India legal 06 april 2020

1. NDIA EGALL STORIES THAT COUNT I April6, 2020 dolegalprovisionsortheConstitutionallowthegovernmenttotakemore seriousmeasuresthana21-daytotallockdownifthepandemicworsens? howKeralaisshowingtheway doesstampingofforearmsandpastingofquarantinenoticeson residencesviolatehumanrights? thecurse oftheblackmarket theSAARCinitiativeonCOVID-19andwhyPakistanisplayingspoilsport TheCOVID-19Emergency Bank Failures: Scope for scams

4. 4 April 6, 2020 UARTZ Africa editor Yinka Adegoke recently penned an astute little essay on the universality of pandemics. “I’m getting messages from friends in Lon- don, Madrid, Lagos and other places, who are reading news reports and asking if we’re okay because we’re in New York,” he said. “But I’m thinking the same about them. It’s something about the psychology of fear and how we transfer it onto others.” Quartz editorialised that it is indeed riveting “how a pandemic both cements and renders moot our physical distance from one another. Friends in New York and London, Lagos and Madrid can be stuck thousands of miles apart, but are going through variations of the same experience. The fear is global, but so is the community. It’s an unfortunate but not entirely un- pleasant camaraderie, like being trapped in a broken elevator with the whole planet.” In this issue of India Legal, we devote an entire package, written and compiled by some of the best in the business, of the multi-faceted ele- ments of this scourge as it descends on the hud- dled multitudes of India. There is still debate on whether the miasma permeating the subcontinent is the malodorous stench of a community spread yet to manifest its true diabolical spread. Every second, across the globe, we are losing people we love to COVID-19 —from New York to Milan to Tehran. I mention Tehran with the deepest sorrow because in this hour of humanity’s collective grief, when countless thousands of jobless work- ing class Indians are being turned into hungry refugees in their own land as they trek hundreds of miles to find succour and shelter as the more affluent cities shut them out, Iran too, suffers egregiously. India and Iran are civilisational countries with a richly shared past, heritage and culture. Today our sister nation, suffering the worst rav- ages of the shared pandemic, and in need of the warmth and friendship of us all, is sought to be TO IRAN WITH LOVE Q Letter from the Editor LOOKING FOR SUCCOUR (Below left) Iran has been devastated by COVID-19 and the US sanctions will severely restrict life-saving medical supplies and emergency medical relief to that country; (below right) a protest to lift the sanctions against Iran in the US Inderjit Badhwar UNI Medea Benjamin

5. | INDIA LEGAL | April 6, 2020 5 isolated by US President Donald Trump politi- cally and economically. An international effort is now underway through a mass online petition being circulated by “Win Without War” that deserves the support of the world community. The organisation was founded in 2002 in opposition to the impending American invasion of Iraq. The coalition was previously run by former US Representative Thomas Andrews (D-ME), and its current director is grassroots advocate Steven Miles. The petition says: While people everywhere scramble to self-iso- late, patch together emergency medical supplies, protect workers, and care for our loved ones, 80 MILLION Iranians are facing an even greater barrier to being able to respond: US Sanctions. US sanctions on Iran severely restrict life-saving medical supplies, including COVID-19 emergency medical relief like protective gear and ventilators. Even with exemptions for humanitarian aid, companies are not able to navigate complex regulations in order to get the aid in. And it’s predicted that if more is not done to slow the spread of the virus, such as lifting sanctions strangling Iran’s economy, at least 3.5 million people in Iran will die of COVID-19. That’s why a group of representatives, led by Rep. Alexandria Ocasio-Cortez, just dropped a bicameral letter in Congress calling on Sec- retaries Mnuchin and Pompeo to suspend sanctions on Iran for 120 days. They plan to deliver it to Secs. Mnuchin and Pompeo. We don’t have much time—will you urge your members of Congress. Temporary suspension of sanctions on Iran isn’t just an idealistic dream. We’ve already seen it happen before. During both the Bush and Obama administra- tions, sanctions were temporarily suspended to allow emergency relief in after devastating earthquakes. And today’s coronavirus pandemic is likewise an undeniable EMERGENCY. That’s why in response to today’s emergency, we should once again reach across borders, and take care of each other. Luckily there are more and more stories in the press on the impacts of US sanctions on the Iranian COVID-19 response. If we can get members of Congress to add their voices to this building momentum today, we can create pres- sure from all sides to push Secretary Mnuchin to do so. Let’s be real, right now things are hard, everywhere. But you are not alone in your fear, or your heartbreak right now. And it’s important, now more than ever, that we continue to come together, to take care of each other across the street, across the country, and across the world. Today let’s reach across borders and say loud and clear: You are not alone in this. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com AgroupofrepresentativesintheUS,ledbyAlexandriaOcasio-Cortez (above),hasdroppedabicameralletterintheUSCongress,callingon SecretariesMnuchinandPompeotosuspendsanctionsonIranfor120days. TheletterseekssupportfromtheCongresstoachievethisurgentobjective. twitter.com

6. 6 April 6, 2020 ContentsVOLUME XIII ISSUE21 APRIL6,2020 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Junior Sub-editor Nupur Dogra Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Do legal provisions or the Constitution allow the government to take more serious measures than a 21-day total lockdown if the COVID-19 situation worsens? Is this ground to declare an emergency? How Far Can the Government Go? LEAD 10 The pragmatic way in which Kerala has handled the pandemic at the health, economic and social levels is probably the only way to halt its rapid stride and should be followed by other states 14 Showing the Way

7. | INDIA LEGAL | April 6, 2020 7 Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE Cover Photo: UNI REGULARS Ringside............................8 Courts ...............................9 International Briefs ........32 Media Watch ..................37 A Council of Nominees? 40 The Direct Tax Vivad Se Vishwas Bill, 2020 will try to resolve IT disputes, bring in much-needed revenue for the centre and resolve the issue of cash hoarded during demonetisation. It all depends on how it will be implemented Litigation Dilemma SEMINAR An India Legal editorial had said that the economy had entered a full-blown recession. Neither the budget nor politicians were able to cope with it. This was reiterated by experts at a seminar held before the coronavirus impact 28 The Stark, Searing Reality... 18 A petition filed in the SC has alleged that sanitisers and masks are in short supply due to black marketing and asked the top court to ensure fairness in supply and retail A Black Deed 22 Scams, Failures & Other Matters Various bank scams have shown that breaking contracts may be rewarding. But quick identification of contract violators and awarding deterring and just punishment should be the main priority 38 Leaving a Mark While stamping the hands of those quarantined may seem an obvious method to prevent them from straying outside, they too have a constitutional right to live with dignity and without stigmatisation COLUMN Even as polls to the Rajya Sabha are to be held on March 26, its original vision and design have changed as anyone can contest irrespective of domicile. It is no more a council of states but of politicians OPINION 34 The country’s call for regional cooperation on the coronavirus through the SAARC initiative was welcomed by all except Pakistan which has still not announced its contribution India Takes the Lead 24

8. 8 April 6, 2020 Anthony Lawrence RINGSIDE “We Are One”

9. | INDIA LEGAL | April 6, 2020 9 Courts In yet another step related to the coronavirus outbreak, the Supreme Court ordered that the limitation period for filing appeals against High Court orders or any tribunal in the top court will stand extended possibly indefinitely and this would not render any appeal time-barred in a situation of shut- down in many areas in the country. A bench headed by Chief Justice of India SA Bobde and comprising Justices L Nageswara Rao and Surya Kant said: “We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/ Tribunals within their respective jurisdiction.” The apex court also issued a notice to all the registrar generals of the High Courts, returnable in four weeks. The top court had taken suo motu cogni- sance of the situation arising out of the challenge faced by the country on account of the outbreak of COVID-19 and resultant difficulties that may be faced by liti- gants across the country in filing their petitions. SC extends limitation for filing appeals against HC orders The Supreme Court asked the states and Union Territories (UTs) to set up a panel to determine which categories of prisoners could be temporarily released to control the spread of COVID- 19. The apex court noted “a high risk of transmission of COVID-19 to prison inmates”, with prisoners, prison staff, families of prisoners and lawyers entering and leaving the jails frequently. The apex court asked the states and UTs to submit written replies on steps being taken to prevent the spread of the pandemic among prisoners and juve- niles. It suggested that prisoners con- victed of or charged with offences involving jail terms of seven years or less could be considered for parole or interim bail. The same day, the Delhi government informed the Delhi High Court in response to a public interest litigation that it would amend rules to enable prisoners who had served a year of their sentence and undertrials who had been in jail for three months to avail of parole or furlough, in cases of specific offences. Tihar Jail authorities said they would try to release about 3,000 prisoners in the next few days to contain the spread of the coronavirus infection as the number of positive cases rose across the country. They will be released under parole or furlough or on interim bail. SC orders release of prisoners to decongest jails Evicted from Shaheen Bagh, where they had been on an anti-CAA agitation for over 100 days, the protesters have addressed a letter to the judges of the Supreme Court to bring to their notice “forcible removal” by Delhi Police which “was a dispropor- tionate action in the time of coronavirus”. In the letter, the protesters said they had already decided to vacate the protest site in view of the “em- erging situation with respect to COVID-19”, except for two or three women who would remain present to symbolise the protest. These women would observe the necessary physical distance and other precautions to guard against the coronavirus, the letter said. “While we understand the need for stricter imposition of curfew and enforcement of pertinent restrictions, the ruthless dismantling and thought- less destruction of the markers of our physical protest, especially the very structures whose placement is in question in a matter that is sub judice in the SC, reeks of strong vendetta and ill feelings towards our innocent protesters, locals and sym- pathisers” they told the judges. Shaheen Bagh protesters write to SC —Compiled by India Legal team

10. Lead/ COVID-19 Crackdown 10 April 6, 2020 OR the first time in India’s history, a 21-day total lockdown has been imposed to fight the deadly COVID-19 pandemic. On March 24, Prime Minister Narendra Modi announced measures to curb the spread of this virus among India’s 1.3 billion population. He also stated that this lockdown would be curfew-like. The outbreak of this virus has had far-reaching consequences all around the world and affected different spheres of life—economic, financial, political, educational, travel and tourism, avia- tion and most of all, health. Drastic prohibitory measures have been taken by both the central and state governments to limit the spread and transmission of the virus. But even these measures have not been able to ensure total compliance by citizens. In fact, soon after the prime minister’s speech, visuals of people crowding around shops to buy essential supplies were seen, defeating the very purpose of the curfew. The question then is whether India has enough laws to demand strict compliance as is required in the present situation. The 21-day lockdown was imposed by invoking the National Disaster Management (NDM) Act, 2005. The Union home ministry has also issued regulations to ensure strict compliance and enforcement of the lockdown invoking the same Act, the violation of which can result in imprisonment of up to two years. The objective and purpose of the NDM Act is to manage disasters, How Far Can the Government Go? DolegalprovisionsortheConstitutionallowthegovernmenttotakemoreseriousmeasuresthana 21-daytotallockdownifthepandemicsituationworsens?Isthisgroundtodeclareanemergency? By Srishti Ojha BAN ON MOVEMENT The Delhi-Meerut Expressway after the lockdown imposed by the government F Photos: UNI

11. | INDIA LEGAL | April 6, 2020 11 including preparation of mitigation strategies, capacity-building, etc. The Act defines a disaster as a “catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man- made causes”. The definition also states that the disaster should have resulted in “substantial loss of life or human suffering or damage to property and environ- ment to such an extent that it is beyond the coping capacity of the affected area”. The centre has declared COVID-19 as a “notified disaster” and as a “critical medical condition or pandemic situation”. This will allow the government to use the National Disaster Response Fund to contain the rise in COVID-19 cases and to make policies at the national, state and district levels. Before the complete lockdown was announced, partial restrictions were imposed by state governments in the last two weeks on the centre’s direction. These lockdowns were imposed by invoking the 123-year-old colonial-era law, the Epidemic Diseases Act, 1897. They included Punjab, Nagaland, Maharashtra, Delhi, Uttarakhand and Telangana. Partial lockdowns were also imposed by Chhattisgarh, Uttar Pradesh and Goa. The Epidemic Diseases Act was meant to prevent the spread of dangerous epidemic diseases and consists of only four sections. The centre had already advised states to use it to make their coronavirus advisories more strin- gent. It was used by states to restrict movement of people. This law has been invoked in the past too by states to control the spread of H1N1 (swine flu) and other such diseases. Maharashtra invoked this Act in 2009 to combat the outbreak of swine flu and Chandigarh to control dengue and malaria in 2015. The Act empowers the centre and state governments to take measures to control further spread of the disease. Section 2 of the Act says that when the centre “is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease”, it may take measures and prescribe regulations. Under this Section, Delhi and Hima- chal Pradesh announced the Delhi Epidemic Diseases COVID–19 Regu- lations, 2020, and the Himachal Pra- desh Epidemic Disease (COVID–19) Regulations, 2020, respectively. Maha- rashtra too announced the Maharashtra COVID–19 Regulations, 2020. Section 2A of the Act gives power to the central government to inspect (any ship or vessel) and even detain persons if necessary. Section 3 makes it a crimi- nal offence to disobey any regulation or order under the Act. The punishment is in accordance with Section 188 of the Indian Penal Code, which provides for simple imprisonment of one month and a fine of Rs 200 for violating an order of a public servant. Imprisonment of six months and a penalty of Rs 1,000 can also be imposed depending on the impact that the disobedience has. Other than the fact that there is no recent statute to govern protection and regulation against spread of such pandemic diseases, there is also the inabili- ty of the centre to impose laws and regulations regarding healthcare on states. This is owing to the federal structure of Indian democracy and the fact that “public health” is listed in the State List in the Seventh Schedule of the Constitution. The Epidemic Diseases Act, however, can only help the government a little when inspection, quarantine or penalty has to be imposed. But do legal provisions or the Constitution allow the government to take more serious measures if the situation worsens? Can the centre declare a health emergency in India? Can a pandemic or an epidemic be a ground to declare an emergency? T he provisions regarding proclamation of emergency can be found under Article 352 of the Constitution. It says that an emergency can be declared on the grounds of war, external disturbance and internal disturbance. The term internal disturbance was a flexible term broad enough to include disturbances caused due to an epidemic. “Internal disturbances” was replaced with “armed rebellion” by the 44th amendment to the Constitu- tion, but not in Article 355. Article 355 places a duty on the Union government to protect all states against external aggression and internal disturbance, and ensure that the governance of states is carried on in accordance with the Constitution. Article 353 includes the effect of proclamation of emergency and permits the central government to direct a state how to use its executive power, and the Parliament to make laws on matters from the State List. During an emergency, the freedoms provided under Article 19 are suspended and so is the enforcement of fundamental rights (under Articles 358 and 359 respectively). The chairman of the Drafting Committee in the Constituent Assembly had explained the underlying princi- Evendrasticprohibitorymeasuresbythe governmenthavenotbeenabletoensure totalcompliance.SoonafterModi’s speech,peoplecouldbeseencrowding aroundshopstobuyessentialsupplies.

12. 12 April 6, 2020 ple of Article 355 and stated that the Constitution, under provisions for emergency, provides the central government with some overriding powers and the use of that power or “invasion” by the centre of the Provincial field (state). Therefore, introduction of Section 355, casting a duty on the Union to protect a state, was essential to prevent such unprincipled invasion. The Report of the Sarkaria Commi- ssion on the provisions of the Constitu- tion had stated with reference to emergency provisions: “The Constitution- framers conceived these provisions as more than a mere grant of overriding powers to the Union over the States. They regarded them as a bulwark of the Constitution, an ultimate assurance of maintaining or restoring representative government in States responsible to the people. They expected that these extra- ordinary provisions would be called into operation rarely, in extreme cases, as a last resort when all alternative cor- rectives fail.” T he Report had also stated that the term “internal disturbances” has a broad scope and it can be nature-made also. Natural calamities of unprecedented magnitude such as floods, cyclones, earthquakes and epi- demics may paralyse the government of a state and put its security in jeopardy. “Under Article 355, a whole range of action on the part of the Union is possible depending on the circumstances of the case, the nature, the timing and the gravity of the internal disturbance.” Therefore, according to the Consti- tution, a health emergency being invoked by the centre, though not covered by Article 352 which deals with the proclamation of emergency on the grounds of war, external aggression and armed rebellion, could be covered under internal disturbance. India has a plethora of laws and guidelines, but there is still a need to strengthen its legal framework to deal with such an emergency, including coor- dination and implementation issues. This is especially so considering that the main legal weapon the government pos- sesses today to deal with COVID-19 is the Epidemic Diseases Act, a law of colonial vintage, and the Disaster Management Act of 2005 which does not incorporate the specific approach required to deal with an emergency of such severe proportions. INEFFECTIVE CLAMPDOWN? (Top) Police beat violators of the lockdown; a worried crowd outside a closed store ThecentrehasdeclaredCOVID-19asa “notifieddisaster”andasa“criticalmed- icalconditionorpandemicsituation”. Thiswillallowthegovernmenttouse theNationalDisasterResponseFundto containtheriseinCOVID-19cases. Lead/ COVID-19 Crackdown

14. Lead/ COVID-19/ Kerala’s Model 14 April 6, 2020 VEN as the COVID-19 scare is subsuming India, Kerala’s fight against it has shown the way to the rest of the country. After the effective containment of the Nipah virus outbreak in Kozhikode district in 2018, health workers and the state government got accolades from across the globe. And in the wake of COVID-19, this has been repeated. Kerala’s doctors, highly qualified nurses and experienced paramedical staff have been its strength and hon- oured by the most advanced countries as acclaimed professionals. Whether it is COVID-19, Nipah, SARS or MERS, the adept manner in which they take control of the situation is helping the state lead in the health sector. Along with this professional workforce, Kerala’s strong four-layered health infrastructure starting with community and primary health centres, taluk and district hospitals, medical colleges and superspecialty hospitals has proved that it can match or even outsmart those in western countries. Plus, it has 6,000 hospitals in the public and private sectors and a strong chain of ayurvedic and homeo hospitals. So what did Kerala do to deal with COVID-19? It was in early February that three Malayalee medicos from Wu- han, China, the epicentre of the outbreak, returned to Kerala and tested positive. As they volunteered to get quarantined and treated in isolation, they did not spread it to anyone. They soon recovered and were discharged. But five Showing the Way ThepragmaticwayinwhichIndia’smostliteratestatehandledthepandemicatthehealth,economic andsociallevelsisprobablytheonlywaytohaltitsrapidstrideandshouldbefollowedbyotherstates By NV Ravindranathan Nair in Thiruvananthapuram STRATEGY AGAINST COVID-19 Kerala CM Pinarayi Vijayan giving instructions to officials through video conferencing E UNI

15. | INDIA LEGAL | April 6, 2020 15 members of a family in Pathanamthitta district came from Italy, where the pandemic was wreaking havoc, and trav- elled around to churches, cinemas, hospitals, shopping malls and the homes of friends and relatives within a space of three weeks. Dr Anand, a young doctor at General Hospital, Pathanamthitta, detected one of their primary contacts with symptoms of COVID-19. By the time this case was detected, 15 other primary contacts of this family had con- tracted the virus. W hat followed was a massive trail of those who had come in contact with the family. Health workers prepared a primary contact list, which was over 750 people. Strict vigil against people assembling for festivals, weddings and funerals helped check the spread. Except for Attukal Pongala, the largest congregation of women at Attukal temple in Thiruva- nanthapuram, the government did not concede any demand and strictly pro- hibited huge crowds. It also asked temple, church and mosque authorities to close these down for the time being. Even major temples like Guruvayoor had to limit rituals, and pilgrims were discouraged from going to Sabarimala. Taking a cue from this, people volun- tarily decided to skip festivities and temple rituals. Juma-Ath committees called off Friday prayers in a majority of mos- ques and many churches complied with the advisories of the government. Police registered cases and arrested priests whenever they breached the orders. Moreover, even before the prime minister’s call for a janata curfew, Kerala introduced restrictions for traders and the general public. But at some places, every effort to check the spread of the virus was thwarted. An NRI who reached Kasaragod district spread the infection to several people, forcing thousands of primary contacts to be quarantined. Over 30 people got tested positive due to this. Meanwhile, the Kerala police came out with half-a-dozen innovative videos with songs and dances advising people to maintain personal hygiene. One of them used the classical art form of Kathakali to show the importance of hand washing. Another showed a group of policemen dancing to a film song sung by a tribal woman on the same theme. This went viral, attracting the international media too. Trolls too played an important role in the campaign. One was of a mother asking her children to assemble for family prayer. The son says: “Hello, police station? Here a woman is insisting on people crowding together.” Many of these trolls used characters in popular Malayalam films to get the message across. Some lampooned the government’s insistence that it would not close down Kerala State Beverages Corporation outlets, the milch cow of the state. However, after the centre’s announcement of a lockdown across India, the state government closed all these outlets. As on March 25, COVID-19 cases numbered 113 in the state. As many as 72,460 people are Alongwithaprofessionalworkforce, Kerala’sstrongfour-layeredhealth infrastructurehasprovedthatit canmatchorevenoutsmartthose inwesterncountries. ON A WAR FOOTING Streets in Kerala being disinfected to control the spread of the coronavirus

16. 16 April 6, 2020 under observation, of whom 71,994 are in their houses and 466 in hospitals. The 21-day lockdown has seen all private vehicles off the road. Autos and taxis can be hired only during emergen- cies. Over 2,000 cases have already been registered against those breaching these restrictions and over 1,600 arrested. Chief Minister Pinarayi Vijayan interacted with MLAs through audio-conferencing and asked them to co-ordinate the activities. “Special attention should be given to the elderly, homeless, spe- cially-abled in the state and local self- government institutions should take an effort to arrange food and shelter for the needy. Apart from medicines, those in isolation would also be given counselling if required,” he said. T he state government also ordered the opening of community kitchens at the panchayat level and getting food to the houses of those who had none. Before the total lockdown, Vijayan had invited the youth to come forward to volunteer as bystanders in hospitals and other places. He also ensured media support by directly inter- acting with the editors of print and elec- tronic media. He also ensured that testing facilities in central universities such as the Indian Institute of Science Edu- cation and Research in Thiruvanan- thapuram were made available in case of an emergency. Meanwhile, Kerala University of Health Sciences, under which 22 medical colleges function, has listed over one lakh students and faculty for volunteer work to take care of patients in case of an emergency. “We have prepared the list of all these students and faculties. They will be deployed in their own districts,” said Mohanan Kunnummal, vice-chancellor, Kerala University of Health Sciences. KK Shylaja, the health minister, who did a commendable job, said the government had 4,000 rooms in 22 medical college hostels to house patients in case the pandemic went out of hand. Already, non-functional hospitals, rest houses, schools and colleges have been taken over and facilities arranged if there is a need for corona care centres. All these efforts have also been buttressed by a massive relief package of Rs 20,000 crore. Though detractors may say this was done with an eye on local body elections due in six months, the fact remains that Kerala has been a guiding light in its fight against the virus. Rs 2,000 crore has been set apart for consumer loans and this will be made available through Kudumbashree, a massive women’s self-help group having a mem- bership of nearly five million. In addition, Rs 1,000 crore each for rural job employment guarantee schemes during April and May and social security pensions worth Rs 1,320 crore for two months to five million people of the low income group will bring cheer. Rs 100 crore has been earmarked for special assistance to BPL and Antyodaya families. APL families would get 10 kg of rice during the period, while BPL families would get a food kit with 15 kilos of rice and other items free of cost. All arrears worth Rs 14,000 crore due to individuals and institutions would also be settled immediately. Finance Minister TM Thomas Isaac said in a Facebook post: “Our aim is to bring money into the hands of the people. The best way to do this is to settle the dues in one go. We will spend the entire amount of MNREGS meant for the next fiscal year in the first two months. We will find the means for this by availing at least half of the Rs 25,000 crore sanctioned by the centre for next year.” Perhaps other states could take a leaf out of Kerala’s book INNOVATIVE METHOD The Kerala government has launched a coronavirus awareness campaign through robots TheKeralapolicecameoutwith innovativevideosadvisingpeopleto maintainpersonalhygiene.Oneof themshowedagroupofpolicemen dancingtoafilmsongsungbyatribal womanonhandwashing. Lead/ COVID-19/ Kerala’s Model

18. Lead/ Coronavirus/ Quarantine Issues 18 April 6, 2020 HILE quarantine during a pandemic is a must, it has its negative side. Delhi, like states such as Maharashtra, has begun stamping the hands of the people who have been advised home quarantine in the wake of the coronavirus outbreak. Authorities are using indelible ink like that used for voters mostly on those who have a travel history. In Delhi, people arriving at the Indira Gandhi International Airport from abroad are being checked for COVID-19, and if directed to remain at home, are being stamped “Home Quarantined”. The stamp states, “Proud to protect Delhiites. Home quarantined”, and has a date showing when the person was stamped. It has also been reported that Punjab has put up sign- boards outside the houses of people who have corona. However, this is not as per one’s rights regarding quarantine. In India, where mob mentality is common, it can be dangerous. That was evident from Air India crew members who took to Leaving a Mark Whilestampingthehandsof thosequarantinedmayseem anobviousmethodtoprevent themfromstrayingoutside, theytoohaveaconstitutional righttolivewithdignityand withoutstigmatisation By Dr KK Aggarwal NEED OF THE HOUR (Above L-R) Many states are stamping the hands of people who have been advised home quarantine; many houses have also been marked as “Quarantined” by health authorities w

19. | INDIA LEGAL | April 6, 2020 19 social media alleging discrimination by their housing societies when they returned from flying international sectors with some being asked to look for alternative accommodation. They said matters became complicated after their houses were stamped as “Quarantined” by health authorities. This, despite the airline coming to the aid of Indian citizens left stranded in other countries. So while the government has the right to quarantine anyone, they too have some rights. The Constitution protects one’s individual rights. Among them is the right to not be denied “liberty” without “due process”. There’s a big differ- ence between a procedural right and a substantive right. There is no freestan- ding constitutional right to go about your normal life while an epidemic en- dangers many people’s lives. At the same time, the government cannot simply confine people for arbitrary reasons, or without providing an adequate explana- tion and leaving one getting stigmatised. It is true if someone is quarantined, he does not necessarily have a right to be released from it. But does he have the right to demand some sort of adju- dicative process to determine whether the type and manner of quarantine are justified? I t is well-established that the government may confine people against their will if they present a danger to themselves or others even if they have not committed a crime. In Addington vs. Texas (1979), the US Supreme Court held that individuals with such severe mental illnesses that they presented a threat to their own safety or to the safety of others may be involuntarily confined to a mental hospital. Addington, however, also held that the government must prove by “clear and convincing” evidence that such confinement is justified—a much higher burden of proof than courts typically apply in civil cases. An “individual’s interest in the out- come of a civil commitment proceeding is of such weight and gravity”, the Court explained, “that due process requires the state to justify confinement by proof more substantial than a mere prepon- derance of the evidence”. It’s not entirely clear that this heightened standard of proof would apply to coronavirus quar- antines. Though Addington held that “civil commitment for any purpose con- stitutes a significant deprivation of liberty that requires due process protection”, much of the Court’s analysis was restricted to the specific circumstances of a person believed to have severe mental illness. A person confined due to the coronavirus is likely to recover much more quickly. And even if there is uncertainty about whether their symptoms are due to the coronavirus or some other disease, this uncertainty could be resolved by testing. For these reasons, it’s possible that the courts may permit the government to quarantine individuals based on less than clear and convincing evi- NO ROOM FOR EXACERBATION It is very important to protect the mental health of people under quarantine or undergoing treatment for coronavirus UNI

20. 20 April 6, 2020 dence. Courts may also be reluctant to intervene in such cases. Thus, just as judges tend to defer to the executive on matters of national security, they are likely to defer to public health officials regarding a potential pandemic. But everyone has a constitutional right to live with dignity and without stigmatisation. Articles 14 and 21 of the Constitution say: “14. Equality before law—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. “21. Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law.” Apparently, there is no specific mention of human dignity as no such ex- pression is used. Yet, the Supreme Court introduced a judge-made doctrine of human dignity by reading the same into these Articles on the same lines as craft- ed by the US Supreme Court. The Indian Supreme Court has read “right to life” enshrined under Article 21 as “right to live life with dignity”. And it is linked with the right to grow as a human being. The basic spirit of our Constitution is to provide each person equal opportunity to grow as a human being, irrespective of race, caste, religion, community and social status. This means: I have a right to be tested for corona at the time of quarantine as per protocol I have the right to be quarantined in a hygienic state I have the right not to be stigmatised I have the right to get a proper place to live with all facilities required with a one to one toilet facility I cannot be marked on my hand with a voting ink. Even prisoners have a right not to be handcuffed If I am home quarantined, I cannot be stamped on my hand and wherever I go, I cannot be subjected to checks If I am not having symptoms, I should be able to get a test done in six days as the mean incubation period is six days I have a right to be isolated in a single room if I am infected or at risk of infect- ing others I have a right to age-specific cohort quarantine if multiple people are quarantined together. On the Diamond Prin- cess ship, which was quarantined off Yokohama, Japan, 3,700 people were cohort quarantined together. This led to 23 percent of them getting infected and seven dying. If the quarantine had been as per age and individual risk, more would have been saved. Q uarantine should not end in anxiety. A recent study from The Lancet notes that the psycho- logical impact of quarantine without proper counselling can be great, result- ing in a range of mental health concerns from anxiety and anger to sleep disturbances, depression and post-traumatic stress disorder (PTSD). Separate studies of quarantined patients of SARS, a pre- vious coronavirus outbreak in 2003, found between 10-29 percent suffered from PTSD. The Lancet’s report found mental health concerns could be inflamed by stressors associated with quarantine such as infection fears, frustration, bore- dom, inadequate supplies, lack of information, financial loss and stigma associated with contracting the disease. That can be an issue not only for people with pre-existing mental health concerns, but also those in seemingly good psychologi- cal health. The Centers for Disease Control and Prevention in US notes that people should look out for signs of distressed mental health in themselves and others. Symptoms may include: Fear and worry; changes in sleep or eating pat- terns; difficulty sleeping or concentrat- ing; worsening of chronic health problems and increased use of alcohol, tobacco, or other drugs. Recognising the problem, the WHO released guidance on how people can protect their mental health during the outbreak. Prolonged quarantine or social isolation (without compensatory methods in place) will exacerbate anxiety, depression and a sense of helplessness. —The writer is President, Confederation of Medical Associations in Asia and Oceania and former National President, IMA Lead/ Coronavirus/ Quarantine Issues WITHIN LEGAL LIMITS People can be forced to stay indoors if they present a danger to themselves or others UNI

21. Bringing You The Stories That Count An ENC Publication To Stay Abreast With Today, Pick Up Yesterday’s India Legal ONLY THE STORIES THAT COUNT Every week India Legal will bring you news, analyses and opinion from the sharpest investigative reporters and most incisive legal minds in the nation on matters that matter to you Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends NDIA EGALL STORIES THAT COUNT I March23, 2020 JusticeVenkatachaliah,whoservedaschiefjusticeofIndia,isoneofIndia’smostrespectedjurists.Anavid championofhumanvaluesandrights,hespoketo RAJSHRIRAI,MD,INDIALEGALonthejudiciary,religion, Ayodhya,upbringingofchildrenandwhytheSupremeCourtshouldbetrustedtodotherightthing JusticeVenkatachaliah ‘‘KeepFaithin theJudiciary’’ Coronavirus: India’s opportunity Exclusive Interview

22. Lead/ Supreme Court/ PIL On Hoarding 22 April 6, 2020 HOUGH hand sanitisers and face masks have been deemed by the government as “essential commodities” in the wake of the deadly Covid-19, a black market in them has emerged, leaving people with a shortage of these basic necessities to protect life. Also, these are being sold at a much higher price than the prescribed maxi- mum retail price (MRP). In order to ensure fairness in supply and retail in hand sanitisers and masks, a PIL was filed in the Supreme Court by Justice for Rights Foundation through its president, Satyam Singh Rajput, along with advocate Amit Kumar Sharma and Prateek Sharma, a final-year law student of Delhi University. Rajput and the other petitioners have also asked for free distribution of these essential commodities. The petitioners prayed to the Court to issue directions to the authorities to discharge their duty for public welfare and public healthcare and ensure fair and equitable distribution of surgical/N95 masks, hand sanitisers and liquid soap and make them available to the public. They also prayed for the creation of a special task force to effectively implement the notifications of the government. The writ petition has been referred before the Court mainly on the grounds that widespread infection and growing cases required effective precautionary methods and the government must ensure availability of such apparatus. It said it was failure on the part of the government if it did not provide adequate and effective mechanisms. Another ground for the petition was that the right to life as enshrined in Article 21 of the Consti- tution is sacrosanct and should not be made a part of a trade in the hands of a nefarious few. Also, it is an established fact that the State is the custodian of the welfare and well-being of its citizens. Their life cannot be allowed to hang in a balance, it said. While the government and various departments have issued notifications declaring hand sanitisers and masks essential commodities, further notices have been put in place, empowering the concerned authorities to check the menace of illegal hoarding which is causing a surge in prices. Most of the items have run out of stock despite the government saying that there is no shortage. The PIL was to be heard this week but the declaration of a lockdown of the entire nation has deferred it. Earlier this month, the government had capped the MRP of a hand sanitiser at Rs 100 per 200ml bottle till June 30. Similarly, the price of a 2 ply (surgical) mask was capped at Rs 8 and that of a 3 ply (surgical) mask at Rs 10 till June 30, Consumer Affairs Minister Ram Vilas Paswan had said. “The price cap has been imposed taking into account the sharp increase in prices of raw materials used in making of face masks and hand sanitiser,” he said. But then, black marketers always find a way out. A Black Deed Apetitionhasallegedthatsanitisersandmasksareinshortsupplyduetoblack marketingandaskedtheCourttoensurefairnessinsupplyandretail By Vedant Bhelonde ESSENTIAL COMMODITIES People buying face masks in Chennai to protect themselves Agroundforthepetitionwasthatthe righttolifeissacrosanctandshouldnot bemadeapartofatradeinthehandsofa nefariousfew.Stateisthecustodianof thewelfareandwell-beingofitscitizens. T UNI

24. Lead/ SAARC Initiative 24 April 6, 2020 HEN Prime Minister Narendra Modi decided to give a push to the South Asian Association for Re- gional Cooperation (SAARC)—the regional outfit which India had effectively made irrelevant since 2014 to iso- late Pakistan—there was speculation that perhaps it was softening its stand. This was an overture as Islamabad was India Takes the Lead India’scallforregionalcooperationontheviruswaswelcomedbyallexceptPakistanwhich hasstillnotannounceditscontribution By Seema Guha NOVEL INITIATIVE On March 15, Prime Minister Narendra Modi held a video conference with SAARC leaders to jointly fight the coronavirus pandemic w “Wecanalsoquicklyarrangeonline trainingcapsulesforyouremer- gencyresponseteams.Thiswillbe basedonthemodelwehaveused inourowncountry,toraisethe capacityofallouremergency staff.” —PMModiwhileaddressingthe SAARC leadersinavideoconference

25. | INDIA LEGAL | April 6, 2020 25 also included in the invitation. But it was quickly apparent that India was not reaching out to Pakistan. Nor was Islamabad in any mood to ob- lige. Pakistan is today in a much better position internationally, thanks mainly to US President Donald Trump’s hopes of getting US troops out of Afghanistan before the November US presidential elections. Pakistan is a player in this ga- me and is no longer treated like a pari- ah by the international community. Trump insists he is good friends with Pakistan Prime Minister Imran Khan. Pakistan showed its lack of interest at the Indian move by sending a junior minister to represent it at the video conference initiated by India. Comm- entary in the Pakistan press about India’s initiative was also lukewarm. On March 15, Modi held a video conference with SAARC leaders to jointly fight the coronavirus pandemic. With the combined population of SAARC nations representing nearly one-fourth of the world’s population, India got the opportunity to seize the moment. It once again tried to gain the high moral ground. It was New Delhi’s way of pulling its weight in the region and sending out the message that it was willing to play the leadership role in keeping with its big power status. WHO praised India’s initiative, as did Trump and Russian President Vladimir Putin. Modi has suggested a similar video conference for G20 leaders. Apart from Modi, the conference was addressed by Bangladesh Prime Minister Sheikh Hasina, her Bhutanese counterpart, Dr Lotay Tshering, Nepal’s KP Sharma Oli, Maldives President Ibrahim Mohamed Solih, Sri Lanka’s President Gotabaya Rajapaksa and Pakistan’s aide to the PM on health, Dr Zafar Mirza. The refusal by Imran Khan to attend an event dealing with a threat to public health has sent a wrong signal and shown him as churl- ish and irresponsible. I ndia’s image had got a battering in recent times. The February 2020 communal riots in Delhi where 54 people, mainly Muslims, were killed, combined with the internet lockdown in Kashmir after the scrapping of its special status, the National Register of Citizens as well as the Citizenship Amendment Act had changed the narrative for India. Trump and his family’s highly successful visit to Ahmedabad and Delhi got buried in the mayhem. The coronavirus onslaught gave India the perfect opportunity to change the narrative. At the video conference, Modi suggested a SAARC Corona Emergency Fund which member states could draw from to fight the deadly disease. India announced an initial contribution of $10 million; Maldives $2 lakh; Nepal and Bhutan nearly $1 million and $1 lakh, respectively; Colombo $5 million, Bangladesh $1.5 million and Afghanis- tan $1 million. The Fund now has a total of $18.3 million. The multiplica- tion of cases in SAARC countries rein- forced the need for the group to act together. Pakistan is the only country that has so far not put any money on the table, possibly because it is an Indian suggestion. During his address, Modi said that India was getting together a rapid response team of doctors and special- ists, along with testing kits and other equipment. “They will be on standby, to be placed at your disposal, if required,” he said. “We can also quickly arrange online training capsules for your emergency response teams. This will be based on the model we have used in our own country, to raise the capacity of all our emergency staff.” Considering that India, a nation PakistanPrime MinisterImranKhan didnotattendthe conferencebutdeput- edPakistan’saideto thePMonhealth,Dr ZafarMirza(right). Hisrefusaltoattend aneventdealingwith athreattopublic healthhassenta wrongsignaland shownhimaschurlish andirresponsible.

26. 26 April 6, 2020 of 1.3 billion people, also has a health emergency in place and Modi has announced a virtual lockdown for 21 days, will Delhi have the capacity to help others when its own resources are badly stretched? L ike in everything between India and Pakistan, the video conference was also mired in contro- versy. Pakistan’s health minister could not help but drag in Kashmir. Mirza spoke of the need to end the blockade in the Valley to fight COVID-19. While India bristles at the mention of Kash- mir, the Pakistan government has to play to its domestic constituency and cannot help but mention the situation in the Valley. “Opening up communication and movement would facilitate dis- semination of information, allow distribution of medical supplies and allow containment and relief efforts to pro- ceed unimpeded,” the minister said. But despite the sound and fury raised by Imran Khan on Kashmir, the world has not responded to Pakistan in the way it would have liked. In fact, the opposition in Pakistan is calling out Khan for not being able to further in- ternationalise the plight of Kashmiris. So mention of Kashmir and the suffering of the people there since the abro- gation of Article 370 should have been expected. Nevertheless, Raveesh Kumar, In- dia’s external affairs spokesman, had this to say about Pakistan after the video conference: “A crisis of this magnitude does not recognise borders. In this spirit, the prime minister had called the SAARC video conference on coronavirus. The platform was not political, but humanitarian. They mis- used it.” Naturally, Pakistan’s Foreign Office reacted instantly. First, it accused India of twisting the minister’s statement at the video conference. “The people of South Asia are well aware as to which country has been seeking to ‘politicise’ the SAARC process and continues to obstruct its onward march,” it said. The statement underscored that Pakistan believed the collective endeavours of South Asian nations to fight common challenges should not be allowed to become a victim of self-serving propa- ganda. Pakistan, it said, had reaffirmed its readiness to host a SAARC health ministers’ video conference. Its foreign minister, Shah Mahmood Qureshi, was on the phone with his Bangladesh counterpart and informed him that Pak- istan was keen to organise it. Pakistan has also been advocating getting China on board as the Chinese are best placed to advise member states considering they have the experience and means to fight COVID-19. India certainly would not be amused by this call. Modi was way ahead of other regional leaders in proposing a joint strategy for SAARC nations to help each other in fighting the pandemic. Pakistan is now hoping to catch up. But it is a repeat of the same old story for other member states. SAARC continues to remain a moribund grouping mainly because it is held hostage to the India- Pakistan rivalry. The rest of the members continue to remain silent specta- tors and suffer the consequences. Themultiplicationofcoronaviruscases inSAARCcountriesreinforcedthe needforthegrouptoacttogetherand contributetowardstheCorona EmergencyFund.Pakistan,however,has sofarnotputanymoneyonthetable. Lead/ SAARC Initiative GLOBAL RECOGNITION India's initiative was also praised by US President Donald Trump (right) and Russian President Vladimir Putin Photos: UNI

27. NDIA EGALEEL STORIES THAT COUNT NI February24, 2020 OutingtheCriminalsFlaggingan“alarmingriseinthecriminalisationofpolitics,”theSupremeCourtlays downstrictinstructionsonmakingpublicdetailsofacandidate’scriminalhistory. Whatimpactwillithaveonpoliticalpartiesandfutureelections? Shiv Visvanathan on Shaheen Bagh Mothers NO HOLDS BARRED Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends For advertising & subscription queries editor@indialegalonline.com SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS ` ` ` ` ` GAL m””t”t id tu NDIA EGALEEL STORIES THAT COUNT NI March2, 2020 TheIronFistIncreasingly,Section144isbeenusedbypoliticiansandbureaucratsto deprivecitizensoftheirfundamentalrights.Nowthecourtshavesteppedin tostemthemisuse,butisitenough? Justice Chandrachud: “Dissent not anti-national” GAL an ou ? NDIA EGALEEL STORIES THAT COUNT NI March9, 2020 Judiciary’sRoleina ChangingWorld TheInternationalJudicialConference2020wasthefirstofitskindorganisedbytheSupreme Courttodiscusscontemporarychallengestothejudiciary.Therangeofspeakers,fromthe chiefjusticeofIndiaandotherseniorjudges,gavevaluableinsightsontohowthecourtsview theirresponsibilitiesinrapidlychangingtimes Coronavirus: How prepared is India? GAL ee o or nge so es NDIA EGALEEL STORIES THAT COUNT NI March16, 2020 LawandDisorderCrucialmattersthatcameupintheSupremeCourtandDelhiHighCourtindicateacrisisinIndia’s basicgovernance.TheCrPCandPoliceActsclearlylaydownthatitisthejobofDMsandSDMsto maintainlawandorder,buttheirrolehasbeentakenoverbythepolicewithquestionableresults Fast Track Courts: New scheme GAL oturt sth ce NDIA EGALEL STORIES THAT COUNT NI March23, 2020 JusticeVenkatachaliah,whoservedaschiefjusticeofIndia,isoneofIndia’smostrespectedjurists.Anavid championofhumanvaluesandrights,hespoketo RAJSHRIRAI,MD,INDIALEGALonthejudiciary,religion, Ayodhya,upbringingofchildrenandwhytheSupremeCourtshouldbetrustedtodotherightthing JusticeVenkatachaliah ‘‘KeepFaithin theJudiciary’’ Coronavirus: India’s opportunity Exclusive Interview DIAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA EEEEEEEEGAL smm LEG truu aa nn yy NDIA EGALEEL STORIES THAT COUNT NI March30, 2020 Judgesandlawyersincourtsarestrugglingtodispensejusticeevenasthefearoftransmissionof thevirustakeshold.IndiaLegal’sspecialpackagelooksat measuresbeingtakenbytheSupreme CourtandHighCourtsacrossthecountryandhowitaffectsthejusticesystem CoronavirusPlagues TheCourtSystem Special Supplement: The Idea of Citizenship Analysing SC’s Annual Report: Prof Upendra Baxi

28. Seminar/ State of the Economy 28 April 6, 2020 ANY promises were made by the Narendra Modi government both during the campaign and after coming to power in 2014. These included economic reform, fast industrial development, creation of jobs and India reaching a $5-trillion economy within five years. But all these have been belied. This was discussed during a recent dialogue session, “Politics of Economic Policy and Budget Making”, under the chairmanship of Dr Kulwant Singh, former general secretary of National Me- dia Centre, Gurgaon. Dr Singh also ser- ves with the UN and is CEO, 3R WASTE Foundation/Urban Policy. Am- ong the panellists were Dr Anuradha Balaram (former economist with the Asian Development Bank and chief coordinator of the Awakened Citizen Programme of Ramakrishna Mission, Delhi), Prof Sudha Pai, a political scientist at JNU, and Dr VK Garg, former CMD of Power Corporation of India. They said that over the last year or so, estimates have shown that GDP growth for 2019-20 plunged to an 11- year-low of five percent, which fell fur- The Stark, Searing Reality... AnIndiaLegal editorialhadsaidthattheeconomyhadenteredafull-blownrecession.Neither thebudgetnorpoliticianswereabletocopewithit.Thiswasreiteratedbyexpertsataseminar heldbeforethecoronavirusimpact SIGNIFICANT SUGGESTIONS Dr VK Garg, former CMD of Power Corporation of India, was part of the panel ANALYSING THE ECONOMY Dr Anuradha Balaram, former economist with the ADB, was also present at the session SHARING HER THOUGHTS Prof Sudha Pai, a political scientist at JNU, also actively participated in the discussions M

29. | INDIA LEGAL | April 6, 2020 29 ther in the next quarter primarily because of a poor show by construction and manufacturing. According to some estimates, it will require India to grow at 8-9 percent per year from 2020 to 2024 to become a $5-trillion economy. Both demonetisation and GST created problems particularly for small businesses and contributed to the slow- ing of growth. The promise of “Cooperative Federalism” has not been kept as states have not received their share of GST revenues. The government has also moved from the open economy that was put in place in 1991 towards a more closed economy with rising tariff walls, which has particularly hurt imports. While there are hard economic reasons for the crisis, there are strong political reasons also for this situation. Politics has always shaped policy making in any government and the budget is a political statement. For the BJP, the economy is not the first priority within its larger Hindutva ideology and policy making. This was more apparent since 2016. The priority of the government has been to create a Hindu vote-bank, cap- ture state power and move towards the creation of a de facto Hindu Rashtra. Following the 2019 general election in which the BJP gained a huge majority, it was felt that attention would now be focused on the economy, which had already started on a downward spiral. Much was expected of Budget 2020. However, the shift of priority from the economy to social transformation is visible in the passing of the Citizenship (Amendment) Act and the National Register of Citizens. The new Act sur- prised many as two big issues on which the BJP had built its movement and party since the early 1990s had been achieved: the Ram Temple at Ayodhya and removal of Article 370 in Kashmir. The issue of triple talaq, seen as the first step to a Uniform Civil Code, was also achieved. These divisive social policies were FOCUSING AWAY FROM ECONOMY The CAA exhibits a shift in the government’s priorities towards social transformation Whiletherearehardeconomicreasons forthecrisis,therearestrongpolitical reasonsaswell.FortheBJP,theeconomy isnotthefirstprioritywithinitslarger Hindutvaideologyandpolicymaking. UNI

30. 30 April 6, 2020 used as a strategic cover-up for the downswing in the economy, which began in 2018 and worsened in 2019 and 2020. The panellists felt that this push towards social policies rather than the economy is visible in a number of steps taken by the government, such as: The method of governance adopted in 2014 itself: This has affected the economy as a highly centralised and authori- tarian government is centred in the PMO. India does not lack experts with knowledge of how to fix the economy but they are not listened to and the government is in denial as seen from the 2020 Budget. With the downswing of the economy, the government attempted to hold back government data and present a more positive picture of the fiscal state as assembly elections were due. NSSO data was withheld as it showed that unemployment had reached a high not seen in 60 years, leading to members of the organisation resigning. The use of social media to shape public opinion and targeted messaging created a positive picture of government functioning. Criticism of government policy led to reprisals which created an atmosphere of fear and lack of trust. Many critics of the government are in jail today, lab- elled as anti-national, liberals of Lut- yens’ Delhi, urban naxals and Bhima- Koregaon and Elgar Parishad participants. Sections of the media have decided to keep quiet out of fear of reprisals. The general polarisation has affected the corporate sector as seen in state- ments by Rahul Bajaj and Kiran Maz- umdar Shaw. Lack of social cohesion and harmony, which is visible in communal polarisation and divisive policies. This led to loss of trust in the centre and lack of investment also destroyed the international image of the government. The RSS has in many ways shaped the policy making of the government. A number of populist policies by the government contributed to the down- turn of the economy: failure to move on land acquisition and royalties for genetically modified seeds despite having a majority in Parliament; protectionist policies reversing the change in 1991; tightening of norms for e- commerce retailers which ham- pered the operations of Amazon and Flipkart that goes against the statement of “red carpet for foreign investors”; loan waivers and other forms of fund distribution to farmers rather than addressing the agrarian crisis; the 2017 ban in UP on all “illegal” slaughterhouses and curbs on mechani- cal abattoirs leading to tremendous loss of foreign exchange earnings and liveli- hoods of a large number, etc. A ccording to Garg, from 2010 to 2020, India's consumption demand shifted to imports from China, Vietnam, Malaysia and Thailand and was worth Rs 6.6 lakh crore in 2018-19 alone. This, he said, needs to be pulled back to create manufacturing sector employment, power generation, income and demand and thereby reduce the stress on banking and non- bank financial companies. He suggested that the micro and the SME sector should be revived by providing them technology, raw materials and financial support. Is anyone listening? In sum, the downswing of the economy is due not just to incompetent handling, but also the political ideology that underlies the functioning of the government. Criticismofgovernment policyledtoreprisalswhich createdanatmosphereoffear andlackoftrust.Thegeneral polarisationhasaffectedthe corporatesectorasseenin statementsbyRahulBajaj(left) andKiranMazumdarShaw. MIGUEL QUESADA/wikiwand.com Seminar/ State of the Economy

31. Sabka Saath-Sabka Vikas-Sabka Vishwas Social Audit Rising Steps Important steps taken by the Government of Uttar Pradesh to ensure transparency, public participation and accountability in the implementation of Government of India/State Government schemes to all sections of society To ensure transparency, public participation and accountability in the work of Gram Panchayats and other executing organizations. Monitoring of accounts with physical verification of works, participation and monitoring of society To ensure the benefit of schemes reaches all sections of society To make aware public of their rights, duties in the schemes Social audits of 20,887 gram panchayats were conducted in the year 2018-19. In the year 2019-20, social audit was conducted in more than 16 thousand gram panchayats till September, 2019. The target is to conduct social audit in all gram panchayats of the state by March 31, 2020. Through public awareness rallies, placing hoardings on all development buildings, involving schoolchildren in awareness rallies, scooter motorcycle rallies, sharing information through folk songs, pamphlets and loudspeakers before the social audit meetings, the common people were con- nected to a transparent process like social audit leading to increased public participation Through social audits, people succeeded in raising their voice by coining the slogans like “Mera Kam Mera Daam” “Mera Paisa Mera Hisab”. Schemes like MNREGA- Pradhan Mantri Awas Yojana brought qual- itative changes in the standard of living of the villagers and they managed to air their views through a democratic platform. Social audit is a continuous process. According to the calendar available on the website of the Directorate, http://socialauditup.in, contribute to ensure accountability by making active participation in the meeting of the Social Audit Gram Sabha of the respective Gram Panchayats and make the social audit more public utility. Why social audit? Progress so far Appeal to public Efforts made for public awareness TEST AUDIT The test audit is conducted by the directorate to maintain the quality of social audit. RAJENDRA PRATAP SINGH (MOTI SINGH) Minister, Rural Development Department, Uttar Pradesh What we achieved RAJENDRA PRATAP SINGH (MOTI SINGH) Minister, Rural Development Department, Uttar Pradesh Issued in the public interest by the Directorate of Social Audit, Uttar Pradesh-Rural Development Department, Uttar Pradesh.

32. Scientists and governments all over the world are analysing South Korea’s response to the coronavirus and how they were able to get it under control so quickly. On February 18, South Korea diagnosed its 31st patient with COVID-19, and she became known as the country’s “super-sprea- der”. She was a middle-aged woman who had taken part in mass congregations at a religious group. She passed the virus onto other members of the group and unsus- pecting residents of the city of Daegu. Overnight, doctors were diagnosing more than 900 new cases a day. That’s when the government came up with a strategy called TRUST (Transpa- rency, Robust Screening and Quarantine, Unique but Universally Applicable, Strict Control, and Treatment). That included swift deployment of testing stations, creation of mobile applications and quaran- tining capabilities, reporting of accurate and transparent data and strict monitoring and investigations of possible contacts and finally, treatment. The government was able to run up to 19,000 diagnostic tests a day and, in the early phase of the outbreak, it made hospitalisation manda- tory for all confirmed cases regardless of the severity of symptoms. When Chinese scientists first published the COVID-19 virus’ genetic sequence in January, at least four South Korean firms began developing and stockpiling test kits—well before the country had its first outbreak. Anyone with a mobile phone also received alerts about areas where the virus was known to be active. Transparency played a big role. Since day one, press briefings have been held twice a day by experts in disease control. The briefings were livestreamed through the internet with simultaneous interpretation into English. This openness and transparency have been pivotal in gai- ning public trust and a high level of civic awareness, which encouraged the public to take voluntary self-quarantine and other preventive measures such as “social dis- tancing” that has effectively slowed the spread of COVID-19. South Korea has one of the lowest casualty rates from COVID- 19 in the world, at just 1 percent. 32 April 6, 2020 International Briefs The Trust Method The deluge of information being distributed on social media and the internet to meet the insatiable demand for news on the coronavirus crisis has created what is literally a fake medical factory with all sorts of advice being given out, mostly fake and in many cases, downright dangerous. The fact remains that, as of now, there is no known cure even as the pandemic continues to spread alarmingly. That has not stopped people from offering all sorts of “expert” advice, none based on scientific evidence or proven usage. In India, we have had elected members of the BJP offering bizarre cures—one said cow urine and cow dung could be cures, yet another distributed cloves “energised by mantras” while others, including some in government, are talking up homeopathy and various herbs. Baba Ramdev has also advocated yoga as a possible counter to the pandemic, again without empirical evidence. The other “cures” put out by assorted “experts” include: Raw garlic: Social media is flooded with advice on eating garlic to prevent infection. The World Health Organi- The Fake Medical Factory UNI

33. Ahuge number of the biggest brands in the world are doing their bit in the fight against Covid-19. They include luxury brands like Yves Saint Laurent and Balenciaga who are using their work- shops to make surgical masks instead of luxury clothes for the French health service. French luxury power- house LVMH, which owns Louis Vuitton, Bulgari, TAG Heuer, Tiffany, Dom Péri- gnon, and many other high- end brands, has ventured into the hand sanitiser sector. Perfume and cosmetics mak- ers Christian Dior, Guerlain, and Givenchy will use their production facilities to make hand sanitisers that will be provided to French authorities for free in an effort to fight the coronavirus. L'Oréal Group, one of the largest beauty producers in the world, is using its facilities to make hand sanitisers for medical officials. Even carmakers are join- ing in: Vauxhall offered to assemble ventilators and ven- tilator components using 3-D printers at its plant in Eng- land, after it stopped production due to falling demand. In the US, General Motors Co, and Ford Motors Co were examining whether they could also put their idled fac- tories to work making medical equipment. Meanwhile, Jack Ma, the billionaire fo- under of Chinese e-commerce giant Alibaba, is donating 1.1 million testing kits, 6 million masks, and 60,000 protective suits and face shields. They are all being sent to Ethiopia from where they will be sent out to every other country on the African continent. | INDIA LEGAL | April 6, 2020 33 In a heartwarming development, celebrities are li- ning up to do their bit and send some of the millions they have earned towards helping fight the coronavirus. Roger Federer widely considered the best tennis player of all time, and his wife, Mirka, will be donating 1 million Swiss francs ($1.02 million) to help the most vulnerable families in his home country, Switzerland. Two of the biggest names in the world of soccer are also making sizable dona- tions. Barcelona star Lionel Messi is donating 1 million euros that will be split between the Hospital Clinic in Barcelona and another medical centre in Argentina. Juventus star Cristiano Ro- naldo is funding three inten- sive care units for coronavirus patients at hospitals in Portugal. In America, Arnold Schwarzenegger, actor and former governor of California, has donated $1 million to the Frontline Responders Fund to address the shortage of protective equipment and medical supplies. Actor Gwyneth Paltrow also donated $100,000 to the same Fund. Power couple Ryan Reynolds and Blake Lively have pled- ged $1 million to Feeding America and Food Banks Canada. Pop star Rihanna has announced that she will donate $5 million to COVID-19 rapid response efforts in the US and across the globe. Bill and Melinda Gates Foundation has committed $105 million to aid the global response to the novel coronavirus. Celebrities Join the Crusade sation says that while it is “a healthy food that may have some anti-microbial prop- erties”, there’s no evidence that eating garlic can protect people from the new coronavirus. In China, a woman had to receive hospital treatment for a severely inflamed throat after consuming 1.5kg of raw garlic after an online post went viral claiming that a bowl of boiled garlic wa- ter can cure the 2019 novel coronavirus. Facebook has since blocked the post because “the primary claims in the information are factually inaccurate”. Hot baths: Taking a hot bath will not prevent you from catching COVID-19. Your normal body temperature remains around 36.5°C to 37°C, regardless of the temperature of your bath or shower. Antibiotics: Again, antibiotics do not work against viruses, only bacteria. The new coronavirus is a virus and, therefore, antibiotics should not be used as a means of prevention or treatment. Hand dryers: Debunking circulating myths, the World Health Organisation said hand dryers alone cannot kill coronavirus. Rumours circulated that using the hot air from the dryer for 30 seconds will rid any trace of the virus on your hands. Sesame oil: Another myth is related to sesame oil, a staple in Asian cooking. But that’s about all. Contrary to rumours, rubbing sesame oil onto the skin won’t block coronavirus from entering the body. The WHO says: “No. Sesame oil does not kill the new coronavirus.” Eating chicken will encourage the virus: This is absolutely false. Suppliers of meat, fish and chicken have been badly hit after false rumours circulated that non-vegetarian food, especially chicken, infected people with the virus. WHO has rubbished such claims. Cats and dogs spread coronavirus: There is no evidence that COVID-19 can infect pets. In Hong Kong, a pomeran- ian’s owner had COVID-19 but his dog did not display any symptoms. Brand Value Messi Rihanna Federer Gates

34. 34 April 6, 2020 N an attempt to facilitate resolution of pending income tax (IT) litigation, Parliament cleared the Direct Tax Vivad Se Vishwas Bill, 2020 on March 13, 2020. This will also gen- erate revenue at a time when the government is struggling with collec- tion—both direct and indirect. Signi- ficantly, the scheme will also cover unexplained cash deposits during demonetisation. With regard to indirect taxes, such as customs, GST, etc, the government had attained reasonable success through a similar tax dispute resolution scheme, Sab Ka Vishwas, which was implemented recently. The Vivad Se Vishwas scheme will be applicable to all appeals/petitions filed by taxpayers or the IT department, which are pending on January 31, 2020, with any of the following forums: Com- missioner of Income-tax (Appeals), In- come-tax Appellate Tribunal, High Co- urt and the Supreme Court. It would also be applicable in the following situations where, as on January 31, 2020: (a) time limit for filing an appeal has not expired (b) cases pending before the Dispute Resolution Panel (DRP) or where DRP directions have been passed but final assessment order is awaited (c) revision petitions pending before the Commissioner of Income-tax (d) where the disputed demand in respect of search cases is less than Rs 5 crore. Disputed tax in an assessment year would essentially mean tax on the income under dispute. Taxpayers seeking to settle disputes will have to make a payment of a certain amount that would depend upon the type of case and the Litigation Dilemma TheBillwilltrytoresolveITdisputes,bringinmuch-neededrevenueforthecentreandresolve theissueofcashhoardedduringdemonetisation.Italldependsonhowitwillbeimplemented Column/ Direct Tax Vivad Se Vishwas Bill, 2020 Sumit Dutt Majumder I POINT OF CONTENTION While referring to the Vivad se Vishwas Bill, FM Nirmala Sitharaman said that the centre will address the issue of reduction of litigation UNI

35. | INDIA LEGAL | April 6, 2020 35 date of payment of the disputed tax. With regard to cases other than those where searches were involved, the taxpayer will pay 100 percent of the disputed tax if the payment is made on or before March 31, 2020. However, if the payment is made after March 31, 2020, the amount would be 110 percent of the disputed tax. In respect of search cases, the respective amounts will be 125 percent or 135 percent of the disputed tax depending upon whether the payment is made on or before March 31, 2020, or later, respectively. The main attraction of the scheme is that in both cases of search and non-search, interest and penalty amount will be waived. Further, where arrears relate to only the disputed interest or penalty, and not the disputed tax, 25 percent of this penalty or interest will have to be paid if the payment is made on or before March 31, 2020. However, if the payment is made after March 31, it would be 30 percent of the disputed penalty or interest. Regarding appeals filed by the IT Department against orders in favour of the taxpayer at the original or first appeal stage, the amounts payable are much less. This is because the order has gone in favour of the taxpayer. In cases other than search cases, it is 50 percent and 55 percent of the disputed tax, depending upon whether the payment is made on or before March 31 or later. In respect of search cases, it’s 62.5 percent or 67.5 percent of the disputed tax, again depending on the time of payment—on or before March 31. In these cases too, the interest and penalty will be waived. W ith regard to cases relating to only interest or penalty, the amounts payable would be 12.5 percent or 15 percent of the disputed interest or penalty depending upon the time of payment again. Further, if the taxpayer has already paid the disputed demand, which is more than the amount payable under the scheme, the taxpayer will get the refund, but without interest. As for the process to settle the tax dispute, an individual taxpayer has to take the following steps. First, he has to file a declaration in a specified form to the designated authority. He also has to furnish an undertaking in a specified format waiving his right to pursue any other proceeding in the same matter. Based on the declaration, the designated authority will determine the amount payable. The applicant will have to make the payment within the next 15 days; there will be no appeal against the amount so determined. On submission of the proof of payment, the designated authority will pass the necessary orders for settlement. The last date for avail- ment of the scheme is June 30, 2020. It has also been clarified that disputes pertaining to provisions of IT alone, and not those covered under the Wealth Tax Act, will come under the ambit of this scheme. Further, there are no provisions in the scheme to settle only part of a pending dispute. In the context of demonetisation, the finance minister strongly denied that the scheme was an “amnesty scheme”. She clarified that IT disputes related to unexplained cash deposited in banks during demonetisation (November 8 to December 31, 2016) could also be settled under the scheme. In such cases, the applicants would need to pay 75 percent of the unexplained cash deposited in banks as tax due to the government. Reportedly, demonetisation-related tax disputes are worth around Rs 3 lakh crore and Thetaxpayersoptingforthescheme wouldhavepeaceofmindandsaveon timeandresourcesthatwouldotherwise havebeenspentonlong-drawnand vexatiouslitigationprocesses. THE NOTIFIED RULE The scheme allows a taxpayer to file a declaration on the IT e-filing portal

36. Column/ Direct Tax Vivad Se Vishwas Bill, 2020/ Sumit Dutt Majumder 36 April 6, 2020 depositors are likely to avail of the scheme as the tax department had com- pleted the final assessment. The debate about whether this is a special amnesty scheme for cash during the demonetisation period will linger though. A lso, it has been reported that 4.83 lakh direct tax cases worth Rs 9.32 lakh crore are currently pending before various appellate forums. Thus, settling of these cases through this scheme will not only reduce litigation, it will also add to the coffers substantially in these difficult days of revenue crunch. Besides the waiver of interest and penalty, there are other benefits from this scheme. The settled cases cannot be reopened in any other proceeding by any tax authority. An appellate forum too cannot issue an order in respect of the settled issue. Thus, taxpayers opting for the scheme would have peace of mind and save on time and resources that would otherwise have been spent on long-drawn and vexatious litigation processes. However, it is incumbent upon the taxpayer to consider certain aspects before opting for the scheme. He must assess how strong is his defence on the merits of departmental proceedings, expected cost of litigation, implications of carried forward losses, cash flow con- siderations, etc. The Central Board of Direct Taxes has clarified various queries from stake- holders in the form of FAQs. These contain clarifications on scope, eligibility, calculation of disputed tax, procedure related to payment of disputed tax and consequential benefits to the declarant. The rules and online forms for the scheme have just been notified. The first step is to file a declaration with detailed information in Form 1 at the e-filing portal of the Department. An undertaking waiving the right to pursue any claim will be given in Form 2. The designated authority will then issue an order regarding payment amount in Form 3. The taxpayer will intimate the details of payment he made in Form 4. These will be electronically verified and the matter settled. Given that the fresh rules and reforms were notified just about ten days before the deadline, it would be imperative to extend the deadline of March 31. While the scheme looks good on paper, much will depend on the efficien- cy of implementation and the level of engagement between taxpayers and the tax administration. After all, the proof of the pudding is in the eating. UPDATE: As we went to press, Union Finance Minister Nirmala Sitharaman announced that the government had extended the deadline for settling tax disputes under the Vivad se Vishwas scheme without paying any interest and penalty to June 30, 2020. —The writer is former Chairman, CBEC PayableTaxForSettlement (For appeals filed by taxpayers) Type of Cases On or Before March 31, 2020 After March 31, 2020 (a) Normal Cases (other than Search) 100 percent of disputed tax (DT)* 110 percent of DT* (b) Search Cases 125 percent of DT* 135 percent of DT* (c) Cases relating to only interest, penalty, etc. (and not tax) 25 percent of disputed interest, penalty, etc. 30 percent of disputed interest, penalty, etc. N.B. * Interest and penalty waived in these cases. REMOVING MISCONCEPTIONS In the context of demonetisation, the Union finance minister strongly denied that the scheme was an “amnesty scheme” UNI

37. | INDIA LEGAL | April 6, 20 37 D ainik Bhaskar, the country’s leading Hindi lan- guage daily, is now posting video clips on social media which show newspaper sheets being sprayed with sanitisers before they are distributed. The Chennai-based The Hindu is doing something similar, informing readers that the company has installed com- pressed sanitiser dispensers that spray a mist on the news- papers when they are coming out of the printing machines. This is in response to the panic surrounding the coronavirus which has prompted many individuals and housing societies to ban newspaper vendors from entry and distribution. BCCL, the company that publishes national dailies like The Times of India and The Economic Times, issued a press release which says: “Let’s not go by rumour mills and fear mongers. The newspaper delivered to your home is safe. The newspaper printing, folding and bundling are all done without touch. The bundles are loaded on to fumi- gated trucks by gloved and face-masked handlers.” Ads released by the Hindu Group say: “In these trying times… we and others in the newspaper industry are work- ing to bring to the people accurate information that cru- sades against fake news.” Hindustan Times Media group also said it is sanitising all its plants regularly and “attempts are being made to avoid manual intervention”. Despite such efforts and an assurance from the World Health Organisation that news- papers carry a very low risk of infection, most subscribers in India have taken panic to a new level by literally forgoing their daily habit. O One of India’s finest news pho- tographers is no more. Bhawan Singh, who earned fame and international recognition for his heart-rending photos of the Nellie mas- sacre, passed away last week. Low-profile and humble, he avoided the limelight but his work lives on as a legacy of a master lensman. He had retired after a long and illustrious car- eer at India Today magazine where he covered natural and human tragedies and celebra- tions and celebrities with the same empathy and eye for perfection. One of his most memorable photos is the one he took of gangster Dawood Ibrahim at Sharjah, The image of the don, now among India’s most wanted, talking on the phone and smoking, is still the defining image of Dawood, one that everyone uses but few give credit to Bhawan Singh, a true diamond in the rough. Lens Closed Media Watch P rime Minister Narendra Modi is ensuring that he keeps the media on his side as he tackles the enor- mous challenge posed by the coronavirus outbreak. In two separate video conferences, he interacted with media representatives from TV and print where he said: “The tireless efforts of the reporters, camer- apersons and technicians are a great service to the nation. The media should counter pes- simism and panic through positive communication.” The media representatives included Subhash Chandra of the Essel Group, Rajat Sharma of India TV, Kalli Purie of India Today Group, Smita Prakash of ANI, and Arnab Goswami of Republic TV, among others while the print media included editors and publishers of national and regional media representing 11 languages, and included Hindustan Times boss Shobhana Bhartia, Viveck Goenka of The Indian Express, Ramoji Rao of the Eenadu group, Mammen Mathew from Malayalam Manorama and The Times of India’s executive editor, Jaideep Bose. The sole message was to convey positive news and counter rumours and fake news regarding the coronavirus. The participants unanimously pled- ged to support the government in its battle against the virus, heeding Modi’s remark that “COVID-19 is a lifetime challenge and it needs to be tack- led through new and innovative solutions”. Modi and the Media Sanitising the News

38. 38 April 6, 2020 NE of the things which is of major concern today is that banks may not be safe. Till the other day, only Rs 1 lakh in a bank account was insured. In the most recent Budget, this sum was raised to Rs 5 lakh. And even that did not seem to provide adequate comfort. But maybe I was talking to the wrong set of people. After all, not too many people have more than Rs 5 lakh in their bank accounts. No matter what you have in your account, if you are suddenly denied access to it, as and when you want, it can feel quite rough. Con- sequently, you might think twice before keeping your hard-earned cash in banks. More worrying, such bank crises keep happening quite regularly. It is Yes Bank now but it was the Punjab and Maharashtra Cooperative Bank last September. Not only banks, but airlines such as Jet Airways, Kingfisher and the famous travel agency, Cox and King’s, folded up, leaving people suddenly without jobs and literally stranded. Investors in institutions such as DHFL and ILF&S found their invest- ments disappearing due to, to put it politely, “mismanagement”. Or slightly earlier, we were faced with scams origi- nating from the actions of the late Harshad Mehta or to the collapse of Satyam Computers. The last time there was a financial crisis was in 2008 when markets in East Asia collapsed. Are we seeing something similar now? And are such collapses of the stock markets cases of market failure? American economist Kenneth Arrow, writing about the 2008 crisis, said: “...the failure of the markets for various kinds of derivative securities to perform properly is an essential element of the current financial crisis”. People attribute the current collapse in stock markets to the coronavirus. Maybe it is so. Time will tell what is happening now: how Scams,Failures&OtherMatters Variousscamshaveshownthatbreakingcontractsmayberewarding.Butquickidentificationof contractviolatorsandawardingdeterringandjustpunishmentshouldbethemainpriority Opinion/ Bank Collapses and Business Failures Anjan Mukherji O WORRYING FACTOR Yes Bank promoter Rana Kapoor being taken away by ED officials after his arrest. Such bank crises keep happening quite regularly youtube

39. | INDIA LEGAL | April 6, 2020 39 much of it is because of the world-wide meltdown and/or whether local problems have had a say. People may be tempted to attribute the apparent disconnect between what one studies in textbooks, where everything is supposed to work out nicely and cleanly, and what one notices in real life as described above to the inadequacies of what we have taught our students or the theory itself. I shall argue that what- ever one sees around us is exactly as the textbooks should have led us to expect. The current economic paradigm pre- valent the world over has been referred to as the SLP regime by Dani Rodrik. This means: Stabilise (government expenditures have to be kept to low levels) Liberalise (allow trade to take place between countries without significant friction in the form of tariffs or taxes) Privatise (in the sense that government or the public sector should not get into producing goods and services). The SLP regime is usually taken to originate from Adam Smith. However, much before him, Chanakya had advocated that markets should be allowed to function freely. But there are externali- ties and problems of asymmetric information which vitiate market functioning and this means that governments must intervene to tackle these. In spite of these, some may say because of them, undesirable outcomes persist. There are other more basic problems. One should realise that any economic activity, be it sale and purchase of daily necessities such as vegetables or negoti- ating loans from banks to foster industrial growth, involves a contract between two parties. Often, one of the parties could be the government. But someone has to oversee the maintenance of these contracts. Otherwise, what can one do, if one party fails to keep to the terms of the contract? Dragging the offending party to court for a quick and fair decision is the only legitimate answer. This would make the breaking of contracts unat- tractive. Clearly, we do not have such an opportunity in India today and we are forced to enter into lengthy, costly exchanges with lawyers and courts to the detriment of the affected. Thus, trade or transactions which could have taken place may not; funds, which could have come, are diverted elsewhere. Trade that did occur is twist- ed into yielding outcomes which illegally benefit one party and scams and market failures occur. And what should be worrying is that such occurrences are going to keep surfacing periodically. T his depressing conclusion is because we have not yet realised the centrality of the above argu- ment. We often read about steps being advocated by various scholars from home and abroad. Yet, how many times have you seen the reforms of courts and the judicial system being mentioned as top priority? Quick identification of violators of contracts and awarding deterring and just punishment should be the number one priority. Breaking contracts may often be hugely rewarding, if one can get away with it. In such situations, the perpetrator continues to do exactly as he wishes, and scams and unwelcome outcomes continue and flourish. As someone said with respect to the handling of the situation at Yes Bank, while profits were privatised, losses will now be nation- alised and incentive for wrongdoing strengthened. Finally, both Adam Smith and Chanakya realised that freely functioning markets can lead to prosperity only on the basis of good moral behaviour. Mistakenly, people have attributed greed to be the enabling characteristic. Greed together with a belief of being able to get away scot-free has got us the various scams and failures that we have alluded to. It is this aspect that we no longer emphasise while framing policies. To counter this, the need for timely, just policing and a fair and efficient legal system becomes paramount. —The writer is Professor Emeritus, Centre for Economic Studies and Planning, JNU. This note appeared in the 10th Edition of Vitta, the FIC, Sri Ram College of Commerce Journal. It appears here with the kind permission of their editorial board Notonlyseveralbanks,butevenairlines suchasJetAirways,Kingfisherandthe famoustravelagency,CoxandKing’s foldedup,leavingpeoplesuddenlywith- outjobsandliterallystranded. UNI

40. Opinion/ RS Biennial Polls Vivek K Agnihotri 40 April 6, 2020 IENNIAL elections to the Rajya Sabha have been postponed to replace 55 retiring members in 17 states. Each member of the Rajya Sabha (RS) is elected for six years. According to Clause (1) of Article 83 of the Constitution, the Council of States (i.e. the RS) shall not be subject to dissolution, but one-third of its members shall retire every second year. This scheme has been considerably altered, and elections to the RS have being held on more than three occasions within six years. This is due to the imposition of President’s Rule and/or dissolution of various state assemblies from time to time before the completion of their five- year term. Some state assemblies were thus in a state of dissolution when the biennial elections to the RS were due and hence elections to the seats of those states were held later. This staggering of elections has played havoc with the biennial schedule. Actually, the elections of 73 members will be held in the course of 2020, which is close to the statutory one-third. Article 80 provides for the RS to have 12 members nominated by the president and not more than 238 representatives of states and Union Territo- ries. As against this sanctioned strength of 250 members, the RS at present has 245 members, the number of elected members having been restricted to 233 as detailed in the 4th Schedule of the A Council of Nominees? EvenaspollstotheHousehavebeenpostponed,itsoriginalvisionanddesignhavechangedas anyonecancontestitirrespectiveofdomicile.Itisnomoreacouncilofstatesbutofpoliticians B LOSING ITS CHARACTER The Chairman of the Rajya Sabha M Venkaiah Naidu, presiding over a session

41. BLURRED DISTINCTION The Rajya Sabha has been made somewhat of a clone of the Lok Sabha (left) in filling its seats | INDIA LEGAL | April 6, 2020 41 Constitution. There is a link between the numbers of RS seats allotted to various states and their respective population. According to Clause (4) of Article 80, the representatives of each state in the RS shall be elected by members of the legislative assembly of the state in accordance with the system of “proportional representation by means of the single transferrable vote”. In simple terms, “proportional representation” means a political party gets to elect one or more member(s) to the RS in propor- tion to the number of its members in the state assembly. Again, the vote of each member of the assembly is “single” but “transferable”. Thus, in the ballot paper, the names of all the contesting candidates are listed and the electors have to indicate their order of preference against them. After putting “1” against the candidate of his choice, the MLA’s other preferences come into play only if the number of contesting candidates is more than the current vacancies in that state and, in the first round of counting, one or more candidates does not get the required number of votes to get elected. The formula for deciding the mini- mum number of votes required by a candidate to get elected is: Total Number of MLAs +1 Number of Vacancies+1 For example, let us look at the sce- nario in Andhra Pradesh in the forth- coming elections. First the facts: the strength of the state assembly is 175; the number of RS seats for which elections are scheduled is four. The YSR Congress Party (led by Jagan Mohan Reddy) has a strength of 151 in the assembly. Accor- ding to the formula given above, the mi- nimum number of votes required by a candidate to get elected would be: 175 +1 = 36 4+1 Each of the four candidates nominated by YSRCP would thus need to secure 36 votes. As the YSRCP has a strength of 151 in the assembly, it requires a whip to at least 144 (36x4) MLAs to give their first preference in the ballot paper to one or the other of the candidates nominated by their party. Other candidates, if any, in such a situation would be no-runners, at the starting point itself, because the opposition has only 24 members. D uring the debates in the Consti- tuent Assembly, a member, Lok- nath Mishra, conceptualised the RS as “a sobering House, a reviewing House, a House standing for quality and the members will be exercising their right to be heard on the merits of what they say, for their sobriety and knowledge of special problems….” M Ananth- sayanam Ayyangar, a former Speaker of the Lok Sabha, thought that on such a platform of reflective consideration “the genius of people may have full play”, and it can make place for people “who may not be able to win popular mandate”. However, over time, we have some- how moved away considerably from the original vision and design of the RS in letter and spirit. The RS, as envisioned by the framers of the Consti- tution, has been “basically” modified by removal of the domicile requirement origi- nally mandated by The Rep- resentation of the People Act, 1951. In permitting anyone to contest the elections to the RS irrespective of domicile, the diversity, which was the hallmark of the Up- per House, has been watered down and it has, to some extent, become somewhat akin to the Lok Sabha. It is no more the council of states, and at present is, to ProvidingseatsintheRajyaSabhato variousstatesonthebasisoftheirpopu- lationisuncalledfor.Whenweconsider allstatesasequalforcertainlegislative purposes,whythenthisdiscrimination?

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