India Legal - 16 December 2019

1. NDIA EGALL STORIES THAT COUNT I December16, 2019 Madhav Godbole: The erosion of secularism Char Dham: State versus the priests NoWoman’sLandThegangrapeofaHyderabaddoctorhasonceagaindemonstratedthatbetween patriarchallawandurbananomie,sucheventswillrecurtocompoundthehollownessof governanceandrightsinIndia

3. HE announcement by US House of Representatives Speaker Nancy Pelosi that articles of impeachment would now be drawn up against President Donald Trump was in large part the outcome of free, frank and fearless testimony given publicly and under oath by witnesses who considered it their patriotic duty to expose and condemn official wrongdoing even at the expense of their own careers and, perhaps, even personal safety. Collectively, the evidence they proffered corroborated the charge that President Trump tried to bully and badger Ukraine—an ally—to help him destroy a domestic political opponent through nefarious means and sacrificed American national interest at the altar of his personal agenda. Initially, the witnesses before the House In- telligence Committee were mostly civil servants— career foreign service officers, ambassadors, national security advisers and analysts, senior State Department officials—with a sprinkling of political appointees, who reported through a chain of command to POTUS (President of the United States). Then came marching in the law professors, some of the most distinguished scholars America has produced. The prestigious New Yorker magazine commented that in their testimony before the House Judiciary Committee last week, the four legal scholars showed varying degrees of willingness to take risks—something that had been missing from these fairly-con- trolled hearings. The most succinct reporting on this appeared in The New Yorker: Norman Eisen, a counsel for the majority, drew the attention of the witnesses, all law school professors, to an excerpt from the key findings of fact from the Trump-Ukraine impeachment inquiry report that had been sent over by the House Intelligence Committee. It read: “Donald J. Trump...solicited the interfer- ence of a foreign government, Ukraine, in the 2020 U.S. presidential elections.” Eisen asked: “Professor Feldman, did President Trump commit the impeachable high crime and misdemeanour of abuse of power based on that evidence and those findings?” “Based on that evidence and those findings, the President did commit an impeachable abuse of office,” Noah Feldman, who teaches at Harvard, replied. “Professor Karlan, same question,” Eisen said, addressing Pamela Karlan of Stanford. “Same answer,” Karlan said. “And Professor Gerhardt,” Eisen asked, turning to Michael Gerhardt of the University of North Carolina, “did President Trump commit the impeachable high crime and misdemeanour of abuse of power?” “We three are unanimous, yes,” Gerhardt said. Could such a phenomenon happen in India? I noted in this space last week that the men and women who stepped forward in the Congres- sional Committees—as others, too, have done in the past—continue to demonstrate that the American Constitution and the institutional liberties it enshrines probably has as many torch- bearers as it has pall-bearers. Its Hall of Fame is perhaps larger in mind, spirit and courage than its Gallery of Rogues. The Indian Constitution and the liberties and freedom of speech enshrined with the Fundamen- tal Rights it bestows on Indian citizens were in- spired to a great extent by the ideas of Thomas Jefferson and John Adams and Benjamin Frank- lin. But its separation of powers is flawed because the legislature is really a slavish extension of the executive, and true, bipartisan oversight and accountability—as the Indian founding fathers may have envisioned it while drafting the Constitu- tion—are, with exceptions, a pipe dream. In India, political vendettas, undertaken with the RETIRED, MAYBE, BUT NOT HURT Inderjit Badhwar T Letter from the Editor Indiatoohasher shareof conscientious objectorslikeinthe US.Theyexpress themselvesmostly throughop-ed piecesinjournalsor inscholarly seminars.However, retiredcivilservants haveused“open letters”and petitionstoexpress dissentanddemand accountability. | INDIA LEGAL | December 16, 2019 3

4. connivance of law enforce- ment agencies, are passed off as “oversight”. It would be rare indeed, well nigh impossible, that a serving Indian ambassador would appear before a parliamentary committee in secret or, God forbid, at a public hearing to answer questions about the dubi- ous foreign policy dealings of a serving prime minister or, for that matter, any minister. The public appearance of a university law professor would be unprecedented. But it is not as if India does not have her share of conscientious objectors in both the academic and official communities. They express themselves mostly through op-ed pieces in journals or in scholarly seminars. Increasingly, however, retired civil servants from the Indian Admin- istrative Service (IAS) and the Indian Foreign Ser- vice (IFS) and related public service undertakings, defence services, the cream of the crop who ran states and embassies and government corporations and police departments as chief secretaries, ambassadors, cabinet officials and managing directors have begun to use “open letters” and petitions to express dissent and demand accountability. These missives, jointly signed, have begun to receive wide attention in the social media as well as at private conclaves and clubs frequented by serving bureaucrats. The signatories are usually not fly-by- night babus but those who have served under governments of all political hues and dispositions at the state and central levels. T he most recent petition which goes to the very heart of India’s democratic vitality has been addressed to members of the Election Commission of India which is the conductor and watchdog over the electoral process that steers this democracy. It has been signed by 64 former civil servants and endorsed by 83 veterans of the defence services, academics, and other concerned citizens. The subject: “Your Silence on Issues Raised with Regards to Serious Irregularities in the Conduct of Lok Sabha General Elections, 2019.” It says: “Please refer to the letter dated 2nd July 2019 on the above subject addressed to you. Subsequent reminders have been sent. Your failure to respond to any of the points raised in the letter and reminders, or to even acknowledge their receipt, leads us to wonder whether we will ever receive a response.” I reproduce, in summary, the salient points from this document: The issues raised are critical for the well-being and proper functioning of our democratic republic. Our group has been in touch with your predecessor, Shri OP Rawat, on a number of issues related to the conduct of elections. As a group of former civil servants, many of whom have been associated with election processes over the past six decades, we con- sider it our duty to work with the Election Commi- ssion of India (ECI) to address the doubts that have arisen in the public mind about the impartiality and fairness of our electoral processes. Many of these questions would have been avoided if the ECI, currently under your stewardship, had accepted the principle of agent transparency vis-à- vis its principal, which, in this case, is the people of India. So, disclosure should be the rule rather than the exception. All information relating to the conduct of elections should be open to the public except where specifically needing to be exempted. Ev- en when disclosure of some information is exempted, the criteria for keeping it confidential must be made public and transparent. We do not believe that there is any justification for the ECI not displaying on its website: (i) the Parliament Constituency-wise, assembly segment-wise, and polling station-wise figures of (a) votes polled in EVMs [i.e. other than postal ballots] and (b) votes as counted in EVMs. Ideally, there should be no discrepancies between the two sets of figures. (ii) details of the 5 polling stations chosen as “sam- ples” for each assembly segment, and the polling station-wise figures of (a) EVM electronic count and (b) VVPAT manual count. Ideally, there should be no discrepancies between these two sets of figures also. But there have been extensive media reports about large-scale discrepancies in respect of both (i) and (ii) above. While we are aware that media reports may not always be correct, the ECI has failed the test of transparency by not disclosing the above sets of its figures on its website, thereby paving the way for an adverse presumption being drawn in this matter. In the interests of transparency and electoral integrity, we call upon the ECI to immediately dis- play on its website, the figures indicated in (i) and Letter from the Editor 4 December 16, 2019 FEARLESS AND TRUTHFUL Noah R Feldman was one of the law professors in the US who testified during hearings related to Donald Trump’s impeachment inquiry

5. (ii) above; disclose the “decision rules”, if any, of the ECI about manual counting in the event of discrepancies of either type occurring; disclose if there were any occasions to apply these decision rules during the recently concluded parliamentary elections. Even while our letter of 2nd July, 2019 was wait- ing for some kind of a response from you, various media reports have appeared, suggesting that (a) unauthorised private engineers had access to the EVM and VVPAT machines in the general elections, 2019; (b) Bharat Electronics Limited (BEL) and Electronics Corporation of India Ltd. (ECIL) have refused to provide information in response to RTI queries on EVMs and VVPATs even after having collected the fees for the same, though we understand that now the RTI first appellate authority has directed the ECIL to provide the information while the BEL first appellate authority for RTI has directed them to transfer the queries relating to the number of EVMs and VVPATs deployed for the 2019 Lok Sabha elections to the ECI. Clearly, the issues relating to the EVM and VVPAT machines are yet to be resolved satisfactorily, and the ECI, under your stewardships, needs to put this controversy to rest. Recent reports also seem to suggest that a pro- gramme installed in the VVPAT can access VVPAT memories and alter the input to the Control Unit, thereby manipulating the people’s mandate. To set at rest doubts in the public mind, we suggest a social audit of the functioning of the EVM and VVPAT machines used in the recent Lok Sabha general elections. Social audits are an accepted tool in all democracies and, even in our country, we have used them to monitor the functioning of various social sector programmes. We are ready to work with you in the organization and conduct of such a social audit. To conduct such a social audit, we propose as follows: (a) Access to the entire electoral records, including EVM and VVPAT machines used in 20 select Lok Sabha constituencies (representing merely 3.6 percent of the total Lok Sabha constituencies), in the recently concluded general elections, 2019, be provided to a Social Audit Group, comprising three representatives each of civil society representatives (which will include members of our group of former civil servants) and the ECI. (b) The 20 Lok Sabha constituencies will be selected by the Social Audit Group and the same will be intimated to the ECI for making the records/machines available. (c) The ECI will release these records, EVM and VVPAT machines under whatever supervisory arrangement it considers necessary to ensure that while the auditors have full access, these records are not tampered with in any way during the audit. The only rider would be that these arrangements would not in any way fetter the ability of the Social Audit Group to examine the records and machines in any way it considers necessary. To test the integrity and security system of the EVM and VVPAT machines, the Social Audit Group will, in consultation with the ECI, have the freedom to appoint an independent third-party team of IT experts from India or from abroad, if necessary, who have the experience of conducting hackathons. There would be no restrictions on the hackers—they would be free to check the hardware, the software, and also the programmes embedded in the chips of all these machines to determine whether the EVM/ VVPAT machines are capable of being manipulated either before, during or after each step of the electoral process. All the EVM and VVPAT machines used for the hackathon would be disabled for future use under the joint supervision of the Social Audit Group and the ECI, to ensure that none of these is ever used again in any future election. Under the British Parliamentary Committees system or the American process referred to at the beginning, the retired dignitaries would surely have been invited to give public testimony to the legislature. In the Indian context, we can only thank the Lord for small mercies—the dignitaries may be retired but are by no means hurt. | INDIA LEGAL | December 16, 2019 5 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com DEMANDING ACTION A recent reminder petition addressed to the EC and signed by former civil servants and endorsed by veterans of the defence services, academics, and other citizens wanted a social auditing of EVMs and VVPAT machines UNI

6. ContentsVOLUME XIII ISSUE5 DECEMBER16,2019 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 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) 6 December 16, 2019 A recent office order by the Delhi High Court in the matter of bail for rape accused is a significant step in the justice delivery system Victim Friendly The Supreme Court rejected the centre’s stand that people with criminal records as juveniles cannot be given government jobs, thereby giving them another chance in life Starting Life Afresh SUPREMECOURT The gang rape of a Hyderabad doctor has once again demonstrated that between patriarchal law and urban anomie, such events will recur to compound the hollowness of governance and rights in India No Woman’s Land 12 16 18 LEAD While the apex court gave Malayalam star Dileep, an accused in the assault of an actress, some reprieve, the issue is now more to do with his future in the industry Star-crossed 20

7. While some have hailed the move of the Pakistan chief justice to reduce the tenure extension of General Qamar Javed Bajwa, others say he has merely thrown the ball in parliament’s court Taking on the Army 34 Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE Cover Photo: UNI | INDIA LEGAL | December 16, 2019 7 REGULARS Ringside............................8 Courts ...............................9 International Briefs..........32 Media Watch ..................37 Satire ..............................50 In a Holy State Self-styled godman Nithyananda, facing rape and child abuse charges, who fled India last year, has bought a private island in South America and called it a “new nation”, Kailaasa 47 22 Despite the demand for Supreme Court branches in other parts of India, there has been no forward movement. The idea was mooted earlier by the Law Commission and Vice-President M Venkaiah Naidu Is this a Chimera? LEGALEYE GLOBALTRENDS BOOKEXTRACT The book, India’s Governance: An incisive commentary on some burning issues, written by eminent civil servant Madhav Godbole, is a collection of essays on contemporary issues in India SC Verdict: Back to Square One, If Not Minus One 25 FOCUS The Surrogacy (Regulation) Bill, 2019 seeks to ban all forms of commercial surrogacy Strict On Surrogacy 28 COLUMN The ICMR will soon have guidelines for doctors on whether to perform cardio-pulmonary resuscitation on patients with low survival chances. But are they really needed? Easing Death 38 The BJP government in Uttarakhand has stirred a hornets’ nest with its latest edict bringing all the temples in the state under its control, including the holiest of the holies—the Char Dham Temples of Discord STATES Controversial businessman and media owner Jeetu Soni, who created a storm with his honey-trap exposés of conversations between call girls and VIPs in Madhya Pradesh, faces a backlash from the Congress government Sex, Lies and Videotapes 44 42

8. 8 December 16, 2019 Anthony Lawrence RINGSIDE Centre downgrades security for Gandhi family

9. The Supreme Court granted bail to former finance minister P Chidambaram, exact- ly 106 days after the CBI arrested him on August 21 in connection with the INX Media case. The apex court’s order in the En- forcement Directorate’s (ED) case followed a similar order in the CBI case and allowed him to walk a free man. A three-judge bench comprising Jus- tices R Banumathi, AS Bopanna and Hri- shikesh Roy pronounced the verdict which also restrained him from giving interviews or making statements with regard to the case or travelling abroad without the Court’s permission. Chidambaram has also been asked to furnish a bail bond of `2 lakh plus two sureties of the same amount. The top court, which observed that the economic offences were grave in nature, said, “grant of bail is rule and refusal is exception”. The Delhi High Court had, on November 15, dismissed Chidambaram’s bail plea. He had sought bail in the case pertaining to the Foreign Investment Pro- motion Board (FIPB) clearance given to INX Media to the tune of `305 crore in 2007 during his tenure as the finance minister. The CBI had registered a corruption case in this regard in May 2017. Later that year, the ED also lodged a money laundering case. Courts | INDIA LEGAL | December 16, 2019 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal team SC upholds Art 30, dismisses plea against HC The SC dismissed a Special Le- ave Petition challenging a Kerala High Court order which held that for an educational institution to claim minority status, it must be “established and administered” by the minority community, and not “merely administered” by it. The judgment came on a petition against a verdict of the High Court on August 5 which had quashed Na- tional Commission for Minority Educational Institutions’ order granting minority educational institution status to a primary school. This decision was challenged by the teachers of the school who said the management and proper- ties of the school had been trans- ferred by a Hindu to a Muslim, PK Mohammed Hajee. They claimed that Hajee had invoked the minority status to promote his son as head- master, in violation of seniority. They claimed that any institution claiming minority status must be “established and administered” by a minority. A single bench of the High Court overruled their claim, saying the word “established” could have flexible connotations and affirmed that the school was a minority institution. But a division bench overruled the verdict and said that Article 30(1) and Section 2(g) mandate that a minority educational institution should be one established by a minority. This was challenged in the SC which upheld the division bench's order. The apex court will take a call in two weeks’ time on the centre’s demand for a review of its 2018 judgment that excluded the creamy layer within the SC/ST communities from quota benefits. Attorney General KK Venugopal requested the Court to refer the matter to a seven-judge bench for a fresh look. A five-judge Constitution bench in 2018 had held that the well-off members of the SC and ST communities—the “creamy layer” as they are referred to—could not be granted the benefits of reservation in college admissions and government jobs. The Court has since 2006 reaffirmed its decision several times in various cases, and as recently as last year it turned down the request for a larger bench to revisit the verdict which had effectively implied that SC and ST employees could get guaranteed promo- tions only if the government produced hard data to demonstrate “compelling reasons”. SC to decide on creamy layer review SC grants bail, Chidambaram out of jail

10. Spotlight/ Legal Services 10 December 16, 2019 ustice NV Ramana, the second seniormost judge of the Sup- reme Court, has got another feather in his cap. He was nominated by President Ram Nath Kovind as the Executive Chair- man of National Legal Services Authority (NALSA) with effect from November 27, 2019, after which the Ministry of Law and Justice issued a Gazette notification. Before being nominated to NALSA, Justice Ramana was chairperson of the Supreme Court Legal Service Commi- ttee (SCLSC). During his tenure, nearly 1,545 cases were filed by the SCLSC and pendency was reduced from 3,800 cases in January 2018 to 1,811 in August 2019. NALSA, incidentally, was constituted in 1987 with a vision to promote an in- clusive legal system in order to ensure fair and meaningful justice to the marginalised and disadvantaged sections of society. After taking over as Executive Chair- person of NALSA on December 6, Jus- tice Ramana visited its office at Jam Na- gar House in Delhi where he interacted with Sunil Chauhan, Director, NALSA and other officers. He laid emphasis on increasing access and efficiency for the promotion of legal services. Justice Ra- mana also issued a vision statement, thereby laying the roadmap for future activities of NALSA. In 2020, the focus will primarily be on enhancing the quality of legal services in both court-based and outreach activities. This will include the implementation of the Legal Aid Defense Counsel System. In addition, there will be strengthening of basic units such as legal services clinics, updating and digitising the front offices of legal services institutions to work as one-stop centres for legal aid seekers, implementation of pro- tocol for providing legal assistance right from the stage a person is called to the police station, strengthening Jail Legal Services Clinics and Monitoring and Mentoring Committees at the district level, carrying out effective outreach in aspirational districts, emphasis on planned outreach programmes on the basis of assessment of needs, prepara- tion of booklets in regional languages in a simple language regarding laws affect- ing the marginalised categories, etc. Through these activities it is expect- ed that there will be enhanced and im- proved public trust, minimisation of unnecessary arrests, effective representation of prisoners at the remand stage and better visibility and dissemination of legal awareness through increased outreach programmes. The coming year will see accelerated action on meeting the legal needs of the marginalised sections of society. NALSA Vision 2020 is “Absolute Justice for All”. Some of its salient features are: Justice Ramana Takes Charge as Executive Chairman, NALSA Thesecondseniormostjudge oftheapexcourtissuesa visionstatementfor2020 withthefocusonenhancing thequalityoflegalservices By India Legal Bureau J WELL-DESERVED ROLE Justice NV Ramana takes over as Executive Chairman of NALSA at Jam Nagar House in Delhi on December 6

11. | INDIA LEGAL | December 16, 2019 11 The passion for this mission will help it overcome obstacles in achieving the rights guaranteed under the Constitution. In 2019, NALSA appointed nearly 62,000 panel lawyers and around 63,000 paralegal volunteers throughout the country. In 2018-2019 alone, around four lakh people were benefited through legal aid and advice. The need of the hour is to establish a target-oriented mechanism wherein resources can be invested after identifying specific problem areas. These are: Legal Aid Defence Counsel System: This novel idea was adopted at an all- India meet at Nagpur, where it was pro- posed that lawyers will be exclusively engaged for conducting legal-aid cases in sessions courts. The new system is aimed at increasing this by assigning the cases from the beginning to advocates whose sole attention will be on legal-aid cases and whose performance will be more effectively reviewed. It will be implemented in 16 districts in the country on a pilot basis for two years. Legal assistance at the pre-arrest, arrest and remand stage: The project is intended at reducing the number of undertrials and is in consonance with international best practices for providing legal assistance at the initial stages of criminal justice. NALSA will collabo- rate with police departments in every state and provide special training to the panel of lawyers in this regard. It aims at avoiding unnecessary arrests. Jail Legal Services Clinic: According to Prison Statistics India 2016, 11,834 undertrials (four percent of the total 2,93,058 undertrial prisoners) have been confined inside prisons for three to five years, while 3,927 undertrials have spent more than five years in prison. DLSAs, along with prison authorities, should grant access to law students to assess the conditions of these prisoners in order to collate data and forward the same to the SLSA so that it can prepare a comprehensive report. Thereafter, a panel of lawyers can be appointed to provide legal advice, draft applications, letters and petitions for inmates inside the jail. It is pertinent to set up a review committee/monitoring committee headed by a district and sessions judge along with the district magistrate, superinten- dent of police and secretary, DLSA as members to monitor the progress. Online portal for centralising information about prisoners: This project is intended at creating a unified platform to integrate data about legal services provided to prisoners at all levels. Cyber cell: With the rise in cyber offences, it is pertinent to establish a specialised wing in this regard. Victim Assistance Mechanism: This aims to protect the victim in cases where there is negligent, non-responsive and partisan attitude on the part of police officers. It is also imperative to constantly review the quality of lawyers and the para legal volunteers appointed by the Auth- ority. It is also important to focus on domestic violence, protection of senior citizens, etc. The main goal is to advance the cause of human rights. To further this vision, 115 aspirational districts have been identified by Niti Aayog. Coming to Justice Ramana, he was born in an agrarian family on August 27, 1957 in Ponnavaram village of Andhra Pradesh. He graduated in science and law and was the first lawyer in his family. He enrolled as an advocate at the Bar on February 10, 1983 and practised in the High Court of Andhra Pradesh; Central Administrative Tribunal, An- dhra Pradesh; Administrative Tribunal and the Supreme Court. He has dealt with matters pertaining to the Consti- tution, labour, service, inter-state river disputes and elections. He was Acting Chief Justice of the Andhra Pradesh High Court from March 10, 2013 to May 20, 2013 and elevated as chief justice of the Delhi High Court on September 2, 2013. On February 17, 2014, he was made a judge of the Supreme Court. Justice Ramana initiated various measures for the promotion of the legal system when he was president of the Andhra Pradesh Judicial Academy and introduced regional judicial conferences. During his tenure as president, he orga- nised a joint conference for judicial officers, police officers, correctional services authorities, juvenile justice boards, advocates, prosecutors, women’s bodies, social groups and media representatives on the growing menace of sexual ass- aults on women. His recommendations led to the amendment of the CrPC to a certain extent. As a High Court judge, his directions to the State to fill the vacancies of public prosecutors led to the speeding up of criminal trials. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com NALSA’S INITIATIVE Union minister Ravi Shankar Prasad addressing the 17th All India Meet of State Legal Services Authorities in Nagpur

12. Lead/ Column/ Sexual Assault Against Women Shiv Visvanathan 12 December 16, 2019 ARX’S famous quote that history repeats itself twice, the first time as a tragedy and the second time as a farce does not quite work in India. When violence breaks out, the event is a disaster and the response is often a scandal. The victim is missing in the process and so is history, as the event is forgotten in a few weeks till it is repeated again elsewhere to highlight the indifference of authorities. The rape of a veterinarian in Hyd- erabad illustrates this. The stark poignancy of the event is lost, caught in the Kafkaesque travails of law and order bureaucracy. The facts are stark and simple. A 26-year-old vet leaves her house at 5:30 pm. She calls her sister from the Bengaluru-Hyderabad highway, afraid of a bunch of men poised threateningly around her. She asks her sister to keep talking and calling. Her scooter has a puncture and the milieu around her looks menacing. The sister rings again at 9.45 pm and finds the phone switched off. It was the last time the family heard of her. The sister wished to file a complaint, only to have the police state blandly that the toll gate where her sister was last sighted was not under their jurisdiction. In an Orwellian sense, some policemen are more indifferent than others. Law and order is often a mask for civic indifference. The scene shifts to the perpetrators. A sense of urban alienation stretches out No Woman’s Land M UNI WHITHER JUSTICE? People at a candlelight protest in Hyderabad ThegangrapeofaHyderabaddoctorhasonceagaindemonstratedthatbetweenpatriarchallawandurban anomie,sucheventswillhappenagaintocompoundthehollownessofgovernanceandrightsinIndia

13. | INDIA LEGAL | December 16, 2019 13 penalty. Jaya Bachchan, usually dormant in Parliament as a Samajwadi member, played out a belated role, demanding drastic punishment. One can understand crowd rage but for responsible MPs to follow suit makes one wonder if law and order itself is a farce. F or once, the media, instead of offering the story in bits and pieces, provided coherent narra- tive, mediating on the loneliness of the urban milieu and the sheer anomie of late-night urban spaces. They are open to acts of horror, proving easy avenues of escape. It raised the issue of right to public spaces, especially for vulnerable women and children. This emptiness of urban life beyond the metropolis marks highways as law and order problems. Yet little is done, and what is done is ritualistic. One returns to the everyday sense of dread, anxiety and horror as one trav- erses these spaces, which a wag once called “a no woman’s land” between metropoles. But beyond the sociology of the ano- mic city is the ritualistic psychology of policeman and politician. A few policemen were suspended following the family’s complaint. The cops had instant an- swers, blaming the delay on jurisdiction- al reasons. But there are two problems which need to be discussed. One is the question of punishment for rape and the other is the question of urban memory. Legislators fuelled by citizens’ anger demanded the death penalty, castration or other forms of instant action. But does such hysterical or popular demand answer the search for justice? Pratiksha Baxi (a sociologist of law) in a search- ingly relevant paper argues against it. She suggests that an examination of parliamentary debates after such horrendous events reveals that the law is really not concerned about the bodily safety of women. The construction of rape as a horrendous crime has little to do with the safety of women but stems from a patriarchal hangover, where in honour-and-shame-societies women become carriers of honour. Rape then becomes a stigma that men have to confront. The emphasis on legislation leads more to panopticonising the woman’s body than confronting issues of safety and care. The woman becomes doubly victim. Once she is raped, she becomes unacceptable to society. Rape still exists within the discourse of power as something conducted by men in authority like contractors, employers, money lenders. Women become doubly dispen- sable under such a law. The logic of ret- ribution, as Baxi argues, is still within the structures of patriarchal law rather than within the embeddedness of rights. The State becomes a guarantor of the honour of women rather than of their safety or right of access to public spaces. The demand for speed is another reaction. One sees it in the piety of Delhi Chief Minister Arvind Kejriwal’s statements that the judicial system Thereislittleconcernforthepoignancyof lossthatthefamilyfeels.Thevictim disappearsasapersoninthenoisethat followsandjusticefadesawayin thejingoismofimmediateprotest. as truck drivers hanging around the scene find there is more than time to kill. The vet was an easy target for the accused men after the first drink. They were drivers and cleaners of lorries plying between Hyderabad and Bengaluru carrying construction material. As the woman discovers her flat tyre, the men discover her. The violence that follows is almost ritualistic. The script is predict- able. They offer to drop her near a bike repair shop and play the Good Samari- tan. They escort her to an abandoned room. The woman panics, calls her sister. The men discover the phone and sw- itch it off. They then take turns raping her, smother her, and burn the body at a remote section of the highway. The body lies ignored for two nights till it is sighted by a milkman who alerts the police. Based on CCTV and interviews, the police reconstruct the crime and arrested the men. As news of the event flooded TV, ordinary people felt rage and intense help- lessness at the event. Demonstrations flared up across cities, and politicians, quick to milk the situation, enacted demands for castration and the death UNI DEALING WITH LOSS Telangana Governor Tamilisai Soundararajan visits the bereaved family

14. 14 December 16, 2019 should work in mission mode and ensure rape cases are resolved within six months. Listening to Kejriwal, one sens- es that he is suffering from the Chand- rayaan effect, unable to differentiate between law and a rocket launch. Kejriwal acts as if the death penalty is inevitable for rape, oblivious of the debate around it. The reaction seems knee-jerk and populist. One needs deeper sociological meditation here. B eyond the rhetoric of capital punishment, there is also the question of memory and indifference. Similar scenes of horror and protest have been enacted earlier. Once the season of protest is over, society lapses into indifference. Silence punctu- ates the long periods between protests, turning them into a ritualised emptiness. There is an indifference of governance to the problems of the city. Amit Shah as home minister is talking rhetorically of the detoxification of the economy. He could begin by addressing how he plans to detoxify our cities of patriarchy and urban alienation. There is little concern for the poignancy of loss that the family feels. Governm- ents rarely care between rhetorical statements and indifferent doles. What we then confront is a silence, an emptiness and a black hole of pain which the media amplifies in its erratic reporting. There is outrage but little sense of loss or mourning. Protest, I must emphasise, is a legislative function, loss is a personal enactment. The person as a mourner disappears in the sociological enactment of roles in the media. Otherwise, one would have asked the stark question of why money left in the aftermath of the Nirbhaya case lies unused. One has to ask why mercy petitions for rapists get such elaborate hearings. There is a deeper issue here that India needs to understand—how it con- sumes and responds in the aftermath of an event like this. Our legislators shout for abstract revenge. They act as if legislation will settle the problem of social evil. They think a fast-track court will create an assembly line of justice. But PUCL, NHRC or some social science group has to assemble how society, both citizens and functionaries, respond in the aftermath of violence. The emptiness and silence are Kafkaesque. The victim disappears as a person in the noise that follows and justice fades away in the jingoism of imme- diate protest. Instead of hanging the rapist, it is the citizen who should hang his head in shame, knowing unerringly that between patriarchal law and urban anomie, such events will happen again to compound the hollowness of governance and rights in India. As a wise observer told me: “It is not legislation we need to tinker with like a piece of plumbing, it is the anomie of law and society that we need to medi- ate on.” Such narratives become mere spectacles with little sense of civics or pedagogy. Maybe one needs a memorial for the victim where one can mourn the idiocy of law and the indifference of society. —The writer is a member of the Compost Heap, a commons of ideas exploring alternative imaginations Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com SHOT DEAD The four accused, allegedly involved in the Hyderabad rape case, were killed by the Cyb- erabad police in an encounter at Chatanpally Politiciansenacteddemandsforcastration andthedeathpenalty.JayaBachchan, usuallydormantinParliamentasa Samajwadimember,playedoutabelated role,demandingdrasticpunishment. Lead/ Column/ Sexual Assault Against Women/ Shiv Visvanathan

16. It is bizarre that the courts still continue to look out for “character” and “background” of the victim rather than the crime committed against her. In a case against a serving policeman of Mumbai, who was accused of raping a sex worker, the High Court reinstated him on the grounds of the profession of the victim. It was later cancelled by the apex court, but it’s reflective of our misogynistic attitude towards victims. Nowhere does the IPC or CrPC or the Evidence Act say anything about dilut- ing the crime if the “character” of the victim is not spotless, or even taking it into consideration while deciding a case or bail. In another astonishing case, bail was granted to an accused by the trial court on the defence team’s assertion that the victim had “enjoyed the incident”. How was this conclusion arrived at? By the victim’s admission that her hands were on the rapist’s back, indicating her acquiescence and consent! This is indi- cative of the kind of probing the defence undertakes to harass the victim in court. An average of about 30,000 rapes are reported in the country each year and only about 7,000-odd get convicted after several years of trial. Only some cases like Nirbhaya or the present Hyde- HE shocking rape-cum- murder of a vet in Hyder- abad and the gang rape of a law student in Ranchi on successive days have again put the spotlight on India’s poor record in protecting women and punishing the guilty. The conviction rate for rape cases in India was 44.3 percent in 1973, and has since then been on the decline, falling to 24.2 percent in 2012, before showing a marginal rise in the last five years. This has happened despite changes in the legal system, despte passing of stricter sexual assault laws, and the cre- ation of fast-track courts for prosecution of rapes. Most often, evidence is so inad- equate, the defence so shameless in probing and the trial so painfully long that the victims and their families get drained. Bail to the accused in rape cases is an issue with victims and their families, as it leads to further shaming of the victim in society. Which, perhaps, is the aim of the defence. One of these was finally busted by Chief Justice of India SA Bobde last week, when he cancelled the bail of an accused, which had been granted by the Bombay High Court on the grounds that the victim was “habitu- ated to having sex”. rabad case get fast-tracked because of the media attention. In September this year, Chief Justice DN Patel of the Delhi High Court did yeoman service to the cause of rape victims by taking out an order for all trial court and HC judges in Delhi to ensure that the victim’s view is recorded each time a rape accused moves for bail. Furthermore, he has instructed that it is the duty of the investigating officer to inform the victim of the bail intentions of the accused. He has also ordered that a form be signed by both the parties and attached to the case file every time a bail application is moved. This method will help in ensuring that the victim has identified her tormentor and is consis- tent in her stand through the trial. Justice Patel’s order does more for the victims than all the false drum beat- ing in Parliament. Jaya Bachchan has advocated lynching and almost everyone wants the death sentence for the Lead/ Sexual Assault Against Women ArecentofficeorderbytheDelhiHighCourtin thematterofbailforrapeaccusedisa significantstepinthejusticedeliverysystem By Neeraj Mishra Victim Friendly 16 December 16, 2019 T AWAITING JUSTICE A protest related to the Nirbhaya rape case in 2012, in New Delhi

17. “consensual sex on promise of marriage” cannot be considered a crime under Section 375. This flies in the face of “consent obtained through fraud” as understood in the section. In April 2013, Judge Virender Bhat had suggested that the legal proposition of relying upon the sole attestation of the victim became an easy weapon to incriminate anyone in a rape case. Justice Kailash Gambhir of the Delhi High Court indicated that penal provisions for rape are often being misused by women, as a “weapon for vengeance and vendetta” to harass and blackmail their male friends, by filing false cases to extort money and to force them to get married. Delhi Commission for Women (DCW) chairperson Swati Maliwal has been on a hunger strike in New Delhi, demanding justice in the Hyderabad rape case. A fact-finding report on pending rape cases by the DCW has found out that of the cases which go to full trial, only two percent are committed by strangers. A fourth of the cases in Delhi are now filed under “breach of promise to marry”. This may be the result of increased urbanisation and exi- gencies of modern fast track life, where live-in relationships have become com- mon. These stats may not be reflective of the rest of the country. These issues have been left festering for too long. Parliament has been seized of the matter for long but no significant improvement has been made in key areas of investigation, bail applications and conviction. “Now, there is considerable public and parliamentary attention to the vio- lent frequency of the rape cases. It is time that the court reminds the nation that deterrence becomes more effective from quick investigation, prompt prosecution and urgent finality, including special rules of evidence and specialised agencies for trial,” Justice VR Krishna Iyer, one of India’s leading luminaries, said in 1980. If the time is not ripe now, it never will be. | INDIA LEGAL | December 16, 2019 17 accused. They forget that 75 victims out of every 100 will never get justice, and the other 25 will be left with the feeling that they have been raped several times during the trial. Nirbhaya’s mother has voiced her opinion on the trial that has already taken seven years, and even a change in government has done little. T he continued incarceration of perpetrators perhaps does more to deter rapists than any threat of enhanced punishment. Media trial is decried in almost all matters, but never in rape cases, so even that is not a deter- rent for the accused. The misogynistic attitude of some lawyers and part of the judiciary has been an impediment in understanding and development of rape laws. There has been a side show in some circles around “false allegations and revenge cases” by women, mostly cases arising out of live-in relationships going wrong and promises of marriage not being kept. In a rather debatable judgment, the High Court recently pronounced that “Itislikeanointmenttomywounds. Atleastonedaughterhasbeen servedjustice.Ithankthepolice. Iamstilltakingroundsofthecourt.” —AshaDevi,motherof Nirbhaya,onthe encounterkillingoftheHyderabad rapeaccused,toIndiaToday Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com

18. Supreme Court/ Justice for Juveniles 18 December 16, 2019 N a landmark judgment, the Sup- reme Court has said that crime committed by a juvenile can’t be a ground to deny him a government job. This will allow such a person to get a government job and start life afresh. The case related to the government refusing to give an appointment letter to a man for the post of sub-inspector in the Central Industrial Security Force (CISF) as a criminal case was lodged against him for teasing a girl when he was a teenager. A bench of Justices UU Lalit and Vineet Saran said the criminal record of a child must be treated as erased except in special circumstances so that he can start life afresh. The bench passed the order while rejecting the centre’s stand that such persons cannot be given government jobs because of their criminal past. The Court said: “Even if the allegations were found to be true, then too the respondent could not have been deprived of getting a job on the basis of such charges as the same had been committed while the respondent was juvenile.” The centre had appealed in the apex court against an order passed by the division bench of the High Court of Raj- asthan at Jodhpur regarding the appointment of the man. The man was given the appointment in 2016 and asked to fill a form along with details regarding any FIR lodged against him. While he was an accused under Sections 354, 447 and 509 of the IPC when he was a teen, he specifically mentioned that he had been acquitted in the case. How- ever, the Standing Screening Committee of the CISF decided that he was not suitable for the appointment on the basis of these facts. The man then filed a writ petition Starting Life Afresh TheCourtrejectedthecentre’sstandthatpeoplewithcriminalrecordsasjuvenilescannotbe givengovernmentjobs,therebygivingthemanotherchanceinlife By Gautam Mishra I ENSURING JUSTICE A bench of Justices UU Lalit (left) and Vineet Saran said that even if the allegations were true, the man could not be deprived of a job as the offence was committed as a juvenile Anil Shakya

19. | INDIA LEGAL | December 16, 2019 19 and the single-judge bench of the Raj- asthan High Court directed the case “to be decided afresh within 15 days in the light of the guidelines issued by this Co- urt in the case of Avtar Singh vs. Union of India (2016)”. The CISF Committee again rejected the claim, stating that “the respondent was acquitted merely due to lack of adequate evidence and compromise, and that the offence in the charge sheet falls in the category of serious offence, and thus the respondent was not considered suitable for appointment on the post of Sub Inspector in CISF”. A ggrieved by this, the man filed another writ petition which was allowed. The Court then ordered: “..the impugned Order dated 16.1.2018...is recashed and set aside; the respondents are directed to activate offer of appointment of the petitioner earlier made to the Petitioner for the post of Sub Inspector in Central Indus- trial Security Force. The order may be operated upon within a period of thirty days from today and all notional benefits shall be prospectively given”. But the CISF filed a Special Leave Petition against this order in the apex court. After hearing the matter, the Supreme Court observed: “In the present case, the complaint/FIR lodged against the respondent was to the effect that when he was a minor, he had teased a girl a few times and went to the extent of catching hold of her hand. However, the girl and her parents finally decided to pardon the respondent by not giving any evidence against him, resulting in the acquittal of the respondent. In the aforesaid facts, even if the aforesaid is found to be true, it cannot be said that the respondent had committed such a crime, which would be covered under the definition of moral turpitude, especially when the respondent is said to have committed the alleged offence when he was a minor.” The Court added that the charges were never proved against the respondent as the girl and her parents did not depose against him, resulting in his acquittal on November 24, 2011. “Even if the allegations were found to be true, then too the respondent could not have been deprived of getting a job on the basis of such charges as the same had been committed while the respondent was juvenile. The thrust of the legislation, i.e. The Juvenile Justice (Care and Protection of Children) Act, 2000, as well as The Juvenile Justice (Care and Protection of Children) Act, 2015, is that even if a juvenile is convicted, the same should be obliterated, so that there is no stigma with regard to any crime committed by such person as a juvenile.” The Court explained that this was with the clear objective of reintegrating the juvenile back in society as a normal person without any stigma. It further added that Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015, lays down guidelines for the centre, state governments, the Board and other agencies while implementing the provisions of the said Act. Clause (xiv) of Section 3 which deals with the “Principle of fresh start” says: “All past records of any child under the Juvenile Justice system should be erased except in special circumstances…. Section 3(xiv) provides for the same and the exception of special circumstances does not apply to the facts of the present case.” The Court repeatedly said that the man was acquitted of all criminal charges and even if he had been convicted, he could not be deprived of the job as he was a minor when the charges were framed against him. Therefore, he must be given a fair chance to start life again. The Court also appreciated that the man did not try to suppress any information and mentioned that in its order. It said: “The respondent had very fairly disclosed about the charges which had been framed and his acquittal on the basis of no evidence having been adduced by the complainant against the respondent.” The Court upheld the judgment of the High Court and dismissed the appeal of the CISF. It said: “The respondent shall be entitled to all the benefits of the judgment of the writ Court within 30 days from today.” Justice delayed in this case, thankful- ly, is not justice denied. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com ThescreeningcommitteeoftheCISFdid notfollowtheRajasthanHighCourtorder askingittoactivatetheappointmentof themanasSubInspectorandtheorder waschallengedbythecentreintheSC.

20. Supreme Court/ Actor Dileep Assault Case 20 December 16, 2019 T’S a case that has rocked the Malayalam film industry, reached the Supreme Court, and threatens to affect the career of one of its major stars. The actor, Dileep, is one of the accused in an assault case involving an actress two years ago. Dileep was arrested on July 10, 2017 and released on bail three months later. The prosecution’s case against him was that he held a grudge against the actress as she had allegedly played a pivotal role in spoiling his first marriage with popular actress Manju Warrier. To exact revenge, the prosecution said, he had con- spired with the other accused to abduct and sexually assault her and record it, and then release it in social media. In the latest twist to the case, the Supreme Court allowed Dileep to per- sonally inspect the contents of a memory card containing visuals of the assault. He could also, the apex court ruled, seek a second opinion from an independent agency such as the Central Forensic Science Laboratory. The bench also ruled that a memory card shall be considered a document under the CrPC. The bench of Justices AM Khanwilkar and Dinesh Maheshwari, however, did not allow the actor’s request for a cloned copy of the memory card. However, the bench emphasised that while the accused ordinarily had the right to have a copy of such material, the issue of privacy of the victim or witness also had to be considered. The bench examined the legal question of whether the memory card was a part of the police document which had to be provided to the accused under Section 207 of the CrPC. The bench made it clear that the only question that it had examined in this appeal was whether the contents of the memory card/pen drive referred to in the charge sheet needed to be furnished to the accused and whether it could be misused by him or any other person. It observed that in the present case, there Star-crossed WhiletheCourtgavetheMalayalamstar,accusedinan assaultcaseinvolvinganactress,somereprieve, theissueisnowmoretodowithhisfutureintheindustry By NV Ravindranathan Nair in Thiruvananthapuram I dailyo.in

21. | INDIA LEGAL | December 16, 2019 21 were eight accused. Once relief is granted to Dileep, copies of the memory card/pen drive would be freely available to them under the ruling. Besides, it will be nearly impossible to keep track of its misuse and ensure its safe custody. It also stressed that it was imperative to balance the rights of both parties. The accuser, a leading actress from Kerala, had asked the Supreme Court not to give assault visuals to Dileep or any of the other accused, saying this would ensure fair trial without her privacy being compromised. Incidentally, Dileep’s petition requesting the assault visuals was rejected in February 2018 by the Angamaly magistrate court and the Kerala High Court in August 2018. Dileep then approached the Supreme Court in May 2019, seeking to stay the trial and asked for a cloned copy of the footage, claiming that it would help him to prove his innocence. Dileep also argued that the assault visuals had been morphed. F ollowing this, the Kerala government requested more time to present the case. It also said that it cannot give the visuals to the accused as he was capable of leaking them to tarnish the image of the survivor. The government also opposed his petition for a cloned copy of the memory card, stating that Dileep was trying to delay the trial and had no right to dem- and a particular agency should conduct the probe. The Supreme Court accepted the state’s view and said the probe was going in the right direction. It also asked the trial court to complete the trial expeditiously, preferably within six months. Dileep, who has emerged as a major player in Mollywood, had to face anger and severe criticism not only from the general public but also from his fan clubs following the incident. After some of his films like Rama- leela achieved box-office success, it seemed that his fans had accepted his plea of innocence. However, he has had to quit the Association of Malayalam Movie Actors, an influential body, besides shelving several films which featured him in the lead role. Being a leading actor-produc- er, he also invited the ire of a section of film exhibitors. Dileep’s future in the film world now depends on the outcome of the case. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Theprosecution’scaseagainstDileep wasthathehadnurturedillfeeling towardstheactressasshehadallegedly playedaroleinspoilinghismarriagewith popularactress,ManjuWarrier. CORNERING THE ACCUSED Women artistes meet Kerala Chief Minister Pinarayi Vijayan in connection with the sexual assault complaint against actor Dileep; (facing page) Dileep with cops in Kochi @CMOKerala

22. Legal Eye/ Supreme Court’s Regional Benches 22 December 16, 2019 RE Supreme Court branches outside Delhi a mi- rage? Recently, two Tamil Nadu MPs in the Rajya Sabha raised the issue of setting up a branch of the Supreme Court in south India, especially Chennai. Marumalarchi Dravida Mu- nnetra Kazhagam (MDMK) member Vaiko and Dravida Munnetra Kazhagam (DMK) representative P Wilson raised this issue recently during Zero Hour. Vaiko, an ace parliamentarian with over 25 years of experience, argued that opening a branch of the apex court in Che- nnai would not only help the judiciary in reducing the backlog of cases in the Supreme Court—which is at 54,103 as of now—but also ensure justice for litigants in remote places in several parts of the country. “If a litigant wants to appeal against any High Court order, he has to travel from his respective place to Delhi. The travelling and hotel costs in Delhi and above all, the fee for lawyers of the Sup- reme Court are huge. Establishing a regional bench of the Court in south In- dia, especially Chennai, would ensure justice for the downtrodden and the Is this a Chimera? DespitethedemandforbranchesinotherpartsofIndia,therehasbeennoforwardmovement. TheideawasmootedearlierbytheLawCommissionandVice-PresidentVenkaiahNaidu By R Ramasubramanian in Chennai A STILL NO CLARITY The Supreme Court itself had said in a judgment that setting up branches in other parts of the country would be considered by the government Anil Shakya

23. | INDIA LEGAL | December 16, 2019 23 poorest of the poor in the country,” Vaiko said in his speech. He added that the chief justice of India (CJI) could approach the president to establish a regional bench and he could do so under Article 130 of the Constitution. The Article says: “The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.” Similar concerns were raised by DMK MP and former Additional Soli- citor General of India P Wilson. He said that (when it comes to litigants outside Delhi), access to the Supreme Court is restricted only to those who are affluent and rich. “The litigants should have the economic means to travel and afford a lawyer in Delhi. This effectively rules out a large percentage of the population who do not have the economic means, and therefore can litigate only up to the High Court,” he said. The idea has been mooted several times by parliamentary standing committees, the Law Commission (in its 229th report) and by Vice-President and Rajya Sabha Chairman M Venkaiah Naidu himself. Further, Wilson said that setting up regional benches of the Sup- reme Court would improve the judge-to- litigant ratio in India. At present, the ratio of Supreme Court judges to the population of the country and the dock- et (list of cases to be dealt with in a particular court) of the Court is minuscule. He said, for a total population of 133.92 crore, the strength of Supreme Court judges is just 34. “It is expedient that in the interest of administration and access to justice, which is a fundamental right, the law ministry must take forward this proposal with the chief justice of India .... Even otherwise, it is always open to the government to introduce appropriate Cons- titutional amendments to mandate this,” Wilson added. T he demand for setting up branches of the Supreme Court in important state capitals is an old one. Interestingly, in a 1986 judgment, the Court said that opening branches in other parts of the country would be considered by the government. In addition to this, two separate Law Commission reports had also recommended the setting up of Supreme Court branches. The Law Commission’s 125th report said: “The Supreme Court sits in New Delhi alone. The Government of India on a couple of occasions sought the opinion of the Supreme Court of India for setting up branches in the South. This proposal did not find favour with the Supreme Court. The result is that those coming from distant places like Tamil Nadu in South, Gujarat in West and Assam and other states in the East have to spend a huge amount on travel to reach the Supreme Court. An adjourn- ment becomes prohibitive.” In addition, the 229th Law Commi- ssion report said that one bench each can be set up in the northern, southern, eastern and western regions to deal with all appellate work arising out of orders/ judgments of High Courts. But so far, there has been no forward movement on this issue. Another related issue has also crop- ped up in the past. A demand for setting up of a National Court of Appeals in Chennai, Kolkata, Mumbai and Delhi was raised. This model prevails in the US, where all 50 states have their own Supreme Courts, called the National Court of Appeals (NCA). In the NCA, all appeals against High Court orders/judgments related to criminal, civil and other matters are taken up for hearing/scrutiny, while in the US Supreme Court, only matters related to Constitutional issues are entertained. All other appeals are dealt with by the NCA. In fact, a petition was filed a few years ago in the Supreme Court of India praying that the Court direct the government to constitute an NCA. How- NEED OF THE HOUR (From left) MDMK’s Vaiko and DMK's P Wilson raised the issue of establishing an SC branch in Chennai in the Rajya Sabha; Vice-President M Venkaiah Naidu

24. Legal Eye/ Supreme Court’s Regional Benches 24 December 16, 2019 ever, the Modi government opposed this move and the idea was dropped. The Congress’s 2019 election manifesto promised the setting up of NCAs. B ut this is easier said than done as it requires a Constitutional amendment. “This is difficult as both Houses of Parliament have to agree to this proposal and not all parties are showing an interest in it. The BJP, in fact, opposed it. But creating Supreme Court branches in the four corners of the country is much easier because it needs just an executive order and the government can do this by consulting the chief justice,” said Wilson to India Legal. Venkaiah Naidu supported the idea of setting up of branches of the Supreme Court in other parts of the country. “We need to bring the judicial system closer to people. Expanding the Supreme Co- urt bench and having separate benches in different regions and at least one in Chennai on a trial basis has been suggested by the Parliamentary Standing Committee of Law and Justice and I think it is high time to do this,” he said at a function held in Chennai a few months back. In Tamil Nadu, the legal fraternity is all for a Supreme Court branch in Che- nnai. “This is the need of the hour. The centre in consultation with the Supreme Court must establish an apex court bench in Chennai. Already, there are branches of several High Courts functioning in India. The Bombay High Court has got an Aurangabad Bench, the Allaha- bad High Court has a Lucknow Bench, the Madras High Court has a Madurai Bench. So what’s wrong with having a Supreme Court bench in Chennai? It is needed to minimise the suffering of litigants. In fact, our manifesto for the 2019 Lok Sabha elections promised a Supreme Court bench in Chennai,” said BM Velu, an advocate. But in spite of all the support, the prospects of the idea fructifying are bleak. Judicial sources allege that powerful lobbies in the bench and the bar in Delhi won’t allow this to happen. “A senior advocate in the Supreme Court charges between `7.5 lakh to `25 lakh for each appearance. If you open branches in other parts of the country, a new crop of senior advocates will come up and make a dent in the earnings of senior advocates of the Supreme Court,” said a retired Madras High Court judge on condition of anonymity. The writing on the wall is clear. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com NEEDLESS HARASSMENT Setting up SC regional benches would save money and time for litigants who come to Delhi Farfromsettled It was in April 1984 that the issue of setting up of separate branches of the Supreme Court outside Delhi was bro- ught up in the Rajya Sabha. Minister of Law, Justice and Company Affairs Jagannath Kaushal said that no such proposal was received from the chief justice of India. In December 2008, the issue was again raised by Prof PJ Kurien in the Rajya Sabha. The then Minister of Law and Justice, HR Bhardwaj, replied that the full court of the SC had decided against it. Two years later, the full court of the SC, headed by then CJI KG Bala- krishnan, made its stand clear that dividing the top court would affect the country’s unitary character. In May 2012, Vijay Jawaharlal Darda raised a question in the Rajya Sabha on whether the Law Commission’s recommendations for setting up a Consti- tutional court in New Delhi and four Supreme Courts in Metros would be implemented. The then Minister of Law and Justice, Salman Khurshid, replied that the recommendations on setting up a Constitutional court in Delhi and four cassation branches in the Northern region/zone at Delhi, the Southern region/zone at Chennai/Hyderabad, the Eastern region/zone at Kolkata and the Western region/zone at Mumbai to deal with all appellate work from orders/judgments of the High Courts of the particular region were referred to the CJI, who said that the full court had unanimously resolved that the recommendations could not be accepted. In April 2015, the issue was again raised in the Rajya Sabha by Prof MV Rajeev Gowda before the then Minister of Law and Justice, DV Sadananda Gowda, who replied that the Court found no justification for setting up of bench(es) of the SC outside Delhi. The matter again came up in July 2015 and a bench headed by then CJI HL Dattu and comprising Justices Arun Mishra and Amitava Roy dismissed a petition seeking the setting up of a separate bench at Chennai. —Dipankar Malviya Anil Shakya

25. to the experience so far, the question is whether the judgment is going to make any real difference to the political life of the country. Though the Supreme Court has dec- lared secularism a part of the basic structure of the Constitution, it has continued to languish in terms of its operationalisation. No other feature of the basic structure has been neglected so blatantly. To give just one example, not even a HE Supreme Court decision on 2 January on the interpre- tation of Section 123 (3) of the Representation of the People Act (RP Act) forbidding seeking of votes in the name of religion, race, caste, community or language has made a candidate liable to the risk of being guilty of electoral corrupt practice. Several political parties such as the Bharatiya Janata Party (BJP) and the Congress have welcomed it. But, looking show cause notice has been issued by the Election Commission of India to any political party for contravening the com- mitment to abide by the tenets of secularism, leave aside taking steps for can- cellation of its registration. It is important to note that the The book is a collection of selected essays on some of the burning issues facing India. The articles bring into focus the importance of safeguarding secularism in the country T Supreme Court Verdict: Back to Square One, if not Minus One Book Extract/ India’s Governance/ Madhav Godbole NEED FOR SECULARISM BJP supporters at an election rally. The question of separating religion from politics was identified as a critical issue in 1948 | INDIA LEGAL | December 16, 2019 25 UNI

26. Book Extract/ India’s Governance/ Madhav Godbole 26 December 16, 2019 function and are recognised, though their composition may be predominantly based on membership of particular communities or religions.’ In Dr Ramesh Yeshwant Prabhoo vs. Prabhakar Kashinath Kunte (AIR 1996, SC 1113), which is known as the Hin- dutva case, the court held that the term ‘Hindutva’ is related more to the way of life of the people in the sub-continent. ‘It is difficult to say that the term ‘Hindutva’ or Hinduism, per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry or be construed to fall within the prohibition in Sub- section (3) and/or (3A) of Section 123 of the RP Act...’ ‘The word Hindutva is used and understood as a synonym of “Indiani- sation” i.e. development of uniform cul- ture by obliterating the differences between all cultures co-existing in the country.’ I had highlighted in my book, Good Governance Never on India’s Radar (Rupa & Co, 2014, p.158) that this will evoke fears of obliterating the religious and cultural identities of the minorities in the country. Equally difficult to understand is the logic of the court in its assertion that a mere statement that the first Hindu state will be established in Maharashtra is by itself not an appeal for votes on the ground of his religion, but the expres- sion, at best, of such a hope. T he fact that all these election petitions were based on the speech- es made by leaders of the Shiv Sena and the BJP, whose political ideol- ogy is based on the furtherance of Hin- du religion at any cost, also has an important bearing on the issues at hand. Rajeev Dhawan, senior advocate, has recalled how he had appealed the 1995 order the same year, but the court had refused to reopen the judgment except for any problems in technical matters, in case they existed. ‘So that judgment hangs over our heads as Hindutva hangs on our head, as it is a political platform.’ judgment is not unanimous and is based on a slender majority of 4:3. Attention needs to be invited to the very weighty points raised in the dissenting judgment. The issues raised therein cannot be brushed aside and are bound to come up whenever Parliament decides to go for the revision of the RP Act and attempts suitable constitutional amendments. The question of separation of religion from politics was identified as a critical issue for the political life of the country way back in 1948, even before the Constitution was promulgated. The resolution on the subject moved by Ananthsayanam Ayyangar was nearly unanimously adopted by the Constitu- ent Assembly (Legislative), barring the single dissenting vote by Ishaq Seth. It is a travesty that though nearly 70 years have elapsed, India is still strug- gling with the question of translating it into a reality. During this period, repeated observa- tions of the Supreme Court have highlighted how it is helpless in doing justice in the appeals in election cases filed before it as there is no law separating religion from politics. PB Gajendragadkar, the then Chief Justice, speaking for the Supreme Court in Kultar Singh vs. Mukhtiar Singh (AIR 1980, SC 354) had, inter alia, observed that ‘there are several [political] parties in this country which sub- scribe to different political and economic ideologies, but their membership is confined to, or predominantly held by, members of particular communities or religions. ‘So long as the law does not prohibit the formation of such parties and in fact recognises them for the purpose of election and parliamentary life, it would be necessary to remember that an appeal made by such candidates of such parties for votes may, if successful, lead to their election and in an indirect way, may conceivably be influenced by considera- tions of religion, race, caste, community or language.’ ‘This infirmity cannot perhaps be avoided so long as parties are allowed to AfterthedemolitionofBabri Masjid,aneffortwasmadeto separatereligionfrompolitics throughanamendmentbillin 1993,butparliamentrejectedit.

27. | INDIA LEGAL | December 16, 2019 27 lighted the Supreme Court’s importance as a Constitutional court. However, as it often happens, the baby was thrown out with the bath water and the question of ensuring that the Supreme Court discharges its functions as a Constitutional court speedily and effectively still remains to be addressed. Disturbingly, the dissenting judgment of the Supreme Court has raised doubts whether religion, race, caste, community, language, etc. can be sepa- rated from politics at all. It has rightly underlined that this question should be addressed by Par- liament rather than the Supreme Court. Due to the unnerving memories of the Partition of the country and the poi- son of communalism which has continued to afflict the country to this day, separation of religion from politics is a matter of serious and urgent concern. Such an effort was made in 1993 after the demolition of the Babri Masjid by frenzied mobs. But the Constitution Amendment bill and the bill to Dhawan has also stated that ‘Justice J.S. Verma (who had delivered the 1995 judgment) too was apologetic about that judgment and said it had been misun- derstood.’ (The Indian Express, 3 January 2017). It was way back in 1996 that a three- member bench of the Supreme Court in the Abhiram Singh case had directed that the issues arising out of the Hindutva case be placed before a larger bench of five judges at an early date so that all questions could be decided authoritatively and expeditiously. Later, in January 2014, a five-judge bench referred this question to a larger seven-judge bench. I t is unfortunate that this issue has still remained undecided though the Hindutva judgment goes to the very crux of the problem of separation of religion and politics. Unfortunately, the Supreme Court judgment in January also sidestepped this issue. The inordinate delay in the decision on the Hindutva case under- lines the need to ensure that the Sup- reme Court deals with crucial Consti- tutional questions expeditiously. This was also underlined by the question pertaining to the rampant misuse of the Ninth Schedule of the Consti- tution, which was nothing less than a fraud on the Constitution but was decided by the Court only in January 2007. The Swaran Singh Committee on Constitutional Reforms, whose recommendations led to the highly controversial 42nd Amendment of the Constitu- tion during the Emergency, had high- amend the RP Act failed to get support in Parliament. This was largely due to the failure of the government in building a political consensus on the subject before intro- duction of the bills. It was also due to the fact that the scope of the bills included not just the separation of religion from politics, but also to bring in their ambit race, caste community, language, etc. The government should have desist- ed from excessively widening the field of legislation, as many of the concerns pertaining to race, community, caste, and language are already addressed in the Unlawful Activities (Prevention) Act. If necessary, that Act could have been amended suitably. The thrust of the 1993 amendments ought to have been restricted to eliminating the association between religion and politics. Other concerns could also be partly dealt with by amending the election law and laying down that a candidate would have to get minimum 50 per cent plus one vote to win an election to a legislature or Parliament. This would impel the candidates to make an appeal to broader segments of their constituencies. The issues involved are highly controversial and emotive. Any legislative and other steps taken by the government are likely to be challenged in the court leading to endless litigation. Considerable precious time has already been lost. I would therefore suggest that the President of India (central government) should seek an advisory opinion of the Supreme Court under Article 143 of the Constitution without any loss of time. —The author is a reputed bureaucrat who retired in 1993 after serving as Union Home Secretary and Secretary, Justice, among other senior positions in the government India’s Governance An incisive commentary on some burning issues Author: Madhav Godbole Published by: Konark Publishers Pvt Ltd. Pages: 322 Price: `495 RajeevDhawan,senior advocate,hasrecalledhowhe hadappealedagainstthe 1995orderonHindutva,but theSupremeCourthad refusedtoreopentheverdict. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com

28. Focus/ Surrogacy (Regulation) Bill, 2019 28 December 16, 2019 HE Surrogacy (Regula- tion) Bill, 2019, which was passed by the Lok Sabha in July, has now been sent to the select committee of the Rajya Sabha for a review. The Bill seeks to put a complete ban on commercial surrogacy, while placing stringent regulations on altruistic surrogacy. The fact that it has been sent to the select committee means it still requires thorough debate. Excerpts from the Bill: Preamble: To constitute National Sur- rogacy Board, State Surrogacy Boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy and for matters co- nnected therewith or incidental thereto. “Surrogacy” means a practice where- by one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth; “Altruistic surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative; “Commercial surrogacy” means com- mercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embr- Strict On Surrogacy Thebillseekstobanallformsofcommercialsurrogacyandwomenwhoagreetobesurrogates mustdosofor“altruistic”reasonsandmustbe“closerelatives”oftherecipients Dr KK Aggarwal T NOTIONS OF MOTHERHOOD The Bill aims to regulate surrogacy in India indiansurrogatemothers.com

29. | INDIA LEGAL | December 16, 2019 29 yo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, re- ward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative; “Couple” means the legally married Indian man and woman above the age of 21 years and 18 years respectively; “Intending couple” means a couple who have been medically certified to be an infertile couple and who intend to become parents through surrogacy; “Surrogate mother” means a woman bearing a child (who is genetically related to the intending couple) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of clause (iii) of section 4; When Surrogacy Is Permitted: Sur- rogacy is permitted when it is: (i) for intending couples who suffer from pro- ven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for pro- ducing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations. “Insurance”—an arrangement by which a company, individual or intending couple undertake to provide a guar- antee of compensation for specified loss, damage, illness or death of surrogate mother during the process of surrogacy. Insurance coverage: This is the amount as may be prescribed in favour of the surrogate mother for a period of 16 months covering postpartum delivery complications from an insurance company or an agent recognised by the Ins- urance Regulatory and Development Authority. Surrogate mother is in possession of an eligibility certificate issued by the appropriate authority on fulfilment of the following conditions: (I) no woman, other than an ever- married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise; (II) no person, other than a close relative of the intending couple, shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act; (III) no woman shall act as a surrogate mother by providing her own gametes; (IV) no woman shall act as a surrogate mother more than once in her life- time: Provided that the number of attempts for surrogacy procedures on the surrogate mother shall be such as may be prescribed; and (V) a certificate of medical and psy- chological fitness for surrogacy and surrogacy procedures from a registered medical practitioner. Eligibility certificate for intending couple: This is issued by the appropriate authority on fulfilment of the following conditions: (I) the age of the intending couple is between 23 to 50 years in case of female and between 26 to 55 years in case of males on the day of certification; (II) the intending couple are married for at least five years, and are Indian citizens; (III) the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier: Provided that nothing contained in this item shall affect the intending couple who have a child and who is me- ntally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure and approved by the appropriate authority with due medical certificate from a District Medical Board; and (IV) such other conditions as may be specified by the regulations. Appropriate authority: The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act. The functions of the appropriate authority include (i) granting, suspending or cancelling registration of surrogacy clinics; (ii) enforcing standards for surrogacy clinics; (iii) investigating and taking action against breach of the provisions of the Bill; (iv) recommending modifica- tions to the rules and regulations. Registration of surrogacy clinics: Surrogacy clinics cannot undertake surrogacy related procedures unless registered by the appropriate authority. National and State Surrogacy Boards: The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSBs), respectively. Functions of the NSB include (i) advis- ing the central government on policy matters relating to surrogacy; (ii) laying down the code of conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs. Parentage and abortion of surrogate child: A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple. No surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist, intending couple or any other person shall conduct or cause abortion during the period of surrogacy without the written consent of the surrogate mother and on authorisation of the same by the appropriate authority concerned: Provided that the IntroducedbyHealthMinisterHarsh Vardhan,theBillwaspassedbytheLok SabhainJuly,andfollowingsuggestions fromRSmembersforamendments,has beenreferredtoaselectcommittee.

30. 30 December ,2019 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com authorisation of the appropriate authority shall be subject to, and in compl- iance with, the provisions of the Medical Termination of Pregnancy Act, 1971. Sex Selection: No surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist, intending couple or any other person shall in any form conduct or cause to be conducted sex selection for surrogacy. Offences and penalties: (i) undertak- ing or advertising commercial surrogacy; (ii) exploiting the surrogate mother; (iii) abandoning, exploiting or disown- ing a surrogate child; and (iv) selling or importing human embryo or gametes for surrogacy. The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. Some issues continue to remain unsolved. Among them are: 1. Medical expenses: This has not been defined. Medical expenses may include home care (physical, mental, social). 2. Close relative is the surrogate mother and has not been defined. 3. The intending couple are married for at least five years and are Indian citizens. It denies surrogacy for residents of Indian origin living abroad but are close relatives. Five years is also an arbitrary figure and not based on any science. Any registered medical practitioner, gynaecologist, paediatrician, embryologist or any person who owns a surrogacy clinic or employed with such a clinic or centre or laboratory and renders his professional or technical services to or at such clinic or centre or laboratory, whether on an honorary basis or otherwise, and who contravenes any of the provisions of the Act (other than the provisions referred to in section 35) and rules and regulations made thereunder shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees. The words of any of the provisions of this Act will include cleri- cal mistakes and will be detrimental to the medical profession, like the Pre- Natal Diagnostic Techniques Act. Medical doctors are covered under MCI ethics and clinical establishments under the Clinical Establishments Act. IMC Act rule 7.3 had provisions for permanent deletion of a doctor if he/she is found indulging in sex determination. I feel the surrogacy Act can be covered under amendments of the IMC Act and ethics rules under MCI as far as involve- ment of doctors is concerned. MCI Ethics rules: 7.21: No act of invitro-fertilisation or artificial insemi- nation shall be undertaken without the informed consent of the female patient and her spouse as well as the donor. Such consent shall be obtained in writing only after the patient is provided, at her own level of comprehension, with sufficient information about the purpose, methods, inconveniences, disap- pointments of the procedure and possi- ble risks and hazards. 7.6: Sex Determination Tests: On no account sex determination test shall be undertaken with the intent to terminate the life of a female foetus developing in her mother’s womb, unless there are other absolute indications for termination of pregnancy as specified in the Medical Termination of Pregnancy Act, 1971. Any act of termination of pregnancy of normal female foetus amounting to female foeticide shall be regarded as professional misconduct on the part of the physician leading to penal erasure besides rendering him liable to criminal proceedings as per the provisions of the Act. On February 1, 2016, the Bombay High Court directed the Central Railway to grant maternity leave to one of its employees who became a mother by using a surrogate. A Division Bench of Justices Anoop Mehta and GS Kulkarni ruled that a mother enjoys the same benefits of maternity leave as any other working woman under the Child Ado- ption Leave and Rules. “There is nothing in the rules that disentitles maternity leave to a woman who has attained motherhood through surrogacy procedure,” the court added. Who can avail of the leave? The mother or the intended mother? This is just one of the several aspects on which the Surrogacy (Regulation) Bill, 2019 remains silent. —The author is president Heart Care Foundation of India and Confederation of Medical Associations of Asia and Oceania Focus/ Surrogacy (Regulation) Bill, 2019 Someissuescontinuetoremain unsolved.Like,whowouldbeabletoavail ofleave?Willitbethemotherorthe intendedmother?Thesearesomeofthe aspectsonwhichtheBillissilent. UNI

32. There’s a new rulebook being distrib- uted to leaders of prominent group- ings: look before you speak. Though a current joke, the reference is to the hid- den microphone and the embarrassment it caused at last week’s NATO meeting where some leaders in a huddle led by Canadian Prime Minister Justin Tru- deau appeared to be poking fun at US President Donald Trump, forgetting that a microphone nearby was live. There have been similar instances in the past and no one seems to have learnt this obvious lesson. At a G20 summit in France, then Presidents Nicolas Sarkozy and Barack Obama were having a backroom chat. Journalists present overheard Sarkozy complaining to his US counterpart about Israeli Prime Minister Benjamin Netanyahu. “I can’t stand him anymore, he’s a liar,” said Sarkozy. “You may be sick of him, but me, I have to deal with him every day,” replied Obama. Another French President, Jacques Chirac, caused a strain in UK-France relations after he made comments during an official trip to Russia. Not realis- ing a microphone was picking up his conversation, he said: “You can’t trust people who cook as badly as that. After Finland, it’s the country with the worst food.” He was talking about Britain and he added: “The only thing the British have ever done for European agriculture is mad cow disease.” The most serious hot mic leak almost 32 December 16, 2019 Beware the Mic S tep into El Ateneo Grand Splendid in Buenos Aires, and you could be forgiven for thinking you have en- tered the hushed and elaborate environs of a magnificent theatre. That’s because it was once a theatre and is now a bookstore but no ordinary one. According to Na- tional Geographic, it was ranked as the “world’s most beautiful bookstore” in 2019. While books line the ornate walls, the building features ceiling frescoes painted by famous Italian artist Nazareno Orlandi and sculptures by Troiano Troiani, offering a stunning vista. Many of its original architectural details remain intact, from the stage to the balconies and eye-catching ceiling frieze. It first opened as a theatre in 1919, the most celebrated in Argentina. The theatre had a seating capacity of 1,050 with ac- oustics to match. The El Ateneo publish- ing house bought it over and converted it into a bookstore in 2000, conserving its original grandeur, but replacing seating with bookshelves. The bookstore still bo- asts plush crimson curtains and the original stage is now a cafe where people-wa- tching is a popular pastime. The 22,000 sq ft space is now the group’s flagship store, and over a million people, including tourists, walk through its doors annually to witness for themselves the most beautiful bookstore on the planet. International Briefs Most Beautiful Bookshop Step into a car showroom and models in every colour greet the eye—from twilight purple pearl to volcano red, sa- hara silver, black magic and race metallic blue, to name just a few. However, despite these snazzy variants, car buyers across the world seem to prefer the most boring of colours—white. The second and third preferences are black and grey. This is according to the latest annual Global Automotive Colour Popularity Report. The real surprise: White has been the world’s favourite automotive colour since 2011. Silver used to be among the top White Cars Rule tripadvisor.in

33. | INDIA LEGAL | December 16, 2019 33 started a war when in 1984 then US President Ronald Reagan stated: “We begin bombing in five minutes.” This was at the height of the Cold War. Rea- gan was doing a sound check before a radio address and said jokingly: “My fel- low Americans, I’m pleased to tell you today that I’ve signed legislation that will outlaw Russia forever. We begin bombing in five minutes.” A recording was leaked to the public and Soviet forces were temporarily put on high alert. Dictionary.com has just announ- ced its Word of the Year. It is “Existential”. The word was primarily searched in conjunction with climate change, gun violence and democratic institutions, Dictionary.com said. Existential has two meanings: “Of or relating to existence” and/or “concerned with the nature of human existence as determined by the freely made choices of an individual”. The post accompanying the announcement by the website explained why “Existential” made the cut: “It captures a sense of grappling with the survival—literally and figuratively—of our planet, our loved ones, our ways of life.” It went on to add: “Existential also inspires us to ask big questions about who we are and what our purpose is in the face of our various challenges—and it reminds us that we can make choices about our lives in how we answer those questions.” Despite the word’s negative connotations, Dictionary.com said that “existential” has also helped people cope. It opened the post with a nod to “Toy Story 4”, in which a spork named Forky (see visual above) has an existential crisis. Vice President Joe Biden also gave the word a boost when he said that President Donald Trump “is literally an existential threat to America”. Word of the Year three but it dropped out this year, with grey rising in popularity. Basically, four colours—white, black, grey and silver—dominate the automobile population, representing 80 percent of market share globally. The demand for grey has been the maximum among SUV and sports vehicle owners. In Europe, grey overtook white as the favourite while elsewhere white continues to lead the market, with Asia having the widest popularity spread at 49 percent. In India, 33 percent have voted for white—26 percent for solid white and seven percent for pearl white. Silver with 31 percent is a close second, followed by grey with 12 percent. youtube.com

34. Global Trends/ Pakistan/ Army Chief’s Extension 34 December 16, 2019 AKISTAN Chief Justice Asif Saeed Khosa made history in his country by taking on the army chief. In this way, he has exposed how successive governments did not dare touch the rules gov- erning the armed forces. After three days of intense drama pertaining to the extension of the tenure of Chief of the Army Staff Gen Qamar Javed Bajwa, Justice Khosa, who is well- read in the English classics, introduced a new phrase, “judicial restraint” (replacing the doctrine of necessity), while granting a conditional extension of six months to General Bajwa. He also exposed serious lacunae in the Pakistan Constitution and Pakistan Army Act, 1952, regarding appointment, extension and service rules of the army chief. Justice Khosa’s act evoked mixed reaction from the legal fraternity. Some said that when it came to the military establishment, even Pakistan’s highest court wore kid gloves. They said that the issue before the three-member bench of the apex court was to validate or deny the extension given to General Bajwa. While admitting a petition filed by one Riaz Hanif Rahi who challenged the extension, Justice Khosa had initially suspended it. One of the reactions was from Babar Sattar, a prominent Supreme Court lawyer, who in a series of tweets said: “SC’s order today hasn’t diminished but bol- stered perception of legal exceptional- ism that attaches to Army Chief: SC could’ve ruled his reappointment legal/ valid or illegal/invalid but not that opportunity be afforded to validate an invalid appointment in larger national interest.” While questioning the apex court’s order that extension is subject to legislation in parliament, Sattar asked: “How can SC direct parliament to legis- late on any issue (much less to validate extension of an individual)? Also, under what principle must Army Chief’s term be specified by Parliament (& not sub- sidiary legislation/rules) as terms of office are defined by rules under many laws.” He concluded that the chief justice may have entrenched the perception he set out to dispel that the same treat- ment is not meted out to the weak and the powerful under law. “This sorry episode has made everyone in PK (especially those sitting atop big institutions) look small & desperate for power & sur- Taking on the Army Whilesomehavehailedthechiefjustice’smovetoreduceGeneralQamarJavedBajwa’stenure extension,otherssayhehasmerelythrowntheballintheparliament’scourt By Asif Ullah Khan MAKING HISTORY The Pakistan chief justice introduced a new phrase, “judicial restraint”, while granting a conditional extension to General Bajwa P pakistantoday.com.pk Pakistan’schiefjustice,AsifSaeed Khosa,exposedseriouslacunaeinthe PakistanConstitutionandPakistanArmy Act,1952,regardingappointment,exten- sionandservicerulesofthearmychief.

India Legal - 16 December 2019

India Legal - 16 December 2019

India Legal - 16 December 2019

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