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India Legal 21 August 2017

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The NRI Vote: The cabinet clears the way for NRIs to vote by proxy but it raises fears that it will compromise the sanctity of the electoral process. The Opposition is readying to challenge the proposal in parliament and in the courts. What are the implications? With reports from Dubai and London

The NRI Vote: The cabinet clears the way for NRIs to vote by proxy but it raises fears that it will compromise the sanctity of the electoral process. The Opposition is readying to challenge the proposal in parliament and in the courts. What are the implications? With reports from Dubai and London

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India Legal 21 August 2017

  1. 1. InvitationPrice `50 NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com Sreesanth: “It was tough paying the bills’’ GST: Private Concerns Investigation: School for Scandal? ThecabinetclearsthewayforNRIstovotebyproxybutitraisesfearsthatitwill compromisethesanctityoftheelectoralprocess.TheOppositionisreadyingto challengetheproposalinparliamentandinthecourts.Whatarethe implications?WithreportsfromDubaiandLondon August21, 2017 TheNRIVote BALLOT BOX
  2. 2. N a remarkable display of rebellion against President Donald J Trump’s new immigration policies, the city of Chicago, often called the gateway to the heart of America, has filed a lawsuit against the US Depart- ment of Justice challenging Attorney General Jeff Sessions’ attempt to cut off federal funding to what Trumpists called “sanctuary cities”. The windy city’s natives include Barack Obama, Oprah Winfrey, Al Capone, Nelson Algren, Mayor Richard M Daley, Robin Williams, Harrison Ford, Benny Goodman, Nat King Cole... they made some of the best music, films, crime, politics. But even during the worst of Chicago’s gang wars, the city’s burgeoning community of working class immigrants from Europe and Asia and Latin America had no fear from the Feds. Today, as Trump pursues his campaign pledge of “Make America Great Again”, American immigrant com- munities—both legal and illegal—across metropolitan areas cower in fear from the new Feds, called ICE (Immigration and Customs Enforcement) who are, as one report bluntly put it, “unpre- dictable and brutal” in their swooping raids and use of the fast-tracking deportation machinery in which families are often torn asunder and legal procedures are thrown to the winds. Last November, while covering the US election, I wrote in India Legal that Trump’s making America “Great” again was a code for making America “White” again, a subliminal appeal to supra-nationalism and white supremacist senti- ments which has been the unshakeable belief of a core group of Americans which finally found a national champion in Trump. To them, the fact that America is no longer totally white does not mat- ter (African-Americans are now 13.5 percent of the US popula- tion, and Latinos and Hispanics about 18 percent, while Asian and other races constitute about 11 percent). What counts is the supremacist syndrome, and the new immigration proposals are nothing short of a clarion call for Trump’s version of a long-overdue ethnic cleans- ing in which the city and local administrations are being arm-twisted to cooperate with ICE raids. In taking the Justice Department to Court, Chicago’s Mayor Rahm Emanuel whose grandfather, a Romanian Jew, migrated to America, has fired a powerful ethnic missile against Trump’s anti-immigrant policies. The arm-twisting the Trump administration is resort- ing to is the withholding of federal funds for law enforce- ment such as purchase of police vehicles and essential equipment for crime prevention to “sanctuary cities” like Chicago, whose mayors refuse to cooperate with the goon tactics of ICE and insist, rather, on the orderly rehabilita- tion and legitimisation of migrants and their families. Emanuel has challenged the Justice Department’s tactics as unconstitutional in the absence of specific legislation to change the immigration laws. Last week, Trump backed such legislation amid acri- monious debate. The new bill would not only cut in half the one million migrants allowed into the country annu- ally but also introduce a “merit system” under which high educational qualifications and the ability to speak good English would be new criteria for admission. Also the preference given to families would no longer be automa- tic. Indian families with American passports, for exam- ple, would be able to bring in spouses or children under specific safeguards and dependent, aged parents would only be given one or two-year visas. As an Indian-origin doctor living in Queens, New York, for 30 years told me: “This will simply tear families apart. A lot of us Indian Republicans who supported Trump will campaign against him.” But at this point, they need not bother. The bill is unlikely to pass either House. Immigration, no matter what the core ultra-right which helped Trump win feels, is as American as apple pie and motherhood. Democrat Mayor Emanuel who was once Obama’s White House chief of staff, would never have been in the US if Trump’s merit system had applied to his grandfather. Powerful THE POLITICS OF RANKLEMENT Inderjit Badhwar Letter from the Editor I 4 August 21, 2017
  3. 3. Republican Senators Marco Rubio and Ted Cruz are the sons of Cuban immigrants whose fathers spoke no English and worked as daily wage labourers as they edu- cated their children who would one day run for presi- dent. And they did. That’s the real American immigrant story, not the one Trump is trying to tell, which is simply a version of immi- gration apartheid. The spin the Trumpists are trying to give this initiative is that it is aimed at curbing cheap immigrant labour streaming in and driving down domes- tic wages and depriving Americans of jobs. B ut this theory does not pass muster. The reality is that the American working population is ageing and declining and migrants are filling only low wage jobs of scavenging, dishwashing, digging, garden- ing, cooking farming and fishing which nobody else wants. Also, they expand the earning base and conse- quently purchasing power and help expand the American economy. Grassroots politicians like Emanuel know how massively the poor working class immigrants have con- tributed to the growth and welfare of Chicago. As of now, unemployment in the US is less than 4 percent. And more than 5 million jobs are lying vacant, mostly in blue collar, unskilled professions. Small wonder that The New York Times called Trump’s bill “A Senseless Immigration Proposal”. In a powerful and perspicacious piece entitled “Trump and the Policies of White Resentment”, Prof Carol Anderson of Emory University concluded in the Sunday Review: “That white resentment simply found a new target (immigration) for its ire is no coincidence: White identity is often defined by its sense of being ever under attack, with the system stacked against it. That’s why Trump’s policies are not aimed at ameliorating white resentment, but deepening it. His agenda, fundamentally, is not about creating jobs or protecting programmes that benefit everyone including whites; it’s about creating purported enemies and then attacking them.” Anderson calls this white resentment myopic and selfish because it refuses to acknowledge that when the larger nation thrives, so too do the whites. “Instead it favours policies and politicians that may make America white again, but also hobbled and weakened a nation that has squandered its greatest assets—its people and its democracy.” Last week’s Quinnipiac poll showed Trump’s popular ratings hit a new low even among his hardcore white supporters. Some 61 percent disapproved of the way he was conducting himself. The New York Times comment- ed: “Trump’s recent messages opposing transgender peo- ple in the armed forces, encouraging aggressive behav- iour by the police, have been seen as efforts to recapture that base. His support for the immigration bill is more of the same.” It is also an assault on an endearing American core value that stands out as a moral compass to the world. They are inscribed under the Statue of Liberty which beckons immigrants to American shore with these stir- ring welcoming words: “Give me your tired, your poor, your huddled masses yearning to breathe free, the wret- ched refuse of your teeming shore. Send these, the tem- pest-tossed to me. I lift my lamp beside the golden door.” | INDIA LEGAL | August 21, 2017 5 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com A POTPOURRI OF DREAMS (Left) US President Donald Trump; In Los Angeles, at a US naturalisation ceremony, immigrants from different countries swear the oath to become US citizens UNI
  4. 4. ContentsVOLUME. X ISSUE. 40 AUGUST21,2017 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.indialegalonline.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. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Contributing Editors Ramesh Menon Parsa Venkateshwar Rao Jr Associate Editors Meha Mathur, Sucheta Dasgupta Deputy Editor Prabir Biswas Staff Writer Usha Rani Das Senior Sub-Editor Shailaja Paramathma Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualizer Rajender Kumar Graphic Designer Ram Lagan Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Advertising Valerie Patton Mobile No: 9643106028, Landline No: 0120-612-7900 email: marketing@encommunication.org Circulation Manager RS Tiwari 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. Editor (Content & Planning) Sujit Bhar Senior Content Writer Punit Mishra (Web) Technical Executive Anubhav Tyagi 6 August 21, 2017 The NRI Ballot The cabinet has cleared the way for them to vote by proxy, but will it undermine the sanctity of the electoral process? With reports from London and Dubai 14 LEAD Hope for a Fresh Innings With the Kerala High Court lifting the life ban on S Sreesanth, will the BCCI let him play for India again? The cricketer tells India Legal that all he dreams of is one good season 24 Consent and Compromise Gender and behavioural stereotypes continue to affect rape judgments, especially where marriage is involved, as evidenced by a Delhi High Court judge’s contradictory orders 22 COURTS
  5. 5. REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Ringside............................8 Delhi Durbar......................9 Courts.............................10 National Briefs .........12, 21 Media Watch ..................49 Satire ..............................50 Cover Design and Illustration: ANTHONY LAWRENCE | INDIA LEGAL | August 21, 2017 7 Fault in the Network Private players own majority stake in this entity operating the GST regime. it could hit data security and disrupt the economy 30 INVESTIGATION Law and the Sportsperson The court has overruled BCCI, but as long as incidents stay confined to the playfield, sporting authorities will have the last say 26 Milking the Loopholes Studies have found the presence of coliform bacteria in milk. This despite the apex court recommending an amend- ment to award life terms to adulterators CONSUMERWATCH 46 When Judges Revolt In a surprising move, justices in some high courts are refusing frequent postings, and resorting to protests and resignations against the perceived “injustice” of it all FOCUS 43 School of Hard Knocks The Supreme Court’s recent order quashing the UP gov- ernment’s move to regularise shiksha mitras has jeopar- dised their careers, sparking protests and suicides EDUCATION 38 Keep Your Shirt On The Himachal and Bombay High Courts do not appear to be crossing the bounds of law in directing a proper dress code for litigants, the public and officials appearing in court 34 SPECIALSTORY Fair or Foul? A row has erupted over the job appointment of Sangita Maliwal, mother of Swati Maliwal, Delhi Women’s Commission head 28 PROBE Facilitating Higher Learning India Legal chairman Pradeep Rai inau- gurated an e-library at Benaras Hindu University, his alma mater, when he was there to attend an alumni gathering CAMPUS 42 Just Weed out Abuse Legalising medical marijuana would prove a blessing for the many in need, provided it is kept from falling into wrong hands 36 MEDICINE
  6. 6. 8 August 21, 2017 “ RINGSIDE I would say that the Congress is facing an existential crisis.… The sultanate has gone, but we behave as if we are sultans still. We have to completely redo the way of thinking, the way of acting, the way of projecting, the way of communicating. —Congress leader Jairam Ramesh, in an interview to PTI I am a son of India. There’s no freedom (in Tibet). I don’t like it without freedom…. It’s better to stay in Indian heat. —The Dalai Lama, on being asked whether he would like to return to Tibet, during his speech on the Importance of Independent Press and Ethics in Delhi The countdown to a clash between the two forces has begun, and the clock is ticking away the time to what seems to be an inevitable conclusion. —The China Daily editorial Breakdown of Indian values, breakdown of the ability of the authorities ... to be able to enforce what should be normal law-enforcing work and overall the very fact that Indianness of any citizen being questioned, is a disturbing thought. —Outgoing Vice-President Hamid Ansari, on Rajya Sabha TV We have heard of genetic engineering. This is worse! —Author Shobhaa De, on the removal of content on Mughals in the history textbooks for classes VII and IX in Maharashtra, on Twitter It is none of his business, it is my business and my family’s what I do and where. Can the men not control their urges at night? Why am I being questioned? —DJ Varnika Kundu, who was allegedly stalked by Haryana BJP chief Subhash Barala’s son in Chandigarh, on NDTV This is not just my victory. It is a defeat of the most blatant use of money power, muscle power and abuse of state machinery. BJP stands exposed of personal vendetta and political terror. —Congress leader Ahmed Patel, on winning the hotly-contested Rajya Sabha seat, on Twitter For us in the Congress, the Quit India Movement is a reminder that brute force can and must be resisted in the name of freedom; that even when the odds appear to be against us, and the adversary appears all-powerful, we can succeed if we persevere in fighting for the India we believe in and cherish. —Congress president Sonia Gandhi, speaking to the Congress Working Committee on the eve of 75th anniversary of the Quit India Movement
  7. 7. | INDIA LEGAL | August 21, 2017 9 An inside track on happenings in Lutyen’s Delhi Delhi Durbar FAKE NOTES It has been some months since Arun Jaitley has been saddled with two cru- cial ministries, during a time when the confrontation with China is assuming serious proportions. Then there was the sudden demise of environment minister Anil Madhav Dave. Now Venkaiah Naidu has left the cabinet and Smriti Irani has been given tempo- rary charge of I&B. Why then, many are asking, is the PM taking so long to induct new ministers? The impending reshuffle was scheduled for the week after Independence Day but could be delayed further for political reasons. With Amit Shah’s term as BJP presi- dent coming to an end, plans are being put in place with an eye on the 2019 general elections. Modi has to induct someone from the JDU now that the party has joined the NDA. Shah was working hard at getting the AIADMK to join the NDA which means cabinet allurements will be on offer. Then, politicians from states going to the polls in the coming months need to be included. The reshuffle is on the cards but could yet be delayed. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Immediately after the Income Tax and CBI raids on Karnataka Congress leader and industrialist DK Shivkumar while he was host- ing the party’s Gujarat MLAs in a fancy resort, TV channels and news websites which generally toe the govern-ment line, splashed a video grab of a locker containing bundles of currency notes and bags full of cash lying on the floor. Even National Security Adviser Ajit Doval displayed the photo on his Twitter handle while it went viral on social media. The TV channels said it showed unaccounted money found in Shivkumar’s home and slammed the Congress for bribing MLAs. It was left to some independent news out- lets to point out that it was actually a photograph taken during the Income Tax raids on a Delhi law firm T & T in December, 2016. The same picture had been uploaded by some journalists on social media back then with the cap- tion: “Video of over `8 crore cash seized by Delhi police from T & T law firm in Delhi’s GK”. Fake notes and fake news is the new currency. There is now some clarity on why Ram Nath Kovind was plucked out of relative obscurity and made President of India. Apparently, his elevation to the highest office in the land was reward for his contribu- tion to bringing the BJP back to power-sharing in Bihar. It appears that Nitish Kumar, frustrated by Lalu Prasad’s constant interference and being saddled with Lalu’s sons in his cabinet, needed someone to confide in, and he turned to Kovind, then governor of Bihar. Kovind convinced Nitish that the only way he could get rid of the Lalu yoke was to join hands with the NDA. Nitish was given the promise of non-interference in gover- nance and Kovind then informed the Prime Minister and Amit Shah that Nitish was ready to take the plunge. Kovind was told he would be rewarded. The rest is history. JUST REWARDS RESHUFFLE ON THE CARDS It’s a huge advantage these days for bureaucrats to have a stint in Gujarat on your CV. The PMO has a num- ber of them, led by PK Mishra who was Modi’s right hand man when he was Gujarat chief minis- ter. There is talk of Revenue Secretary Hasmukh Adhia (right), the Gujarat cadre officer who helmed the GST project, being the next cabinet Secretary. Now, another IAS officer who served in Gujarat has been given the plummest of postings. S Aparna, has just been appointed to the post of Executive Director, World Bank, where she will represent India, Bangladesh and Sri Lanka. Aparna had a long stint in Gujarat, including princi- pal secretary to ex-CM Anandiben Patel. THE GUJARAT EFFECT
  8. 8. Not satisfied with the affidavit submitted by the Jammu and Kashmir government citing reasons for the delay in setting up a Mino- rity Commission in the state, the Supreme Court, however, gave one last opportunity to the centre and the state. They were given a time-frame of three months. The Court was responding to a PIL filed by a Jammu-based lawyer Ankur Sharma. Sharma objected to the benefits doled out by the state government to Muslims despite being in a majority and alleged that it was illegal. This, according to his PIL, was happening because there was no Minority Commission in the state and he wanted it to be formed under a new legislation. The PIL also sought an investigation into the matter, and a direc- tion to the state government to identify and notify religious and linguistic minori- ties, among other demands. The state government had pleaded that it did not have the time to attend the issue as it was preoccupied with Amarnath Yatra and other law and order problems. But the Court lambasted it for taking its orders lightly. It had earlier asked both the centre and the state government to sit together and arrive at a solution. The centre told the Court that discus- sions with the state government had rea- ched an advanced stage. It had earlier informed the Court that a high-level committee comprising officials of the state government and the centre had been formed. The Supreme Court turned down a request for a direction to the centre to make Yoga compulsory in schools for classes I to VIII across India. The Court observed that it could not dictate the cur- riculum for schools. The Court was reacting to two sepa- rate pleas—from lawyers Ashwini Kumar Upadhyay and JC Seth—in this regard. Seth argued that teaching Yoga was part of the fundamental right under Right to Education (RTE) ACT 2009 and National Curriculum Framework and Upadhyay wanted the Court to ask the HRD ministry, NCERT, NCTE and CBSE to “provide” Yoga textbooks in schools. The centre contended that there was no reference to Yoga in the RTE Act and thus could not be enforced. Also, it argued that education was part of the Concurrent List and under the control of states and UTs. The onus lay on them to enforce Yoga, it claimed. The HRD ministry, how- ever, informed the Court that Yoga was indeed included in health and physical education in schools for classes 1 to 10. Response sought on Article 370 Courts 10 August 21, 2017 The Supreme Court rec- ently asked the centre and the Jammu and Kashmir government to reply whether Article 370, which confers special status to Jammu and Kashmir, was invalid and needed to be scrapped. A CJI-headed bench of the apex court was respond- ing to a plea filed by Anil Kumar Jha, appearing on behalf of Kumari Vijayalak- shmi Jha. The petitioner claimed that Article 370 had no meaning after the Jammu and Kashmir’s constituent assembly was dissolved in 1957, and its existence was against the basic structure of the constitution. There was no sanction from the president or par- liament or even the centre for its continuance, the petition claimed. It should have lapsed with time, Jha argued. The petitioner approa- ched the Supreme Court after the Delhi High Court rejected her plea in April while referring to a Supreme Court order which had dis- missed it in July 2014. Set up Minority Commission in J&K Can’t order Yoga in schools
  9. 9. | INDIA LEGAL | August 21, 2017 11 Congress MP and former environment min- ister Jairam Ramesh has approached the Supreme Court, alleging that some sections of the Finance Act 2017 had weakened the NGT Act 2010. He pointed out that the centre had unbridled powers under the Finance Act to take a call on the composition of the green tribunal and that includes qualifications, appointments, terms of office, salaries and even termination by nullifying provisions of the NGT Act. This was against the basic framework of the consti- tution, Ramesh argued. The apex court asked the centre to respond on issues raised by the former minister. BattingforNGTAct In a big relief for “Govindas” this Jan- mashtami (August 15) who enthusi- astically participate in the Dahi Handi festival, especially in Maharashtra, the Bombay High Court accepted the sta- te government’s assurance that chil- dren aged 14 years will participate in the festival, but not below it. The Court, however, refused to pass any fresh order on the age of participants as well as height of hum- an pyramids on the ground that the onus lay on the legislature to take the call on these matters. The Court had in 2014 barred chil- dren below 18 years from participat- ing in the sport—deemed “adventur- ous” by the Maharashtra govern- ment—and even fixed the height of the pyramid at 20 feet. The state gov- ernment took the matter to the Sup- reme Court, which referred it back to the High Court for a fresh hearing. However, before disposing off the PIL, the Court pointed out that safety nets, belts and cushions must be pro- vided to ensure that there is no fatal effect on participants in case they fall. An ambulance must be kept ready and participants insured for a maxi- mum amount of `10 lakh, it observed. The Rajya Sabha Secretariat was taken to task by the Delhi High Court for wasting the judiciary’s time over recovery of an insignifi- cant amount from an ex-employee. The Secretariat has been fighting the case in the trial court, the appellate court and now in the High Court. The case had been dragging on for the past 10 years. The Court also ruled that `1 lakh be paid as compensation. The Secretariat had gone to courts for get- ting back from PS Verma `39,010, claiming it was overpaid to him. The High Court was extremely unhappy with Verma being hounded for such a paltry amount. Referring to a Supreme Court order that ruled that employees may not be forced to give back the amount they had gained wrong- fully, the Court pointed out that there were no allegations of fraud against Verma. It also noted that Verma himself had been asking the Secretariat to take “corrective action” which the Secretariat did so “only partially”. The case was baseless, the Court concluded. RajyaSabhaSecretariat criticised — Compiled by Prabir Biswas Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com The Supreme Court agreed to exam- ine whether girls married in the age group of 15 to 18 years were affected as a result of sexual intercourse. It was hearing a plea from an NGO which said that the age of consent for married girls be fixed at 18 years. As per law, a husband can have sex with his wife aged between 15 and 18 years and it would not be con- sidered rape under exceptions in Section 375 of the IPC that defines this crime. The legal age of marriage is 18 years. On the other hand, as per the POCSO Act, any girl under the age of 18 is considered a minor and any sexual activity with her is illegal. While citing this discrepancy and objecting to the exception, the NGO argued that it affected the girl within the age bracket of 15 to 18 years and violated her right to life and personal liberty. The Court, while admitting that there were glaring disparities in law, wanted to know whether it could “cre- ate an offence” for forceful sexual activity by husbands with their wives aged between 15 to 18 years. The centre contended that child marriages were a reality and judicial intervention was uncalled for con- sidering that marriage was considered sacro- sanct. The petitioner was asked to submit instances where sexual activity pertaining to married girls aged 15- 18 had taken a toll on their health. The question of “marital rape” Some relief for Govindas
  10. 10. Briefs 12 August 21, 2017 The Pension Fund Regul- atory and Development Authority (PFRDA) has written to the government seeking approval to invest 50 percent of the funds contributed by gov- ernment employees, under the flagship National Pension Scheme (NPS), in stocks. As of now, only 15 percent of such funds are placed in the stock markets. The NPS now has a corpus of `198,000 crore, with 87 percent being contributed by government employees. The PFRDA would be able to invest over `86,000 crore in the Indian stock market if the gov- ernment approves the propos- al—an additional `57,000 crore in total. Plea to invest 50% of govt pension fund in market Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by Lilly Paul After a high-stakes political drama in Gujarat, the BJP’s Amit Shah and Smriti Irani were elected to the Rajya Sabha from the state along with Ahmed Patel of the Congress, who retained his seat by a slim margin of 44 votes. A total of 176 MLAs voted in the crucial elections. However, two votes, those of Congress MLAs Bhola Bhai Gohil and Raghav Bhai Patel, were declared invalid by the Election Commission based on a complaint filed by the Congress. According to the plaint, the two had turned rebel and violated Rule 39A and Rule 39AA under the Conduct of Elections Rules 1961 by disclosing their choice to an un- authorised person, other than the party’s elec- tion agent. The Congress’s Randeep Surjewala and for- mer Union minister RPN Singh had first approached the EC with the complaint. The BJP responded, sending a team comprising Finance Minister Arun Jaitley, Law Minister Ravi Shankar Prasad and Commerce Minister Nirmala Sitharaman to the Commission. According to them, the decision of the return- ing officer who oversaw the polling was final. The Congress then met the EC a second time with a team headed by P Chidambaram. After examining the video footage of the polls, the EC overruled the decision of the returning officer and declared the two votes invalid, and to be segregated at the time of counting. At 1.50 am, Patel tweeted, “Satyameva Jayate”, saying he has won. AhmedPatelwinsRS pollsamidhighdrama Chief Information Commissioner (CIC) RK Mathur has reconstituted a larger bench to hear complaints against six parties—BJP, Congress, BSP, NCP, CPI and CPI(M). These parties have reportedly not been complying with the June 2013 CIC order that brings them in the ambit of the Right To Information Act. The new bench comprises Mathur himself and Sharat Sabharwal, Manjula Prasher and Divya Prakash Sinha, but Prof Sridhar Acharyulu who headed the earlier bench is missing. It had to be reconstituted after Bimal Julka, who was part of the previous bench, recused him- self from hearing the case. The Madhya Pradesh High Court has declined to interfere in the matter of alleged copyright violation of a song used in the Akshay Kumar- starrer movie Toilet: Ek Prem Katha. Naveen Joshi, a writer, has filed a petition claiming he has written a song which has the opening lines, Hus Mat Pagali Pyar Ho Jayega, which is registered with the Screen Writers Association, and that it was used in the film, violating his copyright on it. But the producer has claimed the song is an original work, leading the court to dismiss the petition. New CIC bench to hear complaints against parties No copyright violated in Toilet: Ek Prem Katha
  11. 11. Required for the websites EN Communications Pvt Ltd is a Noida-based news organisation which runs the popular Hindi news television channel, APN News, and brings out a weekly magazine, India Legal. As part of our expansion plans, we are looking for journalists and content writers for our websites, APN News and India Legal, as well as for the magazine. For India Legal Magazine Two senior sub-editors for general copy One senior sub-editor with an understanding of legal contents and issues relating to law and courts Ten content writers for the web with 1-3 years’ experience. Two content writers who can write on court and legal matters. Two translators who can translate from Hindi to English and from English to Hindi. Applicants must meet the following criteria: Must be able to write simple, correct English Should be able to edit, write and rewrite reports Should be familiar with internet and able do some basic search/research on the web Previous experience in media/social media will be a prime consideration We are looking for young, dynamic media professionals who can perform under deadline pressures and possess the multi-tasking skills required for today’s journalism. Writing and reporting original stories and copy, with a strong emphasis on legal matters, will be the basic requirement. Experience in the use of social media will be an added advantage. Today’s journalists are required to come up with original ideas, report and research, and produce stories that are impactful and also use the website and social media—Facebook, Twitter, etc—to expand the reach of the story. We also require sub-editors who are able to edit copy to the magazine’s requirements and are proficient at proof reading and spell checking. For the positions available in India Legal magazine, a command of the English language is an essential requirement, as is some experience of magazine production and a good understanding of social media. Salaries are negotiable. Applicants should send their CV’s to Editor, India Legal A-9, Sector 68, Gautam Buddh Nagar, Noida (UP) 201309 Covering envelopes should be clearly marked Application for India Legal/Web Team Or Contact: hr@encnetwork.com
  12. 12. Lead/ Proxy Voting Thoughthecabinethasclearedthisproposal,therearefearsthatitwillcompromise thesanctityoftheelectionprocess.CantheElectionCommissionensurethatthe proxycaststheballotaccordingtotheelector’swishorthatapoliticalpartydoesn’t influencethedecision? By Puneet Nicholas Yadav The NRI Vote SOARING AMBITIONS A large number of Indians seek employment in the construction sector in the Middle East 14 August 21, 2017 Facebook
  13. 13. Election Commission of India, told India Legal: “The issue at hand was whether or not we can give the right to franchise to over one crore Indians liv- ing overseas who continue to retain their Indian citizenship in a manner which allows them to also practice that right conveniently. The government decided that proxy voting was the way forward. But yes, it could compromise the sanctity of the voting process beca- use we will have to assume that the proxy is voting according to the wishes of the elector.” And though their numbers may not seem sizeable, the fact remains that in states such as Punjab, Gujarat and Kerala with a high population of NRIs, they could well swing the votes. Wilfred was part of the Committee for Exploring Feasibility of Alternative Options for Voting by Overseas Electors that was set up in 2014 on the instruc- tions of the Supreme Court. He said that the decision to allow proxy voting—one of the options put forth by the Commi- ttee—was taken as the choice before the Commission was “to choose between no voting rights for NRIs and involving them in the election process”. But then, Wilfred’s assertion is only partly correct. Former Chief Election Commissioner (CEC), SY Quraishi, in an article for The Wire, pointed out that in 2010, the then Prime Minister, Dr Manmohan Singh, had announced at the 8th Bharatiya Pravasi Diwas that from the following year, NRIs would be able to vote—an announcement that “came out of the blue for the EC”. Quraishi said the government amended the Representation of the People Act, 1950, in February 2011, adding a new section, 20A, that allowed NRIs to register in the electoral rolls of their HE recent decision of the cabinet to allow Non-Resi- dent Indians (NRIs) to cast their votes in elections —federal and provincial— through a proxy chosen before each new poll appears trouble- some. It isn’t something that envisages a simple change of policy but a change in the way policymakers are elected. The cabinet’s decision—which will still take months, perhaps more, before it can actually become law and be put into practice—has triggered a debate among stakeholders, political and others, on whether allowing this proxy voting com- promises the sanctity of the voting process. This facility was hitherto grant- ed only to Armed Forces personnel. So, does the cabinet’s move to allow some 1.16 crore NRIs proxy voting have any mechanism to ensure that the proxy casts the ballot according to the elector’s wish or that the elector isn’t unduly influenced by political parties to vote in their favour? It appears that the answer, for now, is No. KF Wilfred, principal secretary, WOOING NRIS: (Above) Prime Minister Narendra Modi interacting with Indian students in France in April 2015; (Left) Prime Minister Manmohan Singh had announced at the 8th Pravasi Bharatiya Diwas in 2010 that NRIs would be allowed to vote T | INDIA LEGAL | August 21, 2017 15 UNI PIB
  14. 14. constituency if they had not taken citi- zenship of any other country. But unlike the proxy voting system, the amend- ment needed NRIs to personally travel back home to their constituency in India to cast their vote. It remains unclear whether the Modi government would do away with the option of allowing NRIs to cast a “direct vote” and replace it entirely with the proxy vote system. But what is certain is that the RP Act will need to be amended once again. And this is where political players opposed to the cabinet’s propo- sal come in. T he Committee’s report on voting rights for overseas electors point- ed out that the Congress, Left parties and the Bahujan Samaj Party were all against granting proxy voting rights to NRIs. The Congress is also likely to reach out to more parties for a united opposition to any attempt for amending the RP Act. Former Congress MP and party spo- kesperson Manish Tewari said: “Allow- ing proxy voting for NRIs will have a whole set of problems, which is why we didn’t favour it even when we were in power. Veerappa Moily (then minister for Law and Justice) initiated the system of allowing overseas Indians to get enro- lled as voters and come to India to cast their votes in elections. If the govern- ment now wants to bring in proxy vot- ing, it will first have to move an amend- ment to the RP Act in parliament and parties opposed to the move, like ours, will ensure that the amendment falls.” Tewari also refers to an argument that was articulated by several critics of the proxy voting proposal, including Quraishi and former CECs N Gopala- swamy and TS Krishnamurthy. He said: “If you can allow proxy voting for NRIs on the ground that they are unable to exercise their franchise because they are miles away from home, then why not have the same provision for lakhs of migrant workers within India who face the same problem?” He added: “You cannot have different strokes for different categories of peo- ple… this would force someone to chal- lenge the move in a court of law over rights of a citizen.” PROUD TO BE AN INDIAN: People of Indian origin watch floats go by during the India Day Parade in New York City in August 2016 Lead/ Proxy Voting H ow many of my fellow coun- trymen know that most of 1.4 million Armed Forces person- nel have not been voting in our national elections? During my more than 28 years of my service in the army, only postal voting system existed. It was so poorly organised that I received postal ballots only twice in my entire service. Nobody really cared about it; not even our apolitical Armed Forces. Most of the troops deployed in remote areas along the border or fighting insur- gencies probably had more press- ing priorities. However, the proxy voting system for the Armed Forces was introduced on September 22, 2003. But, the bureaucratic procedure discouraged many soldiers from using it. It had all the weaknesses of the postal ballot system, with added chances for political mischief considering sol- diers served in far-flung areas with poor connectivity. In 2009, stung by growing feel- ings of being shortchanged by suc- cessive Pay Commissions, the Armed Forces probably realized that unless they exercised their voting power, they would continue to be sidelined by policymakers. In January 2009, the media reported that the chiefs of the army, navy and air force encouraged their personnel to register themselves in the Election Commission office in the area of their posting. The “One Rank One Pension” by veterans probably helped add value to their vote. But it was only on Mar- ch 24, 2014, that the EC decided to permit service personnel to vote at their place of posting in the general elections by treating them as ordi- nary citizens. It took 70 years after Independence for the nation to rec- ognise service personnel as ordinary citizens! Truly Mera Bharat Mahan! —Col R Hariharan ArmedForces VoteMatters 16 August 21, 2017
  15. 15. which have military rule or a sort of monarchy wouldn’t appreciate the idea of their people watching citizens of some country lining up to vote”. T he manner in which the proxy will be selected remains unclear. “As of now, we haven’t chalked out any parameters for who can be a proxy. Perhaps the law ministry is giving it a thought. For now, all we know is that the elector must first register as a voter, following which he has to appoint a proxy who must be a registered voter in the elector’s constituency. Once that is done, the elector can inform the proxy of who he wants to vote for. We hope the proxy will cast the vote as instructed,” said Wilfred. The proxy for an NRI will have to be appointed before each election, unlike proxies for Armed Forces per- sonnel who are appointed till such a time when the right to proxy is revoked by the elector. However, the NRI can Asked if the EC was prepared to let migrant workers in India have the same voting rights as NRIs, Wilfred said: “As of now, that is not possible because we don’t even have a mechanism to find out how many migrant workers there are across India…. Perhaps with Aadhaar and other means of forming a central- ized Citizen Registry and databank, this may be possible but I don’t see it hap- pening anytime soon.” In fact, even the NRIs for whom the government is willing to take the risk of what Wilfred said was “compromising the sanctity of the voting process”, don’t seem too enthused by the proxy voting proposal. Thomas Abraham, chairman of the Global Organisation of People of Indian Origin, said: “While we welcome the move to help NRIs to vote in elections, it would have been better if we could vote directly instead of using a proxy. A direct vote would be more transparent and people won’t have the fear of their franchise being manipulated.” Abraham was among several NRIs in Washington who recently participated in an interac- tion conducted by Deputy Election Commissioner Umesh Sinha to discuss the proxy voting proposal. He said that the EC should have explored the possi- bility of allowing NRIs to vote at Indian Missions in their countries or using internet voting further. But Wilfred said that allowing Indi- ans to vote at Indian Missions abroad was not feasible. “We had consultations with the Ministry of External Affairs about this but they said that several mis- sions don’t have adequate space to set up polling booths. Manpower too would be an issue. Besides, diplomatic enclaves in most foreign countries aren’t easily accessible for common people,” he said. A senior official said on condition of anonymity that a view in the EC was that if India allowed NRIs to vote at its missions abroad, “several countries where democracy isn’t absolute or those “TherecanbenoguaranteeofNRI votersexercisingtheirvoteinafree andfairmannerastherecanbeno checkoncoercionorinducementsby theemployersandsupervisors.” SYQuraishi,FormerChiefElection Commissioner “IfyoucanallowproxyvotingforNRIs onthegroundthattheyaremilesaway fromhome,thenwhynothavethe sameprovisionforlakhsofmigrant workerswithinIndia?” ManishTewari,Congress spokesperson “Whilewewelcomethemove,adirect votewouldbemoretransparentand peoplewon’thavethefearoftheir franchisebeingmanipulated.” ThomasAbraham,chairman, GlobalOrganisationofPeopleof IndianOrigin | INDIA LEGAL | August 21, 2017 17
  16. 16. HE relationship between NRIs and their home coun- try has not been a happy one. Based on suspicion, distrust and a sense of envy on one side and contempt on the other (highly interchangeable), the chasm has widened with great help from the corrosive indifference of the political firmament, shunning by the media and negative feed to public per- ception. In return, tangible arrogance is used by the NRI as a defense mecha- nism against the hostility he perceives on the home front. Much of the peaks in these misun- derstandings are due to NRIs feeling let down and this can be directly connected to their not being a vote bank. Between those Bharati Divas circuses, the many visits by Indian VIPs and the shibbo- leths and sermon waters they toss back before doing their shopping and collect- ing gifts, the deceit and hypocrisy and the litter of broken promises have left NRIs disconsolate. Even the clumsy effort made to give the right of franchise two years ago was comical because they had to come in person to cast their vote. Of the 32 mil- lion Indians living abroad in every con- tinent and impacting the world, only 10,000 made it for the general election and that was also because their visit probably coincided with vote day. Agai- nst this and keeping in mind that 70 GRAND GESTURE: Indian Republic Day ce- lebrated at Burj Khalifa in Dubai this January choose the same person to act as proxy for every election. Wilfred said that no change was pro- posed for the voting rights of Armed Forces personnel. “They have the option for proxy voting as well as voting thro- ugh postal ballot. But if an elector chooses one, he can’t opt for the other and if a proxy fails to cast the vote for some reason, the elector can’t say that he wants to vote through postal ballot. There will be no change in this system as of now,” the EC official said. There’s much that the EC, and the Modi government, still need to think about on proxy voting by NRIs. Quraishi advised: “The EC has always treaded with caution…. Reckless adventurism in as sensitive a matter as elections is fraught with serious consequences.” But then, as Wilfred grudgingly admitted: “When the then Union gov- ernment had decided to allow NRIs to vote, the EC was opposed to the move…. We just had to follow because the gov- ernment unilaterally made enabling changes in the RP Act. Now we simply have to keep improvising.” Chances are that the Modi govern- ment will prevail over the EC’s reserva- tions on proxy voting. Whether that will be good for democracy or not, is a differ- ent matter altogether. Make it Easy Policy WhileNRIsinthisregionaredelightedovertheproxyvote, theynextwantrepresentationinbothHousesofparliament By Bikram Vohra in Dubai Lead/ Proxy Voting Lead/ Gulf Indians T 18 August 21, 2017 Twitter
  17. 17. percent of Indians in the Gulf are lab- our and travel home once in 24 months on an average, made the concession almost insulting. On August 3, the right to vote by proxy was granted by parliament to 11 million NRIs eligible to vote. There is a slice of irony in this. According to the constitution, there is only one category of Indian citizen. So, really only an ano- maly that has survived 70 years is being corrected. Well-known businessman and NRI spearhead Ram Buxani told India Legal: “This should have been granted long ago. If people in jail have the right to franchise, why not NRIs? I am glad it has been given now but the logical sequence should follow by way of repre- sentation of NRIs in both Houses. After all we brought home over $235 billion in remittances in the past three years.” HE cabinet’s decision to allow “proxy” voting for NRIs in future elections has created very little exc- itement among those living in the UK. While they app- reciate that they are now being given the opportunity to participate in the demo- cratic process back home, they are not confident of the implementation, partic- ularly the fact that it is to be done by a “proxy” which is open to abuse. “Although I welcome the decision and it is a step in the right direction as it allows Indians living abroad to exer- cise their franchise, I am concerned that proxy voting does not give confidence that the vote will be cast as it was inten- ded. Maybe a postal vote or voting at the consulate could give voters some assur- ance that their vote has actually been cast properly,” said Jasbir Parmar, BR Shetty, owner of the NMC Healthcare, expressed his delight over the government’s move and said that with Indians abroad creating a vote bank, there would be an infusion of investment in India as state govern- ments make greater efforts to woo for- eign-based Indians. Shetty is currently building a major medical facility in Amravati and is also the chairman of 700 units of the UAE Exchange. A s Indians now do not have to fly back to cast a vote, even the hardworking labourer finally has a say in his nation’s destiny. Biswajit and Farukh who work as drivers in the construction industry told India Legal during their lunch break that they would wish to vote in 2019. But they expressed concern that unless they were tutored on how to obtain the form, fill, sign and post it to the right address, most of their kin would lose out. “They must not make the procedures difficult,” said Biswajit. “We do not have the time to stand in lines and get forms and go through all that proof jhamela (hassle).” Nirmal Anand, a well-known movie distributor in the region who has busi- ness interests in India, said he believes that all people of Indian origin who pay taxes should be allowed a vote. “It will create a more close-knit global commu- nity,” he stressed. Generally received with delight, the voting right process is also of concern to many. They worry that the postal option may go awry and transparency could be an issue. But at least things are looking up. NRIshereareconcernedabout howtheproxyvotesystemwill beimplementedandwhetherit willbeopentoabuse By Sajeda Momin in London Lead/ British Indians T Excited? Not Really CHEERING TEAM INDIA: Indian fans in Derby at the recently held Women’s Cricket World Cup | INDIA LEGAL | August 21, 2017 19 UNI
  18. 18. Lead/ British Indians Director, National Asian Business Asso- ciation. The fear is that the family mem- ber who has been given the proxy right will vote according to his/her political preference rather than the voter’s. Though the UK has one of the oldest and most politically influential Indian diasporas in the world—now into the third and fourth generation with a record number of 12 Indian-origin Members elected to the UK parliament in 2017—the majority hold a British nationality and therefore, are not eligi- ble to vote in India. According to the last census of 2011, the UK recorded 1.4 million people of Indian origin in a total population of about 63 million. Of these, as of 2015, there are only around 3 lakh who are still Indian nationals and can be consi- dered NRIs. Had India allowed dual nationality, then the numbers may have been differ- ent. Most migrants to the UK give up their Indian nationality and become British nationals as soon as they can to avail the benefits of living and working in Britain and move around the world with ease. However, some take up the Overseas Citizenship of India (OCI) certificate so they can avoid visa hassles for their trips to India. While the OCI gives people the right to come and go from India, it doesn’t allow them political or voting rights. This is a bugbear for a few, particularly those who are supporters of the curr- ent Indian government, who would like to influence politics in their erstwhile homeland. “I think a good majority of Indian diaspora here have an OCI and thus, should have an entitlement to vote and decide who should lead the country,” said Dr Rajeev Gupta, Chairman of International Business Federation. T he demonetisation experiment by the BJP government in Nov- ember last year or “currency change” as it is called here, has left many of the Indian diaspora with a bad taste in the mouth. Until then, most British nationals of Indian origin con- sidered themselves NRIs. But during demonetisation, the Indian government classified only those holding Indian passports as NRIs. “Demonetisation has left many OCI holders totally frustrated, particularly many elderly pensioners living abroad who are now stuck with worthless wads of `500 or `1,000 notes, none of it black money, which they could not convert or hand over to a bank. They gave the facil- ity to Indian nationals but not OCIs, making them feel discriminated against,” explained Buddhdev Pandya, MBE (Member of the British Empire) and publisher of Gujarat Times UK. The majority of young, Indian-origin Britons are not in the least interested in what is happening in Indian politics. They consider themselves British. “Moreover, they don’t feel they have the right to interfere in the running of a country where they don’t live or pay taxes, and hence, do not want the right to vote in India” explained Pandya. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com ThoughtheUKhasoneoftheold- estandmostpoliticallyinfluential Indiandiasporasintheworld,the majorityholdaBritishnationality and arenoteligibletovoteinIndia. A SLICE OF INDIA ((Right) Diwali celebrations in Leicester in 2015; Baisakhi festivities in Southhall, London 20 August 21, 2017
  19. 19. Jammu & Kashmir Chief Minister Mehbooba Mufti has met senior oppo- sition leaders of the state against the rep- eal ing of Article 35A. The meeting was held a day after she met Farooq Abdullah, the National Conference president, on the matter. Article 35A gives the power to the state assembly to define the perma- nent residents of the state. The meeting comes in the backdrop of a pending Supreme Court judgment on the article due next month. The petition for repeal was filed by Delhi-based NGO, “We the Citizens”. Attorney general KK Venugopal had told the Chief Justice JS Khehar-headed bench that given the “sensitive” nature of the issue, the centre wanted a “larger debate” on it. This triggered a strong statement by former CM Omar Abdullah who said repealing it would have serious consequences and “if there is a debate on (the legality) of the Article, you will have to debate the accession itself”. Meanwhile, the Supreme Court is also hearing a petition filed by lawyer Anil Kumar Jha on whether Article 370, which grants special status to J&K, has lapsed. Briefs —Compiled by Lilly Paul Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com The National Green Tribunal has slapped an interim ban on use and possession of non-biodegradable plastic bags less than 50 microns in thickness in the National Capital Region. Anyone found flouting the rule would have to pay `5,000, a bench headed by NGT chairperson Justice Swatanter Kumar said. The tribunal has also directed the Delhi government to seize the entire stock of plastic within a week. Earlier, the NGT had prohibited the use of disposable plastic in the city, especial- ly at hotels, restaurants and for public and private functions from January 1 this year. `5,000 fine for carrying plastic in Delhi Athree-member Medical Council of India (MCI) committee, headed by vice-president Dr CV Bhirmanan- dam, is framing rules aimed to prevent unqualified doctors from doing stent- ing procedures and allowing patients to seek second opinions to decide whether they need stents. The panel will submit the draft rules to the health ministry in 10 days. In the absence of rules, many cardiologists do stenting soon after completing DM cardiology. Trained doctors should also register themselves as interventional cardiologists before beginning prac- tice, Dr Bhirmanandam said. Hospi- tals will also be advised to form com- mittees to review emergency cases. MCI rules on stenting soon FuroreoverArticle35ArepealinJ&K | INDIA LEGAL | August 21, 2017 21 Vikas Barala, son of Haryana BJP pres- ident Subhash Barala, has been arrested along with his friend for stalking and trying to kidnap a woman in Chandigarh. Varnika Kundu, daughter of top state bureaucrat Virender Singh Kundu, posted the incident on her Face- book wall which led to massive public out- rage. The police had to re-arrest the two as they had been released hours after they were first arrested. Barala has admitted to following Kundu’s car during a three- hour long police interrogation. Their chase was recorded on CCTV footage and the police now have witnesses against the duo. Haryana BJP chief’s son held for stalking woman The government has informed the Rajya Sabha that it has issued detailed instructions for the deportation of the nearly 40,000 Rohingya Muslims living illegally in the country. Citing Section 3(2)(c) of the Foreigners Act, 1946 which vests the government with powers to deport foreign nationals illegally staying in the country, minister of state for home Kiren Rijiju in a written reply to a Rajya Sabha question stated that the job to iden- tify, detail and deport such squatters has been delegated to the state governments and UT administrations. The centre “has directed the state governments to consti- tute task forces at district level” for the purpose, he said, adding that the issue of illegal immigration is being taken up with the neighbouring countries. Govt plans to deport 40,000 Rohingyas
  20. 20. Courts/ Delhi High Court/Rape Case 22 August 21, 2017 AN an accused in a rape case marry the complainant and seek the quashing of the case against him on this ground? Justice Pratibha Rani of the Delhi High Court, in a recent case, found no merit in the prayer of the accused to do so on the ground that he had subsequently married the complainant and submitted proof of the same. In Vikash Kumar @ Sonu v The State, the accused and the complainant, belonging to different castes, were in love with each other, and had entered into a physical relationship. The com- plainant had consented in the hope that the accused would marry her. Later on, the accused married another girl saying his parents did not approve of the inter- caste marriage. However, his marriage resulted in divorce and he sought the company of the complainant again, and had sex, promising to marry her. SECTION 376 When the accused went back on his promise, she complained to the police, and the case under Section 376 of IPC (offence of rape) was registered. However, following registration of an FIR against him, and his incarceration, he obtained interim bail in order to marry her and get it registered. The accused pleaded that the complainant registered the FIR due to misunder- standing of facts and in a confused state, thinking he would not marry her, whereas he was trying to obtain the con- sent of his parents. He claimed that the complainant decided to live with him peacefully, hence there is minimal chance of her coming forward to sup- port the prosecution’s case against him. However, the High Court relied on the Supreme Court’s decision in Gian Singh v State of Punjab, wherein it was held that criminal proceedings cannot be quashed under Section 482 Code of Criminal Procedure on the basis of an amicable settlement where the nature of the offence is heinous/serious. It was reasoned that rape is an offence against society, and therefore, cannot be condoned as a result of a compromise between the parties. Justice Pratibha Rani also doubted the genuineness of the proof of marriage submitted by the accused. While Justice Rani had given her judgment in Vikash Kumar on August 1, Compromise, the Name of the Game Genderstereotypesaffectjudgmentsinrapecasesaswasevidentintworecentcasesinthe Courtwhichhaddifferentverdictsgivenbythesamejudge By Venkatasubramanian C Illustration: Anthony Lawrence
  21. 21. | INDIA LEGAL | August 21, 2017 23 in a similar case decided by her on July 21 in X v State NCT of Delhi, she refused to intervene after the trial court acquitted the accused on the ground that the complainant had married him. The complainant later claimed that she was misled into making a statement before the trial court, leading to the acquittal of the accused. Justice Rani observed: “In a number of cases, where both persons, out of their own will and choice, develop con- sensual physical relationship, when the relationship breaks due to some reason, the women use the law as a weapon for vengeance and personal vendetta. They tend to convert such consensual acts as an incident of rape may be out of anger and frustration thereby defeating the very purpose of the provision. This requires a clear demarcation between the rape and consensual sex especially in the case where complaint is that consent was given on promise to marry.” Justice Rani had then held that to prove the factum of alleged sexual assault, the complainant is the only star witness and if she preferred not to prosecute, the trial court was justified in closing the evidence and acquitting the accused. TRIAL AWAITED While these two judgments may seem to be inconsistent with each other, there is a subtle difference between them. Vikash Kumar refers to a situa- tion where the accused is yet to face trial for the offence of rape as alleged. At this stage, it is not correct for the appellate court to interfere and quash the charge against the accused on the basis of a compromise between him and the complainant. Section 376 IPC does not deal with a compoundable offence and parties cannot withdraw or come to a compro- mise even with the permission of the Court. Most crimes, including rape, are crimes against the entire society. That is why the State prosecutes the crime, on behalf of the complainant and the socie- ty. If a compromise is valid, then a com- plainant can come under coercion by the accused for it. It has been pointed out that when plea bargaining was introduced in India in 2006, crimes against women were excluded from its application on two grounds. One, the complainant and the accused in a sexual assault case are likely to be unequal due to gender dis- parities in society and as far as the law is concerned. Secondly, prosecuting the guilty in such crimes is important for the message it will send to society at large. The trial court’s acquittal of the accused in X v State is problematic, and the State needs to appeal against the High Court’s refusal to interfere. The trial court seems to have followed the stereotype in conviction and sentencing in rape cases, wherein courts assume that it is the complainant’s marriage- ability, her value as a person, and her shame which are the issues. It is unfor- tunate that when Justice Rani avoided resorting to stereotype in Vikash Kumar, she could not do so in X v State. However, the Supreme Court has held in a few cases that consent of a woman to sexual intercourse with an accused does not become invalid if he goes back on his promise to marry her later, even if she claims that she con- sented on the promise of marriage. In both the cases decided by Justice Rani, facts suggest that the complaint about rape was registered following the refusal of the accused to marry the complainant. The complaint was sought to be withdrawn once the accused mar- ried her. Therefore, the courts have to decide whether the consent of the com- plainant for intercourse was valid in terms of Supreme Court’s judgments in similar cases. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com WhileJusticeRanihad givenherjudgmentin VikashKumaronAugust1, inasimilarcasedecided byheronJuly21inXv StateNCTofDelhi,she refusedtointerveneafter thetrialcourtacquitted theaccusedontheground thatthecomplainanthad marriedhim. SChasheldinafewcasesthat consentofawomantosexual intercoursewithanaccuseddoes notbecomeinvalidifhegoes backonhispromisetomarryher. TO PUNISH OR TO NOT PUNISH? The Delhi High Court has passed conflicting judgments in similar cases
  22. 22. Courts/ Kerala High Court/S Sreesanth SHANTHAKUMARAN Sreesanth may or may not play cricket at the highest level for the country again, but by revoking his life ban and paving the way for him to play again, the Kerala High Court has dealt a body blow to the Board of Control for Cricket in India (BCCI). The Court, which exonerated Sreesanth of allegations of spot-fixing and being part of a betting scandal that rocked the Indian Premier League in 2013, came down heavily on the BCCI for dragging a cricketer of international repute to a legal battle without any evi- dence against him. The judgment passed by a single bench of Justice A Ahmed Mustaq said: “There was no material or evidence before the disciplinary committee to conclude that Sreesanth was guilty of the violation of the anti-corruption code formulated by the BCCI. The BCCI ought to have found that there was no circumstantial evidence to indicate that Sreesanth had agreed to spot fixing.’’ In 2013, Sreesanth, Ajit Chandila and Ankit Chavan, all playing for Rajasthan Royals in the IPL, were arrested and charged with spot-fixing. The BCCI then banned them for life and while a sessions court in Delhi acquitted Sreesanth, the BCCI refused to lift the ban. Following this, the speedster approached the Kerala High Court. S Withthebanonthecricketerlifted,willtheBoardallowhimtoplaycompetitivecricket? By Naveen Nair in Thiruvananthapuram The Ball is in BCCI’s Court “It Was Tough to Pay Bills on Time”On August 7, the Kerala High Court lifted the lifetime-ban imposed on cricketer S SREESANTH by the BCCI in a spot-fixing case and thereby exonerated him. Sreesanth now hopes to play matches for Kerala and later, for India. He told NAVEEN NAIR over the phone that his love for the game and his young family kept him going and that he hopes the BCCI will have the good heart not to go to the Supreme Court Now that the High court has exonerat- ed you, how do you feel? It has been a long wait, but better late than never. It is God’s grace that I came out of it in a positive way. A huge thanks to the Indian judicial system and the Kerala High Court. I am really relieved and hope that the BCCI will respect the judicial decision and give me an oppor- tunity so that I can get my respect back by playing matches for Kerala and God willing, for India too. How difficult was this legal battle? It was very tough and I wondered why judicial decisions take so long. But then, that is the way the system works. I kept myself occupied with politics, thanks to the BJP, and the film world also embraced me with both hands. Even financially, it was tough to pay bills on time. Sometimes, tough times make one tough. I am glad I went through all this as it made me what I am. People who were against me are also now realising how difficult it is for a person from Kerala to make a mark in international cricket and stay there. At the age of 34, how hopeful are you 24 August 21, 2017
  23. 23. tegrity of the game,’’ said the judgment. The Court added that the only accu- sation that could stand was that Sree- santh was perhaps aware of such moves on betting but had failed to inform the Board, and that a four-year-ban was more than enough. Now all eyes are on the BCCI, with Sreesanth and his fans eagerly waiting to see its response to the High Court verdict. While there is hope that the ban would be lifted by the Boa- rd, sources close to it say it is contemp- lating approaching the Supreme Court. This would make his return to com- petitive cricket tougher. Sreesanth’s lawyer Sivan Madathil questioned the legality of the BCCI to place a ban or disciplinary action on Sreesanth. “Whenever any decision is taken by a body like the BCCI, there has to be an appellate authority. Such an inquiry which has no proper procedure but done on the whims and fancies of a few has no legality whatsoever,’’ he said. The Court while agreeing to most of the arguments of Sreesanth’s counsel, said the BCCI should have been more careful when it realised that there was hardly any evidence. “The BCCI’s efforts to weed out corruption and to uphold the dignity of the game while need to be emphasized but that should not be in a way to overzealously reacting to it. It must be remembered that every discipli- nary action related to a player of nation- al repute, the player suffers his repute and confidence which he built through hard work. It is the duty of the BCCI to safeguard such interest of the player without compromising on purity and in- now of making a comeback? Many people ask me how I can make a comeback at 34. But if Brett Lee can bowl 140 km/hr at the age of 36, why can’t I? I am supremely fit and have been keeping off oil and ghee and many other things in my diet. Given an opportunity, I would like to take six months to prove my mark again or play two to three matches to get into the rhythm. One good season at the domes- tic circuit and I am sure I can get back to the Indian team. If I am able to make a comeback, it will be a great message for youngsters too. Did the absence of a godfather make things difficult for you? There were many people who have supported me in my career. Even the auto driver who used to drop me at the stadium played his part. So I don’t call myself a self-made cricketer, but it was definitely not easy for me because I never had a mentor. There was not a single cricketer in Kerala whom I could look up to and who came to me and guided me. Everyone wanted me to be aggressive and when I became like that, people blamed me. If I did well, it was a good, but if I didn’t, they would blame it on my aggression. Often, my performances were underrated and my other activities were highlighted. The High Court came down heavily on the BCCI for not safeguarding your rights as a player. What do you have to say? I am a firm believer that whatever hap- pened, happened for a reason. God has been extremely kind—I am still strong and fighting. There were times when I thought of running away but somehow, I stuck to where I was because I still love the game so much. I can show to people that however small one’s chances are, as long as one keeps breathing, one will keep going. For me, it was important to stay strong and there were many who privately supported me, but their hands were tied and they could not talk against the BCCI in public. But that mattered to me a lot and in course of time, I learned that it is every man unto himself. Your family and friends will be there but it is you who has to fight your own battles. Otherwise the world will subsume you. So I learned to hang in there. It was tough but I was able to adapt. What kept you going through this long legal battle? My family. All I needed was to look into the eyes of my son and daughter and forget all my troubles. My daughter is just two, but she talks as if she is more mature than me. In training sessions, if I stop running, she pushes me saying ‘Pappa run, Pappa run.’ Tomorrow if they Google me, the first few pages should only be about cricket and nothing else. I hope I can bring that back. Not for any- one, but for them. Does this judgment make you repose your faith in the judiciary? From Day 1, I had a strong belief that once the case comes to court, I would walk a free man. Even when I was being interrogated by the Delhi police and even when I had to go through hell inside Tihar Jail, I never lost my faith in the judiciary because I knew that I was innocent and I had no role to play in all this. I have tremendous gratitude for the judicial system and especially to some great lawyers in Delhi and Kerala who stood by me because they were con- vinced of my innocence. Do you expect more legal tangles if the BCCI goes to the Supreme Court? I hope the BCCI will have the good heart to not go to the Supreme Court after all this. It hasn’t said what it will do. It seems they are still studying the High Court judgment. But then, it is the same judiciary which said I am innocent. So I do not see a long legal fight ahead. I hope to start playing soon, God willing. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com | INDIA LEGAL | August 21, 2017 25
  24. 24. and Field Championships in Bhubaneswar just pri- or to it, went to court too. The Kerala High Court ruled that she should be included in the team, but by then, the last date for entry was over and the International Association of Athletics Federations (IAAF) refused to accept her entry. Dutee Chand, India’s ace sprinter, and the only Indian woman to qualify for the finals of the 100m at an Olympic Games— PT Usha did not have to qualify—suffers from hyperandrogenism, a physical condition in which there are excessive levels of androgens (male sex hormones such as testosterone) in the female body. She was ini- tially denied permission to take part by the IAAF, so she went to court. This was a famous internatio- nal case in which a posse of lawyers fought her case and won. The IAAF relaxed the strictures and she was able to take part in the Rio Olympics. She has also taken part in the London world athletics meet, but the relaxation period runs out in three months, after which she again becomes ineligible. Increasingly, the two legal forums— in sport and general—are often seen to be in disagreement. Recently, the Indian sports ministry has suggested that doping in sport be made a criminal offence. This will lead to many sporting 26 August 21, 2017 HE issue of laws of the game versus the law of the land has been a long stand- ing debate in sporting cir- cles. It is acceptable that when events in the sporting arena overflow into societal areas, the law of the land can take effect quickly. However, as long as incidents stay con- fined to the playfield, sporting authori- ties will have the last say. Recently, certain high-profile issues of the playfield spilled over to the courts. S Sreesanth, former India pace bowler, was jailed on charges of spot-fixing of matches in the IPL, but when a special Delhi court acquitted him for lack of evidence, the BCCI stubbornly refused to lift the life ban it placed on him. So Sreesanth went to court again and the Kerala High Court has directed the Board to end his life ban. The BCCI might appeal, but that is another matter. Athlete PU Chitra, not allowed to run (1,500m) for India in the London World Athletics Championships by the Athletics Federation of India (AFI) des- pite winning a gold at the Asian Track Law of the LandSreesanthisnottheonlysportspersonwhohasapproachedthecourts By Sujit Bhar NOT FAIR! Athlete PU Chitra (left) and ace sprinter, Dutee Chand, were disallowed at different times from competing on important international platforms T Courts/ Sports Law UNIwikimedia.com
  25. 25. | INDIA LEGAL | August 21, 2017 27 and legal hurdles. There are nearly 300 incidents of litigation pending against the sports ministry and they range from non-inclusion in a squad to unfair treat- ment. In many cases, court stay orders have resulted in career hurdles in themselves. “Such overlaps will keep happening,” says Kuntal Roy, famous athletics coach. He coached heptathlete Soma Biswas to national titles and records and to the Olympics. “It is necessary to find a mid- dle ground so that sportspersons have another appellate body to go to before moving court,” he said. This becomes necessary. The Kerala High Court’s Justice PB Suresh Kumar, in delivering his interim order told the AFI that the court had to interfere because the Federation wasn’t going by its own rules. In delivering the Sreesanth judgment, Justice A Muhamed Mustaque of the same court observed: “The disciplinary committee (of the BCCI) ought to have been careful in analysing evidence especially when the deal itself had failed to work out.” Justice Mukul Mudgal whose book Law and Sports in India is famous, has observed that “there is a need for regula- tion. Regulation is a must, not to curb but to encourage playing”. However, regulation cannot be the only objective in the highly competitive world of sports today. “There can be no general application of any law in the sporting arena,” says Kuntal Roy. “You have to consider each situation on its merit. Each one could be unique. More- over, in sports, international laws have to be taken into account. It is essential that national laws of a sport conform to its international counterpart. If not, then there would be consequences that would be detrimental for the athlete.” During the 2004 Federation Cup, ace football goalkeeper Subrata Paul of Mohun Bagan punched at a goal-bound ball, but his punch landed on Dempo’s Brazilian forward Cristiano Júnior instead. The ground lacking basic med- ical facilities, Júnior died. “This would have been manslaughter, at least as per the laws of the land,” said Roy. “At least, Paul would have been so terribly harassed, his career would have come to an end. That did not happen because it stayed within the playfield. We need the sanctity of the playfield maintained. Any appeal should be to an appellate body within its sphere of influence.” There is yet another case of foreign footballers who come to play in Indian clubs. Players from countries such as Nigeria, Kenya and Brazil arrive every year and some of them—Chima Okorie, Emeka Ezeugo, Barretto and others have earned fame and money. There are many more, though, who are mid-level players. These are the players who are treated poorly by organisers and clubs and have no redress system to refer their cases to when they are not paid. An official within the IAF, who refus- ed to be named, because he was not au- thorised to make comments, pointed out that there was a forum available inter- nationally, the Court of Arbitration for Sport, based in Lausanne. “But it is pro- hibitively expensive for a poor Indian athlete to approach. The very idea of paying lakhs of rupees from his or her own pocket, and then being present in Switzerland for the hearings sounds so far-fetched for an Indian athlete, he or she never even attempts it,” he said. That leaves the athlete with the forum of the court. More than the rea- sonable amount of money involved in filing a case in Indian courts, the biggest advantage is that they are approachable. Also, the faith of the common man in the judiciary is still immense. Possibly that has resulted in the multiple litiga- tions that the sports ministry has been embroiled in. Moving towards a national sports tri- bunal, within India’s legal framework, will be the ideal solution, feels Roy. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Therearenearly300incidents oflitigationpendingagainstthe sportsministryandtheyrange fromnon-inclusioninasquad tounfairtreatment. A CHILLING BLOW Goalkeeper Subrata Paul (below) punched a goal-bound ball, killing Cristiano Júnior Goal.com
  26. 26. Probe/ Principal’s Post school and asked to join work at 9 am on June 29. A double MA in History and English with 21 years of experience in teaching, Arora had until April 2017 been vice- principal at DPS, Siddharth Vihar. Prior to that, she was cultural coordinator at DPS, Indirapuram, for seven years. She was naturally happy to have got a job of her liking with close to a six-figure pay packet. She wrote back immediately, accepting the offer, and proceeded on a well-earned European holiday, safe in the assumption that a new life awaited her once she returned. But to her utter shock and dismay, on June 21, when Arora reached Paris, she found an email from Gupta, with- drawing the job offer, citing “unforeseen reasons”. A distraught Arora called him School for Scandal?ArowhaseruptedovertheappointmentofSangitaMaliwal, motherofSwatiMaliwal,headoftheDelhiCommissionfor Women,forthisjob.Waspoliticalpressureusedtosecureit? By Sucheta Dasgupta prestigious school in the National Capital Region is finding itself in the midst of a controversy. On June 13, Meeta Arora, a contender for the post of principal at Adharsheela Global School, Sector 3, Vasundhara, Ghaziabad, was emailed an offer letter by Govardhan Gupta, the director of the ARAW DEAL Adharsheela Global School in Ghaziabad had sent an offer letter to Meeta Arora (inset) via email, but reneged on the offer 28 August 21, 2017
  27. 27. up from Paris, seeking an explanation. Gupta sheepishly said that the incum- bent principal, Ritu Rajneesh, had com- plained to the school management that she had not been served a notice and negotiations had resulted in an exten- sion of her tenure by one year. Arora had no choice but to accept it for the time being. By the time she returned to India, Gupta had turned distant and would not take her calls. However, there was one final call in which he made two contradictory asser- tions. First, he said the school had no choice but to comply with Rajneesh’s demands as she had threatened legal action. But when Arora persisted, he told her to move court herself if she was unwilling to accept the decision. A week ago, Arora saw the school website and was stunned to find that the new principal was Sangita Maliwal, mother of Swati Maliwal, head of the Delhi Commission for Women. Sangita Maliwal had been present at the venue of the job interview at Arwachin Global School, Dilshad Garden, and had, in fact, been in casual conversation with Arora during that time. She told her that she held a master’s degree in Chemistry and had taught in Palwal and at Ahlcon International School in Delhi. There had been just three interviewees. A rora told India Legal: “I had res- ponded to an ad that came out in Hindustan Times. The name of the school had not been mentioned in the ad. Looking back, I realise there had been a few things amiss. I was told by Gupta during the interview not to con- tact the serving principal, Rajneesh, as she had not been informed that recruit- ment was going on for her post. Also, the email I received had no stamp or signature, but I was led to believe that email transactions do not require these stipulations and so did not react to that.” In fact, Gupta had been effusive in his praise of her professional accom- plishments from the time he first con- tacted her. He had also called her up within 24 hours of the interview, ann- ouncing that she had got the job. An unsuspecting Arora, therefore, skipped her interview for the same position at GD Goenka School, Sonepat, which was scheduled the day after she accepted this job offer. She now rues the fact that she let go of that chance. The question- able offer letter from Adharsheela was from the email ID of Gupta, whereas the school chairperson is Meeta Singh. When India Legal contacted Gupta, he said, “I have left my job. I am no longer with them. Sorry, I cannot comment.” Subsequent calls to his mobile went unanswered. India Legal also called the media representative of Swati Maliwal. How- ever, despite promising a response after repeated call and smses, there was none till the time of going to the press. Will justice be served to Arora? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com THE OFFER LETTER The emailed correspondence doesn’t carry any signature or stamp from the school authorities WhenMeetaAroravisitedthe schoolwebsite,shewasstunned toseethatthenewprincipalwas SangitaMaliwal(right),motherof SwatiMaliwal(left),headofthe DelhiCommissionforWomen. Maliwalhadappearedforthejob interviewalongwithArora,and hadcasuallyconversedwithher. | INDIA LEGAL | August 21, 2017 29
  28. 28. Investigation/ GSTN/ Data Leaks N July 1, India became a “one nation, one tax” republic with the rollout of the Goods and Services Tax (GST) regime. While citi- zens and businesses are still coming to terms with this “revolu- tionary” change, dissenting voices are already raising questions about the Goods and Services Tax Network (GSTN)—the cyber hub firm that runs the GST. And the concern stems from the security aspect of the enormous vol- ume of tax data that is processed on a daily basis by a public-private-partner- ship company in which the majority stake is not with the government. It has been alleged that the informa- tion technology system which allows taxpayers to register and file tax returns online, has links with foreign companies that puts crucial data of all taxpayers of the country at risk. It has been further alleged that foreign stakeholders are in a position to control GST funds through private banks which hold majority shares in GSTN, the multi-ownership entity that operates the new tax collec- tion system. SHAREHOLDING PATTERN To understand what is at stake, one needs to understand the shareholding pattern of GSTN. It was set up as a public-private partnership in 2013 to primarily provide IT infrastructure and services to central and state govern- ments, tax payers and other stakehold- ers for implementation of GST. In other words, it handles the database of almost every significant transaction being car- ried out in the economy. The stakehold- ers in GSTN are central and state gov- ernments who hold 49 percent shares and the following private entities— HDFC, HDFC Bank, ICICI, NSE Strategic Investments Co and LIC Housing Finance Limited—who togeth- er hold 51 percent of the shareholding. (see infographic). A closer look into the shareholding patterns of these private players in GSTN reveals how foreign stakeholders are indirectly linked to GST funds. Some of these entities are controlled to the extent of 75 percent by foreign insti- tutional investors (FIIs). For example, in HDFC foreign holding or investment is 77.27 percent as per the company’s bal- ance sheet last fiscal. Those critical of the very concept of starting a PPP tax O Grave Security ThreatLaunchedwithmuchfanfare,thenewtax regimeisoperatedbyanentityinwhich privateplayersownmajoritystake.This,say critics,couldcompromisedatasecurity anddisrupttheeconomy By Usha Rani Das Ithasbeenallegedthatthe system,whichallowstaxpayers toregisterandfiletaxreturns online,haslinkswith foreigncompanies. 30 August 21, 2017
  29. 29. as an entity owned 100% by the govern- ment. The fact that 51% of its equity is held by non-government entities raises concerns of security of information and conflict of interest. Many Directors on the Board of GSTN simultaneously function as Directors of other compa- nies (subsidiaries of foreign companies) as evident from the attached documents. The government seems to have allowed the nomination of such persons as Directors of GSTN without any applica- tion of mind.” Sarma elaborated further to India Legal about the inherent dangers: “Such high foreign stakes are alarming as it is possible that some of the non-govern- ment companies having a significant shareholding in GSTN will soon become subject to control by foreign companies because of the liberal policy being fol- lowed in allowing foreign investment to flow into different sectors.” collection network will argue that these FIIs and other foreign players can man- age access to data within the network. EAS Sarma, former expenditure sec- retary, has been pointing out the dan- gers of the foreign hand in GSTN to the government. In fact, he wrote two letters articulating these concerns to Union finance minister Arun Jaitley—one on June 30 and the other on July 1, the day GST was rolled out. In his June 30 letter, made available to India Legal, he noted: “Since GSTN is going to be the IT backbone of GST and will be privy to almost all vital information revolving around GST, it would have been prudent for the government to have structured it Also, those critical of GSTN point out that there is a potential conflict of interest here as well—all these banks and financial institutions which are stakeholders in GSTN are themselves taxpayers under the GST regime. Since, GSTN would be a repository of sensitive data on business entities across the country, the FII stakes in the banks might even give them access to vital tax and trade information from the GSTN system. RISK OF DATA MISUSE Sarma explains: “If foreign companies take a substantial share of equity in GSTN through the domestic private companies, there can be issues of national interest. They can use the tax data to assess the activities of their rival companies and thwart competition. Foreign companies may misuse the data on identity of the dealers and even MOVING TO GST Prime Minister Narendra Modi addressing a special session of parliament during the launch of GST FinanceMinister ArunJaitleyendorsed thesuggestions oftheEmpoweredGroup ofthecabinetthat recommendeda non-government structureofthe GSTNSPV. BJPMPSubramanian Swamyisopposedto GSTNandisoftheopinion thatthegovernmentand notprivateentitiesshould holdmajoritysharesso thatthedecision-making isinthehandsofthe government. | INDIA LEGAL | August 21, 2017 31 UNI
  30. 30. their Aadhaar card numbers and the data linked to it. They cannot be bound by any code of conduct. Also, in case a private company leaks the data, even if deterrent penalty were to be impo-sed, would it ever compensate the loss of pri- vacy? If there are foreign comp-anies also involved, can the govern-ment do anything once data is stolen and misused?” Last fortnight an expert team from the Centre for Cyber Security, IIT Kanpur, reportedly briefed the Parliamentary Committee on Finance on the threat that the nation faces from cyber- crime. Data theft was a prime area of concern that the panel felt needs to be addressed with urgency. The view of the team was that currently, security systems in the country are ineffective. The chairman of the Committee, Veerappa Moily, con- firmed to India Legal that the briefing had taken place. “Cyber security was dis- cussed in detail but it was all confiden- tial and I cannot share it with you,” he said. Other than data theft, there are other concerns as well, say experts. Now that the tax system nationwide is run by GSTN, any disruption can upset the rev- enue data systems and indirectly, the larger economy. It is pointed out that considering India’s weak defence mech- Santosh Kumar Gangwar, minister of state for finance, responded to issues raised by BJP MP Subramanian Swamy relating to GSTN in the Rajya Sabha dur- ing zero hour on April 5, 2017. To quote from the written reply: “…To enable efficient and reliable provision of services in a demanding environment, the Empowered Group (of the cabinet) rec- ommended a non-government structure for the GSTN SPV after considering key parameters such as independence of management, strategic control of govern- ment, flexibility in organisational structure, agility in decision making and ability to hire and retain competent human resources. The Empowered Group (EG) and the Union Finance minister endorsed the recommendation of EG… It may be seen that it was the conscious decision of the competent authority to go for a private limited company to achieve the identified objectives. Also, CAG has audited GSTN for FY 2013-14, 2014-15 and 2015-16. This is the period for which Cabinet approved provision of the grant-in-aid of `315 crores towards expenditure for initial set- ting up and finance of the SPV. Further, the Guarantee Agreement between Department of Revenue and GSTN for extending government of India’s guaran- tee, for borrowing loans up to the limit of `800 crore (the term loan of `550 crore and the working capital credit of `250 crore) by GSTN, explicitly states that GSTN shall allow Office of CAG to audit its accounts. As regards the issue of security clear- ance, it is stated that ministry of home affairs has conveyed security clearance to GSTN with respect to core national secu- rity parameters i.e. unity, integrity and sovereignty of the country. Necessary steps are also being taken to ensure robust cyber security of GSTN in consul- Ministry’sDefence “Itwouldhavebeenprudentfor thegovernmenttohave structuredGSTNasanentity owned100%bythegovernment. Withprivateplayers,thereare concernsofinformationsecurity andconflictofinterest.” —EASSarma,formerexpenditure secretaryinalettertoFinance MinisterArunJaitley Investigation/ GSTN/ Data Leaks 32 August 21, 2017
  31. 31. GSTN work is of strategic importance to the country and the firm would be a repository of a lot of sensitive data on business entities across the country. Hence, the govern- ment may take immediate steps to ensure non-govern- mental financial institutions shareholding be limited to public sector banks or public sector financial institutions.” Curiously, before the for- mation of GSTN, a select committee of parliament, headed by BJP MP Bhupender Yadav, was formed to look into its structure and give its rec- ommendations which will have to be implemented mandatorily. In its report, the select committee noted that the non-government share- holding in GSTN is dominated by pri- vate banks, which is not desirable. It also recommended that the non-govern- ment institutional shareholding be limited to public sector banks and finan- cial institutions. Unfortunately, GST Bill was passed without taking its recommendations into consideration. Swamy claims that the recommendation (of the select com- mittee) has been completely ignored and has not been part of any debate either in the Lok Sabha or Rajya Sabha. The Central Board of Excise and Customs had also raised concerns regarding the ownership and security of Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com anism against cyber-crimes, the compa- ny is vulnerable to hacking and disrup- tion. Even though the chairman of GSTN, Navin Kumar, claims that data is completely secured and GSTN is a tough nut to crack, private entities who are part of GSTN are not so resilient to such attacks, say critics. They cite a recent incident when the NSE collapsed due to a cyber-attack, causing major data breach. NO PRIVATE PLAYERS The shareholding pattern of GSTN has engaged both houses of parliament. One of those opposed to GSTN is BJP MP Subramanian Swamy. His view is that the government and not private entities should hold majority shares so that decision-making is in the hands of the government. A majority private shareholding of such a company means the critical information of about 6 mil- lion taxpayers is in the hands of private players. He has even called it a “shady operation”. In a letter to Prime Minister Narendra Modi, he stated it was not advisable to bring private firms at all in the administration of tax-related mat- ters. During a discussion on the GST Bill in the Rajya Sabha on April 5, 2017, Swamy explained: “Public sector banks have more than 70 percent of the total credit lending in the country. Secondly, crucial taxpayers’ database in 2015. But it later decided not to question the deci- sion of the cabinet. According to a Business Standard report, the Depart- ment of Expenditure under the ministry of finance, had red-flagged the large expenditure by the private company (besides a proposed loan of `515 crore). The administrative cost in running the GSTN with around 45 employees, all of whom have been hired at market rates and given additional perks like house rent, car and other allowances besides productivity linked incentives, is sub- stantial. The expenditure department has expressed its concerns over the financial outgo. tation/cooperation with National Cyber Security Coordinator, Intelligence Bureau and CERT-In. GSTN has also partnered with Standardisation Tasting and Quality Certification (STQC), Department of electronics and Information Technology for providing security audit and compli- ance. For the issue regarding questioning under RTI, it is stated that as GSTN falls within the purview of ‘Public Authority’ under section 2(h)(d)(ii) of the RTI Act, 2005 with Mohammad Shadaab, AVP (Legal) as designated CPIO and Dr Abhishek Gupta, executive vice president (Support) as designated First Appellate Authority.” | INDIA LEGAL | August 21, 2017 33 StructureofGSTN Shareholders Shares in GSTN (in percentage) Centre 24.5 States (collectively) 24.5 HDFC 10 HDFC Bank 10 ICICI 10 LIC Housing Finance Limited 11 NSE Strategic Investments Co 10 Directors Director of Indian company Parent company Headquarters of parent company Anand Sinha KKR ARC India Private Limited Kohlberg Kravis Roberts (KKR) New York, USA Bhavesh C Zaveri Swift India Domestic Services Pvt Ltd Society for Worldwide Interbank Financial Telecommunication (SWIFT) La Hulpe, Belgium SomeGSTNdirectorsareheadsofsubsidiariesofforeigncos Source: GSTN.org
  32. 32. Special Story/ Dress Code 34 August 21, 2017 rial restrictions. One may ask whether there is any law that allows people to dress in court the way they want? Would any restriction offend constitutional rights? In pre-historic times, people roamed around sans clothes and even today, cer- tain tribes in the interiors of Andaman and Nicobar and Africa do the same. The dawn of civilisation also brought in the advent of clothes and people dressed according to climatic conditions. Later on, dress codes became a way of life. During medieval times, different dress codes were ordained for different reli- gious, social and royal functions. Modern society continues the tradition of dress codes, be it for school children, military, police, priests, judges or doc- tors. These codes identity the profession one is in. The British are considered to be a conservative society and sticklers for tradition. We Indians, by and large, are guided by British society in the matter of dress codes. It is interesting to know that even in American society, which is Twoobservationsregardingapropersartorialstyleduring courtproceedingsbringtofocustheneedtoadheretocertain traditionsanddonotinfringeonconstitutionalrights By Justice K Sreedhar Rao APT DRESSING Lawyers wearing the customary black robes, black trousers and white shirts recent judgment of the Himachal Pradesh High Court regulating dress codes for litigants and gov- ernment officials during court proceedings and an objection raised by Chief Justice of Bombay High Court Manjula Chellur earlier against media persons dressed in jeans and T-shirt have started a curious debate regarding the legitimacy of sarto- A Clothes Maketh the Man Anil Shakya
  33. 33. | INDIA LEGAL | August 21, 2017 35 more or less rebellious to the traditions of the British, there are dress codes for different occasions like wedding cere- monies, religious, social, official and business functions. The appropriate semi-formal and semi-casual dress for men is the tuxedo with shoes, formal shirt, bow or tie. For women, skirts up to the knee are appropriate. For official functions, and in the corporate world, revealing clothes are prohibited. For social functions and cocktail parties also, casual clothes such as chinos and denims are avoided. Etiquette requires that one should not be under-dressed so as not to offend dinner companions and also not be over-dressed. Invitees can ask the host for advice on what dress would be appropriate for dinner parties. For business dinners or a company party, revealing outfits can carry the risk of affecting job promotions. For a job interview too, the HR department of the company can be consulted about the appropriate dress. In all cases, the clothes should be clean, ironed and not skimpy or tight. To wear jeans would be a mistake. For occasions like baptism, religious occasions and funerals, an unwritten dress code is followed. The culture of wearing denim started with mine workers and cowboys in the US because they were suited for rough work, would last long and did not need washing and ironing. In course of time, it came to be accepted as a permitted dress for other sections of society too. The hippy culture gathered momentum in the US as a protest against the long- drawn-out Vietnam War. The philoso- phy of a hippy is to be non-conformist, both in philosophy and lifestyle. Wild and uncombed hair, beard and jeans and rebellion against conformist society are signs of this culture. In India, denims are seen as fashion- able and a sign of modernity among the younger generation, who are also inspired by film heroes who wear them. India has a rich heritage of textiles. The advice to dress neatly and modestly should not be taken amiss as an inva- sion of privacy. Clothes have a distinct influence on the ethos and culture of a place. And in the UK and the US, there is an unwritten tradition of dress code for every occasion. Hence, the insistence on an appro- priate dress at the work place, official functions and court proceedings should not be mistaken as offending the sensi- bilities of people. The decorum and dig- nity of the occasion may warrant a for- mal dress code and hairstyle. Clothes and the physical appearance of a person are an index of his mental make-up. The younger generation should realise this. The Himachal and Bombay High Courts do not appear to be crossing the bounds of law in directing a proper dress code for the litigants, the public and officials appearing in daily court proceedings. —The writer is former acting chief justice of the Karnataka and Gauhati High Court UNIFORM IDENTITY Police personnel in khakis and doctors in white coats are easily distinguished Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com dailyrounds.org UNI

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