India Legal - 2 December 2019

1. NDIA EGALL STORIES THAT COUNT I December2, 2019 Chief Justice under RTI Act by Prof Upendra Baxi The Pegasus Trap ConstitutionDayThedocumenthasbeenamendedover100timesbutjudicialvigilance hasensuredthatthe basicstructureremainsintact

4. PROFILES IN COURAGE HE testimony that witnesses gave under oath during the past 10 days to the US House Intelligence Committee considering the impeachment of a serving president was devastating. Coll- ectively, the evidence they proffered, most of it first-hand, corroborated the charge that President Donald Trump tried to bully and badger Ukrai- ne—an ally—to help him destroy a domestic political opponent through nefarious means and sacrificed the American national interest at the altar of his personal agenda. Many of the details have already been spelled out through first-hand reporting in India Legal (see: https://bit.ly/2XHdEvA) and they are available in the world press. They do not bear reporting again in this space. The testimony was, as I said, devastating. But more than that, it was elevating. Even if it “devastated” Trump’s record and the defenders of his mala fide machinations, it did little to dislodge him from power or to chasten him. His support base among the House Republicans remained tenaciously defiant as it grovelled to support him with non sequiturs; the Trumpers- forever base of neo-Tea Party hardcore Republi- cans in the Red States appears to continue at 35 percent or more; it is unlikely that even if the House approves an impeachment resolution, it will pass the Senate where the Republican majority will strangle it. And that is precisely why the performance of the witnesses before the House Intelligence Com- mittee was elevating! These were mostly career foreign service officers, ambassadors, national security advisers and analysts, senior State Dep- artment officials, with a sprinkling of political appointees who reported through a chain of com- mand to POTUS (President of the United States). They had nothing to lose but their jobs. They had nothing to risk except deadly reprisals. Many of them were first-generation immigrants who chose to become citizens of and serve in a new land which offered them not just opportunity but hope and dignity. They knew that they stood little chance as they stood up and testified to what they considered to be conspiratorial, anti-national behaviour against the foreign policy imperatives of his own country by the most powerful man in the world—which he still continues to be. They knew that their voices, given the political realities of present-day America, would not top- ple him and that he and his supporters inside the administration, inside Congress, within his political “base”, the attack-dog press and social media, are capable of fearsome reprisals notwithstanding the public assurances given to them by Commi- ttee Chairman Adam Schiff that the law would protect them against retaliation for speaking out in public. Yet, they raised their right hands, pro- mised to speak the truth and nothing but the truth, and they told it like it is. My friend and former classmate, best-selling US author and commentator Laurence Leamer wrote on his Facebook timeline: “What an incred- ible day in American history. We saw a new high in an honourable patriotic ambassador and Trump at a new low. I think we may remember this day like the most dramatic moment in the Army-McCarthy hearings or Watergate. I feel good about my country today.” That’s what I mean by “elevating”. It’s a high to see democracy at work when the whole world Inderjit Badhwar T Thewitnesses spokethetruth beforetheHouse Intelligence Committee, knowingfullywell therecouldbe fearsomereprisals notwithstanding assurancesgiven tothemby Committee ChairmanAdam Schiff(right)that thelawwould protectthem. Letter from the Editor 4 December 2, 2019

5. | INDIA LEGAL | December 2, 2019 5 seems to have given up on itself—on the very principles of the rule of law, freedom of expression, the freedom to try and soar above the rest even when you see wings being clipped or hacked off all ar- ound you and feathers scatter like ashes. These men and women may not have toppled Trump as they faced the cameras and the world, but they cer- tainly took a mighty swipe at the culture of impuni- ty. They may even have toppled it. They were true profiles in courage. T hese were not American aristocrats or Bos- ton Brahmins protected by pelf and wealth. They were representatives of what Richard Nixon used to call the “silent majority”—descen- dants of middle America, from simple, most likely Republican backgrounds (even though their political affiliations did not come up). They had served their country under Republican as well as Demo- crat presidents. “Served their country” is the operative phrase here which presidents in their lust for “executive privilege” seem to forget. Under the US constitution, the King is dead. He, unlike in Britain, does not “long live!” Under the separation of powers for- mula adopted by America’s founding fathers, all three branches share equally in a distribution of powers. The government is not sovereign. Sove- reignty resides with the people—the real masters— who surrender, under a contractual agreement through elections, their sovereignty to their elected representatives and the administration. Under this arrangement, the career civil servant owes his oath of loyalty to the Constitution and not to any poten- tate-president or political boss. The civil servant’s function under the executive is to carry out the mandate and laws of Congress and not the whims and fancies of a sultan. The men and women who stepped forward in the House Intelligence Committee—as others, too, have done in the past, such as celebrated whistleblowers like Ernest Fitzgerald, consumer crusader Ralph Nader, Daniel Ellsberg, Mark Felt, Cynthia Cooper, John Dean, Victor Marchetti—are (I use the word again) an elevating demonstration that the spirit of America’s founding fathers, no matter what evil or vengeance lurks in the minds of potentates and presidents and their circles of evil, their conspiratorial durbars, is alive. The American Constitution and its institutional liberties probably have as many torchbearers as they have pall-bearers. I would like to believe that the American Constitution’s Hall of Fame is larger in mind, spirit and doughtiness than its Gallery of Rogues. As India celebrates her Constitutional Day, I am reminded that the Indian Constitution and the liberties and freedom of speech enshrined within the Fundamental Rights it bestows on all were inspired to a great extent by the ideas of Thomas Jefferson and Adams and Franklin. But its separation of powers is flawed because the legislature is really a slavish extension of the executive, and true, biparti- san oversight and accountability—as the Indian founding fathers may have envisioned it while drafting the Constitution—are, with exceptions, a pipe dream. In India, political vendetta, undertak- en with the connivance of law-enforcement agen- cies, 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, a public hearing to answer questions about the dubious foreign policy dealings of a serving prime minister or, for that matter, any minister. We took a lesson from America’s Constitution while framing our own several decades ago. Perhaps we can still take a page or two out of that venerable document. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com PROVIDING EVIDENCE (Left) Fiona Hill, former senior director for Russia and Europe at the National Security Council, and Diplomat David Holmes (below), a top staffer at the US Embassy in Ukraine, testified during the impeachment hearings of US President Donald Trump

6. ContentsVOLUME XIII ISSUE3 DECEMBER2,2019 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 2, 2019 If we look at the journey of the Indian judiciary and parliament over the past 69 years, it has lived up to the aspirations of the Constitution-makers Directive Principles and the Courts The ruling that the office of the chief justice comes under the RTI Act should be hailed. At the same time, transparency in judicial appointments should be juxtaposed with confidentiality of deliberations. An analysis of the verdict by Prof Upendra Baxi Law in Books Versus Law in Action SUPREMECOURT COURTS When a live-in relationship sours, leading to allegations of rape, should the law distinguish it from marital rape and deny legal protection to the accused? A Question of Consent Since it came into being, the Constitution of India has been amended more than 100 times but the basic structure of the “holy book” remains intact, largely due to judicial vigilance 103 and Counting 12 14 20 24 LEAD

7. Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE | INDIA LEGAL | December 2, 2019 7 REGULARS Ringside............................8 Courts ...............................9 Is That Legal...................10 Media Watch ..................31 International Briefs..........37 “Gujarat Day” for Women Lawyers Last week, Delhi’s top women lawyers gathered at the Ladies Bar at the Supreme Court for a typical delectable Gujarati lunch hosted by senior advocate PH Parekh 50 Spying, the Name of the Game The Chhattisgarh government wants to pin down Israeli spyware firm NSO as five activists from the state were among the 1,400 individuals spied on by it, but that will be easier said than done 32 48 STATES OFFBEAT Unceremonious Exit In an unprecedented case, the Speaker of the J&K Assembly has been removed without any warning after the state became a UT. Is this executive interference in legislature’s domain? 45 Making the Right Moves The victory of Gotabaya Rajapaksa as Sri Lankan president has made both the Tamils and the Muslims nervous. But India has started its innings with him on a positive note 42Many urban households have installed RO water purification systems to ensure potable water. But the NGT has questioned the efficacy of some systems and taken note of water wastage The RO Question 26 With doctors at the receiving end of violence, their skills should also extend to knowing three languages so that there is no miscommunication about their diagnosis Language Barriers COLUMN The centre had changed the composition and qualification of the Armed Forces Tribunal by introducing a part in the Finance Act. Will this help it provide effective justice to the armed forces? Toothless and in Limbo 28 Madhya Pradesh will be the first state to ensure that access to adequate water and proper health services become fundamental rights for its people Applicable, Legally FOCUS GLOBALTRENDS 34 With the Lahore High Court allowing former PM Nawaz Sharif to trav- el abroad for medical treatment, the government has been caught by surprise and doesn’t want another martyr to undermine its interests On Slippery Ground 38

8. 8 December 2, 2019 Anthony Lawrence RINGSIDE Maharashtra

9. The Supreme Court expressed its dis- pleasure over the Kerala government’s failure to come up with a separate law to manage the Sabarimala Temple despite giving an undertaking to this effect in August. A three-judge bench asked the government to frame a law in this regard and submit the draft legislation by the third week of January. The observations were made by the Court on a plea that sought a separate law for the temple's administration. Earlier, a five-judge Constitution bench had referred its September 28, 2018, verdict, allowing women of menstruating age to visit the temple, to a seven-judge bench, considering the verdict could impact other religions and therefore the issue needed thorough examination. This was after review petitions were filed against the verdict. The top court, however, did not stay its 2018 order. The Court also directed the government to look into the recommendations made by the Justice Chandrasekhara Menon Commi- ssion while framing the law. The panel formed after the January 14, 1999, stam- pede at the Pamba Hill Top, in Sabarimala, had held the state government responsible for the tragedy and recommended an independent administrative body to manage the hill shrine. Referring to the amendment bill—The Travancore-Cochin Hindu Religious Insti- tutions (Amendment) Bill, 2019—that proposed a common law for all temples falling under the Travancore Devasom Board, the bench said it was not enough considering the number of pilgrims visiting the shrine, and Sabarimala needed a separate law. The bench also expressed reservations on an amendment bill by the state proposing that one-third of the members of the temple advisory board be women. Courts | INDIA LEGAL | December 2, 2019 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal team Gauhati HC summons Super 30’s Anand Kumar The Gauhati High Court directed Anand Kumar, the founder of the popular Super 30 teaching pro- gramme, to appear in person before it on November 26 in connec- tion with a PIL filed by four IIT Gu- wahati students. The Court said that if Kumar fails to appear, a bail- able warrant will be issued against him. The students alleged that Kumar did not disclose the names of the 26 students who he claimed had qualified in the IIT entrance examination in 2018 from his Super 30 institute. They alleged that Kumar was giving manipulated and false results, thus misusing the simplicity of innocent IIT aspirants and their guardians. While questioning the centre’s move to offer permanent commission to only those women officers who will join the Army from April 2020, and leaving out the existing women on Short Service Commission, the Supreme Court asked the centre to review its policy in this regard. The observation from the top court came on a plea from the centre objecting to the Delhi High Court’s order in 2010 asking it to award permanent commission to women who were on Short Service Commission in the Army. It refrained from staying the order and wanted the centre to file its response on November 28. The counsel on behalf of the women officers in the Army brought to the Court’s attention the centre’s affidavit filed in May which had no indication whatsoever of awarding permanent commission to women in the Army who had completed 14 years. She said the centre wanted to do it only for future recruits and pointed out that the Air Force and the Navy had no issues in granting permanent commission to women. Review policy for women in Army, says SC SC asks Kerala govt to frame separate law for Sabarimala No hot chase: HC tells Kerala cops The Kerala High Court has asked the state police not to chase two-wheeler riders without helmets and instead use equipment like traffic surveillance cameras, mobile phone cameras or even hand-held video cameras to detect all traffic offences. The Court made the observation while granting bail to an 18-year- old petitioner from Malappuram. The police alleged that the accused and his friend were riding a bike without wearing helmets. When a police team signalled to them to stop, the youths drove the bike onto the left leg of a policeman in an attempt to escape.

10. ISTHAT What is the difference between police custody and judicial custody? Police custody means that an accused stays in the lock-up of a police station or at least in the physical custody of the investigating agency probing the concerned matter. On the other hand, judicial custody implies that the accused is lod- ged in a jail and is under the custody of a magistrate. Soon after arrest, an accused can be kept in police custody for up to 24 hours. Beyond that, it is the magistrate who decides whether he/she should stay in police custody or be remanded to judicial custody. Police custody can be extended for a maximum period of 15 days. Judicial custody can be extended to a maximum period of 90 days for offences punishable with more than 10 years of imprisonment, and 60 days for all other offences. — Compiled by Ishita Purkaystha Custody Laws Can a religious place be considered a “juristic personality” as per law? Courts in India have held that Hindu idols are legal entities. However, a birthplace or any holy land is not considered a legal entity. An idol is the physical manifestation of a deity, but the apex court has held that a piece of land, in the absence of any physical manifestation of the religious deity it is supposedly tied to, cannot be considered a juristic person. ? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis What is the difference between Doctrine of Adverse Possession and the Doctrine of Lost Grant? The Doctrine of Adverse Po- ssession allows a person to claim ownership of a property in case he/she has been in possession of that property for a minimum of 12 years and there was no legal effort during that period from the real owner to oust him/her from the property. The Doctrine of Lost Grant implies that a long, continu- ous use or possession points to a legal presumption that the right to use was previously conveyed to the user and that the physical instrument of conveyance has been lost. While the Doctrine of Adverse Possession is applied in case of the title vesting in a separate person, the Doctrine of Lost Grant presumes the existence of the title with the user. Each doctrine prevents the other’s application on a disputed property. Recently, these two concepts were looked into by the Supreme Court while adjudicating on the Ram Janmabhoomi-Babri Masjid title dispute. All About Ownership 10 December 2, 2019 Many popular reality shows on TV exude bias against dark-skinned, fat and other categories of people. Even community typecasting is rampant. Some of the jokes are scandalous and racist. Can legal action be initiated? According to Article 19(1)(a), all citizens of India have the right to freedom of speech and expression but subject to Article 19(2) that puts restrictions regarding public morality, decency, contempt of court, defamation or incite- ment to an offence. There is some disclaimer shown before the show and it is a must if there are scurrilous comments. It reads: “All char- acters appearing in this work are fictitious. Any resemblan- ce to real persons, living or dead, is purely coincidental.” The disclaimer may be word- ed differently depending on the show, and is issued as a bulwark against legal action. Play It Safe Juristic Person Can the government be held liable under the Doctrine of Public Trust? According to the doctrine, the trustee- ship of natural resources, such as seashores, forests, running water, air and ecologically-fragile lands for free and unimpeded use by the public, rests with the government. It is legally bound to protect them and is responsible for any mismanagement. Liable By Law

12. Lead/ Constitution Day 12 December 2, 2019 NDIA celebrates 70 years of the existence of its Constitution on November 26, 2019. The Consti- tuent Assembly for drafting the Constitution held its first sitting on December 9, 1946. On November 26, 1949, the final version of the Consti- tution received the signature of the president of the assembly and was declared as passed. The provisions relating to cit- izenship, elections, provisional parliament, temporary and transitional provisions were given immediate effect from November 26, 1949. The rest of the Constitution came into force on January 26, 1950, and that date is referred to in the Constitution as the Date of its Commencement. The Constitution of India has the distinction of being the most lengthy and detailed constitutional document in the world. Even though the original text of the Constitution had 395 Articles, that number has reached 466 due to several amendments. In addition, there are 13 Schedules. Typically, a constitution places restrictions on the exercise of political au- thority. However, it can’t remain static and, hence, normally, also makes provision for amendments, as and when the need arises, to deal with emerging situa- tions. In the past 70 years, the Constitu- tion has been amended 103 times but it has stood the test of time, largely due to judicial vigilance. The procedure to amend the Consti- tution in India is not as rigid as, for instance, in Australia, Switzerland and the US. In Australia and Switzerland, any amendment has to be submitted for the approval of electors through a referen- dum. In the US, the constitutional amendments must go through the House of Representatives and the Senate and require ratification by three-fourths of the states. The amending powers of the Indian 103 and Counting Sinceitcameintobeing,theConstitutionofIndiahasbeenamendedmorethan100timesbut the“holybook”hasstoodthetestoftime,largelyduetojudicialvigilance By Vivek K Agnihotri I SOVEREIGN BODY Dr BR Ambedkar (seated, centre), chairman of the drafting committee of the Constitution, with other members

13. | INDIA LEGAL | December 2, 2019 13 Constitution are enshrined in Article 368. For the purpose of amendment, various Articles of the Constitution are divided into three categories. First, there are Articles (5, 169, 239-A, and the con- sequential changes to the Schedules, if any) that can be amended by Parliament through a simple majority and are ex- cluded from the rigour of Article 368. Amendments to other Articles must be effected by a special majority of the total membership of each House as well as by a majority of not less than two-thirds of the members of that House, present and voting. There is no provision for a joint sitting of the two Houses in case of a disagreement on a proposed amendment, as is the case in respect of routine legislation, except the Money Bills. The Amendment Bill must be passed by the two Houses independently, or else it will fail. In the second category, there is a sub-set which requires ratification by not less than half of the state legislatures. These relate to election of the president (Articles 54 and 55), extent of the executive powers of the Union and states (Articles 73, 162, and 241), distribution of legislative powers between the centre and states (Articles 245 and 255), and Articles dealing with the judiciary, and Article 368 itself, among others. A re there any limits to Parlia- ment’s power to amend the Con- stitution? Constitutions often provide the power of judicial review. Courts can strike down a law on the ground that it violates the Constitution. The matter regarding Parliament’s power to amend the Constitution assumed significance in Golak Nath vs State of Punjab (1967) in which the Court held that a constitutional amendment could not infringe upon fundamental rights. Parliament struck back and sought to assert its supremacy through the 24th Constitutional Amendment Act (1971) by inserting Clause (4) in Article 13, which provided that “nothing in this article shall apply to any amendment of this Constitution made under Article 368”. Article 368 was also amended and now expressly permits Parliament to amend or repeal “any provision” of the Constitution. Alongside, Parliament also enacted the 25th Constitutional Amendment Act (1971) and limited the applicability of certain fundamental rights to land reform laws. However, in the Kesavananda Bharati vs State of Kerala (1973), the Supreme Court had an opportunity to revisit the issue of limits to amending the Constitution. A 13-judge bench set forth the famous “basic structure doctrine”. An amendment to the Constitu- tion can amend its provisions, but no change can destroy its character. How- ever, Parliament, through the 42nd Constitutional Amendment Act (1976), added two new Clauses, (4) and (5), to Article 368 to ensure that “no constitutional amendment shall be called in question in any court on any ground”. The Supreme Court responded in Min- erva Mills vs Union of India (1980) and these clauses were struck down on the grounds that they sought to destroy the basic structure of the Constitution. In Kesavananda Bharati (supra), the apex court had enumerated certain ess- entials of the basic structure, such as supremacy of the Constitution, democratic form of government, secularism, federal character and separation of powers. Over the years, through several other judgments, many other shades have been added—rule of law, judicial review, harmony and balance between fundamental rights and directive principles of state policy and so on. The saga of amendments to the Constitution has had its highs and lows. Some of the periodic amendments relate to extending reservation of seats in the legislatures for Scheduled Castes and Scheduled Tribes (Article 334) every 10 years, creation of states and UTs and their legislatures, three amendments on setting up and bifurcation of the Na- tional SC and ST Commission, and the 102nd (2018) which set up the National Backward Classes Commission. Some of the landmark constitutional amendments include the 52nd (1985), which added the Tenth Schedule (anti- defection law); 61st (1989) that reduced the voting age to 18; 73rd and 74th (1993) that gave constitutional status to rural and urban local bodies; 91st (2003) that limited the number of ministers in the council of ministers; 101st (2016) that introduced the GST; and 103rd (2019), which introduced 10 percent reservation in jobs and educa- tional institutions for the economically weaker sections. What stands out is a movement away from liberal values towards affir- mative action, social and economic progress, balancing action between Parliament and the judiciary, as well as a certain amount of hurry and ad hocism, at times. —The writer is a former Secretary-General of the Rajya Sabha TheConstitutionofIndiaisthemost lengthyanddetailedconstitutional documentintheworld.Theoriginaltext had395Articles,butthenumberhas reached466duetomanyamendments. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com

14. INCE Constitutional law is not only one of the most important and fastest-gro- wing branches of jurispru- dence in the country but also a limb of law compre- hensively encompassing problems and issues confronting citizens, I thought it imperative to share some of my views on the subject of the significance of the Directive Principles of State Policy in the Constitution of India. I have res- tricted myself to the judgments of the apex court. Our country has various diversities. We have many religions—Hinduism, Islam, Christianity, Buddhism, Jainism, etc—and our society is classified into various castes. We have had a society with a caste system wherein some castes are at a high level while some at the low level. The country also has various languages with geographical differences. On the one hand, we have the Himala- yas and on the other, we have various stretches of states adjoining the sea. On a social plane, we also have had a system, which discriminated amongst men and women. Dr BR Ambedkar had said that women in India were considered lower, even than the Shudras. We also had economic inequalities. Vast Lead/ Constitution Day/ Column Justice BR Gavai Ifwelookatthejourneyof theIndianjudiciaryand Parliamentoverthepast69 years,ithaslivedupto theaspirationsofthe Constitution-makers Directive Principles and the Courts 14 December 2, 2019 S PROUD POSSESSION Copies of the Constitution on display at the Parliament Museum BECOMING PART OF HISTORY Jawaharlal Nehru signing the Constitution of India

15. liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items but a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things...” And, therefore, in order to achieve social and economic equality or justice, the Constituent Assembly found it necessary to incorporate Part-IV in the Constitution which deals with the Direc- tive Principles of State Policy. As all of us know, various rights which can be said to be basic rights or human rights or primordial rights, considered necessary for the development of human personality, were brought in Part-III, i.e., Fundamental Rights. The Constitution- makers found that the Fundamental Rights were not sufficient enough to bring in social and economic democracy in India and, therefore, the Directive Principles were brought in Part-IV. Fundamental Rights are justiciable. For infringement of Fundamental Rights, anybody can knock the doors of the court, even directly the Supreme Court under Article 32. However, the Directive Principles of State Policy are not justiciable in a court of law, though the Constitution-makers by incorporat- ing Article 37 have made them fundamental in the governance of the country and duty is cast upon the legislature as well as the executive to give effect to the Directive Principles, while making the laws and discharging its executive function. JUDICIAL APPROACH Immediately after the Constitution was enacted, a conflict arose between the Fundamental Rights and the Directive Principles. In Romesh Thapar vs State of Madras, the Supreme Court found that the guarantee under Article 19(1)(a) of freedom of speech and expression was so vast that it protected everything except what pertains to the security of the country and even if a person incites others to commit murder or wage a war against foreign nationals, the same was not saved by the exception and in AK Gopalan vs State of Madras where an issue regarding preventive detention arose. Then in the third case of State of Madras vs Champakam Dorairajan, the Constitution bench of seven judges took a view that the Fundamental Rights under Articles 14 and 15, read with Article 29(2), did not permit reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes. In that case, the State of Mad- ras had issued a government order providing reservations for the Scheduled Castes, the Scheduled Tribes and Other Backward Classes. The same was set aside by the Madras High Court. A challenge came before the apex court and | INDIA LEGAL | December 2, 2019 15 stretches of land vested with zamindars and crores of people lived below the po- verty line. Therefore, we also witnessed along with the freedom struggle, the fight for social and economic equality. All these factors weighed in while making the Constitution between 1947 and 1950 and giving it a final shape on Nov- ember 26, 1950. As we know that with one vote, one value, one person, the country could achieve or at least attempt to achieve political democracy. But insofar as the economic and social democracy are concerned, the words of warning were given by Dr Ambedkar while speaking in the Constituent Assembly on November 25, 1949, a day prior to the adoption of the Constitution. The entire speech of Ambedkar itself makes an impressive reading, but one paragraph from it is significant: “The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognises IntheKesavanandaBharati case,Justice HRKhannaheldthattheargument thattherewereinherentorimplied limitationsontheamendingpowerofthe Constitutionisnotacorrectview. InBandhuaMuktiMorchavsUnionof India&Ors,JusticePNBhagwatisaidthe Statewasunderconstitutionalobligation toseetherewasnoviolationofthefunda- mentalrightsoftheweakersections.

16. the Constitution bench upheld the view of the Madras High Court holding that the chapter of Fundamental Rights was sacrosanct. I quote Justice SR Das who was speaking on behalf of the Constitution bench: “The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Exe- cutive Act or order, except to the extent provided in the appropriate Article in Part-III. The Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of Funda- mental Rights”. SELECTED AMENDMENTS This led to the first amendment to the Constitution in 1951. The statement of objects and reasons of the Constitution (First Amendment) Act was signed by none other than Jawaharlal Nehru. The perusal of the statement of objects would reveal that it was found that the citizen’s right to freedom of speech and expression guaranteed by Article 19(1)(a) was held by some courts to be so comprehensive as not to render a person culpable even if he advocated murder and other crimes of violence. As such, it was found necessary to amend Article 19 so as to save the laws which impose reasonable restrictions on the exercise of the right conferred by sub- clause (a) of Clause (1) in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incite- ment to an offence from the rigour of the said sub-clause. It would further reveal that in spite of the provisions of Clause (2) of Article 31, the validity of various enactments enacted to bring agrarian reform measures passed by state legislatures in the preceding three years had formed the subject matter of dilatory litigation. As a result of this, the implementation of those important measures, affecting large numbers of people, had been held up. As such, it was found necessary to make certain amendments to Article 19 to insert provisions fully securing the constitutional validity of the zamindari abolition laws, in general, and certain specified state acts, in particular. To overcome the judgment of the apex court in the Champakam case and in order to take further the mandate of Article 46, Clause (4) in Article 15 was inserted, which provided that nothing in the said Article or in Clause (2) of Article 29 shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes. Later, in the case of Sajjan Singh vs State of Rajasthan before the Constitu- tion bench of five judges, the majority upheld the amendment to the Constitu- tion. Justice PB Gajendragadkar, speaking for the majority, observed that “It is legitimate to assume that the Constitu- tion-makers know that Parliament should be competent to make amendments in these rights so as to meet the challenge of the problems which may arise in the course of socio-economic progress and development of the country. That is why we think that even on principle, it would not be reasonable to proceed on the basis that the Funda- mental Rights enshrined in Part-III were intended to be finally and immu- tably settled and determined once & for all and were beyond the reach of any future amendment”. The seeds of dissent could be found in the two judgments, delivered separately, expressing the minority view. In his judgment, Justice M Hidayatullah stated: “I would require stronger reasons than those given in Shankari Prasad’s case to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concur- rence of the States”. Justice JR Mudholkar, in the minority view states: “Can it not be said that these are indication of the intention of the Constituent Assembly to give a per- manency to the basic features of the Constitution? It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Art. 368?” Therefore, we find that the concept of basic feature of the Constitution for the first time is found in the minority judgment of JR Mudholkar, which has been expanded by Justice HR Khanna in the Kesavananda Bharati case. In the meantime, by the Constitution Amendment Act, two Acts, i.e., Mysore and Punjab Land Reforms Act, were included in the IXth Schedule. The validity of these enactments came to be chal- lenged in the case of IC Golaknath vs State of Punjab to which we popularly refer as the Golaknath case. The Constitution bench consisted of 11 judges, and by a majority of six to five, the Constitutional amendment was held to be invalid. Following a series of judgments and 16 December 2, 2019 Lead/ Constitution Day/ Column/ Justice BR Gavai InManekaGandhivsUnionofIndia,the apexcourtagainexpandedthescopeof Article21andheldthattherighttolife includesallthoseaspectsoflifewhichgo tomakeaman’slifemeaningful.

17. parliamentary debates, the 25th Am- endment Act, Article 31C, came to be inserted in the Constitution after Article 31B. It is the most important Article for giving effect to the mandate of the Directive Principles. It provided that notwithstanding anything contained in Article 13, no law-giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is incon- sistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31. It also provided that no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. Then on December 28, 1971, by the 26th Amendment, Article 363-A came to be inserted which provided cessation of recognition granted to rulers of In- dian states and abolition of privy purses, etc. By the 29th Amendment, which came into effect on June 9, 1972, two more enactments enacted by the Kerala legislature, which provided for amendment to Kerala Land Reforms Act, came to be inserted in IXth Schedule. These amendments led to the celebrated case of Kesavananda Bharati vs State of Kerala. There were a bunch of petitions, since Kesavananda Bharati’s case, i.e. , His Holiness Shri Shri Kesa- vananda Bharati’s case was at serial No.1, the case came to be named as Kesavananda Bharati. He was one of the religious priests in Kerala. The said case had attracted the attention of the entire country and the name of Kesavananda Bharati became known throughout the country as it used to reg- ularly appear in newspapers and radio. In the case of Kesavananda Bharati, by a thin majority of seven to six, the amendments to Article 13 and Article 368 were upheld. Insofar as Article 31-C is concerned, the first part, which provided that no law shall be held to be void on the ground that it is violative of the Fundamental Rights, if it is enacted for furtherance of Directive Principles of State Policy was held to be valid. How- ever, the second part was held to be un- constitutional on the ground that it takes away the powers of judicial review. However, the view of Justice HR Khanna, which was a singular view, is now the view of the majority. Justice Khanna took a view that the argument that there were inherent or implied lim- itations on the amending power of the Constitution is not a correct view. He held that the power was plenary in nature; however, the word “amendment” postulated that it was necessary to retain the basic structure or frame of the Constitution. He held that the power to amend the Constitution is not restric- ted by Clause (2) of Article 13 of the Constitution. He held that there are no restrictions to amend the articles relating to Fundamental Rights. He further held that the right to property does not form part of the basic structure of the Constitution. It is the view of Justice Khanna which was partly supported by six on one side and six on the other, the ratio in the Kesavananda Bharati case. The conclusion, as signed by the nine judges and which is now considered to be a ratio of the Kesavananda Bharati case, is that: (i) Golaknath’s case is overruled; (ii) 24th Amendment is valid; (iii) Section 2(a) and 2(b) of the 25th Amendment is valid; and (iv) The first part of Section 3 of the 25th Amendment is valid whereas the second part is invalid. IMPORTANCE OF DIRECTIVE PRINCIPLES Though the Kesavananda Bharati case was popularly known for laying down the “Basic Structure” doctrine, the landmark judgment also played a vital role in recognising the importance of the Directive Principles of State Policy. The earlier conflict between the Fundamen- tal Rights and the Directive Principles and the concept of the supremacy of the Fundamental Rights qua the Directive Principles of State Policy has been wa- tered down to a great extent in the judgments of almost all the judges, though their views were conflicting, insofar as the amending power of the Constitution was concerned. The said judgment recognised that both the Fundamental Rights and the Directive Principles of State Policy are equally important and there is no conflict between them. It recognises that they are supplementary to each other and they together are the conscience of the Constitution. SIGNIFICANCE OF ARTICLE 21 Nobody would doubt that there is no other Article in the Constitution which has received such a widest interpretation. In Bandhua Mukti Morcha vs Union of India & Ors, the plight of bonded labourers in Haryana, who migrated from various states, came up for consideration before the Supreme Court. Justice Bhagwati, speaking for the bench observed: “The State is under a constitutional obligation to see that there is no violation of the funda- | INDIA LEGAL | December 2, 2019 17 InvariouscasesofMCMehtavsUnionof India,theSupremeCourtheldthatthe righttogoodhealthandrighttolivein apollution-freeenvironmentare FundamentalRightsunderArticle21.

18. 18 December 2, 2019 mental right of any person, particularly when he belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Central Government is, therefore, bound to ensure observance of various social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy. “The State of Haryana must therefore ensure that the mine-lessees or con- tractors, to whom it is giving its mines for stone quarrying operations, observe various social welfare and labour laws enacted for the benefit of the workmen. This is a constitutional obligation which can be enforced against the central government and the State of Haryana by a writ petition under Article 32 of the Constitution.” In the case of Maneka Gandhi vs Union of India, the apex court again expanded the scope of Article 21. It was held that the right to life includes all those aspects of life which go to make a man’s life meaningful and worth living. In the case of Olga Tellis vs Bombay Municipal Corporation, it was held that the right under Article 21 includes right to live with human dignity. Further, in Sheela Barse vs State of Maharashtra, various directions were issued on the basis of the Directive Principles of State Policy and Article 21 so as to make the life of women in custody liveable. In various cases of MC Mehta vs Union of India, the highest court of the country held that the right to good health and right to live in a pollution-free environment are Fundamental Rights under Article 21. We find that on account of various directions issued by the apex court, polluting buses from Delhi were made to leave this territorial area. FRUITFUL JOURNEY Therefore, we find that in the journey of last 69 years, the Parliament as well as the highest court of the country had been progressing forward. When the Directive Principles of State Policy were sought to be incorpo- rated in the Constitution, a criticism was made by some of the members against Dr Ambedkar that these were nothing but a post-dated cheque on a bankrupt bank. It was said that this was nothing else but an election mani- festo. Dr Ambedkar always considered the Constitution to be a weapon for achieving bloodless, social and economic revolution. Answering the criticism, he said: “I am willing to accept the criticism that it is a post-dated cheque but I am not willing to accept the criticism that it is on a bankrupt bank. I am sure that one day the Bank of my country would be so able that this post-dated cheque would be encashed.” He further added: “Though these principles are not justiciable in Court but at the end of each term, those persons seeking votes will have to answer as to how they have followed the mandate of Directive Principles of State Policy or not.” The period of 69 years for a democracy, cannot be said to be too long. The United States took decades and centu- ries to recognise human rights. We find that in the last 69 years, millions of landless labourers have been distributed lands seized under ceiling enactments. Millions of tenants of the landlords have now become owners of the lands. Va- rious labour laws for the protection and welfare of the labour have been enacted and upheld. A woman could become the president of India, a prime minister, and a Speaker of the Lok Sabha. Recently, the present prime minister while speaking at Surat, said that it is only because of the Constitution that a person, who was selling tea at a railway station, could become the prime minster of the country. Therefore, if we look at the journey of the Indian Parliament and the Indian judiciary over the last 69 years, it could be seen that the journey is towards living up to the aspirations of the Const- itution-makers, be it Jawaharlal Nehru or Dr Ambedkar. The Constitution should be used as a weapon for achieving social and economic justice. No doubt, a lot needs to be done and, therefore, as a citizen, lawyer or judge, we have a duty to follow the mandate of the Constitution. We must pledge that we will strive to take this journey of social and economic justice forward. —The author is Judge, Supreme Court of India. This is the edited text of a lec- ture delivered by him at the Supreme Court Bar Association, Delhi, on October 21, 2019 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Lead/ Constitution Day/ Column/ Justice BR Gavai Theperiodof69yearsforademocracy cannotbesaidtobetoolongaperiod.But Indiahasdoneexceedinglywell.Awoman couldbecomethepresidentofIndia (above),aprimeministerandaSpeakerof theLokSabha.However,alotneedstobe doneand,therefore,asacitizen,lawyeror judge,wehaveadutytofollowthe mandateoftheConstitution.

20. Supreme Court/ Office of CJI Under RTI Act 20 December 2, 2019 HIS is a moment of national rejoicing. The Right to Information (RTI) has received a parting gift fro- m outgoing Chief Justice of India Ranjan Gogoi and a grateful nation must applaud him and his brethren—Justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna—who ruled that the office of the CJI comes under the transparency law. The principal decision, authored by Justice Sanjiv Khanna (and signed by all the Justices), makes for compelling reading as an authoritative judicial pre- mier on the RTI Act. The clarification and systematisation of the conflicting provisions of the RTI Act are very valuable. Equally so is the show of judicial unanimity, although Justices Ramana and Chandrachud issued separate concurring opinions. Most welcome is the iteration of the apex court’s wisdom (in an observation made in 2002): “The right to…information in democracy is recognised all throughout and it is a natural right flowing from the concept of democracy.” The contrary view that believes that governance is best promoted by weakening the RTI regime (or none at all) over- looks the fact that about four to six million people file RTI applications annual- ly and the number is on the rise. Recent amendments to the RTI Act have caused much public concern among some past Information Commissioners and civil society actors. Justice Madan Lokur has made some caustic remarks about “regressive” changes in the RTI law regime. It would be churlish to practice fancy equine dentistry by looking a gift horse in the mouth! But clearly, there is some- thing amiss with a judicial system that on the one hand resoundingly affirms the organic linkages between Therulingthattheofficeofthechiefjusticecomes undertheActshouldbehailed.Atthesametime, transparencyinjudicialappointmentsshouldbe juxtaposedwithconfidentialityofdeliberations By Prof Upendra Baxi Law in Books Versus Law in Action? T RecentamendmentstotheRTIAct havecausedmuchpublicconcernamong somepastInformationCommissioners andcivilsocietyactors.JusticeMadan Lokurhasmadesomecaustic remarksabout“regressive”changes intheRTIlawregime.

21. | INDIA LEGAL | December 2, 2019 21 the RTI and national democratic development, and on the other, takes nearly a decade to adjudicate specific conventions. Even now, proceedings in two crucial appeals are referred back to the information officer concerning matters per- taining to the elevation and transfer of Justices made by the Collegium. Final disposal occurs merely on the concerning information on assets declared by Justices to the CJI. This is henceforth to count as public information and doing so will not entail any breach of the fidu- ciary relationship and privacy (leading to a chilling effect on would-be elevates or transferees). But a single Justice of the Delhi High Court (recently elevated to the Supreme Court) in a plea filed by veteran RTI activist Subhash Chandra Agrawal had already held so in 2009. What is more, rejecting the ground that the office of the CJI was not covered under the RTI Act, Justice Ravindra Bhat memorably ruled that “all power—judicial power being no exception—is held accountable in a modern Constitution”. It is not unbecoming, even as the apex court decision is celebrated, to ask why citizens should be subjected to a decade- long delay in reiteration of this simple basic principle. The two other appeals, no doubt, raised certain complicated issues concerning transparency and efficiency of the workings of the judicial collegiums. One appeal based on a report in an English newspaper involved allegations that a minister had approached a Justice of the Madras High Court through a lawyer to influence his judicial deci- sions. The appeal asked for disclosure of the complete correspondence with the then CJI. The other related to detailed information about Justices HL Dattu, AK Ganguly and RM Lodha supersed- ing the seniority of Justices AP Shah, AK Patnaik and VK Gupta. We hasten to add that the same issues would arise in other methods of judicial elevations and transfers too. Is there prima facie evidence to show that any disclosure of information im- pairs instructional efficacy? Should it be protected always in the public interest? Then there is concern about the independence of the judiciary. Then CJI Gogoi had reportedly observed on the concluding day of the hearings that while nobody “wants a system of opaqueness” we “cannot destroy the institution of the judiciary… in the name of transparency”. Justice Sanjiv Khanna had UNI NO DILUTION A protest against changes to Right to Information Act in New Delhi

22. Supreme Court/ Office of CJI Under RTI Act 22 December 2, 2019 described the questions of judicial appointments, as “one of the most deli- cate and complex areas”. He pointedly referred to a conflict between “[t]rans- parency and openness in judicial appointments juxtaposed with confidentiality of deliberations”. He noted some steps “have been taken to make the selection and appointment process more transparent and open” and hoped that the “position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future”. Justice Chandrachud added that future steps should include enunciation of crucial norms such as (a) experience “as reflected in the quantum and nature of the practice”; (b) domain specialisa- tion in “areas which are geared to the evolving nature of litigation and the requirements of each court; (c) income requirements, if any, “having regard to the nature of the practice and the circumstances prevailing in the court or region concerned”; (d) the “commitment demonstrated by a candidate…to the development of the law” (in terms of written work, research and academic qualifications)”; (e) the “social orienta- tion of the candidate” (whose measure may not be only pro bono work), and (f) social inclusivity in the process of making judicial appointments. He added that such criteria should be placed “in the public domain” which will “fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations enter- ing into the process”. This is, indeed, an inaugural dis- course of a Constitution bench which the judicial collegium has now to fully consider and adopt. Though acute difference of opinion on some criteria (such as social “inclusivity”, commitment to the development of law) may arise, the desirability and do-ability of such enunciation cannot be gainsaid. How far all this will satisfy critics of the collegium system (fully noted in the judgment) remains to be seen because ultimately, even creative acts of discretion will always leave a residue of disappoint- ment in a highly competent pool of aspirants to elevation. We must note that primary con- stituencies of this verdict are Public Information Officers in whom the RTI vests the tasks of balancing “information” with “privacy”. Justice Chandr- achud repeatedly tells them that a “balance” has to be struck “creatively”, and with reason because reason “forms the heart of the law”. Information officers “must provide cogent and articulate reasons for the factors considered and conclusions arrived at in balancing the two interests”. And the principal function of the apex court is to set out an “analytical approach” that they must follow in “balancing the interests in disclosure with the countervailing privacy interests”. The Supreme Court decision is only sec- ondarily addressed to the RTI appellate authorities. Justice Chandrachud is most categorical in saying that what Justices have declared as their assets “does not constitute the personal information of the judges and does not engage the right to privacy”. But Civil Appeals Nos 1044 and 1045 of 2010 stand remanded to CPIOs (Central Public Information Officers), who have now to examine and apply “the principles set out in the present judgment”. Here lies the rub. A 2016 study by Research, Analysis and Commu- nications Group and Satark Nagrik Sangathan demonstrates a situation of “illegal orders” by RTI Commissions. Such orders are often found based on: “inappropriately interpreting the law” “in violation of specific binding legal precedents” “in violation of applicable general directions given by the Supreme Court and High Courts” “exceeding statutory and constitutional powers” “incomprehensible or internally con- tradictory orders… making it impossible to either assess the basis of the order, or sometimes even what has been ordered”. This is an alarming situation, especially if true nationwide, and calls for concerted action by the apex court, RTI adjudicators and activists. —The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com JusticeChandrachud(above)saysthata“balance”hastobestruck“creatively”,as reason“formstheheartofthelaw”.JusticeSanjivKhannadescribedthequestionof judicialappointments as“oneofthemostdelicateandcomplexareas”.

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24. Courts / Rape Law 24 December 2, 2019 APE cases often involve complex examination of facts and evidence to con- clude whether the accused is guilty or innocent. Wh- en rape allegations are made after a few months of a live-in relationship between the accused and his victim, the process of establishing the guilt of the accused becomes more complicated. After all, the victim had given her consent for the relationship with her partner. Therefore, when the live-in relationship turns sour leading to allegations of rape, should the law distinguish it from marital rape and deny legal protection to the accused? Marital rape is not illegal at present, as the Indian Pe- nal Code exempts it from the offence of rape, if the victim is not a minor, as int- erpreted by the Supreme Court in a recent case. Although the facts of the recent case before the Delhi High Court suggest that allegations of rape against the accused followed a consensual live-in relationship between two adults, Justice Brijesh Sethi of the High Court refused to grant relief to the accused and the complainant, when both reached a compromise and married each other after a few years of the alleged incidents. In 2013, a First Information Report was registered against the accused under Sections 376 (punishment for rape) and 380 (theft in dwelling house, etc.) of the Indian Penal Code. The respondent admitted that she entered into a live-in relationship with the petitioner-accused and moved in with him at his rented accommodation in Delhi. Within five months, an altercation took place between them, and the accused left her. A complaint was filed by her, resulting in the FIR and a charge sheet against the accused. In her complaint, she mentioned emotional, physical, mental and sexual abuse at the hands of the accused. She also alleged that he stole her valuables when leaving her. She claimed that she tried her best to reconcile with him, but to no avail. During the course of the trial, the marriage of the petitioner- accused and the respondent-complainant was solemnised as per Hindu rituals at a temple in Bengaluru. However, on account of some differences and misunderstandings the trial proceedings continued. It was submitted before the Delhi High Court that upon the intervention A Question of Consent Whenalive-inrelationshipturnssour,leadingtoallegationsofrape,shouldthelaw distinguishitfrommaritalrapeanddenylegalprotectiontotheaccused? By Venkatasubramanian R Anthony Lawrence

25. | INDIA LEGAL | December 2, 2019 25 of friends and well-wishers, both the parties had resolved the differences and misunderstanding between them by way of a settlement deed signed in August this year. The respondent too had given her “No Objection” affidavit for quashing of the FIR against the accused and all proceedings emanating therefrom. It was submitted before the High Court that the petitioner and the respondent had entered into a matrimonial alliance and their marriage had been duly solemnised and as such no offence under Section 376, IPC, as alleged had been committed by the petitioner. It was further argued that when the matter had been amicably settled, the continuation of proceedings arising out of the FIR would render the compromise meaning- less and continuation of the proceedings would be sheer wastage of precious judicial time and public expenditure. T he prosecution submitted that the quashing of the FIR could not be allowed in view of the law laid down by the Supreme Court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur v State of Gujarat, decided in 2017. In this case, the SC discussed the scope and power of the High Court under Section 482, Cr PC, to quash the criminal proceedings on the basis of settlement in a heinous or serious offence and laid down the following law: “In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power or to prevent an abuse of the process of any court.” The Supreme Court held in this case that the decision as to whether a complaint or FIR should be quashed on the ground that the offender and victim had settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. The Sup- reme Court held that the High Court must have due regard for the nature and gravity of the offence, while dealing with a plea where the dispute has been settled. “Heinous and serious offences involving mental depravity, or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute,” the Court observed. The Supreme Court reasoned that such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences, the Court explained. In another case decided in 2013, the Supreme Court had held that in respect of offences against society, it is the duty of the State to punish the offender. In consequence, deterrence provides a rationale for punishing the offender. “Hence, even when there is a settlement, the view of the offender and victim will not prevail since it is in the interest of society that the offender should be pun- ished to deter others from committing a similar crime,” the Court observed. The High Court observed that in this case, the respondent had alleged that she was deceived by the petitioner and sexual relations were established between them on the basis of false promise of marriage and she was thus subjected to emotional, physical, mental and sexual abuse. Therefore, the High Court found that the “offence committed by the petitioner clearly falls under the category of heinous and serious one”. The High Court’s conclusion is premature, as the trial in this case is not conclusive. The High Court further made stereo- typical observations against rape, saying it “not only causes serious injury to a woman’s body, her honour and dignity”, and therefore, “this offence being not private in nature, but has serious impact on the society”, cannot be quashed even if it is settled by the offender and the victim. The High Court’s conclusions are, however, debatable. In Baldev Singh v State of Punjab, the Supreme Court bench of Justices Markandey Katju and Gyan Sudha Misra had in 2011 reduced the period of sentence imposed on three accused in a gang rape case, taking note of the fact that the parties had entered into a compromise, and the accused and the prosecutrix had subsequently got married (not to each other), and that the prosecutrix had two children. The court took note of the affidavit filed by the prosecutrix that the accused might be acquitted and that there was no misunderstanding between them. The bench, however, directed each of the accused to pay a sum of `50,000 by way of enha- ncement of fine to the victim, as envis- aged under Section 376, IPC. While the facts of Baldev Singh and the present case before the Delhi High Court differ, it is clear that in Baldev Singh, the Supreme Court justified miti- gating the gravity of the offence, following the compromise. On the other hand, the facts of the case before the Delhi High Court clearly show that they are covered under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005, which covers live-in couples as well. As Section 2(f) defines domestic relationship as one in the “nature of marriage”, the accused and the respondent in this case could be considered to have voluntarily cohabited and held themselves out to the world as being akin to spouses for a reasonable period of time. Besides, the respondent in this case appears to have had a change of mind, and chosen to live with her former partner, by legally marrying him. Can the court deny her the right to marry and live with him again, by apply- ing the rigours of the IPC? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com TheSupremeCourtreasonedthat suchoffences(likemurder,rapeand dacoity) are,trulyspeaking,not privateinnaturebuthavea seriousimpactuponsociety.

26. Courts/ NGT/ Drinking Water OR most urban dwellers, Reverse Osmosis (RO) puri- fied water equates with safe drinking water. However, the safety bubble is about to burst. Last May, the National Green Tribunal (NGT) issued an order to ban RO purifiers if the total dissolved solid is less than 500 mg/litre. The bench headed by Justice Adarsh Kumar Goel said in its order that the use of RO systems in areas where the Total Dissol- ved Solids (TDS) is lower than 500 mg/litre is not only unnecessary but also harmful. RO is a water treatment process which removes contaminants from water by using pressure to force water molecules through a semi-permeable membrane. During this process, the contaminants present in water are fil- tered out. RO purifiers are effective in cleaning contaminants. However essential minerals like iron, calcium, man- ganese, fluoride are also removed. “The use of RO in water where the TDS is below 500 mg/litre may lead to weakened bones and related problems after a certain age, as researchers have found out,” said Ranjan Panda, convener of Water Initiatives Odisha (WIO), an NGO working on water and climate change issues. The NGT order also pointed out that about 80 percent of potable water was being unnecessarily wasted and directed the Ministry of Environment, Forest and Climate Change to prescribe a set of conditions for RO system manufacturers to ensure that the recovery of treated water is at least 60 percent, which should be eventually enhanced to 75 percent. The green court also impressed upon the need to use RO wastewater for cleaning utensils, washing, gardening, flushing, and so on. The NGT order was in response to a case filed in 2015 by Sharad Tiwari, general secretary of a Delhi-based NGO. In his petition, he requested that RO purifier companies should be regulated as they were responsible for water wastage. “This is especially alarming in water- deficient regions and conservation of potable water is crucial to prevent water crisis,” he said in his plea. The NGT order was based on the recommendations of an expert committee. The report said that RO technology is generally not required for places receiving piped water supply through mu- nicipalities. As most people are unaware of the technicalities involved, the NGT ordered that the government spread awareness about the ill-effects of water without essential minerals. Most experts in the field have supported the order. “This is a welcome judgment,” said Panda, adding, “however, I have my doubts whether it can be implemented the way it is needed. Es- pecially because RO filters have got a huge market push and already entered into people’s psychology in a big way. The way water contamination has shot up, people who can afford RO filters don’t want to take any risk.” He added: “But the problem is that misinformation has been spread by RO manufacturers and there is absolutely no counter awareness by the government or authorities who supply water. TheROQuestion ManyurbanhouseholdshaveinstalledROwaterpurificationsystemstoensureasupplyofpotable water.Thegreencourthasquestionedtheefficacyofsomesystemsandtakennoteofwaterwastage By Papia Samajdar F Representative Image/ youtube.com PURIFYING, BUT AT A COST The demineralisation of water has become a major issue with RO technology 26 December 2, 2019

27. required before the notification can be implemented, the ministry stated. The Tribunal, however, was in no mood to relent. It slammed the ministry for the delay, asking for its reason for non-compliance. It gave the ministry a final chance to comply by the end of the year, failing which officials would be liable for coercive action. Dr Suresh Rohilla, director of the water and Wastewater team at the Cent- re for Science and Environment, said that the Delhi Jal Board (DJB) carries out sample water testing at each of its water treatment plants and also tests 100+ random samples across the city to check if water quality is being maintained. “DJB claims to supply water as per WHO standards,” said Dr Rohilla. The DJB had collected 545 samples from across eight zones in Delhi where it sup- plies piped drinking water. Of those, 27 samples did not meet all the levels, but 518 samples met all the WHO criteria. “We do have RO purifier in our home, but I do not mind drinking on the tap water. We have water supply from DJB and it is usually safe enough to drink. The RO purifier came when we bought the house, I don’t think I would have bought it separately,” said Pavitra Goel, vice president at a manu- facturing firm. Reena Devi, a resident of Green Park, New Delhi, said, “Until 2017, we were drinking water from the tap, as water was supplied by DJB. However, I suffered from recurring stomach infection, which the doctors suspected was due to water contamination. This is when my family installed the RO. We did a fair amount of research before buying a water purifier.” Ramesh Kumar, a technician with a leading RO purifier manufacturer, said: “We measure the TDS of the water supply and set the RO machine accord- ingly. The technology itself has advanced. Our latest machines are equipped to add extra minerals to the water, to compensate for the loss.” Panda believes that “boiled water and simple filters can help but the kind of contamination our water sources are exposed to makes it difficult for the common people to understand what to do. Unless we stop water contamination at the source, things are going to be really difficult”. The other problem is wastage of water. It is estimated that by 2020, 21 major cities will run out of groundwater. India ranks 120th among 122 countries in the water quality index. Given the situation, we need to know that our water sources are safe and ensure that the wastage is curbed. People don’t know about contamination in a water supply system until a public health emergency erupts. There is no way a person can know the water quality at the point of use unless he has a handy testing equipment. Currently, we don’t have any such equipment available at low cost.” RO manufacturers, represented by Water Quality Indian Association (WQIA), without disputing the wastage issue, claimed that 98 districts in 13 states required these purifiers to ensure safe drinking water. T he implementation of the order seems questionable as the ministry is yet to notify the ban. The NGT on November 4, 2019, questioned the ministry’s inaction in carrying out the order. The ministry had requested eight months’ time for effective compliance in a September 2019 hearing. This is procedural time required for any notification, claimed the ministry in its affidavit. The NGT denied the request, call- ing it unreasonable and detrimental to public interest. According to the status report filed by the ministry, it had asked CPCB to frame a holistic policy for the use of RO technology in the country and submit a draft notification, which is still to see the light of day. Since issuing a notification is a policy-related matter, a detailed region-wise consultation would be Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com TheNGTbenchheadedbyJusticeAdarsh KumarGoel(above)tooktheenvironment ministrytotaskfornotimplementingits orderonROpurifiersandsaiditsattitude wasdetrimentaltopublicinterest. Anil Shakya | INDIA LEGAL | December 2, 2019 27

28. Column/ Armed Forces Tribunal Maj Gen Nilendra Kumar 28 December 2, 2019 AS the parliament’s effort to craft a mechanism to provide speedy and effective justice to men in uni- form turned out to be a flop? In the case of armed forces, many think it has. And with a High Court judge being appointed to head the Armed Forces Tribunal (AFT), will the scenario be different? Recently, Justice Rajendra Menon, former chief justice of the Delhi High Court, was appointed chairperson of the AFT. The AFT was set up under the Arm- ed Forces Tribunal Act, 2007, which came into force on July 15, 2008. It was invested with jurisdiction in two areas. First, it dealt with service matters such as appointments, enrolments, promo- tions, seniority, confirmations, suspen- sions, superannuation, retirement, pen- sions, summary disposals and trials. The scope to take up transfer cases is limited. It also handles disciplinary cases involving appeals against court martial. The Tribunal is headed by a chairperson and has a number of judicial and administrative members. Former judges of the Supreme Court and High Court chief justices are eligible for appointment as the chairperson. A High Court judge or a retired one can be appointed as a judicial member. Serving or former military officers of the rank not below major general and equivalent or ex-judge advocate generals in the army, navy or air force can be appointed as administrative members. Members of the Tri- bunal hold office till age 65 years. Chair- persons who have been ex-judges of the Supreme Court hold office till 70 years. Benches of the Tribunal were initially set up at only nine locations—Delhi, Chandigarh, Lucknow, Jaipur, Mumbai, Chennai, Kolkata, Kochi and Guwahati. Three more locations were later identi- fied and hearing of cases was facilitated at Jabalpur, Jammu and Hyderabad. The principal bench is located in Delhi. The AFT Act provides for the Tribunal ToothlessandinLimbo ThecentrehadchangedthecompositionandqualificationoftheTribunalbyintroducing apartintheFinanceAct.Willthishelpitprovideeffectivejusticetothearmedforces? H NEW ROLE Justice Rajendra Menon, ex-chief justice of Delhi HC, was appointed AFT chairperson aftdelhi.nic.in

29. of impending retirements. For a number of years, the posts of judicial members remained vacant. High court judges of good calibre and motivation are reluc- tant to apply to serve as judicial members. The few who do find their appointment letters unduly delayed and they are not called to take up their posts. Due to non-availability of members, the authorised number of benches can’t be constituted to take up pending matters. The shortage of members is not con- fined only to the judicial side. Even administrative members with the requisite aptitude and experience are not being selected. Many among those selected were found to have no in-service expo- sure in handling disciplinary cases or even adjudicating service matters. They had no notion of what constitutes “personal interest” or a “speaking order”. Another hurdle is the performance and disposal of cases by the benches even when they are functioning. It was observed that cases were being taken up for hearing only till lunch time. Thereafter, the benches would call it a day after barely transacting business for three hours. So, judicial time was not being fully utilised. There were also unconfirmed reports of judicial officers harbouring grudges over the quality of help received from administrative members in getting cases marshalled for inclusion in the judgments. Another reason was the lack of faith and confidence among the litigants about the efficacy of the Tribunal. This stemmed from non-implementation of the final orders which could have provided relief to litigants. A majority of the cases coming to the Tribunal were against the Union government, with the ministry of defence being the respondent. It was observed that the relief and remedy ordered by the Tribunal to the aggrieved servicemen and veterans remained on paper due to lack of implementation and compliance by the authorities. Want of adequate contempt power with the Tribunals rendered them incapable of getting their deci- sions implemented. The “toothless tiger” thus failed to inspire confidence among the people whose interest it was expected to judicially serve. There was also an impression, and justifiably so, about the defence ministry exerting undue influence on the members to decide matters in a particular way. The members were subservient as they were dependent on the government for all administrative and service support. It is common knowledge that the benches have to rely upon the ministry or the service headquarters for facilities and support such as orderlies, runners, vehicles, telephones, etc, and in some cases, even residential accommodation. Ad hocism and subjective handling of the AFT is apparent from the grant of tenure extension to some members while denying it to others. Pendency was also due to poor support by the panel of lawyers assigned to represent the central government. to hold hearings at other stations in the form of circuit benches. The need for an AFT arose because there was no provision for military personnel to exercise a meaningful right of appeal. Their complaints and petitions were decided in-house at the level of service headquarters or at best by the defence ministry. Under the previous regime, they could only submit a petition which did not afford them a right of being heard or being represented by a counsel. There was also frustration due to the enormous delay in disposal of cases before various high courts. H as the AFT emerged as an effective justice doer and remedy provider? The aspirations of service personnel who want to get their grievances met by a tribunal specially designed for them have remained unmet. The number of cases pending before various benches exceeded 16,000 as on October 1 this year. There are various reasons for this sorry state of affairs. The main problem is shortage of benches. There is only one bench in Delhi that is available from mid-December onwards. This is because | INDIA LEGAL | December 2, 2019 29 TheneedforanAFTarosebecausethere wasnoprovisionformilitarypersonnelto exerciseameaningfulrightofappeal. Theircomplaintsweredecidedin-house atthelevelofserviceheadquarters. aftdelhi.nic.in

30. Most are not conversant with either military law provisions or the functioning of the armed forces. They are usually selected due to political considerations. As such, they were of little help to the benches in the adjudication of disputes. T he government had attempted to change the composition and qualification of the Tribunal as also the selection process by way of introduction of Part XIV of the Finance Act, 2017, and the rules thereunder. Part XIV had brought about sweeping changes to the method of appointment, terms of office, salaries and allowances of the members and presiding officers of a number of tribunals, including AFT. However, the effort stood negated due to a recent verdict by a five-judge bench of the Supreme Court on November 13, 2019, in the Roger Mathew and Kudrat Sandhu cases (clubbed together in the Supreme Court and disposed of in one judgment) which came down heavily on the attitude and intent of the government. The Supreme Court has called upon the government to constitute a commission to select members of various spe- cialised tribunals. The members should be people with an independent outlook, integrity, character and good reputation. Such a commission should be headed by a retired Supreme Court judge with another former judge as a member, it said. Another member could be a retired chief justice of a high court to be appointed by the chief justice of India. Furt- her, one member holding the rank of secretary should be included. He should also be its ex-officio convener. One expert member can be co-opted by full- time members to assist in matters per- taining to his particular domain. The judgment in the Roger Mathew case dealt with the powers of the high court over AFT verdicts. It had ruled that “writ jurisdiction under Article 226 does not limit the powers of High Cou- rts expressly or by implication against military or armed forces disputes. The limited ouster made by Article 227(4) only operates qua administrative super- vision by the High Court and not judicial review. Article 136(2) prohibits direct appeals before the Supreme Court against the judicial review exercised by the High Court under Article 226”. Questions have been raised about this decision. Section 181 of the Finance Act deals with qualification, terms and conditions of service of chairpersons and members of the appellate tribunal. Its linkage to the AFT was uncalled for because the AFT has no provision for an appellate tribunal. Secondly, Section 6 of the AFT Act provides for the qualification for appointment of chairperson and other members. So it is not clear what was sought to be achieved by introducing Section 9A in the Finance Act. The Supreme Court came down heavily on the executive to strike down the composition of the search commit- tees’ scheme. It stated: “The procedure for selection is fundamentally destruc- tive of judicial independence. The Union Government has vital status in the disputes before many tribunals. Even oth- erwise, conferring upon the government such a dominating and overwhelming voice in making appointments is a nega- tion of judicial independence.” Will the Roger Mathew judgment bring solace to aggrieved servicemen awaiting justice from the AFT? Hopefully, it will. —The writer was Judge Advocate General of the Indian Army and Director, Amity Law School, Noida WINDS OF CHANGE The AFT revision will impact dispute redressal 30 December 2, 2019 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Column/ Armed Forces Tribunal/ Maj Gen Nilendra Kumar UNI

31. T ill now, the powers- that-be seemed un- concerned about the virus of fake news, mainly because a majority of the opinion targeted those critical of the Narendra Modi government. Now, the shoe is on the other foot with a letter written and signed by Modi surfacing in Bang- ladesh newspapers congratulating the then Chief Justice of India Ranjan Gogoi and members of the Supreme Court bench on the Ayo- dhya judgment. It was obviously fake but it forced the government to issue a clarification and also ask the I&B ministry to set up a special cell to track and identify fake news. Post the Ayodhya verdict, social media went wild with an image purportedly on Aaj Tak showing US President Donald Trump firing gunshots in the air above the White House and chanting Jai Shree Ram. No such footage was aired on the channel but that is mainly because the fake news factory has gone unchecked so far. N etwork18, the media group that was bought over by Mukesh Ambani from founder Raghav Bahl for integration with his Jio platform, saw key executives quit- ting in the last fortnight. They include San- geetha Aiyer, who was recently elevated as Head – Marketing, Digital Business. She was responsible for marketing and brand initiatives of Network 18 digital platforms which include Firstpost, MoneyControl, CNBCTV18.com, News18 English and News18 Vernacular. Aiyer was followed by Priyanka Kaul, CEO, Forbes India, and President Marketing, Net- work18, and Aditi Singh, Executive Vice- President, Special Projects. The latest casual- ty is BV Rao, Editor of Firstpost.com. Rao, who joined Network18 in 2015, is a veteran journalist and has done a stint as News and Communication Director at Reliance. Network Problems Anchoring the Innings B ennett Coleman & Company, better known as the Times of India group, is ready for a makeover…literally. India’s biggest media group is foraying into the beauty business with the launch of its Femina Flaunt salon in Mumbai. The company says it plans to provide holistic beauty solutions by ro- ping in experts from India and abroad. The group plans to franchise 100 Flaunt salons in cities across the country. At the launch last fortnight, graced by Bollywood star Kangana Ranaut (below), Times Group MD Vineet Jain stated: “Our entry into the beauty segment is in line with the group’s philosophy of investing in new and future growth opportunities.” Earlier, under the Femina Flaunt brand name, the group had tied up with Shopper’s Stop to retail a range of fashion pro- ducts, from apparel and footwear to handbags, accessories, fragrances and eye- wear. The Times Group also entered the education sector in 2016 with the launch of Bennett University under the TimesPro banner. The university, located in Noida, is modelled on Ivy League colleges in the US with the pledge to make students “life and career ready”. Reverse Swing | INDIA LEGAL | December 2, 2019 31 Media Watch Time for Beauty C elebrity anchor and owner of India TV Rajat Sharma is finding himself a prime candidate to occupy the hot seat in his popular show, Aap Ki Adalat where people in the news are grilled on cur- rent controversies. His alternative career, as a cricket administrator and president of the Delhi and District Cricket Association (DDCA), is now under threat after a full- blown controversy in full media glare wherein nine directors of the DDCA apex council took away his powers to run day-to-day affairs of the association, leading to his resig- nation which was withdrawn shortly after, along with three professionals he had hired after coming to power last year. Despite his closeness to the power centre, playing power games on TV and in the toxic arena of sports administration require different skills. newspointapp.com

32. Column/ Doctors/ Communication Dr KK Aggarwal 32 December 2, 2019 ECENTLY, an altercation took place between activists of the Karnataka Rakshana Vedike and a postgraduate student at the Minto Ophthalmic Hospital in Bengaluru over language. The student did not respond in Kan- nada to their demand for compensation for patients blinded during a cataract camp simply because he did not speak Kannada. The matter has taken a political turn, with doctors going on strike and demanding enhanced security and action against the activists. The incident has sparked a national debate on the issue of language barriers in medical education in India. Admission to medical colleges in India is based on common admission tests. The centre allocates seats to students in various colleges from an all-In- dia quota. Unlike Ayurveda where the medium of education is Sanskrit, in allopathic medical colleges, it is in Eng- lish. Even in the Supreme Court, the language is English. No one should ex- pect students to learn the local language as soon as they enter a medical college. It could be a language they are com- pletely unfamiliar with. I did my undergraduation and post- graduation from the Mahatma Gandhi Institute of Medical Sciences (MGIMS), Sevagram, Wardha, in Maharashtra where the local language was Marathi. I learnt Marathi during my college days but only as much as was needed for patient care. Ward boys and other staff would be our interpreters if we got stuck on any word. However, some European countries such as Sweden have made it mandatory for doctors to learn Swedish if they want to practise there and many Indian doctors have done so by taking a course to demonstrate that they have reached C1- level Swedish. In 2010, the Eastern Mediterranean Health Journal touched upon the perspectives of students and staff on language barriers in medical education in Egypt and their attitude towards Arabization of the medical cur- riculum. In a survey of 400 medical students and 150 staff members, it was found that 56.3 percent of students did Language Barriers Withdoctorsatthereceivingendofviolence,theirskillsshouldalsoextendtoknowingthree languagessothatthereisnomiscommunicationabouttheirdiagnosis R UNI PACIFYING PROTESTERS Police Commissioner, Bengaluru, Bhaskar Rao asking the doctors to call off their strike

33. | INDIA LEGAL | December 2, 2019 33 grasp the content.” In a sign of changing times, the Na- tional Eligibility Cum Entrance Test (NEET) 2018 examination was conducted in 11 languages. While 80 percent of the students wrote the exam in English, 11 percent did so in Hindi, 4.31 percent in Gujarati, 3 percent in Bengali and 1.86 percent in Tamil. About 20 percent of the 1.1 million students who appeared in NEET wrote in regional languages. NEET 2019 rules stated that the exam would be conducted in English, Hindi, Urdu and eight regional languages (Bengali, Assamese, Gujarati, Telugu, Marathi, Tamil, Oriya and Kannada). The regional language question papers would be bilingual. However, it would be a good idea for all doctors to study one international language. As medical tourism is on the rise, that international language should be English. As it is also the medium in books and for teaching, they might as well learn it. To promote medical tourism, the government is also making it compulsory to have interpreter assis- tance at all levels. Recently, when I trav- elled to Japan as president of the Confe- deration of Medical Associations in Asia and Oceania, an interpreter was provided so that I could talk to my Japanese colleagues. For domestic medical tourism too interpreters should be made available in the hospital set-up in every state to facilitate communication between doctors and patients. The second language for doctors to learn is the one most commonly spoken in the country. In India, it will be Hindi. The third language should be the local language where one is practising. The students themselves should learn it. That will be difficult unless the student devotes a full year to language learning or there are interpreters in hospitals. These measures are necessary in order to stem disputes and arguments between patients/their families and the doctor. It is also needed to prevent deficiency in medical treatment due to wrong interpretation of symptoms. This may lead to wrong diagnosis and wrong treatment. The National Medical Com- mission should take these points into consideration and mandate local interpreters in the hospital setting. Coming back to the violence against doctors, no one has the right to attack them for not knowing the local language. Doctors on duty are akin to pilots and flight attendants and any distraction from work can affect the pilot and jeopardise the lives of passengers. Simi- larly, any distraction in the treatment provided by doctors because of unlawful elements should be strictly prohibited and they should be arrested. —The writer is President, Heart Care Foundation of India, and Confederation of Medical Associations in Asia and Oceania Alldoctorsshouldstudyoneinternational language,English,followedbyHindi,the mostcommonlyspokenlanguageinIndia. Thethirdlanguageshouldbethelocal languagewherethedoctorispractising. not consider learning medicine in Eng- lish an obstacle, while 44.5 percent of the staff considered it an obstacle only during the first year of medical school. Some 44.8 percent of students translat- ed English terms into Arabic to facilitate studying and 70.6 percent preferred to learn patient history-taking in Arabic. While Arabization in general was strongly declined, teaching in Arabic was suggested as appropriate in some specialties. T hankfully, India does not have strict rules on language. Dr OP Gupta, my Professor of Medicine at MGIMS narrated what a colleague had told him. “I was examiner in one of the colleges of MP where I found that some students could not communicate well in English. But when I explained the questions in Hindi, they answered them with ease,” he said. So should language be a barrier for treatment? No. Gupta further said: “I had a similar experience when I used to go as an examiner for final-year students. Even when I have a bedside discussion about a patient with students, sometimes I have to explain in Hindi. With English as a medium of instruction in medical education, a perceptible gap in communication is noticed. If a learner cannot understand the language of instruction, it becomes difficult, if not impossible, to Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com FOR BETTER SERVICE Knowing a local language will help doctors prevent deficiency in medical treatment

34. Focus/ MP/ New Legislation ADHYA Pradesh (MP) Chief Minister Kamal Nath has proved himself a canny politician and someone who knows how to keep the voters happy with rights-based initiatives. His latest offering is the promise of water and health becoming fundamental rights for citizens of the state. His government is likely to introduce two pieces of legislation in the next assembly session to make this an official policy, thus becoming the first state to do so. According to state health minister Tulsi Silawat, the proposed right to health scheme will benefit nearly 1.8 crore people. One proposed legislation, Right to Water, has provisioned a supply of 55 litres of water per day for each person. According to the draft of the other Bill which will be tabled in the assembly, the Right to Health will ensure delivery of basic healthcare services within 3 km, primary care facilities within 12 km and treatment of serious illnesses within 50 km (or a one-hour journey) and critical illnesses with fully skilled specialists within 150 km. The government will provide insurance cover to 97 percent of individuals with a cap of `1.50 lakh. The remaining three percent will be covered by a corpus fund. Anyone living in rural areas will get the same healthcare facility as his/her urban counterpart. “We need to increase resources for im- proving healthcare,” said Additional Chief Secretary, Finance Department, Anurag Jain. Health department sources say once the Bill on Right to Health is passed in the assembly and becomes an Act, the state government will have to put in place adequate financial and institutional arrangements to implement it. The department is mulling PPP models to broadbase healthcare expansion. While fixing the responsibility of the government regarding healthcare for citizens of the state, the Bill also speci- fies the legal consequences if the government fails to act. For instance, the next time there is a dengue or H1N1 out- break in the state, various departments, including Health, would be held responsible and face punitive action. The state government will also set up forums for grievance redressal with regard to deficiency in healthcare facilities. “This is a good step. There is a need to bring a law on the right to health and healthcare to achieve universal healthcare,” said Amulya Nidhi of Jan Swas- thya Abhiyan which has been advocat- ing for the right to health in India. He said that the organisation had submitted a draft proposal to the state government. Some of the key points proposed were integration of health guarantee schemes at the national and state levels, a separate grievance redressal platform to cover complaints on denial of services, negligence and non-implementation of essential health services, and community monitoring of the schemes and programmes under the National Health Mission. The proposed move to legislate on RighttoHealth Thestatewillbethefirsttoensurethataccesstoadequatewater andproperhealthservicesbecomefundamentalrightsforitspeople By Rakesh Dixit in Bhopal M Inarecentmeetingwithseniorofficers, ChiefMinisterKamalNathexpressed confidencethattheproposedRightto WaterBillwillensurerequisitequantity ofwatertotheurbancitizenry. 34 December 2, 2019

35. workshop of water scientists, experts and officials on June 24 to deliberate the proposed Bill. About 100 water experts, who have done commendable work in water conservation, were present, including Akihiro Natori, a water con- sultant from Japan, who is working in Mandsaur and adjoining areas of MP. Chief Secretary Sudhi Ranjan Mo- hanty is of the view that there can be no right without proper legislation, so the government will soon take steps in this direction. “MP will become the first state in India to provide legislated guarantee to its citizens on healthcare and water availability,” he told India Legal. In a recent meeting with senior officers, Kamal Nath expressed confidence that the proposed Right to Water Bill will be instrumental in ensuring requisite quantity of water to urban citizenry. He said this while reviewing future plans of the state urban development department. The proposed Right to Water Act will also have stringent provisions for preventing wastage of water. According to a government report, almost the entire state is facing water Right to Water is premised on the fundamental Right to Life. Minister, Public Health Engineering, MP, Sukhdeo Panse said that the Right to Water is a part of Right to Life enshrined under Article 21 of the Constitution and his state would be the first in the country to take this initiative. H owever, before enacting the Bill on Right to Water, the state government would consult experts in the field, educationists and get legal inputs, apart from seeking opinions from beneficiaries. The Public Health Department had organised a hindi.indiawaterportal.org PERENNIAL PROBLEM Water crisis emerged as a major issue in the last assembly elections in Madhya Pradesh | INDIA LEGAL | December 2, 2019 35

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