability went hand in
hand. Justice NV Ramana pointed out that informa-
tion seeking through RTI should be calibrated. Justice
DY Chandrachud said that the principal consideration
should be public interest, and so the Information Offi-
cer would weigh each claim and decide.
JUDICIARYANDRTI
Office of CJI brought under the RTI Act
Date of Judgment: November 13, 2019
CRIMINALJUSTICE

JANUARY 6, 2020 7
A panel led by Justice SA Bobde cleared the then CJI
Ranjan Gogoi of sexually harassing an employee of the
Supreme Court. Justice Indu Malhotra and Justice Indi-
ra Banerjee were the other two members on the panel
which gave him the clean chit, citing lack of substance in
the allegations by the former Supreme Court staffer. She
withdrew from the process stating that she felt intimida-
ted in the absence of a support person in a room full of
judges. The report was not made public as it was an in-
house procedure which did not warrant public knowl-
edge of the matter. Retd. Justice AK Patnaik is conduct-
ing an inquiry into the allegations by advocate Utsav
Bains, supported by Justice Gogoi, of a larger conspiracy
against the office of the CJI.
The Supreme Court partially recalled its order
dated March 20, 2018, which forbade automatic
arrest in offences committed under the Scheduled
Castes and Scheduled Tribes (Prevention of Atro-
cities) Act, 1989. The previous order had diluted the
option of stringent action available with the police
based on information related to offences covered
under the said Act. The legislation instilled a sense
of security amongst SC/ST members of society and
thus the apex court held that any primary inquiry
before registering an FIR or sanction before arrest
would only result in misuse of the Act.
Recall of order diluting the provisions of SC/ST Act
Date of Judgment: October 1, 2019
HOUSING
CJI cleared of sexual harassment charges
Date of Decision: May 5, 2019
The Supreme Court directed the central and state governments
to take appropriate steps to ensure that housing projects are
completed in a time-bound manner. The Court cancelled the
RERA registration of the Amrapali group, transferring its proj-
ects to NBCC, a government company. It also held that the
dues owed to Noida Authority and Greater Noida Authority do
not allow them to withhold occupancy certificates to home
buyers as this would be unfair to those who had not defaulted,
and despite making timely payment hadn’t been given posses-
sion by builders. The Court said that the central and state gov-
ernments had to take necessary steps to ensure that buyers
who had booked and paid got their houses. As the Supreme
Court was to monitor all its directions within a time-bound
schedule, the decision helped all home buyers in the country
and set a precedent for all incomplete projects in India.
Complete housing projects in a time-bound manner
Date of Judgment: July 23, 2019
CJI’SHONOURRESTORED
SOCIALJUSTICE

LOOKBACK
SUPREMECOURT
8 JANUARY 6, 2020
The Supreme Court upheld the disqualification of the 17 rebel
MLAs of Karnataka by its assembly speaker. However, it can-
celled the speaker’s decision to debar them from contesting
polls till 2023 and ruled that they were eligible to fight elec-
tions. The petitions were filed by MLAs who had opposed the
speaker’s move to disqualify them and not accept their resig-
nations on the grounds that it was a ploy to bypass the anti-
defection law. The Court said if defections took place before
the date of resignation, the speaker could disqualify MLAs.
Resignation by MLAs not to affect earlier
disqualification proceedings
BALANCED,NOTALANDMARKJUDGMENT!
The then CJI Ranjan Gogoi-led five-judge bench unan-
imously held that Ram Janmabhoomi was not a juristic
person. The judges also stated their doubts on the reli-
ability of the archaeological reports, which was termed
an inaccurate science. However, based on the continu-
um of faith of the Hindus who worshipped the place,
before, after, and even when the mosque stood there for
a few centuries, the apex court bench found it fit to
direct the Government of India to create a trust for the
construction of a Ram temple at the site. The Court
also directed that an alternative five-acre site be given
to the Muslim parties for building a mosque. The re-
view petitions against this judgment were dismissed in
December, citing lack of merit.
Continuum of faith of the majority trumps the
factual existence of mosque
ANTI-DEFECTIONLAW
ENVIRONMENT
The SC ordered the demolition of four high-rise apart-
ments in Maradu, Kochi, in Kerala for violating Coastal
Regulation Zone (CRZ) norms. The residents of the
waterfront flats were directed to evict their homes on
receipt of `25 lakh each as interim compensation from
the state government. The apex court said that subse-
quent notification of the area as CRZ-II was not a
defence against demolition as the construction took
place when the area was notified as CRZ-III.
Maradu flats ordered to be demolished
Date of Judgment: May 8, 2019
—Compiled by Ishita Purkaystha

NAME OF MONTH & DAYS OF
HOLIDAY DATE THE WEEK
New Year Holidays January 1 to Wednesday to
January 3 Friday
Maha Shivaratri February 21 Friday
Holi Holidays March 9 to Monday to
March 14 Saturday
Ram Navami April 2 Thursday
Mahavir Jayanti April 6 Monday
Good Friday April 10 Friday
Buddha Purnima May 7 Thursday
Id-ul-Zuha (Bakrid) August 1 Saturday
Raksha Bandhan August 3 Monday
Janmashtami August 12 Wednesday
Independence day August 15 Saturday
Ganesh Chaturthi August 22 Saturday
Mahatma Gandhi's Birthday October 2 Friday
Dussehra Holidays October 19 to Monday to
October 24 Saturday
Milad-un-Nabi or October 30 Friday
ld-e-Milad
Diwali Holidays November 9 to Monday to
November 14 Saturday
Guru Nanak's November 30 Monday
Birthday
Christmas & December 21 to Monday to
New Year Holidays January 1, 2021 Friday
Note:
1. Sundays and Supreme Court Holidays are shown in red.
2. Orange squares indicate the actual date of festivals.
HOLIDAYS
SUPREME COURT CALENDAR 2020

LEAD
ALL-INDIAJUDICIALSERVICE
10 JANUARY 6, 2020
Unlikeotherpublicservices,thejudiciarygetslessmeritorious
candidatesduetofrustratingproceduresandinefficient
practices.WithAIJS,productivityandqualityofservices
atthedistrictlevelwouldimproveremarkably
ByProfNRMadhavaMenon
OR a long time,
judicial reform
concerned itself
with the problem of
delay and pendency
in the system. This continues with no
solution in sight. Of late, the issues relat-
ing to judicial appointments, judicial
activism, judicial accountability and dig-
italisation engaged the attention of stake-
holders. Several committees and com-
missions appointed by the government
from time to time have made recommen-
dations to set the system right. However,
many of them remain unimplemented. It
is business as usual in the judiciary
despite mounting arrears and reports of
creeping inefficiency and corruption,
alienating the public who now look for
alternatives for access to justice.
A judicial system consists of three ele-
ments—laws, institutions and the per-
sonnel involved. Laws and institutions
are not self-executing and it is the per-
sonnel who make the system deliver. The
inadequacies of laws and institutions, to
a large extent, can be overcome if the per-
sonnel who man the institutions are
BATTLING
PENDENCY
Lawyers at
Gurugram District
and Sessions Courts
A Long
Overdue Reform
F competent and motivated professionals.
If judicial reforms are looked at from the
above perspective, there can be no doubt
that the single-most important step to
put the system on the right track is to
induct meritorious people in adequate
numbers to preside over courts and tri-
bunals. The National Judicial App-
ointment Commission for the higher
judiciary and the All-India Judicial
Service (AIJS) for the subordinate judi-
ciary are, therefore, the twin strategies
to get the system to deliver both on qual-
ity and quantity.
The First National Judicial Pay Com-
mission (Justice Jagannath Shetty Com-
mission), inter alia, recommended the
introduction of AIJS at the district jud-
ge-level after detailed deliberation with
all stakeholders for increasing efficiency
in the system. The Supreme Court acc-
epted the recommendations of the Com-
mission, including the AIJS proposal.
According to media reports, all state
governments, except Tamil Nadu and
West Bengal, at that time accepted the
AIJS proposal. Unfortunately, the then
central government did not take neces-
Anil Shakya

JANUARY 6, 2020 11
sary follow-up action and let the proposal
die a natural death. It was pointed out in
legal circles that certain High Courts
were also not keen to have the AIJS as
they thought that their control over the
subordinate judiciary would get diluted
in the process. The Bar, which has been
vocal in its opposition to most proposals
of reform in the judicial system, did not
raise any objection to the introduction
of AIJS. A very significant reform which
would have made a big difference in the
administration of justice at the district
level was thus buried by the neglect and
indifference of the Union Ministry of
Law and Justice, which now wants to
revive the proposal after nearly three
decades!
In 2011, the Government of India set
up the National Mission for Justice Deli-
very for a five-year period with a view to
eliminate delay and arrears and to mod-
ernise judicial processes with technology
and management reforms. It is under-
stood that the Mission’s life is extended
up to 2020. In several meetings of the
Mission Advisory Committee, the

LEAD
ALL-INDIAJUDICIALSERVICE
12 JANUARY 6, 2020
AIJS proposal was raised and recom-
mended for early introduction. It was the
unanimous view of all those involved that
efficiency, productivity and quality of
services at the district level would im-
prove remarkably with the adoption
of AIJS.
G
iven the regular supply of talent-
ed law graduates from National
Law Schools and similarly placed
institutions, there are now in the profes-
sion, advocates with seven to ten years of
practice experience who would be
inclined to join the district judiciary as
they have a chance to get promoted
to the higher judiciary in reasonable
time. They don’t have to retire as
district judges if they show good
performance at the district level.
The job profile and status in the
judiciary are certainly more attractive
than what is on offer in other central
services.
If the judicial academies give proper
training and High Courts provide the
freedom within identified parameters to
innovate at work, district judges’ effi-
ciency will increase considerably and
this would reduce appeals arising from
their decisions. For motivated young
men and women, job satisfaction and
personal reputation are more important
than money and power. They are less
likely to become corrupt as they consider
their professional career more signifi-
cant than anything else.
Bar-Bench relations are also likely to
change for the better, a desirable reform
in the present circumstances. So-called
language barriers will not be a serious
problem as youngsters learn languages
quickly. Many law graduates are already
proficient in more than one Indian lan-
guage as they spend five years and more
studying law at a law school outside
their home states.
In short, the time for AIJS is now and
it will bring a remarkable break-
through in further integration of
the legal and judicial system of the
country, giving it quality and effi-
ciency, much-needed presently.
AIJS has become essential for
Anil Shakya
LONG WAIT
Litigants wait outside Tis Hazari courts
Ifthejudicialacademiesgivepropertrainingand
HighCourtsprovidethefreedomwithinidentified
parameterstoinnovateatwork,districtjudges’
efficiencywillincreaseconsiderably.
Anil Shakya

JANUARY 6, 2020 13
another reason as well. The existing sys-
tem under which High Courts or State
Public Service Commissions are recruit-
ing judges to the district judiciary is so
full of loopholes, delays and inefficiency
that it is unable to produce enough qual-
ified candidates to fill the vacancies. In
some cases, even those limited selections
are challenged in unending litigation,
denying judiciary the services of merito-
rious candidates. It is sad that while oth-
er public services get relatively better
candidates, the judicial services even at
the district level are left to manage with
less meritorious candidates or with none
after prolonged selection procedures and
substantial expenses. This is not because
the judiciary is not an attractive service
to the talented, but because of frustrating
procedures and inefficient management
practices. AIJS selection by a central
agency under judicial supervision will
make the difference that the system is
waiting for.
Finally, does AIJS hit the federal
structure of the polity as contended by
some people? In this connection, it is
necessary to recall the words of Dr BR
Ambedkar. While introducing the Draft
Constitution, he said: “….When diversity
created by division of authority in a dual
polity goes beyond a certain point, it is
capable of producing chaos. The Draft
Constitution has sought to forge means
and methods whereby India will have
Federation and at the same time will ha-
ve uniformity in all basic matters which
are essential to maintain the Unity of the
country. The means adopted by the Dra-
ft Constitution for this purpose are (i) a
single judiciary, (ii) uniform laws, civil
and criminal, and (iii) a common All
India Service to man important posts.”
D
r Ambedkar felt that federal
polity would be strengthened in
consistent with the unity of the
country by having a single judiciary with
uniform laws and an all-India judiciary.
In fact, a unified judiciary helps to insti-
tutionalise the idea of co-operative fed-
eralism. Although the Constitution em-
powers Parliament to establish separate
courts for enforcement of Union laws, it
has, in the interest of unity and integrity
of the nation and economy, continued
the system of a single integrated judici-
ary for the Union and states.
Of course, there is a justifiable com-
plaint that the government (State as well
as central) is providing very little finan-
cial support to the judiciary. According
to available data, except Delhi, all states
are providing less than one percent of
their budget for subordinate judiciary.
In fact, more than half of the amount
spent on the judiciary is raised by the
judiciary itself through collection of
court fees, stamp duty and miscella-
neous charges (Agenda Notes of the
Conference of Chief Ministers and Chief
Justices of High Courts, 2006). The plan
funds provided by the Union govern-
ment to the judiciary varied from a mere
`700 crore in the Tenth-Plan to a couple
of thousand crores in the Twelfth Plan.
A centrally sponsored scheme for devel-
opment of infrastructure for subordi-
nate judiciary brought central/state
funds on a 50:50 basis.
The Thirteenth Finance Commission
recommended substantial increase in
central funding of the judiciary, includ-
ing subordinate courts. A report of the
Justice Jagannath Rao Committee, app-
ointed by the Supreme Court on the sub-
ject of judicial impact assessment, want-
ed the government to make the fund for
additional judicial time required to im-
plement Union laws to be fully included
in the Financial Memorandum wherever
a law or a bill is introduced. This am-
ount should be additionally provided
to the judiciary independent of the regu-
lar budget.
Given the limited finances available
with states, the funds required for an
integrated all-India judiciary have to be
necessarily provided by the central gove-
rnment. Such an approach will streng-
then the federal scheme of governance
while enabling the judiciary to manage
its internal administration efficiently
without having to depend on the govern-
ment for getting even basic facilities.
—This article was published before
the author’s untimely death. He was
Director of the National Judicial
Academy and later became Hony.
Director of the Kerala Bar Council
MKN Academy for Continuing Legal
Education, Kochi
MOTIVATED CANDIDATES
Prospect of a lucrative career will
draw meritorious students into the
judicial service
JANUARY 21, 2019
UNI

LETTERFROMTHEEDITOR
INDERJITBADHWAR
14 JANUARY 6, 2020
N the eve of In-
dia’s Republic
Day, I chanced
upon an essay I
wrote on the occ-
asion of the na-
tion’s 68th anni-
versary. In it I reproduced, after some
research and self-searching, some of the
most stirring phrases of leaders who had
fought for the nation’s independence and
many of whom lived on to become mem-
bers of the new country’s Constituent
Assembly.
The most striking ones are those most
of us memorised during our formative
years in school. But they are worth repea-
ting in the same spirit as we repeat birth-
day, Christmas and Diwali jingles and
good wishes year after year, especially at
a time when the next Republic Day will
reflect what the people have willed for
themselves in the elections less than th-
ree months away. So here’s the flashback:
“Long years ago we made a tryst with
destiny and now the time comes when we
shall redeem our pledge. ... At the stroke
of the midnight hour, when the world sle-
eps, India will awake to life and free-
dom.”—Jawaharlal Nehru. “The sanctity
of law can be maintained only so long as
it is the expression of the will of
the people.”—Bhagat Singh. “Ev-
ery Indian should now forget that
he is a Rajput, a Sikh or a Jat. He
must remember that he is an In-
dian.”—Sardar Patel. “We believe
in peace and peaceful develop-
ment, not only for ourselves but
Has anything
changed?
O for people all over the world.”—Lal
Bahadur Shastri. “If yet your blood does
not rage, then it is water that flows in
your veins. For what is the flush of you-
th, if it is not of service to the mother-
land.”—Chandra Shekhar Azad.
I have an admission to make. While I
am moved by these inspiring words of
India’s greatest sons and daughters, I
prize one poem above all. It is my per-
sonal national anthem, written by the
bard Iqbal. “Sare jahan se achha,
Hindustan hamara/Hum bubulein
hain iske/Yeh Gulsitan hamara…
.Mazhab nahin sikhaata/Aapas mein
bair rakhna/Hindi hain hum watan
hai/Hindustan Hamara.” Beatific senti-
ments…(“We Hindis—not Hindus—but
Hindis, the diverse people of Hindustan,
live in the greatest nation on earth. We
are taught to love all religions.”)
Iqbal also intones: “Roma, Mishar,
and Yunan/Sab mit gaye jahan se’
Kuschh baat hai ki hast mitati nahin
hamaari/Sadiyon raha hai dushman
daur-e-jaman hamara. (Rome, Egypt,
and Greek civilisations have disap-
peared from the face of the earth. There
is something in us that sustains us forev-
er; for centuries, though our enemy has
been at our doorstep)”.
Iqbal wrote this before India was gi-
ven her grand Constitution. I believe he
was convinced that India’s indomitable
spirit preserved her through the ages. I
also believe that it is this ineffable spirit
that gave birth to the Constitution. This
document provides institutional protec-
tion to the Republic in which the people
are sovereign, are guaranteed certain
basic rights and are governed according
to their will and the supremacy of the
rule of law.
But many things have changed since
January 26, 1950, when our Founding
Fathers gifted us this Republic. Have we
been able to keep our republic? While we
have established our national govern-
ment and fundamental laws, we need to
examine whether the separation
of powers between the
Executive, Judiciary and
Legislature operates as it should.
This is a critical system of checks
and balances that ensures the
sovereignty of the people and
accountability of the govern-
ThemoststirringphrasesofleaderslikeJawaharlalNehru,
BhagatSingh,SardarPatel,LalBahadurShastri,Chandra
ShekharAzadandIqbalareworthrepeatingatatimewhen
thenextRepublicDaywillreflectwhatthe
peoplehavewilledforthemselvesintheelectionsless
thanthreemonthsaway.
UNI

JANUARY 6, 2020 15
Achha will probably hold and survive.
But men and women of wisdom will
have to constantly re-examine the Con-
stitution and model it to suit India’s
changing political and social priorities.
They will have to focus on empowering
people so that the Executive branch is
kept in check through a more innovative
system of the separation of powers.
We need more than just words and
road shows to move this nation into its
manifest destiny as envisaged by those
who led us into our freedom. I just drove
through central and west Uttar Pradesh,
often promoted as a state (India’s most
populous) into which multinationals
and local entrepreneurs are rushing to
invest. Roads like bomb craters. Aban-
doned high-rise buildings on the fringes
of cities. Twenty-hour power cuts with
most villages barely even boasting of a
single light bulb. Invisible infrastruc-
ture. Unemployed, angry youth. Dis-
tressed farmers. Distress sales alongside
food inflation. Closed small industries.
Robberies and murders rising. (Read
about a farmer crushed to death under a
tractor in his own field by loan sharks
and recovery agents) ….
…..then switched on the telly in Delhi
and relaxed to the news on NDTV with
Vikram Chandra and a suave red-turba-
ned reporter and FICCI types with their
pseudo Brit accents extolling “shining
India” as the world’s greatest investment
destination, and Prime Minister Modi’s
debut in snow-covered ski resort Davos,
hyped as an earth-shattering event, whi-
le the bottom scroll on the TV set talked
about the raging senseless violence of
censorship and communal hatred over
the release of the mythological film
Padmaavat…
I felt like Alice walking through the
Looking Glass. Which world am I living
in on this Republic Day? A PR dream
nourished by a fawning, overfed media,
or a reality show of an uncaring political
burlesque?
PostScript: Has anything changed?
ment.
When our Founding Fathers adopted
the parliamentary Westminster system
from England, it may have been suitable
at the time. But today, as the government
has spread its tentacles into every aspect
of our personal lives, the challenge is to
keep Executive excesses in check. It is not
possible when the Legislature—our
Parliament—is a slavish extension of the
Executive. The minister who is in the
Executive branch cannot be expected to
police himself when he is simultaneously
a legislator and also in charge of the civil
services. Both, under the doctrine of sep-
aration of powers, are expected to be
watchdogs over the Executive in order to
ensure that it carries out legislative man-
dates and does not exceed the authority
given to it by Parliament.
It is also incongruous when, under an
archaic British law still in the statute bo-
oks, a state government can order the
dropping of criminal charges against its
legislators and supporters stemming fro-
m violations when its members were not
in elected office.
We need to seriously look at constitu-
tional changes that will guarantee the
independence of legislators as powerful
guardians against fraud, waste and cor-
ruption. How we can do that is another
story. But for the time being, the Ju-
diciary seems to be playing that role.
Social tensions and internecine hat-
reds and violence and bigoted resistance
to free expression and lifestyles are mo-
unting. India’s venerable Supreme Court
has mostly risen above politics. It has
tried to grapple with Executive excesses
such as the misuse of Article 356 and as-
saults on the right to privacy.
But in this surcharged atmosphere of
the politicisation of the steel frame of In-
dian governance, exemplified by politi-
cians calling for the impeachment of a
sitting chief justice, will India as a na-
tion rise above its baser instincts on the
strengths of the common sense and
goodwill of its own people?
M
y hunch is that India survives
the worst and emerges st-
ronger. After our bloody Par-
tition, what emerged was a stronger
India, aflame with poverty and exploita-
tion, yet led by wise men and women
who kept anarchy and class warfare at
bay with minimal repression. There were
famines in the early years, caste dis-
crimination, misogyny, patriarchal hege-
mony, mistreatment of widows, out-
bursts of religious savagery...but the idea
of a constitutional India guided by prin-
ciples of liberty and the rule of law held.
Iqbal Sahib’s idea of Sare Jahan Se FEBRUARY4, 2019
Butinthissurchargedatmosphereof
thepoliticisationofthesteelframe
ofIndiangovernance,exemplifiedby
politicianscallingfortheimpeach-
mentofasittingchiefjustice,will
Indiaasanationriseaboveitsbaser
instinctsonthestrengthsofthe
commonsenseandgoodwillofits
ownpeople?

LEAD
FEDERALISM
16 JANUARY 6, 2020
Thethinlinebetween“tyranny”and“liberty”isbeingincreasingly
seentoday.Asthefederaldesignofthenationgetstransformed,it
hasparadoxicallyacceleratedcentraldominance
ByProfUpendraBaxi
NE may at
least think and
write about the
federal de-
sign—the prin-
ciple and the
detail—of the constitutional schema of
federalism at the level of political action
and constitutional law and culture. The
distribution in Union-State relations of
various powers for legal and political
action may be perceived as an intensely
political matter. However, constitutional
adjudication proceeds on first principles
of jurisprudence (what is good as a matter
of legal theory) and demosprudence
(what is good for constitutional cultures
and constitutional faith).
Chief Justice of India Ranjan Gogoi,
along with Justices Deepak Gupta and
Sanjiv Khanna, has rung down the cur-
tain, as it were, on the unfolding drama in
West Bengal concerning the possible in-
quisition and arrest by the CBI of Rajeev
Kumar, Kolkata’s Commissioner of Police.
Chief minister Mamata Banerjee’s sitting
on dharna in Kolkata (at the same site
The Diverse
Colours of
Federalism
O where she sat in protest against the
CPM-led government during the acqui-
sition of land in Singur for the Tata Nano
factory) was preceded by two dharnas
earlier in Delhi by chief minister Arvind
Kejriwal, one late last year at the house of
the Lt-governor, and a little earlier out-
side the Central Secretariat protesting
Union polices with regard to the state of
Delhi. Apparently, recourse to mass
direct action by chief minsters to “save
the Constitution” is emerging as a means
of attempting a reversal, or an ameliora-
tion of Union policies. It is also consid-
ered an appropriate way of achieving
Opposition solidarity when general elec-
tions are looming large, and when public
perception of politics as vendetta, and
law as a programme of avenging Opposi-
tion leaders is seen as growing. The co-
unter-perception that this is a war dec-
lared on systemic governance corruption
should be welcome. But is it equally rele-
vant that while looking at the beam in
others eyes, one also looks at the moat in
one’s own (as the Biblical saying goes)?
The Supreme Court ordered on
February 5, 2019 that the police co-
mmissioner “would faithfully cooperate
with the investigating agency at all
times”. But, it has also ordered that “that
no coercive steps including arrest shall
be taken against the Commissioner of
Police”. At the same moment, Shillong
stands designated as the place where he
will “appear before the investigating ag-
ency… on such date(s) as may be fixed”.
The order deftly avoids the larger
question of whether the state of West
Bengal may withdraw its consent from
the CBI to operate in the state posing
some insuperable difficulties in the wor-
kings of special investigative teams. No-
tices have been issued for contempt pro-

JANUARY 6, 2020 17
ceedings, initiated by the CBI, against
the chief secretary of West Bengal, the
Director of Police and Commissioner of
Police, Kolkata, and the hearing is listed
for February 20. No adverse finding of
fact has been recorded, although the CBI
appears to be convinced that the official
was uncooperative and has committed
contempt and the purported arrest of its
officials also amounts to contempt. But
the order only allows non-coercive inter-
rogation and certainly places a ban on
the arrest of the Commissioner.
This is indeed a Solomonic verdict.
High stakes are involved in India’s most
volatile year with the 2019 general elec-
tions to be shortly announced. The Opp-
osition has planned a national anti-
Narendra Modi coalition, which is fou-
ght valiantly by the ruling NDA coalition.
The Court decided the matter on merits,
but each side applauded the order as up-
holding their contention. The BJP was
able to say that it was a vindication of
WAR AGAINST THE CENTRE?
(Left) West Bengal CM Mamata
Banerjee addressing the media
from her dharna site in Kolkata;
CBI officers being manhandled
by policemen; Police
Commissioner Rajeev Kumar

LEAD
FEDERALISM
18 JANUARY 6, 2020
the CBI, whereas an almost united
Opposition that assembled in Kol-
kata held it as “victory of democracy”.
Mamata Banerjee applauded the
order as upholding constitutional
good governance nurturing democ-
racy, whereas law minister Ravi Shankar
Prasad hailed it as a victory of crusade
against corruption and for probity and in-
tegrity in national life. Both sides empha-
sized ways in which the order reinforced
their stand.
How long these conflicting interpre-
tations will prevail is anyone’s guess. The
February 20 contempt hearing will per-
haps provide some indications whether
contemptuous action resulting in obs-
truction of the investigation actually
occurred.
The CBI proceeded on the basis that it
was merely following an investigation pa-
th, but the context and timing of possible
action, which occurred shortly after the
Kolkata conclave (a site for a show of st-
rength by almost all Opposition leaders)
escalated suspicions. Did a pattern of rel-
ative quiescence (the case against Shar-
ada chit fund multi-crore scam began in
2014) find immediacy now? This suspi-
cion can be dispelled only when some
incontrovertible details about the work-
load and the schedule of investigations
becomes known. Further, although the
government of West Bengal disbursed an
amount of `500 crore to the victims of
the scam, not much is known about vic-
tims in the markets of avarice. Does not
redressing victims of injustice remain as
important a task as pursuing those
offenders who are still at large? Does not
the tendency to engage in blame-game
make the structural issues of reform of
the sector invisible to the evangelists of
good governance? There also remains
the basic problem of delays in the crimi-
nal justice administration.
IS THE CBI A CONSTITUTIONAL
BODY?
This case illustrates the last problem very
poignantly. On November 6, 2013, Jus-
tices IA Ansari and Indira Shah of the
Gauhati High Court reversed a judgment
of a learned single justice (on November
30, 2007) and declared the very exis-
tence of the CBI ultra vires. The ruling
that “the CBI is not a statutory body”,
because “constituted under an Executive
Order/Resolution” of 1963 would mean
that only the states are “competent to
legislate on the subject of police”
and, therefore, the central govern-
ment could not have taken away the
power and “create or establish an
investigating agency, in the name of
CBI, adversely affecting or offending
the fundamental rights, guaranteed un-
der Part III of the Constitution of India”.
The Court ruled that when state action is
“neither sanctioned by a legislation nor
… taken in valid exercise of its executive
powers, the ineffaceable mandate of
Article gets smudged”.
In this case, the petitioner, Naevendra
Kumar, an employee of Mahanagar Tel-
ephone Nigam, was charged under the
Prevention of Corruption Act. He rea-
ched the appellate Bench after “a decade
of litigation”. But fate had other plans for
him. The High Court decision was stayed
at a special Supreme Court hearing by
the bench of Chief Justice P Sathasivam
and Justice Ranjana Desai, who held a
special sitting at the residence of the CJI
on February 17, 2014.
No doubt, despite some recent diffi-
culties, the CBI has emerged as profes-
sional body and has earned a just reputa-
tion for its professional expertise. Public
demands for a CBI investigation have in-
creased its reputation. To invalidate the
very existence of the CBI on the ground
that the resolution constituting it needed
presidential assent and that it could not
be treated as a police force seemed, in-
deed, a bit odd.
The Union of India argued that the
High Court’s decision will adversely im-
pact thousands of criminal cases pending
across the country; it apprehended that
the judgment would directly impact
about 9,000 trials currently underway
and about 1,000 investigations being un-
dertaken by the CBI. Also, it was argued
that if the High Court order was not
stayed, “it will frustrate the law machin-
ery and may result in multiplicity of pro-
ceedings”, adding that the 50-year-old
resolution issued by the home ministry
through which the CBI was established
had stood the test of time.
Could then the High Court have
decided otherwise? It felt it had no alter-
UNITED WE STAND
DMK leader Kanimozhi and RJD’s Tejashwi
Yadav with Mamata at the rally
TherecentSupremeCourtorderontheCBIversus
KolkataPolicematterdeftlyavoidsthelargerques-
tionofwhetherWestBengalmaywithdrawitscon-
sentfromtheCBItooperateinthestate.

JANUARY 6, 2020 19
ative because “the learned ASG as well
the learned Amicus Curiae, with com-
mendable fairness, have admitted that in
the light of the reported decisions, this
issue has never been raised, in any case,
in any other High Court or the Supreme
Court”. The High Court felt duty bound
to constitutionally adjudicate this issue.
It is now for the overburdened Supreme
Court to consider and settle this matter
of national priority.
Through the doctrine of prospective
overruling, available since the Goalk Nath
decision in 1969, the Court may render all
past actions valid (already conducted
investigations and those in the pipeline).
Further as, the High Court clearly noted,
Entry 8, List I (Union List) “definitely
empowers … Parliament to enact a law in
the form of ‘Central Bureau of In-
telligence and Investigation’ and that
such ‘a legislative competence is pre-
served under Art. 246 (1)’.”
However, the Supreme Court will have
to form a final view on the High Court
decision that “Parliament cannot, by tak-
ing resort to Entry 8 of List I (Union List),
make any law empowering a police officer
to make ‘investigation’ in the same man-
ner as is done, under the Criminal
Procedure Code...into an offence for the
purpose of bringing to book an offender”.
In arriving at its own conclusion, the Su-
preme Court may well ponder the wis-
dom of Thomas Jefferson, a founder of
the American Constitution. Justice An-
sari prefaces the judgment by the follow-
ing quote from him: “When the people
fear the government, there is tyranny.
When the government fears the people,
there is liberty.”
THE ISSUE OF FEDERALISM
Federalism has come to the fore both as a
matter of principle and detail. It has be-
en vital to drawing bright lines between
“tyranny” and “liberty”. Will it be an error
of great magnitude to revive the talk of a
hegemonic or strong centre, apt perhaps
only for the early decades of Indian fed-
eralism? Has this has now become “poly-
centric”, “multilevel” and “regulatory”?
[see, however, Balveer Arora, KK Kai-
lash, Rekha Saxena and H Kham Khan
Suan, “Indian Federalism” in KC Suri
and Achin Vanaik (eds.), Political
Science: Indian Democracy, Vol.2 (New
Delhi: Oxford University Press, 2013)].
Despite growing pains, GST has led to
the emergence of a new style of “cooper-
ative federalism”. The institutional mech-
anism of GST Council has led to a new
level of basic principles and approaches
to resourcing the state and the centre.
Some might even say that a new architec-
ture of federal design, now at work in the
Council, signifies new levels of institu-
tional engagement. The impact of new
technology on Union-States relations has
yet to be fully explored, but digitalization
especially has led to such contrary ten-
dencies as revivalism, a deepening of plu-
ralism and democracy, fake news that
promotes ethnic or political violence and
new ways of terror wars.
The 73rd and 74th Amendments have
led to different modes of political mobi-
lization and ways of grassroots gover-
nance. The ascendency of coalition go-
vernance at the center and Opposition
parties at the state-level has been a factor
of considerable importance not just for
the functioning of Parliament but stands
possessed of “federal relevance”.
In sum, the federal design of the na
tion has witnessed many basic transfor-
mations, progressively reducing, yet pa-
radoxically accelerating, central domi-
nance.
The principle and detail of federalism
have been described and declared with,
and since, Kesavananda as an essential
feature of the basic structure, which even
Parliament may not amend unless the
Supreme Court concurs. The Court was
led to this position by the extreme insis-
tence on Parliament’s absolute power to
change each and every provision of the
Constitution, including even making it a
unitary or monarchical system.
However, the Supreme Court has also
recognized Indian “asymmetric federal-
ism” in that it recognises a strong centre,
while also underscoring the importance
of diverse and plural cultures that states
embody and represent.
May one still say that federal design is
a core value and a collective peoples’
right under the Constitution and closely
linked with rights to plurality and culture
as integral aspects of Article 21 rights?
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
UNORTHODOX BUT EFFECTIVE
Delhi CM Arvind Kejriwal sitting in protest at
LG Anil Baijal’s office along with his cabinet
colleagues. He wanted the IAS officers in
Delhi to call off their strike
FEBRUARY 18, 2019

GLOBALTRENDS
NIRAVMODI
20 JANUARY 6, 2020
AfterthisbillionairefraudsterwasfoundlivinglifetothehiltintheUK,Indiascrambledtosave
faceandfightoffallegationsthattheSeriousFraudsOfficegotlittlecooperationfromit
BySajedaMomininLondon
IRAV Modi, the
fugitive diaman-
taire who ran off
with `13,500 crore
of Indian taxpayers’
money, is living the life of Riley in London
and cocking a snook at the Indian govern-
ment. Reputed British newspaper The
Daily Telegraph pin-holed the 48-year-
old businessman walking in an exclusive
part of central London without a care in
the world. Wearing a £10,000 ostrich-
hide jacket, he answered all the questions
the journalist posed with a smirk on his
face, a glint in his eye and “sorry, no com-
ment” on his lips.
The sighting of the absconder stung
the Modi government so much that the
BJP tweeted: “Many of these who cheat-
The Life of Riley
N
ed India…are living the life of fugitives
and refugees”. However, The Daily
Telegraph’s description of the billion-
aire’s lifestyle is hardly that of a refugee.
In an article headlined “Exclusive:
India’s most wanted man Nirav Modi—
accused of £1.5bn fraud—living openly
in London”, the paper reported that he is
living a “privileged lifestyle” in a plush
three-bedroom apartment costing £8
million (`74 crore). “Occupying half of
the floor of the landmark Centre Point
tower block” in London’s West End,
looking out across the city, is hardly the
address of refugees. The report also
pointed out that the monthly rent of a
property of this nature would be in the
region of £17,000 (over `15 lakh) which
is what Modi is probably paying from his
ill-gotten gains.
In fact, the UK is becoming the
refuge of Indian billionaire fraudsters—
liquor baron Vijay Mallya being anoth-
er—but none of them is living the bleak
life of refugees. Mallya, who has app-
ealed his extradition order, still flits
between his multi-million-pound town-
house in central London and his man-
sion in the Hertfordshire countryside.
Modi and uncle Mehul Choksi are
the key accused in the scam that swin-
dled Punjab National Bank out of
`13,500 crore using fraudulent Letters
of Understanding and Letters of Credit
between 2011 and 2017. They both have
several Interpol Red Notices and extra-
dition requests from the CBI and ED
pending against them.
Modi fled India with his family in the
first week of January 2018, weeks before
the scam was reported to the CBI. He
was last seen in a photograph with Pri-
me Minister Narendra Modi in Davos on
January 23, 2018, days after he had left
India.
In the two-minute video clip put out
by The Daily Telegraph, Modi looks fat-
ter than he did in the Davos photograph
and is sporting a chic handle-bar mous-
tache and beard, showing very little of
the stress of being a wanted man.
Modi, according to the report, has
started a new diamond business from
offices in Soho, an upmarket area known
for its fashionable restaurants and
nightclubs. The new company, called
Nirav Modi Limited, describes itself as a
wholesale trader in watches and jew-
ellery and a retailer of watches and jew-
ellery in specialised stores but does not
Twitter
BRAZEN PURSUITS
Nirav Modi was wearing a £10,000 ostrich hide
jacket when he was spotted in London

JANUARY 6, 2020 21
list Modi as a director.
Modi’s original exclusive diamond
boutique in Old Bond Street in the posh
Mayfair area of London continued to
function long after the scam surfaced,
and it is believed that he lived in the
apartment above the store for some time
immediately after he ran away from
India. Finally, in August 2018, the store
and the apartment were “seized on the
authority of the landlord”, by which time
Modi had already left.
T
he diamond merchant has also
managed to obtain a National In-
surance number from the Dep-
artment for Work and Pensions, thereby
allowing him to work, operate bank acc-
ounts and claim benefits like every other
long-term resident of Britain. The Daily
Telegraph questioned “why the British
government had given him a National In-
surance number and yet apparently
failed to act on the Interpol Red Notice”.
The newspaper goes on to say that Modi
“has also been in contact with a wealth
management company based in west
London, which specialises in advice to
rich foreigners”, probably to find ways to
safeguard his stolen money.
After the initial attention by the
media when the scam first broke in early
2018, Modi managed to duck the spot-
light. The Indian government was busy
focusing on Mallya. Caught off-guard by
The Daily Telegraph’s detailed revela-
tions, Raveesh Kumar, spokesperson for
the Ministry of External Affairs, ann-
ounced that India was making efforts to
bring him back. Kumar claimed that
India knew Modi was in London and
had sent a request to the British govern-
ment for his extradition in August last
year. He virtually blamed the UK for
going slow, arguing that India was wait-
ing for a response. “The fact that we
have requested the UK for the extradi-
tion of Nirav Modi means that we are
aware that he is in the UK,” Kumar told
the media in Delhi within hours of The
Daily Telegraph’s report being publish-
ed. “We first made a request for extradi-
tion based on information provided by
the ED in early August and then by CBI
in late August, the UK government is yet
to respond to MEA’s request,” said
Kumar, trying to save face.
However, according to a report on
NDTV, it is actually India which has
been going slow on the case and ignor-
ing the UK’s requests for more informa-
tion. This report suggests even before
the official request for extradition, India
had sent an alert to the UK in February
2018 under the terms of the Mutual
Legal Assistance Treaty to help it nab
Modi. This was immediately after the
CBI registered a criminal case against
Modi and his family for fraud.
The UK’s Serious Frauds Office (SFO)
which was given the case confirmed to
India as early as March 2018 that Modi
was in Britain. The SFO assigned Barry
Stancombe, a lawyer who specialises in
fraud and money laundering, immedi-
ately to the case. Stancombe and his
team wrote a series of letters to India
asking for more documents before they
could proceed, but they got no response.
Stancombe even offered to go to
India with his team to pick up the evi-
dence so that they could arrest Modi,
but there was no response to that either.
“By December 2018 Stancombe got tired
of chasing the Indian agencies and our
sources say it gave them the feeling that
India was not serious about getting
Modi back,” said Sunetra Choudhury,
political editor of NDTV. The MEA has
denied any knowledge of “the request for
any additional documents”.
On March 8, 2019, the UK Home
Office told Indian authorities that their
request to extradite Modi had been cer-
tified and it will be considered by the
Westminster Magistrates Court. After
the media expose, a red-faced Indian
government is likely to send a joint team
of the CBI and the ED to London next
month to pursue Modi’s extradition.
One step ahead, Modi has already
built his legal team in the UK. He is
believed to have hired top law firm
Mishcon de Reya—which represented
the late Princess Diana during her
divorce from Prince Charles, heir to the
British throne—to work on his request
for asylum in the UK. Modi is also
believed to have hired Anand Doobay, a
high-profile lawyer dealing with fraud,
extradition and money laundering, to
work on his extradition case.
With the extradition process being a
long-drawn-out affair, Modi is unlikely
to stop leading his “privileged lifestyle”
anytime soon.
NARROWING DOWN
Modi’s boutique in the posh Mayfair area of
London was “seized”
MARCH 25, 2019

LETTERFROMTHEEDITOR
INDERJITBADHWAR
22 JANUARY 6, 2020
N terms of nationalist dog-
ma, public pledges or agi-
tations by political par-
ties—particularly the
BJP—for the abolition of
the special status granted to the state of
Jammu & Kashmir under Articles 370
and 35A have tremendous emotional
appeal. Why, people on the street de-
mand to know, should this Muslim-ma-
jority state which seems to want to sepa-
rate from India and perhaps even join
Pakistan, be mollycoddled with provi-
sions like a prohibition on non-state peo-
ple buying land in territory that is irrevo-
cably India’s.
Actually, the BJP has itself blown hot
and cold on this issue. In Modi’s first ava-
tar as prime minister when the party was
in partnership with a regional Kashmiri
party—the PDP—these issues were put
on a backburner. The BJP’s latest mani-
festo, ushering in Modi 2, has now made
the abolition of these Articles a priority.
The irony is that many historians argue
with considerable conviction that these
Articles, far from encouraging separa-
tism, are, indeed, articles of faith which
keep J&K within India’s legal and
emotional embrace.
The people of Kashmir embraced
India and spurned Pakistan well be-
fore India embraced Kashmir. How
many people recognise this fact as
the strongest building block on whi-
ch to re-establish the trust and ca-
maraderie which made Kashmir an
irrevocable part of the Indian Union
Article 370
and all that
I in 1947?
Very few. Largely because most of us
are guided by emotion and political ex-
pediency. In today’s climate of instant
punditry, few of us want to bother to
educate ourselves to make informed jud-
gements. Prime Minister Narendra Mo-
di, much to the consternation of his crit-
ics, his support base and Hindu hardlin-
ers, appears to have taken an enlight-
ened approach towards trying to calm
things down in Kashmir on the basis of
historical realpolitik rather than jingois-
tic suitability during his first term.
His first Independence Day state-
ment was heard with great attention in
Jammu and Srinagar: “The problems in
Kashmir can’t be resolved through gali
(abuse) or goli (bullet), but only by em-
bracing Kashmiris.”
The formula for achieving this, his
former home minister, Rajnath Singh,
later elucidated, would be a “permanent
solution based on five Cs—compassion,
communication, co-existence, confi-
dence-building and consistency”. He
went even further. He actually debunked
leaks springing from his own govern-
ment that it would support a petition in
the Supreme Court seeking the abroga-
tion of Article 35A of the Constitution.
This 1954 provision amended the Con-
stitution of India to provide for special
safeguards for the permanent residents
of the state of Jammu & Kashmir.
“The central government has no-
where initiated anything with regard to
this issue (of Article 35A). We have not
gone to court. I want to say it clearly—I
am not talking only about Article 35A,
whatever our government does, we will
not do anything against the sentiments
and emotions of people here. We will
respect them,” Singh said.
This could well have been another
manifestation of the hard-side-soft-side
approach in dealing with popular
insurgencies, but it was still a move
that separated dealing with genuine
terror with force from seeking to
accommodate legitimate differ-
ences within a solution-oriented
framework. Lumping all Kashmiris
into the hardline category of jehadis
and pro-Pakistani Islamist sepa-
ratists and crushing them ruthlessly
TheBJPhasblownhotandcoldontheissueof
abolishingArticles370and35A.PMModiinhis
firsttermhadputtheseissuesonabackburner.But
hisgovernmentinitssecondtermhasmadethe
abolitionoftheseArticlesapriority.ButKashmir’s
embracewillnotbeachievedthroughsuch
simplisticandemotionally-drivenmeasures.

JANUARY 6, 2020 23
into submitting to a historical narrative
into which they cannot buy is precisely
what strengthens Pakistan and its surro-
gates. Delhi made the mistake once of
turning the war against Sikh terrorists
into a war against Sikhs in general and
paid a terrible price. Similarly, India’s
war against armed Kashmiri terrorists
often transforms itself into a war against
all Kashmiris, leaving them little room to
edge back into the space of mainstream
politics to achieve their aims. And
Pakistan gains by default.
It need not be so. Because in this case,
history has been on the side of independ-
ent India. Only, India has repeatedly fai-
led to take the historical bull by the
horns. Modi’s “five Cs” were a reiteration
of that often-used but least understood
term “Kashmiriyat”. It does not mean a
break-away from the Indian Union. It
means “dignity”. This dignity, PDP co-fo-
under and former deputy chief minister
Muzaffar Hussain Baig tells me, most
Kashmiris, deep within their hearts,
would like to have within the Indian Un-
ion. But India, instead of accepting their
embraces, pushes them away into the
arms of others through denying them
due process, playing toppling games and
rigging the democratic process. And
herein lies the irony of this vexatious
problem.
D
own the ages, the original people
of Kashmir have been the vic-
tims of foreign masters—
Afghan, Mughal, Sikh, Dogra rulers. The
crowning indignity was the sale of the
whole of the region for `50 lakh, under
the Treaty of Amritsar in 1846, by the
Paramount Power, Great Britain, to
Maharaja Gulab Singh because of his
loyalty to England. The next 100 years
saw Dogra rule, autocratic and repres-
sive, over the Kashmiri people, which
they bitterly resented and finally organ-
ised the Muslim Conference (later Na-
tional Conference) as a political orga-
nisationto gain azadi from monarchic
absolutism and establish democracy.
Their tallest leader was Sheikh Abdullah.
Mahatma Gandhi called the ceding
of the Kashmir region to Maharaja
Gulab Singh a “sale deed”. He made this
observation in August 1947, just two
weeks before India became an inde-
pendent country. When much of India
was burning and killing with pre-
Partition communal hatred, Kashmir,
still an independent country which had
joined neither India nor Pakistan, was
calm. Gandhi, on his first Srinagar visit,
called Kashmir “a ray of hope”. The only
friction in Kashmir was then between
the Kashmir freedom movement and the
monarchy backed by the British. The
movement, called “Quit Kashmir”, was
spearheaded by Abdullah’s National
Conference which had rejected the
Muslim League and Jinnah’s two-nation
theory and was pledged to Hindu-
Muslim unity. The mass agitation was
directed at replacing the monarchy with
a constitutional republic. And it had
made common cause with India’s inde-
pendence movement.
Did you know? Stone-pelting by agi-
tators did not start with the
BUILDING BRIDGES
Prime Minister Narendra Modi
interacting with a group of youth and children
from J&K in New Delhi in February 2017

24 JANUARY 6, 2020
Kashmiri youth in this century. In 1944,
when Jinnah visited Kashmir to try and
garner support for the Muslim League,
his supporters, protected by the state
police, were pelted with stones showered
on them in Baramulla by National Confe-
rence agitators who had also prepared a
garland of shoes to put around the neck
of Jinnah. The Muslim-led secular forces
of Kashmir, the most powerful mass-ba-
sed group in the Valley, were stone-pelt-
ing the future leader of Muslim-majority
Islamic state Pakistan!
By August 1947, India’s 561 independ-
ent states had acceded to the Indian Un-
ion. Maharaja Hari Singh had not yet
made up his mind. But he was tilting to-
wards Pakistan or independence. This
was largely because the leaders of the In-
dian independence movement had ba-
cked Abdullah’s “Quit India” national
movement directed against the
Maharaja and his British backers.
Pakistan’s military attempt to annex
Kashmir in October 1947 was foiled by
the Indian Army after the Maharaja,
who had fled his country for India, and
Sheikh Abdullah, who had been released
from jail and appointed Martial Law
Administrator to organise the resistance
against Pakistani invaders, agreed to
sign the Instrument to accede to India.
The Indian Union would henceforth be
responsible for Kashmir’s defence, com-
munications and foreign policy.
Kashmir would retain its internal auton-
omy and its people would decide their
ultimate fate through balloting under
Indian and UN auspices after all
Pakistani troops and invaders were
withdrawn.
Said Abdullah, with sarcasm in his
speech to the UN in February 1948: “To-
day Pakistan has become the champion
of our liberty. I know very well that in
1946, when I raised the cry of ‘Quit Ka-
shmir’, the leader of the Pakistan Gov-
ernment, who is the Governor-General
now, Mr Mohammad Ali Jinnah,
opposed my Government, declaring that
this movement was a movement of a few
renegades and that Muslims as such had
nothing to do with the movement.
“Why was that so? It was because I
and my organisation never believed in
the formula that Muslims and Hindus
form separate nations. We do not believe
in the two-nation theory, nor in commu-
nal hatred or communalism itself. We
believed that religion had no place in po-
litics. Therefore, when we launched our
movement of ‘Quit Kashmir’ it was not
only Muslims who suffered, but our Hi-
ndu and Sikh comrades as well.”
Despite the UN resolutions, Pakistan
refused to withdraw from the occupied
areas. No self-determination exercise
could be held and the relationship with
Kashmir, through a special status provi-
sion called Article 370, was enshrined in
the Indian Constitution. The provision
was later accepted by Kashmir’s Cons-
tituent Assembly which converted the
once princely state into a democratic re-
public within the Indian Union.
I
n his opening remarks to the
Kashmir Constituent Assembly,
Abdullah reiterated his state’s spe-
cial relations with India: “You are no
doubt aware the scope of our present
constitutional ties with India, we are
proud to have our bonds with India, the
goodwill of whose people and Govern-
ment are available to us in unstinted and
abundant measure. The Constitution of
India has provided for a federal Union
and in the distribution of sovereign po-
wer has treated us differently from other
constituent units. With the exception of
the items grouped under Defence, For-
eign Affairs and Communication in the
Instrument of Accession, we have com-
plete freedom to frame our Constitution
in the manner we like.
“In order to live and prosper as good
partners in a common endeavour for the
LEGITIMATE CONCERN
A protest in Srinagar by traders and
civil society to protect Article 35A in
Jammu and Kashmir
LETTERFROMTHEEDITOR
INDERJITBADHWAR

JANUARY 6, 2020 25
advancement of our peoples, I would
advise that, while safeguarding our auto-
nomy to the fullest extent so as to enable
us to have the liberty to build our country
according to the best tradition and
genius of our people, we may also by suit-
able constitutional arrangements with
the Union establish our right to seek and
compel federal co-operation and assis-
tance in this great task as well as offer our
fullest co-operation and assistance to the
(Indian) Union.”
Article 35A reinforced Article 370. It
was a confidence-building measure with
the people of Kashmir where a plebiscite
was no longer an option. As explained by
the leading independent website
Jammu-Kashmir.com, the idea that the
residents of J&K needed to be protected
was not new but had been put into effect
by the Dogra Maharaja of Kashmir, who
promulgated the 1927 Hereditary State
Subject Order.
This distinguished between state and
non-state subjects, forbidding the latter
from owning land in the state. This sepa-
ration of powers and a large degree of au-
tonomy for the state was encoded in Arti-
cle 370 of the Constitution of India and
the subsequent Constitutional Order of
1950. The 1954 Presidential order (35A)
superseded the 1950 Order and this was
accepted by Bakshi Ghulam Mohammad
of the Jammu and Kashmir National
Conference who was the prime minister
of Jammu and Kashmir at that time.
On November 17, 1956, the state leg-
islature defined a Permanent Resident
(PR) of the state as a person who was a
state subject on May 14, 1954, or who
had been a resident of the state for 10
years, and had “lawfully acquired imm-
ovable property in the state”.
Till recently, several individuals and
one NGO have challenged its legal valid-
ity. Others have called it discriminatory
as thousands of residents of J&K have
been denied basic rights such as owning
property and sending their children to
state schools because of the provisions of
Article 35A.
I
ndia’s first prime minister, Jawa-
harlal Nehru, has pointed out that
the former maharaja of the state
had stuck to this, that nobody from out-
side should acquire land there. And that
continues. “So the present Government
of Kashmir is very anxious to preserve
that right because they are afraid, and I
think rightly afraid, that Kashmir would
be overrun by people whose sole qua-
lification might be the possession of too
much money and nothing else, who
might buy up, and get the delectable pla-
ces,” he said.
That, in short, was the genesis of
Article 35A; it was a law meant to pro-
tect the people of the state from a huge
influx of outsiders. As a result, the state’s
constitution, framed in 1956, retained
the erstwhile maharaja’s definition of
permanent residents, that is: “All per-
sons born or settled within the state be-
fore 1911 or after having lawfully acq-
uired immovable property resident in
the state for not less than ten years prior
to that.”
Small wonder that the Modi govern-
ment’s pronouncement on Article 35A
during its first term drew an enthusias-
tic response from former Chief Minister
Omar Abdullah, the grandson of Sheikh
Abdullah, the founder and tallest demo-
cratic leader of Kashmir. Omar tweeted:
“This is a very important statement from
the Union Home Minister. His assur-
ance will go a long way towards silenc-
ing the noises against 35A.”
Why we lost Kashmir’s embrace after
such an auspicious beginning sealed
with blood and struggle is another story.
Searching once again for that embrace
and completely de-legitimising the Pak-
istani claim is one of the greatest leader-
ship challenges of modern India.
And it will not be achieved through
simplistic and emotionally-driven meas-
ures such as the abolition of Articles 370
and 35A.
RELENTLESS FIGHT
(L-R) Security forces gearing up for
an encounter with militants in
Pulwama in May this year; Jawaharlal
Nehru with Sheikh Abdullah
kashmirreader.com
July 15, 2019

LEAD
RTIAMENDMENT
26 JANUARY 6, 2020
WhilethegovernmenttermsthechangestotheRTIActas
“routinestreamlining”andrationalisationofprocedures,the
unseemlyhasteandsecrecyshouldnotunderminecitizens’
righttoinformationandthwartuncomfortablequestions
ByMGDevasahayam
HE Right to Info-
rmation (RTI) Act,
as its charter says,
mandates timely
response to citizens’
requests for information on what’s going
on in the government. Its basic objective
is to empower ordinary citizens, promote
transparency, seek accountability from
the government and make it work for the
people. Since it came into effect 14 years
ago, it has helped expose some of the
biggest scams the country has seen.
Mystery thus surrounds the mad
rushing of the Right to Information
(Amendment) Bill, 2019, through the
Lok Sabha and its passage within three
days of its introduction. Surprisingly, it
has now also been ratified by the Rajya
Sabha after Opposition parties failed to
put up a united front. The Congress
Parliamentary Party chairperson, Sonia
Gandhi, rightly termed it as “disempow-
ering every Indian citizen” and went on
to say that the RTI now stands on the
brink of extinction.
The amendment brings in changes
involving the salaries and tenures of
information commissioners in the states
and at the centre. As per the amendment,
information commissioners—who curr-
ently have five-year tenures (up to the age
RTI…R.I.P.
T limit of 65)—will have “terms as may be
prescribed by the central government”,
and their salaries, instead of being on a
par with those of election commiss-
ioners, will be decided by the central
government.
Arguing that the amendment was
done to “remove some anomalies in the
Act”, the government points out that the
functions being carried out by the Elec-
tion Commission (EC) and the informa-
tion commissions (ICs) are totally dif-
ferent. The EC is a constitutional body
while ICs are statutory bodies estab-
lished under the RTI Act. “We are not
interfering and will not do anything to
affect the autonomy of the institution,”
said Jitendra Singh, Union minister of
state for personnel & training. This
sounds hollow and specious. What sort
of autonomy will the ICs have once the
tenure and salary of their commission-
ers comes under the whimsical control
of the government in power?
While inaugurating the national con-
vention on the occasion of the 10th
anniversary of the RTI Act in October
2015, Prime Minister Narendra Modi
had proclaimed that the Act, by empow-
ering an ordinary citizen to question the
administration and seek information
about its actions, forms the foundation
of a vibrant democracy. He had also elo-
quently stated that this enabled the gov-
ernment to monitor its own functioning,
bringing transparency and accountabili-
ty. He then said that questioning the
government was a citizen’s right and
vital for democracy. “People should have
a right to question the government. This
will increase their faith in democracy.
We need to become proactively trans-
parent. People should not have to make
effort to get information. More openness
in government will help citizens. In this
day and age, there is no need for secrecy,”
Modi said.
How ironic that Wajahat Habi-
bullah, India’s first chief information
commissioner (CIC), has this to say
now: “It is in recognising the critical role
NO DILUTION
A protest against RTI Act amendment in Delhi

JANUARY 6, 2020 27
of the ICs that Parliament thought fit to
stipulate their salaries and allowances
and specify their tenure in the RTI Act
itself. Parliament framed this scheme to
ensure that the ICs would work without
fear or favour in an autonomous manner,
particularly because in nine out of 10
appeal cases, the government or a public
sector undertaking is a party. The present
amendment demolishes it all.”
Strangely enough, the government
introduced the amendment in complete
secrecy and in flagrant violation of the
Pre-legislative Consultation Policy which
mandates public disclosure and consulta-
tion on draft legislation. Owing to the
undemocratic method of its introduc-
tion, the contents of the draft amend-
ments were not known to MPs, citizens
and the media till the Bill was circulated
to Lok Sabha members on the eve of its
introduction.
Eminent social activist Aruna Roy,
the force behind the RTI Act, has this to
say: “The status of information commis-
sioners was extensively discussed during
the formulation of the law, including in
the Standing Committee. In fact, the
Committee opined, ‘IC is an important
creation under the Act which will exe-
cute the laudable scheme of the legisla-
tion…It should, thus, be ensured that it
functions with utmost independence
and autonomy.’ It recommended that to
achieve this objective, it would be desir-
able to confer on the central chief infor-
mation commissioner and information
commissioners, status of the chief elec-
tion commissioner and election com-
missioners, respectively. The commit-
tee’s recommendation was accepted and
passed by Parliament unanimously
through an extensive process of public
and Parliamentary consultation.”
The present government, within
weeks of assuming power, calls this an
“anomaly” and seeks to remove it over-
night in a stealthy manner. Why this
supersonic speed, unseemly haste and
determination to amend the law? Obv-
iously, someone is afraid of the RTI Act!
I
n the mid-1960s, there was a popu-
lar play titled Who’s Afraid of
Virginia Woolf?, a parody of the
song from Walt Disney’s The Three
Little Pigs. The story revolves around
two couples trying desperately to sup-
press a certain truth, which to their con-
sternation manages to come out, leading
to thunder and fury. In her writing,
Woolf attempts to expose the truth: all
of the things that the couples try to
Anil Shakya

28 JANUARY 6, 2020
cover up. When the couples sing the song
together, they make mockery of their
own fear of the truth and are attempting
to project a false image.
Do we see a parallel with the present
government and the EC? Indeed, we
should. Particularly in the context of
speculation that it is due to differences
between the EC and the ICs that the gov-
ernment thought it fit to bring about this
amendment. If the objective is just
to remove any “anomaly”, it could have
been done in a routine manner in full
public view. Why this guilt, tearing hurry
and secrecy?
Therein lies the tale of the recent Lok
Sabha polls which were devoid of basic
elements of integrity. There is deep sus-
picion about extensive manipulation of
electronic voting machines (EVMs)
aided and abetted by the EC itself. The
issue was serious enough to prompt 64
former civil servants (many of whom
have conducted and supervised elec-
tions) belonging to the Constitutional
Conduct Group to write to the EC, inter
alia, stating that: “The 2019 general
election appears to have been one of the
least free and fair elections that the
country has had in the past decades...In
the past, despite the efforts of criminal
elements, musclemen, and unscrupulous
politicians, the persons who graced the
EC did their best to ensure that elections
were conducted as freely and fairly as
possible. In this general election, how-
ever, an impression has gathered ground
that our democratic process is being sub-
verted and undermined by the very con-
stitutional authority empowered to safe-
guard its sanctity. It was rare in the past
for any serious doubts to be raised about
the impartiality, integrity and compe-
tence of the EC. Unfortunately, the same
cannot be said about the present EC and
the way it has conducted the 2019 gener-
al election.”
And though suppressed in main-
stream media, there has been an ava-
lanche of allegations and charges against
the EC and several public campaigns
have been launched to take the
Commission to task in order to save
democracy. In the process, there will be
a spate of RTI applications to the EC
and appeals before the ICs to ascertain
facts and information in order to acti-
vate these campaigns as well as to seek
remedies through courts of law. The EC
has already started to feel the heat and
has resorted to bluff and filibuster.
A typical case is the reply received by
The Quint for their RTI query to the
EC, seeking information and docu-
ments on the VVPAT count data during
the Lok Sabha election: “Polling sta-
tion-wise data of Lok Sabha Election-
2019 is not available with the
Commission. It may be available with
the CEOs of all states/UTs. You may
obtain information from the office of
CEOs of the states/ UTs by submitting
an application under the RTI Act, 2005,
separately. Your application cannot be
transferred to them as more than one
PIOs are involved u/s 6 (3) of the RTI
Act, 2005.”
This absurd reply came even as the
circulars issued by the EC itself say that
all chief election officers (CEOs) are to
submit their VVPAT data to it within
seven days from counting day. So why is
the data “not available” with it?
The central information commission
order says that even if multiple PIOs are
needed to share the information, it is the
responsibility of the PIO in possession of
the RTI query to transfer it to the rest of
the PIOs. So why did they claim they
cannot transfer the request to more than
one PIO? Why is the EC attempting to
hide the massive mismatch between the
EVM count and VVPAT slips by refusing
to share this crucial data?
T
he EC also seems to be in some
sort of panic. How else can one
explain the conflicting state-
ments issued by it regarding the mis-
match between the EVM vote count and
VVPAT slips? On May 26, 2019, the EC
said that there was no mismatch but on
July 22, it admitted there were eight
mismatches. To boot, the EC has com-
menced a Goebbelsian mode of publicity
blitzkrieg extolling the virtues of EVMs
through paid advertisements! All these
indicate that there must be something
very rotten and there are many skeletons
in its closet.
It looks as if after having committed
a grievous assault on democracy, the EC
is now caught between a rock and a hard
place. And the political bosses and ben-
eficiaries of this election have come to its
rescue to wipe out the autonomy of ICs,
only to conceal the misdeeds of the EC.
Clearly, the first is being sacrificed at the
altar of the latter!
The issue basically is: Should the
truth about the arbitrary, autocratic and
partisan functioning of the EC be
brought out in the open and made pub-
lic? A la Virginia Woolf, the ICs would
be for revealing the truth which the EC
is desperately trying to suppress and
cover up. When the EC mocks the ICs, it
is expressing its own fear of the truth
and is projecting a false image before the
people. So, who is afraid of the RTI Act?
Do we need a jury?
—The writer is a former Army
and IAS officer
THE BIG REVEAL
The Adarsh housing society scam was exposed
through RTI
AUGUST 5, 2019
LEAD
RTIAMENDMENT

LEAD
LEGALLEADERSHIPCONCLAVE
30 JANUARY 6, 2020
Arbitration and
Mediation: Need
of the Hour
Thesetwoformsofalternativedisputeresolutionareimportantforthejudiciarystrugglingto
tacklependency.Thebestoflegalmindsdiscussedhowtomakethemmorepopular
ByIndiaLegalBureau
MEMORABLE OCCASION (From left) Justice Shivraj V Patil, former judge, SC; PK Malhotra, former law secretary; Justice TS Thakur, former chief
justice of India; Rajshri Rai, editor-in-chief, APN ; Inderjit Badhwar, editor-in-chief, India Legal ; and Justice MN Venkatachaliah, former chief justice
of India, at the lamp lighting ceremony of the Legal Leadership Conclave

JANUARY 6, 2020 31
He further said that the monetary loss
due to delays in solving cases was signifi-
cant and reiterated that institutions,
administration of justice and their me-
thods need a strong second look. “Law is
said to be one generation behind the
needs of the times; the courts are two
generations behind and the judges
three!” he said.
Justice Venkatachaliah emphasised
that arbitration and mediation must
become the new “mantras” for judicial
salvation. He said this would help in re-
ducing pendency. Just allocating five per-
cent of the money spent on the judiciary
for arbitration and mediation would ben-
efit people enormously, he said.
E
mphasising the maximum use of
technology and its new tools in
the dispute resolution mecha-
nism, he said that Artificial Intelligence
(AI) would be extremely beneficial and
influence all spheres of life. Technology
would become the driving force behind
all institutions, he said, including the
administration of justice.
Drawing the attention of legal lumi-
naries present at the event, Justice Ven-
katachaliah said that this technology
would also be the driving force behind
the administration of justice and would
need a new category of judges who are
well-versed in the technological domain.
Highlighting the importance of the
Conclave, Justice Venkatachaliah said
that “eminent men of law had assembled
at the event to bestow serious thought on
one of the vexed issues of how traditional
legal methods should be supplemented
by more civilised and humane philoso-
phy of conflict resolution in India”.
Former Chief Justice of India TS Tha-
kur, who was the Chairperson of Tech-
nical Session I, “Arbitration — Journey
from 1940 to 2019”, apprised everyone
about the existing scenario of arbitration
in India. His insightful comments were a
candid take on the arbitration scenario in
India. He summarised the observations
of each speaker, showing his mastery
over the subject.
Justice BN Srikrishna, a former judge
of the Supreme Court, who headed the
high-level committee whose recommen-
dations led to the Arbitration and Conci-
liation (Amendment) Bill, 2019, said that
the autonomy of parties in the arbitration
process was extremely critical and state
authorities should take a back seat.
FTER the suc-
cessful comple-
tion of the west-
ern chapter of the
Legal Leadership
Conclave in Mu-
mbai in April this year, its southern
chapter was held in Bengaluru on August
17 with a subject that was important and
relevant for the judiciary today—“Chall-
enges and Future of Arbitration and
Mediation in India”.
These conclaves are a series of discus-
sions and events held on a wide range of
contemporary legal issues where judges,
legal luminaries and other thought lead-
ers exchange views. The Bengaluru Con-
clave was presented by India Legal Res-
earch Foundation, a non-profit orga-
nisation committed to bringing justice to
those who deserve it but cannot afford it,
and was partnered by the ENC Group
along with APN and Nepal 1 as media
partners.
Arbitration and mediation could not
be more appropriate subjects for the
Conclave considering the staggering
number of cases that the judiciary is bur-
dened with. Both are the most popular
forms of Alternative Dispute Resolution
(ADR) and have become a credible alter-
native to the system of cases being decid-
ed by courts.
Justice MN Venkatachaliah, former
chief justice of India, in his inaugural
address, said precisely this. He said:
“There are about 34 million cases in the
22,600 subordinate courts in India. Ten
percent of that is in the high courts,
about 60,000 in the Supreme Court. The
World Justice Report 2019 (Rule of Law
Index) gave India 68th place amongst
126 nations on an evaluation of eight cri-
teria. ‘Civil justice’ is one of them.... In
India, the solution is possible if there is
some authority that owns the problem. It
is too serious a matter to be left alone to
the judges….”
MAN OF THE MOMENT Justice Venkatachaliah at the inaugural session of the Conclave
A

32 JANUARY 6, 2020
While speaking on the sub-topic
“Challenges and Reforms in Indian
Arbitration and Mediation System —
Way Forward” in Technical Session I, he
lamented the domination of judges in
arbitration and said that the less they
interfered, the better it would be for the
spirit of arbitration in India. He also ca-
lled for more institutional arbitration in
India and said that the time has arrived
for arbitration and mediation.
Responding to the use of AI in arbi-
tration, Justice Srikrishna said that natu-
ral intelligence could still play an impor-
tant role through its human touch. While
welcoming the amendments in the new
law, he said that issues still remain as the
government had not fully implemented
the recommendations of the committee.
J
ustice Alok Aradhe of the Karnata-
ka High Court, while speaking on
the “Challenges to Arbitral Awards
— Commercial Courts and Need for
Training of Judges” said that arbitration
was not a new concept for our country.
Its reference could be found even in the
Upanishads. Today, it is a dominant me-
thod to resolve disputes, including com-
mercial ones, he said.
He said that a key challenge is that a
new regime of alternative dispute reso-
lution is yet to be implemented and
understood in spirit and not just in law
in India. This can be resolved by learn-
ing from international practices. He too
emphasised training of judges at all lev-
els, sufficient government support, pro-
per legal framework for arbitration, ad-
vantages offered by arbitration institu-
tions, experienced and skilled panel of
arbitrators, institutional arbitration and
less interference from the judiciary.
Judges should be sensitised about the
impact of their interference in arbitra-
tion. The issue of judicial scrutiny of
awards needs to be resolved, he said.
He said that existing arbitration
institutions had done well in India and
litigants now look forward to them.
India must show to the world that it is in
FRUITFUL INTERACTION Justice Shivraj V Patil, Justice Thakur and
Justice BN Srikrishna at Technical Session I
LEGAL ANGLE Justice Alok Aradhe, judge, Karnataka High Court, and
Justice Shivraj V Patil at the Conclave
LEAD
DISTINGUISHED PANEL (L-R) Justice BV Nagarathna, judge, Karnataka High Court; Justice P Vishwanath Shetty, Karnataka Lokayukta; and senior
advocate Sriram Panchu at Technical Session II on mediation, an effective tool of dispute resolution

JANUARY 6, 2020 33
An Effective Tool of Dispute Resolution”,
said that speakers on the panel were all
distinguished persons in their fields and
their thoughts would be valuable for all.
Justice BV Nagarathna, judge,
Karnataka High Court, while speaking
on “Mediation: Achievements and Cha-
llenges”, said that the challenge lies in
accepting mediation as a method of solv-
ing disputes among litigants and sought
due importance for it. She said that along
with providing the right climate and
infrastructure, training of persons taking
up mediation was vital. This includes
imbibing legal knowledge and skills.
Lack of proper trainers and referrals,
absence of suitable legislation, resistance
of judges and lawyers towards mediation,
poor funds and the unacceptable conduct
of mediators are some of the other chal-
lenges that need to be addressed. She
emphasised that a pre-arbitration medi-
ation scenario should be available where-
in litigants could be persuaded to try out
mediation before opting for arbitration.
She said that even the apex court
encouraged state governments and the
central government to take action for
bringing into effect ADR. One of the re-
medies found by the legislature to reduce
“docket explosion” in courts is mediation,
she said.
A well-known mediator and senior
advocate, Sriram Panchu, while speaking
on “Arbitration and Mediation: Strange
Bedfellows or Harmonious Partners”,
said that mediation and arbitration com-
bine the best of both worlds. High-
lighting the merits of mediation, he said
that the time and cost involved are much
less, the process in which a solution is
sought is workable and most of all, rela-
tionships are salvaged. He said that there
was scope for mediation even while the
arbitration process was on and awards
yet to be granted by a tribunal. To struc-
ture mediation is the need of the hour,
he said.
Panchu even suggested that media-
tion could be taken up as a career option.
That would instil expertise and commit-
ment as there was a dearth of ex-
sync with the international perspective
of resolving matters expeditiously thro-
ugh ADR.
Justice V Jagannathan, a former jud-
ge of the Karnataka High Court, while
speaking on “Arbitration as an effective
tool for ADR process” said India was
moving towards arbitration revolution.
Arbitration as an ADR is a boon for the
people of India considering the backlog
of cases and particularly for investors.
Uday Holla, former advocate general,
Karnataka High Court, spoke on “Global
Trends in Institutional Arbitration —
Challenges and Reforms in India”. He
said that there was a need for a change of
mindset among judges as far as arbitra-
tion was concerned. Time is of utmost
importance and arbitration cases can’t be
allowed to linger endlessly.
Referring to global trends, he said
that technology must be used abundant-
ly, there was a need for institutional arbi-
tration, empowering tribunals and incor-
porating the best practices in the world.
The new amended Arbitration and
Conciliation (Amendment) Bill, 2019,
was welcome, though it is a baby step,
he said.
Avinash Amble, considered an expert
on Artificial Intelligence, while speaking
on “Use of Artificial Intelligence in Con-
flict Resolution”, said that AI is actually
three centuries behind as far as conflict
resolution is concerned. AI doesn’t learn
when presented with conflicting situa-
tions like the judicial system does. It can
only present a forward probability. So the
AI of tomorrow is coming up with “ad-
versarial inference”. However, he referred
to a mock case where AI was pitched ag-
ainst a parallel court judgment in a case
and the punitive damages were almost
the same, even though both adopted dif-
ferent procedures and methodology. He
said AI was incapable of “equitable dis-
tribution to all”, which an ADR forum in-
tends to achieve.
J
ustice Shivraj V Patil, former Sup-
reme Court judge and co-chairper-
son of the session, said that ADR is
not only desirable but inevitable consid-
ering that pendency is increasing at an
alarming rate. Factors like time, cost,
simplicity of procedures and an efficient
system are vital, he said. The question
arises as to how to take it forward.
He said the deliberations at the
Conclave must inspire everyone to pon-
der these: What Next? What More?
What Else? Besides the law, the people
who implement it and the system are eq-
ually important to make it effective,
he said.
Justice P Vishwanath Shetty, the
Karnataka Lokayukta, while inaugurat-
ing Technical Session II, “Mediation —
VOTE OF THANKS (L-R) Rajshri Rai; PK Malhotra; former CJI Justice Rajendra Babu; Inderjit
Badhwar; and Pradeep Rai, senior advocate, SC, and Chairman, ILRF, at the Conclave

34 JANUARY 6, 2020
perienced mediators. Paying them well
was also a major requirement. The need
to generate faith amongst litigants in
mediators is vital, he said. But mediators
too must do their job properly and be
made accountable. Most of all, they
should never become arbitrators as con-
fidentiality is breached.
Shiv Kumar, senior advocate, while
speaking on “Med-Arb: Need for Statu-
tory Reforms and Training”, suggested
various amendments in current laws to
provide importance and recognition to
Med-Arb. He lamented that there was
still no statutory definition of mediation
or arbitration in law books.
He demanded a comprehensive code
on ADR or Dispute Resolution Code and
suggested an ADR service on the lines of
the Civil Services.
S
umming up the Session, Justice P
Vishwanath Shetty urged everyone
present at the Conclave to ponder
the views expressed by the speakers and
put on their thinking caps and chart the
future course of action. He said there was
a dire need for persons committed to
mediation as it is they who could bring
in change and success. For example, no-
body was aware of the Election Commi-
ssion till TN Seshan took over.
A section of mediators can bring in
reforms in their own way. As no dispute
is the same, new thinking is required on
the part of mediators. There is also a
need to find new tools for effective medi-
ation. But most of all, mediators must
leave their egos aside, exercise patience,
use their persuasive skills, earn the good-
will and confidence of litigants, com-
mand sound legal knowledge of their
domain and be accountable for their job.
Absolute trust among the litigants in
mediators is a must in helping to settle
disputes, he said. He also emphasised an
ethical code for mediators just like advo-
cates. He also laid stress on the training
process and insisted there was a need for
a large number of trainers.
He said that it was time that media-
tion was taken up as a profession, with
attractive remuneration.
Justice Rajendra Babu, former CJI,
while speaking in the Valedictory Session,
said that the arbitration process never
comes to an end when taken up by retired
judges. He wondered about the success of
the arbitration process in the light of new
amendments and suggestions.
He asked members of arbitration tri-
bunals to not only decide on the matter
but to try and bring about rapprochement
among parties and said that arbitrators
must fulfil the role assigned to them.
LEAD
ANOTHER PERSPECTIVE Union Minister for Road Transport and Highways Nitin Gadkari
addressing the audience through a live feed from New Delhi
SHARING HIS EXPERIENCE Justice Rajendra Babu at the Valedictory Session of the Conclave
SEPTEMBER 2, 2019

MYSPACE
SEDITIONCHARGES SHIVVISVANATHAN
36 JANUARY 6, 2020
Withseditionchargeson49intellectualsforwritinganopen
lettertothePM,maybeitistimeforthejudiciarytoerasethe
ideasofseditionsothatdissentcanflower
NDIA as a society creates
its own sense of legal spoof,
a continuation of the surre-
al and the sinister, a mix of
Alice in Wonderland and
Kafka. The ridiculous and
the sublime combine to add to the mean-
inglessness of memory and events.
Probably the most banal and surreal
event marking the 150th anniversary of
Gandhi was the sedition charge against
49 intellectuals. The rest of the events
can be reeled off as anecdotes. But this
has the special quality of a fable.
These intellectuals, including Aparna
Sen, Adoor Gopalakrishnan and Rama-
chandra Guha, wrote an open letter to
the prime minister in July expressing
concern over mob killings. It was a sim-
ple letter, more of concern and care, than
Re-igniting Debate
I an act of protest. It was like highlighting
an event for discussion and in fact,
marks one of the rituals of democracy. It
assumes a society of free speech and a
state with some modicum of civic
responsibility. One has to state that the
act was only a letter and not a satyagra-
hic act of fasting, a mere letter by 49 in-
tellectuals, sounding more like an objec-
tion to table manners than a critique of
political ethics. It dropped like a stone in
a silent pond. A chief judicial magis-
trate, Surya Kant Tiwari, in Muzaffarp-
ur, Bihar, chose to admit charges against
it on a petition filed by a lawyer. The
police, though, recommended closure of
the case against them.
Sedition and debates on it in India
have a curious resonance. The Imperial
regime attempted to convict most of our
national leaders on grounds of sedition.
This galaxy includes Bal Gangadhar Til-
ak to Mahatma Gandhi for his writings
in Young India. At one level, the magis-
trate has paid a compliment to this list
of intellectuals by elevating them to that
level.
For the Indian national movement,
the label sedition evoked the arbitrari-
ness of the British regime which con-
demned and prosecuted any act evoking
“dissatisfaction” or “disloyalty to the gov-
ernment”. The mere memory of this era
and the fact that this year was the 150th
anniversary of Gandhi should have
made the magistrate pause. Memory,
after all, evokes ethics, tradition and
precedent and law has never been indif-
ferent to it.
The letter was an act of concerned
citizens objecting to mob lynching, one
of the obscenest acts of violence one can
think of. In one quick moment, the mag-
istrate raised a whole series of questions
about dissent, violence, memory and the
very ethos of democracy as we confront
it today.
When one thinks of mob lynching,
one has to confront the silence and the
SILENT PROTEST Aparna Sen, Adoor Gopalakrishnan (centre) and Ramachandra Guha are among the 49 signatories to the letter to the PM

India Legal - 6 January 2020

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