India Legal - 10 February, 2020

India Legal - 10 February, 2020
NDIA EGALL STORIES THAT COUNT I February10, 2020 HANGING FIREThetrendamongdeathrow convictstogettheirexecution delayedthroughappealsand curativepetitionsisamajor talkingpointinlegalcircles witheventheCJIsayingitis extremelyimportantinsuch casestohavesomefinality Shiv Visvanathan Profiles Pranab Mukherjee Inderjit Badhwar: Nationalism versus patriotism
| INDIA LEGAL | February 10, 2020 3 HE issue of hardcore, virulent nationalism has jumped centre-stage once again as the ruling BJP has elevated the coun- trywide ongoing anti-Citizenship (Am- endment) Act (CAA) protests as the number one danger to India’s unity and integrity. Party campaigners have made it their main election plank in the Delhi assembly polls, even going so far as to publicly berate political opponents as terrorists; Shaheen Bagh, where thousands of peaceful protesters have been reading the Pre- amble to the Indian Constitution and waving the Tricolour and singing the national anthem, has been described as a mini-Pakistan; Arif Moha- mmed Khan, governor of Kerala, has in an unprecedented and brash political gesture, publicly criticised the anti-CAA stance of the state government. The state has warned it will brook no opposition to its authority. The intent of this essay is not to debate the merits of the CAA-NRC-NPR initiative or its con- stititutional propriety but rather to examine the difference between the “patriotism” of the anti- CAA flag-wavers and the “nationalism” of the ruling party’s unabashed statist attitude which, according to at least one BJP minister campaigning for the party, would justify “shooting the bloody anti-nationals”. In November 2018, French President Emm- anuel Macron, in what was widely recognised as a jab at America First Trumpism, stated in Paris: “Patriotism is the exact opposite of nationalism... Nationalism is a betrayal of patriotism.” He added: “In saying, ‘Our interests first, whatever hap- pens to the others’, you erase the most precious thing a nation can have, that which makes it live, that which causes it to be great, and that which is most important: its moral values.” Macron’s illustrious predecessor, Charles de Gaulle, The New Yorker wrote, had drawn that distinction, at the risk of his own life: “De Gaulle knew that the patriot loves his place and its people and its idiosyncrasies; while the nationalist, of whom, for him, Adolf Hitler was the clearest and worst example, has no particular sense of affec- tion for the place he advocates for (he is often an outsider to it, as Hitler, an Austrian, was to Ger- many) but channels his obsessive grievances into acts of ethnic vengeance.” As India inches closer to the Delhi elections, with others to follow in successive years, competitive nationalism appears to be the emerging stage on which political battles will be waged. The BJP, positioning itself as India’s only “nationalist” party (it does not differentiate between the term and its version of “Hinduism”) has long been and continues to be the first responder. The latest weapon in its inventive armamentarium of nationalist-Hin- duist firepower is projecting the CAA as the long-term aim of the Founding Fathers as well as Gandhi. The purpose is to block any history that does not conform to the binary narrative of the ruling dispensation. One of the most distressing exam- ples of this ideological blitzkrieg was narrated in an article by the famous scholar, Audrey Trusch- ke, assistant professor of South Asian History at Rutgers University. She is the author of two books, Culture of Encounters: Sanskrit at the Mughal Court (Columbia University Press, 2016) and Aurangzeb: The Life and Legacy of India’s Most Controversial King. Headlined “Hindu PATRIOTISM VERSUS NATIONALISM Inderjit Badhwar T “Patriotismisthe exactoppositeof nationalism....Nation- alismisabetrayalof patriotism.Insaying, ‘Ourinterestsfirst, whateverhappensto theothers’,youerase themostprecious thinganationcan have,thatwhich makesitlive...” —FrenchPresident EmmanuelMacronin November2018 Letter from the Editor UNI
4 February 10, 2020 nationalists increasingly use anti-Semitic slurs to target me,” she wrote: “I awoke to the following tweet, ‘I hope another Hitler comes back and finishes off your people’, accompanied by a picture from 1945 of the bodies of dead Jews piled outside a liberated concentration camp. Since then, I have been regularly attacked with anti- Semitic language and tropes on social media, especially on Twitter.” The professor, even though her last name suggests it, is not Jewish. But her works often run counter to the new “nationalist” historical narratives. She wrote in Scroll: “I have personally received dozens of anti-Semitic messages over the last few years from Hindu nationalists and those sympathetic to their cause. These ugly attacks use vicious anti-Semitic slurs, frequently invoke the Ho- locaust, and draw on crude anti-Semitic tropes such as that I am somehow pursuing my academic research for the money.” Given the rapid rise of this toxic environment in India, it is not hard to understand why the author of the country’s national anthem, the prescient Nobel Laureate Rabindranath Tagore, decried nationalism as a scourge on humanity. The philosopher-poet believed that India survived as a country because it has never had a real sense of nationalism. He admits that even though from childhood he had been “taught that the idolatry of Nation is almost better than reverence for God and humanity”, he had later outgrown that teaching, “and it is my conviction that my countrymen will gain truly their India by fighting against that education which teaches them that a country is greater than the ideals of humanity”. He wrote this in 1917. “Europe has her past,” Tagore said. “Europe’s strength therefore lies in her history. We, in India, must make up our minds that we cannot borrow other people’s history, and that if we stifle our own, we are committing suicide. When you borrow things that do not belong to your life, they only serve to crush your life. “Nationalism is a great menace. It is the particular thing which for years has been at the bottom of India’s troubles. And inasmuch as we have been ruled and dom- inated by a nation that is strictly political in its attitude, we have tried to develop within ourselves, despite our inheritance from the past, a belief in our eventual political destiny. “When our nationalists talk about ideals, they forget that the basis of nationalism is wanting. The very people who are upholding these ideals are themselves the most conservative in their social practice....Our social restrictions are still tyrannical, so much so as to make men co- wards. If a man tells me he has heterodox ideas, but that he cannot follow them because he would be socially os- tracized, I excuse him for having to live a life of untruth, in order to live at all. The social habit of mind which im- pels us to make the life of our fellow beings a burden to them where they differ from us even in such a thing as their choice of food is sure to persist in our political organization and result in creating engines of coercion to crush every rational difference which is the sign of life. And tyranny will only add to the inevitable lies and hy- pocrisy in our political life. Is the mere name of freedom so valuable that we should be willing to sacrifice for its sake our moral freedom?” N early a quarter of a century later, George Orwell, the British essayist and author of 1984, decried “nationalism” as, first of all, “the habit of assum- ing that human beings can be classified like insects and that whole blocks of millions or tens of millions of people can be confidently labelled ‘good’ or ‘bad’. But secondly —and this is much more important—I mean the habit of identifying oneself with a single nation or other unit, pla- cing it beyond good and evil and recognizing no other duty than that of advancing its interests”. He, too, stressed that nationalism must not be con- fused with patriotism. Both words are normally used in so vague a way, he observed, “that any definition is liable to be challenged, but one must draw a distinction between them, since two different and even opposing ideas are involved. By ‘patriotism’ I mean devotion to a particular place and a particular way of life, which one believes to be the best in the world but has no wish to force on Letter from the Editor THE MINI-PAKISTAN TAG Peaceful protestors at Shaheen Bagh have been waiving the Tricolour and singing the national anthem for days picpanzee.com
other people. Patriotism is of its nature defensive, both militarily and culturally. Nationalism, on the other hand, is inseparable from the desire for power. The abiding purpose of every nationalist is to secure more power and more prestige, not for himself but for the nation or other unit in which he has chosen to sink his own individuality. “Every nationalist is haunted by the belief that the past can be altered. He spends part of his time in a fanta- sy world in which things happen as they should—in which, for example, the Spanish Armada was a success or the Russian Revolution was crushed in 1918—and he will transfer fragments of this world to the history books whenever possible. Much of the propagandist writing of our time amounts to plain forgery. Material facts are suppressed, dates altered, quotations removed from their context and doctored so as to change their meaning. Events which, it is felt, ought not to have hap- pened are left unmentioned and ultimately denied.” A s Indians prepare for the political battles that loom or are already upon them, they would be wise to ponder, again, the thoughts of Tagore or follow the principal characteristics of nationalist thought as defined and written by Orwell which are summarised below: Obsession. As nearly as possible, no nationalist ever thinks, talks, or writes about anything except the superi- ority of his own power unit. It is difficult if not impossi- ble for any nationalist to conceal his allegiance. The smallest slur upon his own unit, or any implied praise of a rival organisation, fills him with uneasiness which he can only relieve by making some sharp retort. Instability. The intensity with which they are held does not prevent nationalist loyalties from being transferable. To begin with, as I have pointed out already, they can be and often are fastened upon some foreign country. One quite commonly finds that great national leaders, or the founders of nationalist movements, do not even belong to the country they have glorified. Indifference to Reality. All nationalists have the power of not seeing resemblances between similar sets of facts. A British Tory will defend self-determination in Europe and oppose it in India with no feeling of inconsistency. Actions are held to be good or bad, not on their own merits, but according to who does them, and there is almost no kind of outrage—torture, the use of hostages, forced labour, mass deportations, imprisonment without trial, forgery, assassination, the bombing of civilians— which does not change its moral colour when it is committed by “our” side. The government has of late been proselytising that Gandhi would have supported the CAA and that its enactment is a fulfilment of his vision. Would he? The CAA is the invention of an all-powerful state and estab- lishes an iron grip of ruler over subject. I quote from the impartial eGyanKosh (a national digital repository of IGNOU that stores, indexes, preserves, distributes and shares digital learning resources developed by the Open and Distance Learning Institutions in the country). Here is a summary of Gandhi’s views on state and citizenship: “The state for Gandhi represents violence in its con- centrated form but is necessary since human beings are social by nature. He desires a state that would employ little violence and coercion and wanted individual actions to be regulated by voluntary efforts as far as possible. He advocates limited state sovereignty for there is an obligation higher than mere politics. His position is strength- ened by his faith in individual personality. The ideal society would be a decentralised one giving ample scope for self-development. Gandhi uses the term swaraj to mean positive freedom, to participate in the process of politics in every way possible rather than conceive the state as a negative institution that restricts activities to a bare minimum. Swaraj implied participatory democracy. “The state is a ‘soulless machine’ and the individual is endowed with dharma that encompasses both satya and ahimsa. It is therefore the paramount duty of the individual, endowed with moral authority, to challenge and even disobey the state. Gandhi also spoke of ‘world citizenship’, of ‘the essential unity of God and man for that matter of all lives’ holding that ‘All mankind in essence are alike’.” | INDIA LEGAL | February 10, 2020 5 Tagoresaidthatnationalismisa greatmenaceandhasbeenat thebottomofIndia’stroubles. HebelievedthatIndiasurvived asanationbecauseitneverhad arealsenceofnationalism. TheimpartialeGyanKosh sums upGandhi’sviewsonstateand citizenship:“Gandhidesiresa statethatwouldemploylittle violenceandcoercion....Headvo- cateslimitedstatesovereignty.” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
6 February 10, 2020 ContentsVOLUME XIII ISSUE13 FEBRUARY10,2020 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Junior Sub-editor Nupur Dogra Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographer Anil Shakya Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) There has been a trend among death row convicts to get their execution delayed through appeals and curative petitions. What are the legal loopholes that allow them to prolong their sentences despite the chief justice saying it is extremely important in such cases to have finality? Hanging Fire 14 LEAD The apex court has directed the HRD Ministry to take a decision on a petition seeking that Kendriya Vidyalayas be set up in every tehsil of the country Education For All 18 SUPREMECOURT
| INDIA LEGAL | February 10, 2020 7 Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE REGULARS Ringside............................8 Is That Legal.....................9 Courts.............................10 Law Campus News........12 International Briefs ........30 Media Watch ..................39 Satire ..............................46 Terror Run The recent beheading of seven villagers in the forests of Jharkhand has shown that there is disagreement among the tribals over the Pathalgadi movement and that Maoists may be involved COLUMN To prevent Speakers dithering over disqualification of legislator, the Supreme Court has given a time-frame and recommended the setting up of a separate body to decide such cases Speaker, Speed it Up 26 GLOBALTRENDS 43 With increasing technology and data acquisition, their misuse should be dealt with through legislation and enforcement to protect the privacy of individuals 40 Big Brother is Lurking While the Union Law Ministry has okayed the linking of voter ID and Aadhaar, questions are being asked about its legality and the possibility of massive data leak, fraud and theft which can endanger India’s democracy Should the Twain Meet? 22 While the International Court of Justice pulled up Myanmar’s de facto head, Aung San Suu Kyi, over the genocide of Rohingyas, the fact remains that she can’t antagonise the army or the conservative Buddhist population 36 32 Caught in a Cleft Stick OPINION STATES In saying that the recent protests will deepen India’s democratic roots, former President Pranab Mukherjee has played the role of a philosopher king brilliantly, combined with the shrewdness of a drama critic An Immaculate Performance MYSPACE The euphoria in Pakistan over being removed from the Financial Action Task Force’s grey list was dampened by the US ruling out any major relief unless it cracked down on terrorism Treading Cautiously20 CYBERSECURITY
8 February 10, 2020 Anthony Lawrence RINGSIDE “anti-nationals” “dogs” Karo-na-virus “traitors” “rapists”
| INDIA LEGAL | February 10, 2020 9 ISTHAT —Compiled by Ishita Purkaystha If the mercy plea of one of the co- convicts sentenced to death is still pending before the president, can the rest be hanged without him? The Delhi Prison Rules 2018 mandate that the co-convicts in a crime must be hanged together. Thus, if an appeal, or application for special leave to appeal to the Supreme Court, is preferred by any of the co-convicts, it will constitute a stay on all the executions associated with the primary case. Similarly, when a mercy plea is rejected by the president, the concerned court issues a fresh date for all the convicts to be hanged together. The minimum period of notice given to the applicant of the rejected mercy plea is 14 days from the date of such rejection. ? Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis When does a state file a writ petition against the centre’s actions? When is an original suit filed by the state? When one or more states intend to challenge the centre’s action on grounds of violation of the fundamental rights of individuals, a writ petition is filed before the Supreme Court. However, when one or more states intend to challenge the authority of the centre on violation of other legal rights—including some fundamental rights— thus triggering an inter- governmental dispute, which can be best solved by the apex court, an original suit is filed before the Sup- reme Court. Several writ petitions have been filed before the apex court challenging the Citizen- ship (Amendment) Act, 2019, on grounds of selective discrimination against Mus- lims. However, states could file original suits under Article 131 of the Constitution dis- puting contraventions of the principles of secularism. Original Suit vs Writ Petition Is free speech restricted for military officers? Article 33 of the Constitution enables the Government of In- dia to restrict or abrogate any of the fundamental rights available to the members of the armed forces, to ensure prop- er discharge of their duties and maintenance of discipline among them. The Army Act, the Air Force Act, and the Navy Act have provisions restricting the freedom of speech and expre- ssion, freedom of assembly, and freedom to form associa- tions and unions contained in Article 19 of the Constitution. Execution of Convicts Enforcing Discipline What is a curative petition? A curative petition is the last constitutional resort available before the Supreme Court to prevent miscarriage of justice and abuse of the process of law after a review petition has been dismissed or exhausted by the concerned petitioner/s. It is also the last option for the petitioner/s to seek justice. The whole idea is to plead with the Court to review its own decision. The concept of curative petition originated from a landmark judgment in Rupa Ashok Hurra vs Ashok Hurra and Anr, where the Court, under Article 137, read with Article 142, chose to review its order. A petitioner filing a curative petition must establish the violation of natural justice principles or claim that certain material facts placed before the Court were dismissed without arguments. Curative petitions do not usually get an open court hearing and the option cannot be demanded as a matter of right. The Last Legal Remedy
10 February 10, 2020 Courts The Supreme Court said that ordi- narily there should not be time restrictions for anticipatory bail and this could continue even till the end of the trial. A five-judge bench headed by Justice Arun Mishra and comprising Justices Indira Banerjee, Vineet Saran, MR Shah and S Ravindra Bhat said that “the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial”. “Anticipatory bail granted can, depending on the conduct and behaviour of the accused, continue after filing of the chargesheet till end of trial,” the bench added. The bench, however, clarified that it will be open for the competent court to impose conditions if it feels the need for doing so and must be done on a case-by-case basis. It said: “If there are any special or peculiar features necessitating the Court to limit the tenure of anticipatory bail, it is open for it to do so.” The bench also laid down certain factors that the court should keep in mind while deciding an application for anticipatory bail. The application, it said, “should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence”. Courts Supreme Court judge Justice S Rav- indra Bhat (right) recused himself from hearing a curative petition filed by the central government for direction to the Union Carbide Corporation to pay enhanced compensation of over `7,400 crore to the victims in the Bhopal gas tragedy. A different bench with a new set of judges will now hear the matter again on February 11. The petition filed by the centre in 2010 came up for hearing on January 28, 2020, and a five-judge bench of the SC judge recuses himself; new bench to hear on Feb 11 The Supreme Court granted interim bail to 14 men convicted in a 2002 Gujarat riots case and ordered that they be relocated to MP. It also ruled that they will do social, spiritual and community work till a final decision is taken on their appeals against conviction and till then, they will not enter Gujarat either. The bench hearing the case noted that the convicts had completed seven years in prison and a decision on their appeals had been pending before the Court. They ordered that the convicts be split into two groups and sent to Jabalpur and Indore. The bench asked the Madhya Pradesh State Legal Services Authority to find employment opportunities for them and ensure that they do community service six hours a week. The Court also instructed that a status report be filed every three months. The case relates to the Ode mas- sacre in Anand district of Gujarat, in which eight children and six women were among the 23 killed. It was one of the nine most gruesome killings in the post-Godhra riots probed by the Supreme Court-appointed SIT. Godhra riots convicts asked to do community service SC: Anticipatory bail can continue until trial ends Anil Shakya
| INDIA LEGAL | February 10, 2020 11 The apex court issued notice to the centre on a petition filed by Swati Bidhan Baru- ah, Assam’s first transgender judge, challenging the Transgender (Protection of Rights) Act, 2019. The petitioner claimed that the Act was violative of the right to life, privacy and equality of transpersons. A bench headed by Chief Justice of India SA Bobde issued the notice after Baruah submitted that the right to self-identification of gender identity is a fundamental right that forms part of the right to life under Article 21 of the Constitution. While referring to the judgment given by the top court in the NALSA case that highlighted the plight of transpersons and directed the Union and state governments to take necessary remedi- al steps to ensure that fundamental rights of transpersons are not violated, the plea called the provisions of the Act arbitrary and vague. It further argued that as per the 2005 verdict, the right to self-identification of gender identity is a fundamental right. SC issues notice on Transgender Act, 2019 —Compiled by India Legal team Airlines not bound to escort passengers to boarding gate: SC The top court held that following check-in at airports, flyers are on their own and if a passenger encounters any difficulty in reporting at the boarding gate, he/she should seek assistance of the ground staff. It said that airlines were under no obligation to escort every passenger to the boarding gate. A bench comprising Justices AM Khanwilkar and Dinesh Maheshwari said: “After boarding pass is issued, the passenger is expected to proceed towards security channel area and head towards specified boarding gate on his own. There is no contractual obligation on the airlines to escort every passenger, after the boarding pass is issued to him at the check-in counter, up to the boarding gate.” The judgment came on an appeal challenging an order of the National Consumer Disputes Redressal Comm- ission which, on a review plea by In- digo airlines against an order of the Tripura State Commission, had asked Indigo to pay `20,000 to Kalpana Rani Debbarma and her family. It was her contention that she along with her husband and two minor sons were put to great distress because of the attitude of the airline staff and they eventually missed their flight. Court headed by Justice Arun Mishra ad- journed the hearing and said that Chief Justice of India SA Bobde would take a call on the composition of the bench to hear the matter. Justice Bhat was a counsel for the government in settling the compensation amount in 1989. While recusing, he said: “I had appeared for the Union of India in the matter when Union had sought review.” The Union Carbide Corporation (UCC), now owned by Dow Chemicals, gave a compensation of $470 million (`715 crore at the time of settlement) after the toxic gas leak from its factory in Bhopal on the intervening night of Dec- ember 2 and 3, 1984, killed over 3,000 people and affected 1.02 lakh. The Supreme Court cleared a pilot project to introduce the African cheetah from Namibia into India and appointed a three-member committee to oversee it. A bench of Chief Justice of India SA Bobde and Justices BR Gavai and Surya Kant allowed the plea by the National Tiger Conservation Authority (NTCA) and said that the animal will be introduced at a site identified after due survey. NTCA had approached the top court for permis- sion, saying the Indian cheetah was almost extinct in India. Before Namibia, India had approached Iran for Asiatic cheetahs, but had been refused. The Asiatic cheetah is classified as a “critically endangered” species by the International Union for Conservation of Nature’s (IUCN) Red List and is believed to survive only in Iran. From 400 in the 1990s, their numbers are estimated to have plum- metted to 50-70 today, because of poaching, hunt- ing of their main prey (gazelles) and encroach- ment on their habitat. In 2013, the Supreme Court had rejected the government’s plans to introduce the animal in the Kuno National Park in Madhya Pradesh. Bring African cheetah to India: SC
12 February 10, 2020 LAW CAMPUSES / UPDATES NLU Delhi students write open letter to High Court Alumni meet at NLIU Bhopal The National Law Institute University, Bhopal (NLIU) Alumni Cell and Alumni Association will host the fifth alumni meet over February 14-16, 2020. The three-day event will witness various fun-filled activities, as the alumni take a trip down memory lane. The Vice-Chancellor, Prof V Vijaya- kumar, will open the meet by giving an Over 145 past and present students from the National Law University, Delhi (NLUD) have addressed an open letter to the Delhi High Court, urging the chief justice and the High Court judges to intervene against the proposed 50 percent reservation for applicants who are residents of Delhi. In the letter students have raised their concern regarding the adverse effects of the January 14 notification on the “National character of NLUD”. The letter reads: “We fear that instead of remaining an ‘elite’ institution of learning, the effect of the notification would be to make it an ‘elitist’ one. You will no doubt forgive us for the impertinence of writing an open letter to you, but we beg to take the liberty to insist that what is at stake is not only the future of our institution, but also of the ‘NLU Model’ itself, which has for long been considered as a means to bring legal education at par with other streams of technical education, both in terms of quality and public perception….” The letter adds that the notification can raise safety issues for women applicants and disproportionately impact the number of female applicants, and worsen the already skewed sex ratio prevailing within the university. The letter also points to the lack of infrastructure and faculty strength at NLU Delhi to cater to an increased student population of 123. “An increase from the present strength of 83 will severely impact the quality of learning within the institution, thus defeating the purpose behind the establish- ment of our university,” the letter read.
—Compiled by Nupur Dogra Kartavya—first NLUO-SMC state- level video making competitionPrachi Chowdhary, a first-year student of National Law University, Odisha, has won two bronze medals in Lawn Bowls Women's Fours and Triples at the National Khelo India Youth Games hosted in Assam over January 10-22, 2020. Lawn bowls is a unique sport introduced in the Khelo India Games for the first time. It is usually played on a large, rectangular, precisely levelled and mani- cured grass or synthetic surface known as a bowling green which is divided into parallel playing strips called rinks. Chowdhary says: “The experience of representing not just her state but the University and family was truly exhilarat- ing.” She further adds that the game helped her to increase her focus and concentration. Chaudhary represented West Bengal at the games. address to welcome the alumni. In the evening, the alumni and faculty will reconnect and reminisce over dinner, and enjoy an evening of social and intellectual engagement. Day two will start with a panel dis- cussion, where a diverse line up will seek to inspire and empower students on their journey to success. At the end of the day, the alumni can sit back and enjoy a cultural evening when the students will showcase their talents in dance, music, comedy and poetry. On the last day, the Alumni Cell will conduct Alumni Association elections. The alumni present will cast their votes to determine the new president, vice- president, treasurer and secretary. Post- elections, the cell will organise sporting events to foster connection between the students and alumni and encourage a healthy competitive spirit. The three-day affair will conclude with valedictory ceremony and vote of thanks. The Social Me- dia Committee (SMC) of the Na- tional Law Uni- versity, Odisha (NLUO) has an- nounced its first ever state-level video making competition, “Kartavya”. NLUO, being the coordinating university for Od- isha for the 70th Constitution Day year-long celebration, is organising the competition. NLUO aims to sensitise, cherish and abide by the noble ideas en- shrined in the In- dian Constitution with this competition. The theme for the competition is fundamental duties. The competition is open for all undergraduates and postgraduate students from any recognised university/college across the state of Odisha (except National Law Uni- versity, Odisha). Students can win cash prizes worth `14,000 and certificates of excellence and merit. The last date for submission of videos is April 4, 2020. Interested students can fill in the registration form on the university website. Two Bronzes for NLU Odisha student | INDIA LEGAL | February 10, 2020 13 In its flagship project, the Confederation of Alumni for National Law Universities (CAN) Found- ation is launching Project Dhananjay to aid new entrants from economically weaker backgrounds in a career of litigation. The project aims to provide an incubatory period to budding, merito- rious law graduates (from economically weaker sections of society), who have the potential to raise the standards of the Bar in multiple ways. Under this project, a monthly stipend will be provided to the scholars who are selected by a high-powered expert panel after a month-long two-tier selection process. This monthly stipend will be provided as a “sustenance allowance” for the initial one year (or two years) of their practice in courts of law. CAN Foundation announces Project Dhananjay
Lead/ Delay in Executions 14 February 10, 2020 OURT verdicts, technically, settle the rights and liabili- ties of all parties in a case. Of late, however, courts are witnessing multiple chal- lenges to all kinds of verdicts. Even death row convicts, believing their sentence to be open-ended, continue to file a variety of pleas in an attempt to escape the gallows. A rather piquant situation was seen recently when the Supreme Court dismissed the plea of Nirbhaya death row convict Mukesh Kumar who challenged the rejection of his mercy petition by President Ram Nath Kovind. The Court said there was no merit in the contention. “Alleged sufferings in jail can’t be grounds to challenge the rejection of mercy plea by President,” the Court said. Expeditious disposal of the mercy plea doesn’t mean non-application of mind by the president, said the three- judge bench headed by Justice R Banu- mathi. The four death row convicts in the case were slated to be hanged on February 1, but the order was stayed by a Delhi court on January 31. Judge Therehasbeenatrendamongdeathrowconvictstogettheirexecutiondelayedthroughappeals andcurativepetitions.Whatarethelegalloopholesthatallowthemtoprolongtheirsentences despitethechiefjusticesayingitisextremelyimportantinsuchcasestohavefinality? By India Legal Bureau C Hanging ON DEATH ROW The four convicts in the Nirbhaya case
| INDIA LEGAL | February 10, 2020 15 Dharmender Rana did not issue a fresh warrant for their execution. In his order, he said: “Seeing redressal of one’s grievances through proce- dure established by law is the hall- mark of any civilised society. The courts of this country cannot afford to adversely discriminate any convict, including death row convict, in pur- suit of his legal remedies, by turning a Nelson’s eye towards him.” Nirbhaya’s mother, Asha Devi, broke down outside the courtroom and said the courts were destroying the trust that she had reposed in them. “The convicts are taking advantage of the law and delaying their execution.” Incidentally, February 1 was the second date fixed for carrying out the executions. The previous date was January 22. M eanwhile, another death row convict in the Nirb- haya case approached the Supreme Court with a curative petition. This cycle of verdict, appeal, review, curative petition, mercy petition and appeal is a new phenome- non as prisoners attempt to ward off the inevitable execution. This was mentioned even by Chief Justice of India (CJI) SA Bobde recently while dismissing a plea filed by a couple, Shabnam and Saleem, from Amroha district in UP, who are on death row for sedating and hacking to death the woman’s family in April 2008. However in 2015, the Court cancelled their execution, saying the magistrate had acted in haste and the convicts were yet to exhaust their legal options. The CJI said it was extremely important for the death sentence to have some finality. He said a death row convict should not feel that the sentence can be questioned all the time, adding that “one cannot go on fighting endlessly”. “We don’t want to focus or emphasise only on rights of accused in a case in which seven people, including a 10- month-old baby, have been murdered,” he said. The CJI said it was difficult to accept if the degree of reform under- gone by a convict should be a mitigating factor. “This argument will have conse- quences beyond this case,” he said. “We are doing justice on behalf of the soci- Nirbhaya’smother, AshaDevi,brokedown outsidethecourtroom andsaidthecourts weredestroyingthe trustthatshehad reposedinthem. “Theconvictsare takingadvantageof thelawanddelaying theirexecution,” shesaid. Fire UNI
16 February 10, 2020 ety and the victims. We cannot forgive a convict who has been convicted because there is a law, which deals with a crimi- nal.” The Court said if convicts start claiming they had reformed, death penalties will not be carried out. The convicts will say we have reformed and we can come out, the judges added. E ven in the case of Mukesh Kumar, senior advocate Anjana Prakash, who appeared for him, claimed that he was sexually abused in Tihar Jail and pressed ahead with challenging the president’s rejection of his mercy plea. The Supreme Court enjoys the power of judicial review of executive actions, so challenging the rejection order of the mercy plea was technically possible. The bench hearing the matter was not initially piqued until Prakash mentioned that not all documents were presented before the president. Solicitor General Tushar Mehta, however, confirmed that all relevant materials as laid down in the 2014 guidelines of the Supreme Court were placed before the president. Prakash argued that the president should have known that Kumar was sexually abused in Tihar Jail where he has been an inmate since 2013. She claimed that all records were not sent to Kovind, so his decision to reject the mercy plea was “arbitrary and mala fide”. However, Mehta told the three-judge bench headed by Justice Banumathi that Kumar was not kept in solitary con- finement and no ground of commuta- tion has been made out. The bench held that “the alleged suffering” in prison cannot be a ground for judicial review of rejection of mercy plea under Article 72. Meanwhile, on January 30, a Delhi court issued a notice to the Tihar Jail authorities and sought a report on an application filed by Vinay Sharma, another convict in the Nirbhaya case. He sought a stay on his execution on February 1 and wanted a fresh date for it. This application was moved before Special Judge Ajay Kumar Jain on the ground that Sharma has filed a mercy petition before the president. In fact, Sharma’s counsel, AP Singh, had urged the Court to adjourn the executions sine die. Taking note of this, the judge directed the Tihar Jail superintendent to file a reply on Sharma’s plea. But his stay demand was opposed by the special public prosecutor and another prosecutor on the grounds that in December, a seven-day notice was given to the convicts to avail of legal remedies. In fact, Singh had earlier alleged in the Patiala House Court that Sharma was being slow poisoned and had even been hospitalised and that his medical reports were not being provided. The prosecution, however, told the court that the convicts were using delaying tactics and that Tihar Jail authorities had given Lead/ Delay in Executions Latest data indicates that in India, trial delays make the death sentence inef- fective and result in protracted waits for the accused and their families. There were 371 prisoners on death row in India by the end of December 2017, with the oldest case being from 1991, 27 years ago, according to the Death Penalty in India report published in January 2018. The number of death sentences also fell. In 2017, 109 were sentenced to death by sessions courts across states, down Longwaitfor justice… InthecaseofAfzalGuru,theParliament attackhewasaccusedofmasterminding tookplacein2001.TheSupremeCourt confirmedthedeathpenaltyin2005, butitwasnottill2013that Guru’sexecutionwasfinallycarriedout. Anil Shakya
| INDIA LEGAL | February 10, 2020 17 all relevant documents. Singh said that a 170-page diary titled “Darinda” written by Vinay had not been received. He said the diary was essential for filing a mercy petition. The president rejected his plea. A nother convict in the same case, Akshay Kumar Singh, had filed a curative petition against his death sentence in the Supreme Court, which was dismissed. A five-judge bench said: “We have gone through the curative petition, and the relevant documents” and that “in our opinion, no case is made out…” On February 1, however, he filed a mercy petition before the president. Even Pawan Gupta, the fourth convict in the case, had submitted an application before the apex court to review its earlier order dismissing his claim of juvenility. The Court rejected his application. Pawan was 19 as per the Court’s records. He had wanted medical tests done to prove he was under 18. When deciding such cases of convicts, courts must also take cognisance of the suffering of victims, be it Nirbh- aya, the Hyderabad girl who was gan- graped and burnt, or numerous other victims of such bestiality. Despite pen- dency plaguing courts, in this particular case the President acted swiftly in rejec- ting the mercy plea. But this was not appreciated by Kumar’s counsel as she unsuccessfully argued that the mercy petition was dealt at all levels with a predetermined mind. The problem in the Nirbhaya case is that there are four convicts who have to be hanged at the same time. Each can file all sorts of petitions which are basically stalling the inevitable, unlike say, an Afzal Guru, who was allowed to file one mercy petition which was rejected by the president. Even in his case, the Parliament attack he was accused of masterminding, took place in 2001. The Supreme Court confirmed the death penalty in 2005 but it was not till 2013 that Guru’s execution was finally carried out. For judges, too, such cases have to be handled with care. As CJI Bobde said in the seven-murder case: “It is not the judge but the law that deals with a crim- inal. A judge, being a human being, cannot forgive a murderer. The law and the judge act for the society. Imagine a situation when a judge tells a murderer ‘oh yes, I forgive you!’ Imagine the impact.” 27 percent from 149 in 2016, said the report, published by the Centre on the Death Penalty (CDP), an advocacy. However, only four death row prisoners were executed in the last 13 years. One had raped a minor and three were convicted of terrorism. Further, the Law Commission of India 2015 report said: “Death row prisoners continue to face long delays in trials, appeals and thereafter in executive clemency. During this time, the prisoner on death row suffers from extreme agony, anxiety and debilitating fear arising out of an imminent yet uncertain execution.” The average time for trial of the 373 prisoners facing execution was five years, as per an earlier study carried out between July 2013 and January 2015 and published in February 2016 by CDP. The trial of 127 prisoners lasted more than five years and of 54 prisoners con- tinued for over 10 years. Among the prisoners whose mercy petitions were rejected by the president, the median time spent in prison under trial was 16 years nine months, and the median time under sentence of death was 10 years five months. The longest time spent by a prisoner in jail in such cases was 25 years, and the longest time spent on death row was 21 years one month. ChiefJusticeofIndiaSABobde saiditwasimportantforthe deathsentencetohavesome finality.Hesaidadeathrow convictshouldnotfeelthatthe sentencecanbequestionedall thetime,addingthat“onecan- notgoonfightingendless- ly....Wearedoingjusticeon behalfofthesocietyandthe victims.Wecannotforgivea convictwhohasbeenconvict- edbecausethereisalaw, whichdealswithacriminal.” SenioradvocateAnjanaPrakash,who appearedforconvictMukeshKumar, claimedthathewassexuallyabused inTiharJailandchallengedthe president’srejectionofhismercyplea.
Supreme Court/ Kendriya Vidyalayas 18 February 10, 2020 HE Supreme Court has directed the Ministry of Human Resource Develop- ment (HRD) to decide on a plea with regard to the setting up of Kendriya Vidya- layas (KVs) in all tehsils of the country. A bench headed by Justice NV Ramana took up the plea of Ashwini Kumar Upadhyay, a BJP leader and an advocate, and said that the courts cannot decide what school should be opened and where. Instead, it directed the HRD Ministry to take a decision in the case within three months. It all started when Upadhyay submitted a representation to the HRD minister to set up a KV in every tehsil/taluka. On not getting any response, he filed a writ petition in the Delhi High Court. However, on October 1, 2019, a High Court bench of Chief Justice DN Patel and Justice C Hari Shankar said that setting up KVs in every tehsil across the country or making it mandatory to study the “aims, objects and basic structure of the constitution” are policy decisions best left to the central government and disposed of the matter. Aggrieved by this, Upadhyay filed a Special Leave Petition (SLP) in the Supreme Court. In the apex court, he contended that “a Kendriya Vidyalaya in every tehsil would achieve the code of a common culture, removal of disparity and dis- criminatory values in human relations. It would enhance virtues and improve life quality, elevate thoughts, which advance the constitutional philosophy of equal society”. Many countries follow a uniform education system, which is a vital element for unity, he said. Establishing central schools will bring such unity as there are around 1,209 central schools in India established under the HRD Ministry and they, apart from being affiliated to the CBSE, have a common syllabus, curriculum and school uniform, he said. Further, by providing a common curriculum, KVs ensure that children do not face educational disadvantages when their parents are transferred from one place to another. He contended: “The great golden goals set out in the Preamble of the Constitution—‘sovereign, socialist secular democratic republic’ and ‘unity and integrity of the nation’ cannot be achieved without providing a common education to all students of I-VIII standard.” He held that the “High Court had failed to appreciate that after detailed debate and feedback, Article 21A was inserted in the Constitution. Thus, the medium of instruction may be different but there must be no discrimination in the quality of education. The right of a child, aged 6-14 years, should not be restricted only to free education, but must be extended to equal quality education without discrimination on the ground of the child’s social, economic and cultural background, thus a common syllabus and common curriculum is required for students of I-VIII standard”. Upadhyay further said that “we have resolved to constitute India into a Socialist, Secular, Democratic Republic. Justice, Liberty, Equality and Fraternity are cornerstones of our democracy. Justice is the genus, of which socio-eco- TheCourthasdirectedthe HRDMinistrytotakea decisiononapetition seekingKVsbesetupin everytehsilofthecountry By Ananthu Suresh T Education for All
| INDIA LEGAL | February 10, 2020 19 nomic justice is one of its species. To achieve real equality and elevate poor, weak, Dalits, tribals and the deprived sections of society, the state must provide uniform education having common syllabus and common curriculum to all students of I-VIII standards in the spirit of Articles 14, 15, 16, 21A and Preamble of the Constitution”. Y et another argument placed by Upadhyay with respect to unity and integrity was that KVs have students from various parts of the state. Due to this, equal opportunities are given to them despite their language and territorial differences. Every festival is celebrated irrespective of religion and region. Further, the low fee structure in KVs will benefit poor students in getting quality education. According to the petitioner, this will encourage other schools to provide better education as they will face competition. With respect to the quality of education in KVs, he contended that teachers appointed are qualified in teaching their particular subject and are regularly trained to enhance their skills and to follow new techniques for effective learning of students. He said that currently, there are more than 5,000 tehsils in the country and government officers who get posted there for implementing various Union development schemes prefer not to stay there but go to some district headquar- ters or state capital due to the poor infrastructure or non-availability of good schools. A tehsil being an adminis- trative unit, government officers such as the tehsildar, engineers, doctors, lectur- ers and so on work there, but due to the non-availability of good schools, they keep families away. According to Upadhyay: “This distance not only weakens them emotional- ly but also takes a toll on their health due to travel. It reduces efficiency, making public functions lag and sometimes this even hampers work. The establish- ment of a Central School in every tehsil will help the employees reduce their burden as they will be able to keep their families with them.” He suggested that the “best thing the State can do for society, is not to fetter it with laws but straighten the lives with honesty and modesty. The best function of the State is not to legislate but edu- cate, to make not laws but schools”. Statesmen, like the subtlest teachers, should suggest through information, rather than invite “pugnacity with prohi- bition; motto should be millions for education, not one cent for compulsion. Citizens ask not for lawmakers but cre- ative teachers; submit not to regimenta- tion but to knowledge; achieve peace and order not through violence but through spread and organisation of intelligence”, he pleaded. RIGHT TO LITERACY Flag hoisting at a KV in Thiruvananthapuram; (above) students showcase their projects ThelowfeestructureinKVswillbenefit poorstudentsingettingquality education.Thepetitionerfeltitwill encourageotherschoolstoprovidebet- tereducationastheyfacecompetition. Photos:facebook.com
20 February 10, 2020 RANAB MUKHERJEE was not a great president but he was a shrewd and pragmatic one, balancing the statesman and the politician in him. He knew how to avoid controversy and yet he conveyed a sense of competence as finance minister and as president. There was a sense of compact theatre in the way he constructed himself, adept that he was at role playing. As a master of the balancing act, he could harmonise pragmatism and idealism. He presented himself as a competent working hypoth- esis and in terms of survival, it worked. His sense of timing made him rise to the occasion. In fact, he is still in the news often after his retirement. His successor is a colourless figure, a party creation, a modest man with a lot to be modest about. Come Republic Day and Ram Nath Kovind spouts ahimsa, which sounds odd as a message. It is too abstract to capture the drama of Republic Day as an occasion. It is almost as if he conced- ed the occasion to Pranabda and the lat- ter seized it. As a statement’s comment, Mukher- jee was occasion-perfect. He transcend- ed the divide of parties and isms and could not be accused of being partisan. He did not seem nostalgic for power. He played the philosopher king brilliantly after his retirement, almost as if it was a pedagogical lesson to the current in- cumbent. India as a concerned audience was waiting for such an enlightened script. The Opposition must be kicking itself for an opportunity lost and the BJP was stuck speechless at the immac- ulateness of his master’s voice. Strictly speaking, Mukherjee’s comment was not a call for intervention. It was a statement of concern, care and a sense of the drama unfolding, combining the shrewdness of a drama critic with sociologi- cal insights. It was a lesson to our edito- rial writers on how a discourse on ideals can be good copy. Mukherjee begins with a sense of avunculate care, taking note of the wide sweep of protests and emphasising their generally nonviolent character. He senses a manthan, a political and intellectual churning, and marks it as something new. This is not a replay of old politics. The actors are new, the script is new, it An Immaculate Performance InsayingthattherecentprotestswilldeepenIndia’sdemocraticroots,theformerpresidenthas playedtheroleofaphilosopherkingbrilliantly,combinedwiththeshrewdnessofadramacritic My Space/ Pranab Mukherjee Shiv Visvanathan P OUTSTANDING STATESMAN Former President Pranab Mukherjee receiving the Bharat Ratna from his successor, Ram Nath Kovind PIB
| INDIA LEGAL | February 10, 2020 21 is youth on the streets and such digni- fied street theatre is good for democratic politics. The freshness, the nonviolence gives a new sense of politics. The young are challenging the old to rethink and revitalise the two value frames that make India so wonderfully liveable—the Constitution as a lived text and democracy as a life world. Mukherjee’s sense of democracy is immaculate. He does not pontificate about Plato and Rousseau. In fact, he quotes no authority. He merely suggests that democracy is the art of listening, deliberating, discussing, arguing and that dissent is a critical part of such a glossary. Mukherjee’s thesaurus of democracy is clear. It is an appeal to reason, to conversation, not to electoralism and political struggle. Mukherjee literally clears the decks of suspicion with his certificate. Unlike Prime Minister Narendra Modi or Ho- me Minister Amit Shah, he sees nothing divisive or pro-Pakistani in the message. He is clear it is a statement of good citizenship, not a tom-tomming of patriotism and he insists that this is good for the country. He is echoing another famous speech by literally saying, come let us reason together. As a message, it is clear. As a performance, it is immaculate. The rhetoric is transparent, the message as obvious as the cow has four legs and that democracy needs dissent and conversation. These are habits that keep its roots alive. The former president is clear that the message of the recent protests is not ephemeral. It is more that the drama goes to the roots of the question. In fact, it is in a statesman-like sense, an act of pedagogy. Mukherjee reminds us that to be statesman-like, one needs the drama of pedagogy where a society’s values are restated and revitalised through a simple ritual of civics. Protest becomes a simple act of citizenship and should not create a panic of governance. M ukherjee’s message, as he himself tacitly hints, embod- ies two kinds of time—the im- mediate and the long run. In its imme- diate sense, Mukherjee offers a lesson to two kinds of politicians. Firstly, to the unemployed vanguard of the Congress ready with quips and quotes and personal comments but rarely with a sense of the stakes involved or the drama being played out. A Shashi Tharoor, a Jairam Ramesh, a Rahul Gandhi should learn how to take themselves and democracy seriously. The facetious does not quite add to the party struggling in a political wilderness. Mukherjee’s message is as astute and even more pointed to the regime in power. He shows Modi that being a statesman means you read threats but do not threaten people, that you must never confuse levels of analysis. Modi and Shah often confuse a threat to the regime as a threat to democracy or the nation. It is this repeated misreading of protest which has created the current imbroglio. But beyond his short-run insights, Mukherjee hints that democracy as drama and the Constitution as text must resonate with each other. India works best when these two institutions work in tandem. Mukherjee is astute enough to point out that the young understand this today and that their celebration of the Constitution is sustained by a healthy sense of politics. This Mukherjee as a politician un- derstands. He never undermines the possibilities of politics. As a politician, he senses his limits and therefore has a tre- mendous sense of possibilities, opportunities and timing. Retired presidents are rarely lethal and are cited more out of nostalgia and habit. But Mukherjee senses the need and dangers of the hour. Distorting or misreading politics emas- culates democracy. What one needs is transparency and timing to send the right balance. It is an art form and a retired president shows the current politician that it is still achievable. In that sense, the ex-president’s message was an immaculate performance, converging an ideal polity and the necessity for the craft of politics. One is grateful for it. —The writer is a member of the Compost Heap, a commons of ideas exploring alternative imaginations Pranabda’ssenseofdemocracyis immaculate.Hesuggeststhatdemocracy istheartoflistening,deliberating, discussing,arguingandthatdissentisa criticalpartofsuchaglossary. POLITICAL CHURNING Mukherjee took note of the wide sweep of protests, including the one in Shaheen Bagh twitter.com
Opinion/ Linking Voter ID & Aadhaar MG Devasahayam 22 February 10, 2020 HE Union Law Ministry is stated to have given the green signal to the Ele- ction Commission (EC) to resume linking of Voter ID with Aadhaar. Last August, in a letter addressed to the law secretary, the EC had proposed amend- ments to the Representation of the People Act, 1950, and the Aadhaar Act, 2016, and powers to collect and use Aadhaar data for “cleaning” the voters’ list as a “back-end exercise”. Linking voter ID with Aadhaar would certainly cleanse the voters’ list but the question is—list of which voters? Let us look at the background briefly. On September 1, 2019, the EC launched a nationwide electoral verification programme. People were asked to get their voter IDs verified by local EC represen- tatives to avoid invalidation of the cards, either through an online process or offline by submitting their Aadhaar details. The message given out was: “If you fail to get your voter ID card verified with the Aadhaar number during this period, it will become invalidated.” This was intriguing because a similar exercise undertaken in 2015 had to be dropped when a Constitution bench of the Supreme Court ruled that Aadhaar numbers could only be used for access- ing welfare services such as subsidised rations from the public distribution system, kerosene and LPG. In March 2015, the EC had launched the National Electoral Roll Purification and Authentication Program (NER- PAP). As the name suggests, its aim was to “clean up” India’s electoral rolls using Aadhaar authentication. Or, in other words, to eliminate potential voter fraud by deleting ghosts or people who had somehow got more than one voter ID from the system. The programme’s goals and deadlines were ambitious: internal EC documents show that it wanted to achieve draft electoral rolls that were “100% error-free” and “100% multiple- entry free”. The extensive coverage of the scheme before it was shut down by the Supreme Court in August 2015 is sur- prising. By the time the initiative was forcibly shut down, it had collected the Aadhaar numbers of over 300 million voters. The EC publicly claimed that 320 million voter IDs were linked to Aadhaar during NERPAP in the span of just three months and that another 545 million Aadhaar numbers would be linked to the remaining voter IDs in six months once the Supreme Court allowed it. Should the Twain Meet? Whilethelawministryokayed thelinking,questionsarebeing askedaboutitslegalityandthe possibilityofmassivedata leak,fraudandtheftwhichcan endangerIndia’sdemocracy T
| INDIA LEGAL | February 10, 2020 23 In the ensuing confusion, the names of 2.8 million voters in Telangana alone got deleted, which only came to light when the state went to the polls in 2018. This was grudgingly admitted by the EC in an RTI reply. EC officials claim that the exercise is meant to weed out bogus/fake voters. But the security of citizens’ data and privacy issues are a matter of great concern. Not a single agency in India has yet done any study on how safe data is, once linked to the Aadhaar number. Neither the government nor the Unique Identification Authority of India would have any con- trol over the usage of this data, which remains strictly under the jurisdiction of the foreign agency that collects it. H ow did the EC manage to link voter IDs of over 300 million people with their respective Aadhaar numbers in just three months? Was the consent of voters taken for this exercise? If voters were in the loop, as the EC has consistently maintained, was informed consent taken with citizens clear on how their data could be used? Individual states offer a few clues with regard to the bulk seeding of Aadhaar numbers. For instance, in Maharashtra, only 3,01,000 voters had registered themselves for the voter ID-Aadhaar linking programme by the beginning of May 2015, but when the programme ended three months later, the chief electoral officer of the state claimed that 1.8 million voters had provided their Aadhaar numbers. On a national scale, the numbers look even more stark. A report published in DNA newspaper noted that by May 2015, 130 million voters had applied for linking. Given these numbers, how did the EC link 320 million voters in just three months and what means did it employ? There are multiple ways to seed Aadhaar to new databases. The first is “organic seeding” where an individual provides the data himself. In this “man- ual” mode, a citizen links his voter ID to his Aadhaar himself. To help out with this, the EC used the National Voters’ Service Portal (NVSP). All people had to do was enter their voter ID number, a few demographic details and their Aadhaar number. A person could then verify their Aadhaar number through a one time password (OTP) sent to his smartphone, after which the voter ID would be linked. However, this approach is slower as it involves a citizen’s willingness: they have to come for- ward on their own and sign up to link their voter ID and Aadhaar. The other method is inorganic seeding, where details of the elector are ENROLMENT DRIVE People queue to get their Aadhaar cards in New Delhi; (right) CEC Sunil Arora (right) launching the Electoral Roll Verification Program in New Delhi Asimilarexerciseundertakenin2015 hadtobedroppedwhenaConstitution benchoftheSupremeCourtruledthat Aadhaarnumberscouldonlybeusedfor accessingwelfareservices. Anil Shakya PIB
24 February 10, 2020 collected and seeded automatically with Aadhaar with the help of an algorithm. No one knows what this algorithm is and even RTI queries have not been able to get it out of the EC. The EC seems to have adopted a host of tactics to rapidly link hundreds of millions of voter IDs to Aadhaar numbers in 2015, some of which may have skirted the boundary between responsi- ble data-sharing practices and outright violations of privacy and user consent. According to the Commission’s internal documentation, obtained through multiple RTI requests, in at least four major states, local EC offices had access to parts of the National Population Register (NPR) database, which helped hasten the Aadhaar seeding process. L inking of voter ID cards with Aadhaar raises a number of doubts. In a meeting in May 2015, the CEC himself raised concerns regarding complaints they had received, stating that the names of a number of voters were deleted from the electoral rolls for not furnishing Aadhaar. Prasanna S, a lawyer involved in the Aadhaar litigation, said: “The whole that manipulation of data is a strong possibility, and this might expose the country’s electoral system to outside fraud. The EC is probably going in for this drastic move under the cover of fulfilling “legitimate state interest” as one of the criteria laid down by the Supreme Court in the Puttasamy case, while judging the permissible limit for invasion of privacy when testing the validity of any legislation. But the question is whether the EC’s task is to take care of state interest or safeguard a citizen’s interest. Is the EC an instrumentality of the state or a constitutionally mandated institution for a citizen’s right to free and fair elections? The EC seems to be content with being a mere extension of the state. Justice BN Srikrishna, a former judge of the Supreme Court, categorical- ly condemned the EC’s efforts to link voter ID with Aadhaar as “the most dan- gerous situation”. He compared the con- sequences to the Cambridge Analytica scandal, which was found to have ille- gally mined, harvested and shared personal information of over 87 million Facebook users to the Trump presiden- tial campaign in 2016. The UK-based political consulting firm was also reported to have shared the data of citizens with political parties in India. “Are we now happy with what Cambridge Analytica did,” he asked and went on to say: “We made so much noise about it. We called them all kinds of bad names. Now you’ll have this in the country in our backyard. In the event, instead of having a Cambridge Analytica, you’ll have a Delhi Analytica, a Mumbai Analytica, a Calcutta Analytica....” Incidentally, Justice Srikrishna chaired the expert committee that drafted India’s Personal Data Protection Bill. Even a distinct possibility of such a massive data leak, fraud and theft can severely endanger India’s democracy. The twain of Voter ID and Aadhaar should, therefore, never meet. —The writer is a former Army & IAS officer PrasannaS,alawyerinvolvedin theAadhaarlitigation,said:“The wholeprocessoflinkingVoterID withAadhaarisillegal.” JusticeBNSrikrishna,aformerjudgeof theSupremeCourt,condemnedtheEC’s effortstolinkVoterIDwithAadhaaras “themostdangeroussituation”. Opinion/ Linking Voter ID & Aadhaar / MG Devasahayam process of linking voter ID with Aadhaar is illegal. There is no legal mention of that exercise. The EC cannot choose a process to eliminate voters without any constitutional backing of a law.” Even otherwise, Aadhaar is known more for exclusion than inclusion as shown up in many states. In fact, getting Aadhaar itself is a herculean task for the poor. Often, they have to pay at least `500 to get their Aadhaar cards made, or even to update their addresses, so most poor people just skip it. So if Aadhaar and voter IDs are linked, the poor and disadvantaged would not merely lose access to welfare and subsidised goods and services, but would get disenfranchised as well. The rush to link all data with Aadhaar is bizarre, especially in the light of the 2017 Supreme Court ruling (Puttasamy) that privacy is a citizen’s fundamental right as it is inherent to the right to life and liberty. Linking voter IDs with Aadhaar is fraught with serious dangers. RTI replies have revealed that 80 million fake or fraudu- lent Aadhaar numbers were detected in 2014-15. RTI queries have also shown
Column/ Disqualification of Legislators Vivek K Agnihotri 26 February 10, 2020 HE role of the Speaker in Manipur came under scru- tiny recently. The Supreme Court in its judgment in Keisham Meghachandra Singh vs The Hon’ble Speaker Manipur Legislative Assembly & Ors, delivered on January 21, 2020, ruled that no decision was taken by the Speaker on several applications filed between April and July 2017 under the Tenth Schedule for disqualification of Th Shyamkumar, MLA, who, after con- testing on a Congress ticket, switched sides to support the BJP. The Court directed the Speaker to decide the disqualification petition pending before him within four weeks. It further stated that if no decision was forthcoming within that time limit, it would be open to any party to apply to the Supreme Court for further direc- tions/relief in the matter. The Court intervened after two writ petitions in the matter filed before the High Court of Manipur at Imphal could not be decided as the issue of whether a High Court can direct a Speaker to decide a disqualification petition within a certain time-frame was Speaker, Speed It Up TopreventSpeakersditheringoverdisqualificationcases,theapexcourthasgivena time-frameandrecommendedthesettingupofaseparatebodytodecidesuchcases T UNDER THE SCANNER Y Khemchand Singh, the Speaker in the Manipur assembly (above right), and Th Shyamkumar, the MLA who defected to the BJP
| INDIA LEGAL | February 10, 2020 27 pending before a five-judge bench of the Supreme Court (SA Sampath Kumar vs Kale Yadaiah & Ors.) Incidentally, the Court observed that it was time Parliament did a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi- judicial authority when he continues to belong to a particular political party either de jure or de facto. The Court felt that a permanent tribunal headed by a retired Supreme Court judge, a retired chief justice of a High Court or some other outside independent mechanism should ensure that such disputes are decided both swiftly and impartially. T o buttress this suggestion, the Court stated that fears of the minority judgment in Kihoto Hollohan vs Zachillhu & Ors had actu- ally come home to roost. Justice JS Verma, in his separate judgment, had held that rule against bias is a necessary concomitant of the principle of natural justice. One of the basic postulates of the rule against bias is that no person can judge a case in which he has an interest. Justice should not only be done, but seen to be done. This is the underly- ing principle adopted by the framers of the Constitution in not designating the Speaker as the authority to decide election disputes and questions regarding disqualification of members under Articles 103, 192 and 329 and opting for an independent authority outside the House. There is nothing unusual in this scheme if we bear in mind that the final authority for removal of a judge of the Supreme Court and a High Court is outside the judiciary and vested in Parlia- ment under Article 124(4). The Supreme Court ruling in Keisham Meghachandra Singh (supra) highlights two related concerns of delay in decision-making and bias, consequ- ent to the present dispensation under the Tenth Schedule. The problem of Speakers dithering over cases of disqualification, however, is not of recent origin. It has been addressed in the past in various judgments of the Supreme Court. As far as delays in decision-making by the Speaker are concerned, the Court has made several pertinent observations. In Kihoto Hollohan (supra), clarify- ing the role of the Speaker as a tribunal under the Tenth Schedule, the Court observed that all tribunals are not courts, though all courts are tribunals. Court means a court of civil judicature and a tribunal is a body which is supposed to decide controversies arising under certain special laws. A tribunal, per se, does not have all the trappings of a court and hence is not expected to observe a strict legal regimen. Similarly, in Jagjit Singh vs State of Haryana & Ors, the Supreme Court held that the proceedings under the Tenth Schedule are not comparable to either a trial in a court of law or depart- mental proceedings for disciplinary action against an employee. The standard of “reasonable opportunity” is, therefore, not that rigorous. Further, if the view taken by the tribunal is a reasonable one, the Court would decline to strike down an order on the ground that another view is more reasonable. Thus, a proceeding in a case of disqualification under the Tenth Schedule is more in the nature of a summary inquiry and needs to be disposed of expeditiously. In Dr Mahachandra Prasad Singh vs Chairman, Bihar Legislative Council & Ors, the Supreme Court observed that the Tenth Schedule does not confer any discretion on the Chairman or Speaker AnSCbenchof(fromleft)JusticesRFNariman,AniruddhaBoseandVRamasubra- manianobserveditwastimeParliamentponderedwhetherdisqualificationpetitions beentrustedtoaSpeakerwhenhecontinuestobelongtoapoliticalparty.
28 February 10, 2020 of the House. Their role is only in the domain of ascertaining the relevant facts. Once the facts gathered or placed show that a member of the House has done any such act which comes within the purview of subparagraph (1), (2) or (3) of paragraph 2 of the Tenth Sche- dule, the disqualification will apply and the Chairman or the Speaker of the House will have to make a decision to that effect. In the context of the parameters of the inquiry to be conducted under the Tenth Schedule, the Supreme Court has, time and again, expressed its concern about the unnecessary delay in deciding these petitions by the presiding officers of the legislatures. In the case of Speaker, Haryana Vidhan Sabha vs Kuldeep Bishnoi & Ors, the Speaker took about four years to decide a petition of disqualification. A single bench and a division bench of the Punjab and Haryana High Court and ultimately the Supreme Court through its order dated September 28, 2012, had to give a direction to the Speaker to decide the petition within three months. In another case in the Uttar Pradesh Legislative Assembly, a similar delay was caused by the Speaker in deciding the disqualification petition and ultimately the matter went to the Supreme Court (Mayawati vs Markandeya Chand & Ors). The top court, instead of remanding the case to the Speaker, dis- qualified the MLAs itself. In Rajendra Singh Rana vs Swami Prasad Maurya (2007) too, the Sup- reme Court, using its powers under Ar- ticle 142 of the Constitution in an extra- ordinary situation, decided the petition for disqualification itself. M Venkaiah Naidu, Chairman, Rajya Sabha, in his order on December 4, 2017, in the case of disqualification of Sharad Yadav and another MP under the Tenth Schedule (decided in about three months’ time), observed that all petitions of disqualification on the ground of defection should be decided within three months, after giving an opportunity, as per law, to the concerned member(s). But the malaise continues. Chronic ailments call for desperate remedies. Hence, the Supreme Court has in the present case recommended to Parlia- ment to consider setting up a separate body to decide the cases impartially and expeditiously. This may ensure elimina- tion of bias to some extent, but expeditious adjudication cannot be guaranteed in view of the experience with various tribunals that have been established in the past. I n any case, as the doctrine of sepa- ration of powers is part of the basic structure of the Constitution, the principle of checks and balances has its limitations in its application to the func- tioning of Parliament. Other options are available within the framework of our parliamentary democracy. To begin with, Paragraph 5 (Exemption) of the Tenth Schedule implies that the Speaker, in order to be able to deal fairly with matters under his jurisdiction, may resign from his party. That will not be treated as a ground for defection. Constitutional authorities should be able to switch hats smoothly and take decisions without prejudice. Further, the rules framed by Parlia- ment to give effect to the provisions of the Tenth Schedule by virtue of Para- graph 8 provide an option to the Spea- ker to refer the petition to the Com- mittee of Privileges for preliminary inquiry. The rule could be modified to make such a reference mandatory. Alternatively, the Speaker may be required to consult the Election Comm- ission before taking a decision, by am- ending the Tenth Schedule itself. This may take care of individual bias, but may still not ensure speedy justice. If, at all, the Tenth Schedule has to be amended, it may prescribe a time limit for the presiding officer to take a decision, failing which the application for disqualification would be deemed to have been allowed. The judicial review, which may follow, could then go by the rationale for the decision in Rajendra Singh Rana that failure to exercise jurisdiction is a stage at which the court can intervene. —The writer is a former Secretary-General, Rajya Sabha Column/ Disqualification of Legislators/Vivek K Agnihotri MVenkaiahNaidu,Chairman,Rajya Sabha,hadobservedthatallpetitionsof disqualificationondefectionsshouldbe decidedwithinthreemonthsaftergiving achancetotheconcernedmember(s). UNI
NDIA EGALEEL STORIES THAT COUNT NI December30, 2019 PEOPLEPOWERFromarestrictedstudentmovement,theanti-CAAprotestshavesnowballedintoanation-wide agitationandmetwithjackbootedresponse.WiththeSupremeCourtdenyingastayontheAct, thisisatippingpointinIndia’sdemocratichistory Invoking Fundamental Duties by Prof Upendra Baxi 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 Wow td sto 2019192019 January 6, 2020 `100 NDIA January 6, 2020 `100y , EGAL JJ EEEL www.indialegallive.com NI YEAR-END SPECIAL GGAALL NDIA EGALEEL STORIES THAT COUNT NI January13, 2020 ParallelPowerCentres?TheKeralagovernor’ssupportoftheCAAandsimilarstatementsbyBJP-appointed governorsisaworryingsign.HasthetimecometoimplementtheSarkaria Commission’srecommendations? Lawless in UP Book Extract: The Cases India Forgot Arif Mohammed Khan, Kerala Bhagat Singh Koshyari, Maharashtra Jagdeep Dhankhar, West Bengal eme GAL em NDIA EGALEEL STORIES THAT COUNT NI January20, 2020 BLOODONTHECAMPUSJNUsymbolisedcitizenship,democracyandfreedom,writesnotedcolumnistShivVisvanathan, whoanalysesthereasonswhytheUniversityhasbecomeapoliticalandideologicalbattleground Capital Punishment: What judges think Iran Crisis: India’s options JNU students being taken into police custody Alol an GAL ud NDIA EGALEEL STORIES THAT COUNT NI January27, 2020 TheLegalChallengeFollowingKerala’slead,PunjabandChhattisgarhhavejoinednon-BJPstatesthathave challengedtheconstitutionalvalidityoftheCAAandtheNationalInvestigationAct2008in theSupremeCourt.Howstrongisthelegalargument? Internet Curbs: Analysing the apex court’s ruling eeon-- GAL Invv umm NDIA EGALEEL STORIES THAT COUNT NI February3, 2020 TheSupremeCourthasrevivedfaithintheconstitutionalideasoffreedomofexpression intheirjudgmentoninternetshutdowninKashmir,saysProfUpendraBaxi Justice Narendra Chapalgaonkar: Ways to fast-track justice
30February 10, 2020 The tragic death of basketball star and global icon Kobe Bryant, and his tee- nage daughter, in a helicopter crash has raised some hard questions about the media and its current obsession with breaking the news first. The question of deciding between a major scoop and what it can do to victims and affected families has become a major talking point in media hous- es across the world. In America, TMZ, the gossip and cele- brity news website, reported the crash and Bryant’s death less than an hour after the incident took place, well before the victims were identified and, more importantly, before their families could be informed. Bryant’s wife heard her husband was dead from TMZ. This has triggered a huge debate about journalists and the choice between the urge to be the first and sensi- tivity towards victims and families. The Los Angeles county sheriff said at a news conference that they were still to contact families of the crash victims when TMZ published its report, adding: “It would be extremely disrespectful to understand that your loved one has perished and to learn about it from TMZ. That is just wholly inappropriate.” In contrast, the Los Angeles Times used its Twitter account to tell readers that it would not publish the news before veri- fying it. The controversy is a window into the breakneck speed at which news is reported these days. Breaking Bad News International Briefs Beyond efforts to isolate China’s Coronavirus is the massive impact it will have on global tourism, especially in Asia. China’s boom in outbound tourism is unprecedented in human history and has driven the growth of businesses to serve Chinese travellers around the world. China’s outbound tourists numbered 160 million in 2019 and spent around US$300 billion, making them number one in tourism spend rankings by any country. Thanks to the virus outbreak, Chinese tourists are the new pariahs, being screened and quarantined and shun- ned by hotels and shops, apart from China banning travel from areas around Wuhan. The hardest hit by all this will be the Asia-Pacific region. Top destinations for Global Tourism Takes a Hit nba.com
| INDIA LEGAL | February 10, 2020 31 For some it is literally a matter of life and death. In 2003, famed chef Bernard Loi- seau shot himself after he heard that his restaurant in Burgundy, France, was about to lose one of its three Michelin stars. Last week, the new Michelin Guide was launched in Paris amid great suspense and anticipation. It has become the gastronomic bible of the world and reputations and bookings can rise or fall on the verdicts of its secret diners. The three-star ranking, the highest accolade, was awarded to 11 new restaurants, most notably Japanese chef Kei Kobayashi (above), and his Kei restaurant in Paris. The star ranking for restaurants was introduced in 1931. One for “high quality” cooking, two for “excellent”, and three for “exceptional cuisine”. The guide was started 120 years ago by the tyre manufacturer as a travel book for moto- rists. Today, it has 30,000 restaurants listed in 23 countries (alas, not India), and a mere 130 have got the highest three-star ranking. So authoritative and prestigious is the ranking that many chefs have given up their stars, saying the cost of maintaining top-level kitchens is too stressful. Gastronomic Guide What technology will drive your car in the next five years? Forbes has listed those that could be here shortly and they include Driver Override Systems where the vehicle will take its own decisions and apply the brakes even if the driver’s foot is on the accelerator, thanks to sen- sor technology that can predict a collision. Cars come with Head- Up Displays (below) already but new technology will see special glass on windscreens which display images that highlight the next turn as you approach it, much like Google maps. Vehicle access will add a security layer thanks to Biometric Vehicle Access, by which you unlock and start your car with your fingerprint, like many mobile phones, or, for the more paranoid, even a retina scan. Finally, Ford is testing something called Active Health Monitoring, which is a seatbelt that tracks vital statistics of the driver and alerts all emergency services via a connected device in case the driver has a sudden heart attack. Future Cars Chinese travellers are Thailand, Japan, Vietnam, South Korea, Singapore and Bali in Indonesia—a big draw for Chinese holidaymakers. Bali’s economy is tourism-based and many worry that businesses will collapse. Bali has already seen nearly 10,000 tourist cancellations. Other countries popular with Chinese tourists include Japan, with nearly 10 million visitors, and Vietnam with around 5 million. Thai- land, the top destination for China’s holidaymakers, fore- casts that Chinese tourist numbers will fall by as much as two million this year from 11 million in 2019. Bangkok is the world’s most visited city mainly because of Chinese tourist numbers. Thailand earned an estimated $18 billion from Chinese tourists in 2019. Thailand is also con- tending with having more Coronavirus infections than anywhere outside China—14 till last week.
Global Trends/ Pakistan/ Financial Action Task Force 32 February 10, 2020 HE news of Pakistan being removed from the Finan- cial Action Task Force (FATF) grey list is greatly exaggerated. It was the In- dian media that triggered this speculation, attributing it to the positive role played by the US and other western countries. But the Pakistan visit of Alice Wells, the Principal Deputy Assistant Secretary of State for South and Central Asia, and her subsequent press conference in Washington have dampened the initial euphoria in the capital city of Islamabad. When Wells was in Pakistan, its foreign minister, Shah Mahmood Qureshi, had requested the US to help Pakistan in getting off the grey list. Briefing the media in Washington about her recent trip to Pakistan, India and Sri Lanka, Wells had acknowledged Islamabad’s efforts in fulfilling the obligations of FATF and said Washington stood ready to assist it in implementing it. However, she emphatically ruled out major relief, saying: “It’s a question of fulfilling the requirements that have been spelt out and that are asked of all countries in the international system. So it’s not a political process, but we certainly support and stand ready to assist Pakistan as it implements these obligations.” The American diplomat also made it clear that the completion of the FATF T linkedin.com Treading Cautiously Theeuphoriainthecountryoverbeingremovedfromtheanti-terrorismfinancingwatchdog’s greylistwasdampenedbytheUSrulingoutanymajorreliefunlessitcrackeddownonterrorism By Asif Ullah Khan
| INDIA LEGAL | February 10, 2020 33 action plan is critical to Pakistan’s economic reform efforts, including its IMF programme, as well as for demonstrat- ing sustained and irreversible action against all terror groups based there. This has led to guarded optimism in Islamabad. Minister for Economic Aff- airs Hammad Azhar, who led the Pakis- tani delegation during the three-day talks with the FATF Joint Group in Beijing, tweeted: “It is premature to comment/speculate on the decision that the FATF members shall take in the plenary in February.” T wo years ago, when Nawaz Sharif was in power, his foreign minister, Khawaja Asif, had prema- turely tweeted about Pakistan’s position in the FATF. Asif had shared “good news” on Twitter, saying that Pakistan narrowly escaped being placed on the global terror-financing watch list, thanks to its “friends”, meaning China, Turkey and Saudi Arabia who resisted the US-sponsored motion against the country at the FATF meeting in Paris. However, the “good news” turned out to be bad news, as in February 2018, FATF decided to put Pakistan on the list of countries that finance terrorism or do little to curb it. Another reason for Pakistan’s dis- comfiture is the growing rivalry between China and the US and their vested interests in the region, especially Pakistan. China’s footprints are increasing in Pak- istan through the China-Pakistan Eco- nomic Corridor (CPEC), while the US also has stakes there as it wants the country to play a positive role in the Af- ghan peace process by bringing the Tali- ban to the negotiating table. Although the US had earlier expressed displeasure over CPEC, Wells was the first US official to take such a hardline stance and that too on Pakis- tani soil. In strongly worded criticism, Wells said there was no transparency and alleged that many companies black- listed by the World Bank had got con- tracts in CPEC projects. She even warned that the CPEC projects would push Pakistan deeper into an already stifling debt burden as China was providing loans, not grants, like the US. She said that while CPEC would only benefit China, the US off- ered a better model. She urged Islama- bad to introduce economic reforms that would encourage US investors to invest in Pakistan. Former Pakistani High Commi- ssioner to India Abdul Basit reportedly said that Wells, at a private dinner held in her honour, told him that the US will keep the pressure on Pakistan to fulfil the FATF requirements. He said Wells clearly ruled out helping Pakistan in getting off the grey list because she said: “If we don’t put pressure, then Pakistan HOPE AGAINST HOPE (Left) A FATF meeting in China. The plenary session in February will decide Pakistan’s fate vis-a-vis the grey list; top US official Alice Wells has already ruled out any major relief ChinaisasupporterofPakistanonget- tingthecountryoutoftheFATFgreylist. Itisalsooneofitsbiggestfinanciers, alongwithsomeGulfnations.But,its cloutinPakistanisaconcernfortheUS. UNI
Global Trends/ Pakistan/ Financial Action Task Force 34 February 10, 2020 will not take these measures.” He said that it clearly showed that the US had serious concerns over the growing clout of China in Pakistan. Mohammed Rizwan, Toronto-based journalist of Pakistani origin, and a fellow at Pragmora Institute, Canada, also concurs with this view. He told India Legal that Pakistan’s problems had grown for reasons such as the serious financial crisis and the rise of China as an economic power. Earlier, it was easy for Pakistan to be in the US camp and at the same time remain a strategic ally of China. “Now, things have changed. Today, the US and China are directly compet- ing with each other on three fronts— technology, economic and military side. The friction between Washington and Beijing is now very clear and with CPEC coming up and Pakistan agreeing to hand over Gwadar Port in Balochistan to China, Pakistan has become a territorial ally of China,” said Rizwan. Today, apart from Gulf countries like Saudi Arabia and the UAE, China has become Pakistan’s biggest financier. It has given about $3.5 billion to help bol- ster its dwindling foreign cash reserves and pay for socio-economic development plans undertaken by the Imran Khan government. Before coming to power, Khan had said that his government would review CPEC projects, but with US President Donald Trump sus- pending security aid to Pakistan, China was the only country which was willing to invest in Pakistan. His government may not like the terms on which the Chinese investment is coming but he has no choice because of the state of the economy, which is in a shambles. O n the other hand, the US has its own interests in the region. Wells, during her trip, made it abundantly clear that the US wants Pakistan to give further impetus to the Afghan peace process by initiating intra- Afghan dialogue, leading to a ceasefire. She also pushed Pakistan to begin some sort of engagement with India to cool tense ties. Like the World Bank and the IMF, the US can use FATF as a tool for political leveraging and is using it to counter China’s influence, which is evident from the IMF bailout package. Pakistan, after much difficulty, sealed the $6-billion deal but it came with FATF strings attached. With CPEC becoming a new battle- ground between the US and China, Pakistan cannot afford to be seen too tilted in favour of either country. Being caught between two political and economic heavyweights, Pakistan has to do delicate tightrope walking. Rizwan told India Legal: “After a long time, the signals emanating from Washington and consequently other western capitals look positive for Pakistan for mainly two reasons. The emerging geopolitical arrangement in the region perhaps warrants for a stable Pakistan. This new equation has India as a key holder of balance. Combined with Pakistan and Afghanistan, this new equation is vital for the US-led regional interest. Pushing Pakistan into the blacklist would weaken it beyond repair and it would be unable to play any part in regional game-play.” Second, though there are no tangible signs that the Pakistan military has dis- mantled the jihadi network operating in Afghanistan and Kashmir, it seems that it has managed to win the trust of Wa- shington and other European partners on this particular issue, Rizwan said. Dr Adil Rasheed, Research Fellow at the Institute for Defence Studies & Analyses (IDSA), Delhi, is also of the view that as far as terror financing, one of the main requirements of the FATF, “ThefrictionbetweentheUS andChinaisnowveryclear andPakistanhasbecomea territorialallyofChina.” —MohammedRizwan,a Pakistan-originjournalist “Pakistan’sproxymilitias, terrorinfrastructure,itsfund- ingandrecruitingareintact despiteglobalpressure.” —DrAdilRasheed,research fellowatIDSA,Delhi FormerPakistanHighCommi- ssionertoIndiaAbdulBasit reportedlysaidthatWellstold himthattheUSwillkeepthe pressureonPakistantofulfil theFATFrequirements. ForeignministerKhawajaAsif intheNawazSharifgovern- menthadsaidthatPakistan escapedbeingplacedon FATF’swatchlist.ButFATF laterputPakistanonthelist.
| INDIA LEGAL | February 10, 2020 35 T he Financial Action Task Force (FATF) is an inter-governmental, decision-making body established in 1989 during the G-7 Summit in Paris. It seeks to combat money laundering, terrorist financing and other threats to the international financial system. It is both a policy-making and enforcement body. FATF was initially set up to tackle drug smuggling and money laundering and misuse of financial institutions resul- ting thereof. After the September 11 terror attack in the US, FATF’s mandate was enlarged to include the fight against terrorist financing. FATF recommendations mandate that states, in order to maintain the integrity of their financial systems, should: (1) Identify the risks and develop policies and domestic coordination, (2) Pursue money laundering, terrorist financing and the financing of proliferation, (3) Apply preventive measures for the financial sector and other designated sectors, (4) Establish powers and responsibilities for the competent authorities (e.g., inves- tigative, law enforcement and superviso- ry authorities) and other institutional measures, (5) Enhance the transparency and availability of beneficial ownership information of legal persons and arrangements. As of 2019, FATF consists of 37 member jurisdictions. India became an observer at FATF in 2006 and on June 25, 2010, became its 34th member. More than 20 bodies have observer status, which include the IMF, World Bank, OECD and various UN law enforcement bodies. FATF has two types of lists: Black List: Countries known as non- cooperative countries or territories (NCCTs) are put on the Black List. They support terror funding and money laundering activities. FATF revises the blacklist regularly. Grey List: Countries that are considered safe havens for supporting terror funding and money laundering are put on this list. This serves as a warning to the country that it may enter the blacklist. WhatisFATF? is concerned, nothing concrete has been done by Pakistan. He told India Legal: “We still find Masood Azhar’s recently released incendiary videos on YouTube for waging war in Kashmir, as late as on India’s Republic Day, and his call to Muslims around the world to wage his distorted version of jihad extremely dis- concerting. Clearly, the Pakistan state’s proxy militias, the terror infrastructure, its funding and recruiting are still intact and gearing up for major instability in the region, irrespective of the pressures exerted by the international community, particularly by the FATF.” On the issue of Pakistan getting major relief at the February meeting, Rasheed said: “Frankly speaking, we are not privy to all the information available to the FATF regarding Pakistan’s recent efforts towards reversing its long- standing policy of terror funding, but we can only hope that the UN monitoring agency does not take any hasty decisions regarding a country that has always used terrorism as part of its state policy.” I n February 2018, FATF decided to place Pakistan on the list of countries whose laws on curbing money laundering and combating the financing of terrorism had serious deficiencies. It gave a 27-point action plan with a dead- line to implement it by September 2019. However, Pakistan did not show any sig- nificant progress and in October 2019, the FATF plenary extended the “grey list” period to February 2020 with a warning to show full compliance. On the likely outcome of the Febru- ary meeting, Rizwan said: “This is an ongoing situation and we are far from a definitive conclusion on the issue.” This is the reason why the Pakistanis are guardedly optimistic and are not declaring victory ahead of the February meeting. That meeting will determine the future of Pakistan vis-a-vis the FATF. INTERNATIONAL PRESSURE Mumbai attack mastermind Hafiz Saeed and his close aides are being tried in Pakistan in terror financing cases UNI
Global Trends/ ICJ Order on Rohingyas 36 February 10, 2020 YANMAR’S de facto head of state and State Counsellor Aung San Suu Kyi is facing yet another challenge. Already grappling with the complexities of constitutional democracy designed by the Tatmadaw (army), she now has to confront a recent order of the International Court of Justice on the Rohingya genocide issue. On January 20, the 17-member ICJ panel imposed “provisional measures” on Myanmar, ordering it “to take all measures within its power” to prevent the killing of Rohingya Muslims remaining in Rakhine state under the 1948 Genocide Convention. The Court also asked Myanmar to preserve evi- dence of Rohingya persecution. It also ordered it to submit a report to the ICJ within four months, with additional reports every six months “until a final decision on the case is rendered by the Court”. The ICJ’s order is an interim one to meet Gambia’s request for provisional measures “to stop genocidal conduct im- mediately” against about 6,00,000 Ro- hingyas remaining in Myanmar. Myanmar is one of the 150 countries which ratified the Convention on the Prevention and Punishment of the Crime of Genocide which came into force on January 12, 1951. As a signatory to the Convention, it is obligatory for Myanmar to take action, in letter and spirit, against genocide both in times of war and peace. Article II of the Genocide Convention lists killing, causing serious bodily or mental harm or deliberately inflicting conditions of life calculated to bring serious bodily or mental harm by the military or “any irregular armed units” as falling within the scope of the Convention. Gambia’s case before the ICJ per- tains to the military excesses committed during military operations launched in the wake of Arakan Rohingya Salvation Army (ARSA) insurgents’ attacks on police posts in 2017. The army’s savage reprisals unleashed on the Rohingya Caught in a Cleft Stick WhiletheICJrulingpulledupMyanmar’sdefactohead,AungSanSuuKyi,overthegenocideof Rohingyas,thefactisthatshecan’tantagonisethearmyortheconservativeBuddhistpopulation By Col R Hariharan M ICJ

India Legal - 10 February, 2020

India Legal - 10 February, 2020

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