India Legal - 23 December 2019

1. NDIA EGALL STORIES THAT COUNT I December23, 2019 Hyderabad Encounter: Instant justice and judicial logjam CABCoupTheOppositioniscaughtnappingasthecontroversialCitizenship(Amendment)Bill,2019 getsparliamentaryapproval.Theprotestsagainstitsdiscriminatoryclausesexposeitsflawsand minorityfears.TheSupremeCourtremainstheonlyhopetosalvageIndia’ssecularcredentials Students protesting against the Bill in Guwahati

3. S expected, the Citizenship (Amend- ment) Act of 2019 has been challenged in the Supreme Court by several groups including the Congress party. Its leader, Jairam Ramesh, has submitted: “The impugned enactment ex facie violates the fundamental guarantees under Article 14 as also Article 21 of the Constitution. Further, the impugned Act has been enacted disregarding the Report of the Joint Parliamentary Committee dated 07.01. 2019 as also the terms of the Accord between AASU, AAGSP and the Central Govern- ment on the Foreign National Issue signed on 15.08.1985 (Assam Accord). The impugned Act is also in the teeth of the law laid down by this Hon’ble Court in Sarbananda Sonowal vs Union of India (2005) 5 SCC 665 and breaches the international obligations approved and agreed by India through International Covenants.” This will surely be a seminal case before the Supreme Court, perhaps more decisive in shaping the nation’s future than Ayodhya, Shah Bano, or even the Aadhaar privacy law suits. The approach taken by the judiciary under the stewardship of Chief Justice of India (CJI) SA Bobde will test not only the power of the Kesavananda Bharati case (a landmark judgment which established the basic power of the judiciary to review and strike down amendments to the Constitution enacted by Parliament which conflicted with or sought to alter its basic structure) but also the mettle and sagacity of the judges. Today, more than ever—with the media’s credibility in question and Parliament in the power grip of brute majoritarianism—the judiciary’s role as defender of democracy and the rights of citizens as laid down in the Constitution of India assumes pri- mary importance. The Supreme Court often assumes the character of its chief justice. Some time back, while delivering the annual Ramnath Go- enka lecture before he rose to the post of chief justice, Ranjan Gogoi famously said: “We need not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges” to defend democracy. In a sense, he was setting the bar for his tenure as CJI. Being a noisy judge, in his unexplained view, was seen as making his voice and views heard where it matters—in the corridors of South Block. Only history will judge how “noisy” or in-your-face he was in the flurry of decisions made by the bench he headed during the last few days of his tenure. But one thing is certain. During the past three years, the issue of “constitutional morality” has dominated much of the debate on matters of national importance which have dominated the business of the Supreme Court. There is little doubt that this matter—should a slugfest begin in Court on the CAB—will feature prominently as an argument which will be used by the parties opposed to the new Act. India Legal ran a story on remarks made by Attorney General KK Venugopal warning about the dangers of spreading the doctrine of “constitutional morality”. Little did we realise that the subject would give rise to a heated debate—within the covers of this magazine—between some of CAB AND CONSTITUTIONAL MORALITY Inderjit Badhwar A Letter from the Editor | INDIA LEGAL | December 23, 2019 3 TheCitizenship(Amendment) Actof2019hasbeen challengedintheSC.Itwill surelybeaseminalcase, perhapsmoredecisivein shapingthenation’sfuturethan Ayodhya,ShahBano,oreventhe Aadhaarprivacylawsuits.The approachtakenbythejudiciary underCJISABobdewilltest thepoweroftheKesavananda Bharati caseandthemettleand sagacityofthejudges.

4. the leading intellectual luminaries of this nation. The erudite man of letters, Pratap Bhanu Mehta, has penned a superb essay elsewhere on this subject, asking simply, what is constitutional morality? He explains that the phrase “rarely crops up” in discus- sions within India’s Constituent Assembly. “Of the three or four scattered uses of the phrase, only one reference has any intellectual significance. This is, of course, BR Ambedkar’s famous invocation of the phrase in his speech, ‘The Draft Constitution’, deliv- ered on 4 November 1948.” In the context of defending the decision to include the structure of the administration in the Constitution, he quotes at great length the classicist, George Grote. The quotation is worth reproducing in full: “The diffusion of ‘constitutional morality’, not merely among the majority of any community, but throughout the whole is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may ren- der the working of a free institution impracticable, without being strong enough to conquer ascendance for themselves.” What did Grote mean by “constitutional morality”? Ambedkar quotes Grote again: By constitutional morality, Grote meant… a paramount rever- ence for the forms of the Constitu- tion, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a per- fect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution will not be less sacred in the eyes of his opponents than his own. Andre Beteille argues in a book that constitutional morality is important for constitutional laws to be effective. “Without constitutional morality, the operation of a Constitution tends to become arbi- trary, erratic, and capricious.” According to a review in Oxford Scholarship Online, he makes a distinc- tion between “constitutional democracy” and “populist democracy”. He says democracy has survived in India by moving away from the ideal of a constitutional democracy towards a more populist form. He looks at the Emergency of 1975-77 to show the con- nection between anarchy and the abuse of power as two forces that are both antithetical to constitutional morality. He also examines the link between constitutional morality and the principle of civil disobe- dience, which under the leadership of Mahatma Gandhi became the cornerstone of India’s national- ist movement. I mmediately before donning the mantle of CJI, the recently-retired Justice Ranjan Gogoi had offered some clue as to what the Supreme Court under him would be like. He too had stressed the need to revive a national conversation on “constitutional morality”. Stating that people are divided “more than ever” along the lines of caste, religion and ideology, Justice Gogoi’s core message was that judicial beliefs must be continuously evaluated on the touchstone of constitutional morality. He defined “true patriotism to the Constitution” as adherence to constitutional morality. For most people inured to political venality and muscular majoritarianism, that objective may seem utopian but viewed in the context of recent judgments by the highest court in the land, it is extremely significant. Under his predecessor, Chief Justice Dipak Misra, the Supreme Court had struck down Section 377 of the Indian Penal Code, saying it was upholding “constitutional morality” and not “majoritarian morality” while deciding to decriminalise homosexu- ality. The verdict overruled a previous judgment which held that only a small number of people were exercising their rights. As the former CJI said later at a conference of law students, “it’s not the number that determines the right. A right permissible under the Constitution is a right that has to be respected”. That right was also witnessed in the Supreme Court ruling on Sabarimala to allow women into the temple. It was seen as correcting a discriminatory social and religious practice that was violative of Letter from the Editor 4 December 23, 2019 A DOCTRINE TO FOLLOW Legal luminary, the late NR Madhava Menon (below), political scientist Pratap Bhanu Mehta (bottom left) and sociologist Andre Beteille (bottom right) have made significant observations on constitutional morality and its significance

5. Part III of the Constitution. Constitutional morality basically rejects the transactional view of the Consti- tution or majority opinion which is the key to managing a vast country like India with its diversity of cultures, communities, castes, religions and customs. But when Venugopal recently asserted that judicial reliance on this concept could upset the separa- tion of powers doctrine and sabotage the right of the legislature to make and enforce laws, Professor Upendra Baxi, among the tallest in the firmament of legal luminaries, wrote in India Legal: “Courts are constitutionally mandated to adjudicate matters which raise competing contentions regarding core human rights. Constitutional morality contains a set of goals and methods by which to address these con- flicts. The apex court has never said that all public policy always offends constitutional morality, but only that the courts must choose the latter when the two are in visible conflict. The dialectic between public morality and constitutional morality serves well the promotion of constitutional good governance and the production of constitutionally sincere citizens. I hope that my good friend Venu (KK Venugopal) finds ample scope for re-examination of his current expostulations and exhortations.” W e also carried another article, posed as a set of questions by none other than the late venerable and redoubtable Professor NR Madhava Menon whose legal scholarship is also an international phenomenon. I reproduce here his concluding statement: “The issue to my mind is not the importance or relevance of the concept of constitutional morality in working out the provisions of the Constitution. Rather, it is about the use and abuse of the doctrine in constitutional decision-making. No doubt, democracy as a system of governance may not serve the constitutional goal always. That is a price society has to pay for accepting a democratic form of government and polity. The remedy for preventing majoritarian excesses lies more in cultivating the natural sentiment of people for maintaining constitutional morality (as Dr Ambedkar seemed to think) rather than in showing ‘less deference to the legislature’ in the matter of constitutional values as some judges seem to think. The ugly consequence which resulted in forcible enforcement of the Supreme Court judgment in Sabarimala by a government con- trolled by a party of ‘non-believers’ cannot be dis- missed as a conflict between public morality and constitutional morality. It is indeed a portent of what the attorney general believed to be the possible outcome for rule of law and democracy if constitutional morality turns out to be yet another tool beyond ‘Basic Structure’ for exercising judicial power.” Pratap Bhanu Mehta’s brilliant scholarship on this topic shines as he argues in what could be the defining statement on the issue—that the Indian Constitution was made possible by a constitutional morality that was “liberal at its core”. Not liberal in the “eviscerated ideological sense”, he continues, but in the deeper virtues from which it sprang: “An abili- ty to combine individuality with mutual regard, inte- llectualism with a democratic sensibility, conviction with a sense of fallibility, deliberation with decision, ambition with a commitment to institutions, and hope for a future with due regard for the past and present.” In November 1951, Prime Minister Jawa- harlal Nehru faced an unusual revolt. It was not from within the Congress party but from six Sup- reme Court judges. Nehru had wanted to supersede Justice Patanjali Sastri, the most senior judge of the apex court, after the sudden death of the first CJI, Harilal Kania. Nehru was told that all six judges of the Supreme Court had threatened to resign if Justice Sastri was superseded, even though he had only a few months left before retirement. There was, during the baby steps of the Republic, no set con- vention regarding the appointment of the chief justice but after the collective threat, and Nehru’s volte- face, seniority became the established norm for the appointment of the CJI. It has also become synony- mous with the independence of the judiciary. That independence is now under a litmus test. | INDIA LEGAL | December 23, 2019 5 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com HISTORIC RULING The Supreme Court had struck down Section 377 of the IPC, saying it was upholding “constitutional morality” and not “majoritarian morality” Anil Shakya

6. ContentsVOLUME XIII ISSUE6 DECEMBER23,2019 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographer Anil Shakya Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 December 23, 2019 The international community expresses concern over recent initiatives taken by the Indian government, notably the controversial Citizenship (Amendment) Bill, 2019 Global Criticism of CAB Grows Louder Petitions in the SC and the Telangana High Court question whether justice was served by the killing of the four accused in the alleged police encounter in Hyderabad. The top court responds by initiating an inquiry A Police State? LEGALEYE The controversial Citizenship (Amendment) Bill, 2019, gets parliamentary approval but the violence and protests against its discriminatory clauses expose its flaws and minority fears. The Supreme Court remains the only hope to salvage India’s secular credentials Recipe for Chaos 12 16 18 LEAD Long delays in criminal cases have led to the emergence of retributive justice. While CJI SA Bobde has said that justice can never be instant, it is time for courts to get their act together Courting Trouble 22

7. Removing the limit on election expenditure by candidates will not ensure equity and a level playing field and cannot alone bring in electoral integrity The Big, Fat Indian Election 32 Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE Cover Photo: UNI | INDIA LEGAL | December 23, 2019 7 REGULARS Ringside............................8 Courts ...............................9 Is That Legal...................10 International Briefs..........35 Media Watch ..................39 Satire ..............................50 Shooting from the Hip? In an effort to reduce pollution and follow SC orders, authorities are experi- menting with anti- smog guns and towers. But their efficacy is still unproven 48 26 The large-scale absence of MPs from parliamentary standing committees is disturbing and a remedy has to be found for it. This should include a proportionate reduction in salary and other allowances Who Will Bell the Cat? COLUMN SPOTLIGHT OPINION Despite its constitutional obligation, the centre has lagged behind in compensating states for their loss of revenue due to GST as it does not have enough money Compensation Blues 29 PROBE After ex-CJI Ranjan Gogoi gave permission for the prosecution of a sitting Allahabad HC judge, Justice SN Shukla, for allegedly taking a bribe from a medical college in UP, he was raided, making it the first such case in India in three decades In Hot Water 36 FOCUS The row between actor Shane Nigam and his producers has brought into focus the increasing incidence of substance abuse in the Malayalam film industry Tinsel Town in a Fix 42 Rajasthan is famous for its desert and tiger safaris, but an attempt to start a cow safari that included overnight stays at gaushalas has predictably come a cropper Moo And Behold! Though the Prevention of Sexual Harassment In Workplace Act is a laudable law, much more needs to be done to make women and even men feel safe at the workplace Working Towards Change 46 44 STATES Internet curbs in the Kashmir Valley have hit students hard as they struggle to get study material, apply to colleges and appear for competitive examinations The Digital Void 40 SEMINAR ENVIRONMENT

8. 8 December 23, 2019 Anthony Lawrence RINGSIDE Citizenship (Amendment) Bill, 2019 Welcome, Immigrants (Except Muslims)

9. In a rare occurrence, the Supreme Court recently set aside a Rajasthan High Court order that granted bail to a murder accused. The apex court said that the High Court had failed to furnish reasons behind its decision, thus dis- playing non-application of mind to the seriousness of the crime. In a sharply-word- ed judgment, a two- judge bench of Jus- tices DY Chandrachud and Hrishikesh Roy observed: “It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed on the mind of the judge in the rejection or the grant of bail are recorded in the order passed.” Pointing out that the Supreme Court did not ordinarily interfere with an order of a High Court granting bail, the Court said that merely recording “having perused the record” and “on the facts and circumstances of the case” did not constitute a reasoned judicial order. Where the discre- tion of the High Court to grant bail had been exercised “without due application of mind,” such an order was liable to be set aside, the bench noted. “Questions of grant of bail concern both liberty of individuals…and the inter- ests of the criminal justice system. Judges are duty-bound to explain the basis on which they have arrived at a conclusion,” the bench observed. Courts | INDIA LEGAL | December 23, 2019 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal team Bombay HC seeks RBI’s response on Chanda Kochhar The Bombay High Court sought the Reserve Bank of India (RBI)’s response on a plea by former ICICI boss Chanda Kochhar. She challenged her sacking as chief executive officer and managing director of India’s second largest private sector bank on January 30, 2019 and the approval granted to the decision by the RBI in March 2019. Kochhar, an iconic banker and once the poster girl for retail banking in the country, moved the High Court against her former employer. She was asked to leave for her alleged role in granting out-of-turn loans worth `3,250 crore to the Videocon Group, a deal that also saw her husband, Deepak Kochhar, making a windfall. Chanda also claimed that ICICI denied her remuneration and also clawed back all the bonuses and stock options that she received between April 2009 and March 2018. She also said that her termi- nation came months after the bank approved her voluntary resignation on October 5, 2018, and therefore it was “illegal, untenable, and unsus- tainable in law”. The High Court has asked the RBI to file its reply by December 16.The Calcutta High Court commuted the death sen- tence awarded by a trial court to a repeat offender under the Narcotic Drugs and Psycho- tropic Substances (NDPS) Act, 1985, on the grounds that there was no clear, unequivocal evidence to show that the death penalty would act as deterrence to the commission of a crime. “...in the absence of clear and unequivocal evidence with regard to the deterrent impact of the death penalty on crime statistics, I am loath to impose the extreme penalty of death...,” a two-judge bench of Justices Joymalya Bagchi and Suvra Ghosh observed and added: “Im- position of death penalty on the appellant may or may not deter others from committing similar crimes in future. How- ever, no statistical data or em- pirical study has been placed before me on behalf of the prosecution to conclusively establish that imposition of the death penalty would definitely lead to reduction of crime committed by others in society....” No proof that death penalty is a deterrent to crime: High Court Give us the reason: SC to Rajasthan HC Justice DY Chandrachud Justice Hrishikesh Roy

10. ISTHAT What is a floor test in the state assembly? Why is it held? A government formed in the state is asked to take a floor test in the assembly if there is any doubt that it does not have the majority to rule. The modes of casting votes by elected legislators are varied. If there is clear indication of a win, a floor test may take place through a voice vote or simply asking the MLAs to raise their hands. Otherwise, legislators can be asked to write their preferences on slips which are later counted to ascertain majority. If the majority votes are not in favour of the government, it falls. A floor test can also be held during the tenure of a state government. A chief minister could be asked to seek a floor test, or a trust vote to prove his/her majority in the assembly. — Compiled by Ishita Purkaystha A Test Of Confidence Is there a difference between an order and judgment? Section 2 of the Code of Civil Pro- cedure, 1908, defines an order, decree or judgment. An order is the formal expression of any decision of the court issued to a party, asking it to perform a specific action, and can be issued at any stage of the trial or even before it. A decree determines the rights and liabilities of the parties with regard to the controversy mentioned in the legal suit. A decree could be preliminary or final. A judgment is the final decision given by a judge on a case. ? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis Who is a pro-tem speaker? What is his role? When the newly-elected legislators assemble in the assembly or Lok Sabha, a “pro-tem” speaker is appointed, after agreement among the elected members of the assembly/Lok Sabha, to conduct business in the assembly or Lok Sabha till voting takes place for the post of the speaker and deputy speaker. Usually the most senior member among the legislators is made the “pro-tem” speaker, who has a fair understanding of the proceedings of the assembly/Lok Sabha. The “pro-tem” speaker administers the oath to the elected members of the assembly or Lok Sabha, conducts the floor test and enables the election of the speaker. A Temporary Speaker 10 December 23, 2019 What are the laws that the speaker can invoke to control/punish unruly MPs in the Lok Sabha? The unruly conduct of members poses a challenge for the speaker to conduct the proceedings smoothly. However, he can invoke several rules to punish the members. Rule 378 of the Rules for the Conduct of Business states: “The Speaker shall pre- serve order and shall have all powers necessary for the purpose of enforcing own decisions.” Rule 373 empowers the speaker to ask a member to leave the floor of the House immediately. Rule 374 enables him to name an unruly MP, who disregards his authority, and on a motion being made, suspend such a person for the remainder of the session. Legal Vocabulary Uddhav Thackeray after the trust vote in the Maharashtra assembly Dilip Walse-Patil was pro-tem speaker in Maharashtra Ensuring Discipline

12. Lead/ Citizenship (Amendment) Bill, 2019 12 December 23, 2019 Recipe for Chaos ThecontroversialCitizenship(Amendment)Bill,2019,getsparliamentaryapprovalbut theviolenceandprotestsagainstitsdiscriminatoryclausesexposeitsflawsand minorityfears.TheSCremainstheonlyhopetosalvageIndia’ssecularcredentials By Neeraj Mishra

13. | INDIA LEGAL | December 23, 2019 13 T was a fiery debate watched by millions across the country as the Opposition led by the Congress and TMC attacked the BJP government for one of the most contentious and divisive bills ever introduced in the Indian parliament. In the Lok Sabha, Asaduddin Owaisi tore up a copy of the Bill, calling it anti-Muslim and the “first step towards a totalitarian and tyranni- cal state”. Congress President Sonia Gandhi termed it a “dark day in the constitutional history of India,” while TMC’s Derek O’Brien said the Bill was “taken from the Nazi playbook”. The Opposition, however, is also to be blamed for being ill-prepared to take on the BJP. After CAB 2016 faltered in the Rajya Sabha, in 2018, the Opposi- tion could have initiated a nationwide debate and approached the courts. Un- ion Home Minister Amit Shah mounted a stout if unconvincing defence, insist- ing the Bill was not anti-Muslim and declaring its passage “historic”. That it is discriminatory and lacks constitutional morality was obvious from the communality of critical opinion in the national newspapers, with The Indian Express terming it “poiso- nous” and concluding its lead edit with these lines: “Now, the judiciary must rise again to the Constitution’s defence, as it has done at several turning points before, and protect the spirit of the Republic: its very soul.” Shorn of the I ANTI-FOREIGNER SENTIMENT? (Clockwise from left) Assam has witnessed violent protests against the Citizenship (Amendment) Bill, 2019. More than 20 people have been injured and public property vandalised; the Union Home Minister defending the Bill during the debate in the Lok Sabha UNI UNI

14. Lead/ Citizenship (Amendment) Bill, 2019 14 December 23, 2019 political rhetoric, the Citizenship (Am- endment) Bill (CAB), 2019, is about the exclusion of Muslims from those seeking refuge in India, it’s blatantly about opp- osing Islamic nations and their policies; it’s about uniting the Hindu world. Even as the Northeast and Assam burnt following widespread protests, Prime Min- ister Narendra Modi went on the offen- sive before the Bill was introduced in the Rajya Sabha, saying: “Some people are talking like Pakistanis.” Opposition leaders are confident that the CAB will be stalled or struck down by the Supreme Court as being uncon- stitutional. Back in 1981, the Supreme Court had reiterated lucidly in RK Garg vs Union of India on an issue involving Articles 14 and 15. Article 14 is perhaps the shortest, plainest and most loaded Article in the Constitution and states simply: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India....” This covers almost every act or policy matter where dis- crimination can be imagined on the basis of religion, gender, place of birth or any classification that the State might seek to create. This became the basis for caste-based reservation. It has also become the basis of the Opposition’s objection to the CAB which says that by leaving out Muslims—Ahmediyas, Boras, Baluch Pathans and Rohingyas— from the definition of “minority”, a reasonable classification has not been drawn. Second, by ignoring refugees from Nepal, Myanmar and Sri Lanka, a classification of “neighbouring countries” has been conveniently ignored. F ormer CJI RM Lodha has already expressed his opinion, saying the Bill might fail on the touchstone of “reasonable classification” as it seeks to differentiate between minorities even within the countries that it seeks to address. The Bill has reduced the waiting period for refuge-seekers from 11 to six years of stay in India. It’s obvious that the claims of Muslims who may have escaped to India from these countries years ago don’t stand a chance as a “persecuted group”. Others similarly placed may get that benefit so the test of “equals cannot be treated unequally” also fails. The 2016 CAB had failed and the les- sons learnt from that have been incorpo- rated in the new Bill. For instance, the advisers to the government have clearly helped it devise what it thinks is a “reasonable classification” by including Christians. Former Solicitor General Harish Salve had been taken into confidence and he is of the view that it’s a reasonable classification to say “persecuted minorities of countries which pro- fess Islam”. Salve also says that: “To say that Sri Lanka and Nepal and Myanmar have not been included is not correct. The objective of the Act is clear; to help the persecuted minorities of the three Islamic countries.” Where the government may score over its detractors is that Articles 15, 21, 26, etc, are applicable only to those who are already citizens of India and have little impact on deciding who could become a citizen. Ahmediyas may be a persecuted minority but they exist within the larger fold of Islam and if one were to extend that argument then even Shia-Sunni dif- ferences may have to be taken into account. It may then extend to those Mus- lims who settled in Pakistan from India and are called Mohajirs. The government may say that it arrived at a reasonable rational classification, going by the share in population as well as what these countries’ data reflects. As for the Muslims and those who want to come in as refugees or become citizens, there are other opportunities such as political asy- lum and Section 7 of the Act itself. Whilecriticisingthepassageofthe Citizenship(Amendment)Bill,2019,in Parliament,CongressPresidentSonia Gandhisaiditwasa“darkdayinthe constitutionalhistoryofIndia”. DuringthedebateintheLokSabhaonthe controversialBill,AIMIM’sAsaduddin OwaisitoreupacopyoftheBill,callingit anti-Muslimandthe“firststeptowardsa totalitarianandtyrannicalstate”. TMC’sDerekO’BriensaidtheBillwas “takenfromtheNaziplaybook”,adding: “ThePMsaidthiswillbewritteningold- enletters.Iwilltellyouwhereitwillbe written....InKarachi,onJinnah’sgrave.”

15. | INDIA LEGAL | December 23, 2019 15 The Supreme Court may apply the test of Article 14 and decide that equals are not being treated equally. There cannot be any differentiation amongst those who are being persecuted and religion cannot be the only criteria for such classification. The Bill also fails on the touchstone of leaving out the Sri Lankan Tamil Hindus who have been living in the country for the past 30 years or more. They had been persecuted by the Buddhist-majority state. Why the AIADMK has supported the Bill remains a mystery as it is likely to lose a substantial chunk of its support base in Tamil Nadu. The DMK, of course, has been vocal in its opposition as it has been its longstanding demand in favour of the Sri Lankan Tamils. There is also a huge number of Tibetan settlers in India but they are not from the three countries mentioned in the CAB and so their status quo remains despite the inclusion of Buddhists. The home minister himself pointed out that on several occasions, Bangla- deshis, Sikhs, Tibetans, Ugandans, etc, have been settled by the previous gov- ernments through an executive order. It then defeats the very purpose of the amendment. If people have been settled in the past without much ado then it can be done now as well. The CAB and its sister concern, the NRC, may then only be an expensive exercise which the nation can ill-afford. The courts may also seek answers to why the natural resources of a local indigenous population are shared with people who chose to stay back then? It will definitely seek an explanation as to why the amendment does not explain who is a “persecuted person”. It’s not just the CAB at stake here. It’s a well-directed message: for more than 20 crore Muslims in India that In- dia or Bharat may no longer be a hos- pitable place. The RSS has always talked of an Akhand Bharat which spreads from Afghanistan to the Northeast, including Bangladesh. It may not be in a position to change the geography of South Asia but it can certainly tamper with the demography. It wants India to become an exclusive Hindu homeland. That suits it both politically as well as ideologically. After all, the two-nation theory was first propounded by Savarkar and the continuous cacophony of “Pak- istan Bhejo” may become shriller. The CAB is the weapon that will strike at the very notion of India and its wounds will be difficult to heal. The word “secular” which was added to the Constitution in 1976 may become meaningless. W orse still, the CAB may be an encouragement for neighbouring Islamic countries to move in a similar direction or be lab- elled “unable to protect Muslim population in south Asia”. Pakistan has already made it an international issue and with some influential organisations in the US and the EU taking a stand against the CAB and Kashmir (see following story), the BJP is walking a dangerous path, but with the confidence that it will earn electoral dividends. The CAB is only the latest in a series of moves that expose its Hindutva agenda. It has reduced the only Muslim-majority state, Kashmir, to a Union Territory with a geographically limited area by deliberately separating Muslim dominated regions of Ladakh from it. The National Register of Citi- zens was the next step and the strong reactions in Assam and Bengal will ensure that those areas remain plagued by constant strife along with Kashmir and the Northeast. The Northeast has been on the boil even before the Bill was passed in both the Houses. What needs to be appreciated is that each state of the Northeast has its own concerns. Three states were protected by the Inner Line Permit (ILP). It has also been ex- tended to Manipur by Shah. Now Tripura and Meghalaya also want the same regulations. Shah says that Schedule 6 of the Constitution also protects three districts in Assam. The amendment to the Bill of course does not say all this. It is also silent on the areas in Chhattisgarh, Jharkhand and Odisha which come under the same Schedule. Assam’s pros- pects are even more worrying. Already reeling under the impact of a botched NRC, it will now have to deal with the CAB which will likely force settlers like Chakmas from out of neighbouring states into their land. The Assamese are clear: they don’t want Bangla settlers, whether Hindu or Muslim. That may be the position in the rest of India. Already short on resources, can India afford more settlers in a country so full of in- land refugees? Biharis are refugees everywhere, UP bhaiyas in Mumbai, Kashmiri Pandits in Delhi and Jammu, adivasis dispossessed of land in all urban areas. No one asked Shah to explain how he proposes to look after their eco- nomic welfare and what benefits these supposedly persecuted people will bring to this country. For the moment, of course, there is the CAB and only the SC stands between it and a rude return to the horrors of Partition. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Oppositionleadersareconfidentthatthe CABwillbestalled/struckdownbytheSC asbeingunconstitutional.TheCourtmay applythetestofArticle14anddecide thatequalsarenotbeingtreatedequally.

16. Lead/ Pressure on India 16 December 23, 2019 NDIA is on the back foot over a number of issues that the Modi government has been pushing in its second term in office. Foremost among them are the decision to amend the 1955 Citizenship Act, which has been criticised by the influential US House Foreign Affairs Comm- ittee, and abrogation of Article 370. The Citizenship (Amendment) Bill (CAB) has caused an uproar with the international community ringing alarm bells over making religion the basis of granting citizenship. For a secular, democratic nation like India, this is a huge step backwards, according to liberals in India and abroad. Add to this the decision to update the National Register of Citizens (NRC) in Assam and to replicate this across the country and a potent potion is being brewed by the government. In a recent statement released by the US State Department on the new citizenship law, the Donald Trump administration requested the Narendra Modi government to protect the rights of the religious minorities in India according to its “Constitution and democratic values”. The statement said that respect for religious freedom and equal treatment under the law “are fundamental princi- ples of our two democracies”. The latest criticism is significant considering that the relationship between India and US were on an upward trajec- tory. “Religious pluralism is central to the foundations of both India and the United States and is one of our core shared values. Any religious test for citizenship undermines this most basic democratic tenet,’’ the US House Foreign Affairs Committee had said in a statement. This Committee is a bipartisan panel and plays an important role in foreign policy. Delhi has so far not reacted to the statement. The US Commi- ssion on International Religious Free- dom (USCIRF) went a step further. It said that the attempt to change the basis of citizenship in India is a “dangerous turn in the wrong direction”. USCIRF had said that if CAB was passed, it would seek to sanction Union Home Min- ister Amit Shah, the prime mover of the Bill. USCIRF is the same panel that ensured that Narendra Modi was not allowed to set foot on US soil following the 2002 Gujarat riots when he was chief minister. It was much later, in fact Global criticism of CAB grows louder Theinternationalcommunityexpressesconcernoverrecentinitiativesbythe Indiangovernment,notablythecontroversialCitizenship(Amendment)Bill,2019 By Seema Guha I UNI TESTING TIMES Indo-US relations could be altered adversely

17. | INDIA LEGAL | December 23, 2019 17 just before the 2014 elections, that these restrictions were removed by the US. USCIRF’s demand is unlikely to be conceded by US President Donald Trump. USCIRF, a bipartisan federal government entity, was established by the US Congress and reports on threats to religious freedom in countries across the world. It makes recommendations to the president, secretary of state and the Congress. The external affairs ministry reacted sharply to USCIRF’s criticism, dubbing it “neither accurate nor war- ranted”. Its spokesman, Raveesh Kumar, further said: “The position articulated by USCIRF is not surprising given its past record. It is, however, regrettable that the body has chosen to be guided only by its prejudices and biases on a matter on which it clearly has little knowledge and no locus standi.” As regards abrogation of Article 370 and the division of Kashmir into two UTs, while only Pakistan and China have protested, restrictions on communication and movement in the Valley are of concern to the world. Human rights violations in Kashmir and elsewhere in India are now a talking point. The government has maintained that scrapping of Kashmir’s special status is a historical wrong which is being corrected. Kashmir, the external affairs ministry repeatedly says, is an internal matter. Earlier in the week, Pramila Jayapal, an Indian American Congresswoman, introduced a Congressional resolution to end restrictions on communications in Kashmir as fast as possible. She advo- cated the importance of preserving religious freedom for all residents. The resolution was introduced in the US House of Representatives recently. Republican Congressman Steve Watkins from Kan- sas co-sponsored it. It is unlikely that a resolution like this will persuade the In- dian government to lift curbs in the Val- ley considering most Indians have over- whelmingly supported the abrogation. It is not just US lawmakers who have expressed concern over the recent deve- lopments. EU ambassador to India Ugo Astuto said: “We are concerned about the situation in Kashmir...It is important to restore freedom of movement and normalcy in Kashmir.” He clarified that the October visit of a group of right-wing Members of the European Parliament (MEPs) to the Valley was not “an expression of EU policy decision”. The group was invited to Srinagar as guests of an NGO and was flown first class and put up in five-star luxury. They had a meeting with Modi. The MEPs naturally gave the Indian government a clean chit on Kashmir. On the Citizens- hip Bill, Astuto hoped that the principle of equality which is at the core of the Indian Constitution “will be upheld”. I nternational concern over these issues is growing, and Indian diplo- mats are working overtime to explain the government’s position on all of them. Though administrations have not publicly voiced their concern, be it Tru- mp, British Prime Minister Boris Joh- nson, France’s Emmanuel Macron or Germany’s Angela Merkel, perhaps they are being raised behind closed doors. Trump, facing impeachment charges at home, has his hands full. But the Euro- peans, with their strong views on human rights, would certainly be concerned and speak to the Indian government pri- vately on these issues. But can foreign criticism make a difference to the Modi government? Unli- kely. Though the House Foreign Affairs Committee is influential, it cannot force Trump to take action. So long as Trump continues to support Modi for strategic considerations (to balance China’s growing power in Asia), Delhi will not be bothered. In a world which is turning right-wing, India will likely not be aff- ected by any kind of sanctions or harsh public statements from the White House. Unless the Christian right in the US, which is part of Trump’s base, demands action, not much will change. The danger, however, is the economy. If India’s economy does not revive, foreign investors will have little interest here. A sinking economy followed by social upheaval is a recipe for disaster. Another danger that the international community, especially the Europeans, will not brook would be the creation of lakhs of non-citizens in the country. This is exactly what will happen once the NRC is replicated across India. What happens to those dubbed foreign- ers? Will they forever be consigned to living in prison? This large section of non-citizens, without any political rights will be the target of majoritarian anger whenever the mood sets in. Can the world afford a new set of non-citizens, considering the plight of the Rohingyas in Myanmar? These are questions that the government needs to think through before announcing populist schemes like extending the NRC across India. If it goes ahead with this scheme, Delhi will expose itself to scathing criticism worldwide. Sanctions from at least some of the European nations will follow. “Weareconcernedaboutthesituation inKashmir...Itisimportantto restorefreedomofmovement andnormalcyinKashmir.” —EUambassadortoIndiaUgoAstuto Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com

18. Legal Eye/ Hyderabad Encounter 18 December 23, 2019 UNI OLLOWING the nationwide outrage over the recent gang rape and murder of a veterinarian in Hyderabad, the four accused were killed in an encounter by the state police. But what is the legality of the police car- rying out these extra-judicial killings? The Hyderabad police said they shot the four accused at the crime spot, where they had taken them for reconstruction of events and recovery of evidence. They had apparently attempted to escape. Their killing was widely celebrated but some human rights organisations have questioned the police for not having conformed to the requirement of due process. The Telangana High Court, respond- ing to a petition by 15 women and human rights activists, ordered that the bodies of the four accused be preserved till December 9. It also directed that the video of the post-mortem independent forensic examination by experts from outside the two states be handed over to the principal district judge, Ma- habubnagar, and then to the registrar general of the High Court. The petition alleged that Supreme Court guidelines were violated in the encounter. The Telangana government constituted a Special Investigation Team (SIT) headed by Rachakonda Police Commi- ssioner Mahesh M Bhagwat to investi- gate the encounter. A government order was issued in this regard: “The cause and circumstances leading to the death of the four persons should be ascer- tained with reasons and establish truth and in view of the fact that the case requires sustained and focused investi- A Police State? PetitionsintheSCandtheTelanganaHighCourtquestionwhether justicewasservedbythekillingofthefouraccusedinthisgruesome crime.ThepleasarguethatArticle21wasviolated By Shaan Katari Libby F PLANNED ENCOUNTER? The body of one of the accused in the gang rape and murder of a veterinarian in Chatanpally, near Hyderabad The Supreme Court and the Telangana High Court took identical tough stances in dealing with demands for an impartial inquiry into the “encounter deaths” of the four youths who allegedly committed the dastardly crime. The top court grilled senior advocate Mukul Rohatgi, the counsel for the Telangana government, on the role of the state InTandem

19. In the US, there is more than one gun per person. “In a free and democratic society, there is going to be a balance between democracy, freedom and open- ness, and a police state—and none of us wants to live in a police state,” said Brian Dillon, former head of the Met’s firearms command who now runs the counter-terrorism consultancy Rubicon Resilience. So why is it important to follow due process regardless of the guilt of the accused? Article 21 of the Constitution provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. So it is a legal requirement that the state respect all legal rights that are owed to a person. Due process balances the power of the law of the land and protects the individual person from it. The government has to go through a series of legal procedures before it can take away our “life, liberty, or property”. Thus, the guarantee of due process is a very important factor in ensuring that we actually have individual rights that are promised to us. Procedural due process refers to the constitutional requirement that when the federal government acts in such a way that denies a citizen of a life, liberty or property interest, the person must be given notice, the opportunity to be heard and a decision by a neutral decision-maker. Though Article 21 formally provides that a person’s life and per- | INDIA LEGAL | December 23, 2019 19 gation, a SIT is constituted to investi- gate the case,” the order said. A petition was also moved by two lawyers in the Supreme Court question- ing the legality of the Hyderabad encounter. The petitioners, GS Mani and Pradeep Kumar Yadav, wanted it ur- gently listed and alleged that the Telan- gana Police intentionally gunned down the four accused. Even Chief Justice of India (CJI) SA Bobde voiced apprehensions over the tendency to seek “instant justice” and “revenge”. He listed the petition and informed the petitioners and the Telangana government that the Court had requested Justice PV Reddi to take up the assignment but that he had declined. The CJI said the Court would approach another retired Sup- reme Court judge for the job. The petitioners sought a CBI or a SIT probe against Cyberabad Police Co- mmissioner VC Sajjanar, who is a res- pondent in the petition. They said the encounter was a red herring, deliberately done to turn public attention away from the police’s inability to prevent such crimes against women. Another petition was filed by advocate ML Sharma which made parliamentarian Jaya Bachchan a party for “appreciating” the encounter and Delhi Commission of Women chairperson Swati Maliwal for publicly seeking a “quick hanging” of the accused. This short-circuiting is omitting something rather important that is enshrined in Article 21: due process of law. It is obvious that due process of the law was not followed—yet celebratory reactions from various sections of society ignored this. Many questions have been asked about the encounter. Why were the police armed? Why did they not have a stun gun or a taser? This issue of armed police is one that is prevalent in some countries and dis- tinctly absent in others. The UK and India fall in the latter category. It is cru- cial that the police remain unarmed for many reasons. Firstly, nobody wants to live in a police state. Secondly, there are potential risks to the public and even officers who can be killed in the line of duty. Besides, the art of communication is one of the best tools, and having a gun can make a police officer over-confident. F rom experience in the US and other countries, it has been seen that having armed officers does not mean that they do not end up getting shot. Out of every 100 people in the UK, fewer than four owns a firearm, according to GunPolicy.org, a project run by Australia’s University of Sydney. CJISABobde,whilerespondingtopeti- tionsseekingaprobeintotheencounter, saidthatthereshouldbeaninquiryinto thefacts.Abenchheadedbyhimappoint- edathree-membercommissionledby formerSCjudgeVSSirpurkar. police while emphasising the need for an independent and unbiased inquiry into the incident. The response of the Telangana High Court Chief Justice RS Chauhan (left) was similarly tough and swift. When a group of human rights activists wrote to him seeking the Court’s intervention into what they called an “alleged extra- judicial killing,” Justice Chauhan directed police and other state authorities to pre- serve the bodies of the accused in the case for four days. The Chief Justice of India, SA Bobde, acknowledged as much on December 11 when he told the Supreme Court that he was “seized of the work the Telangana High Court was doing”. —By India Legal Bureau

20. 20 December 23, 2019 sonal liberty can be deprived so long as there is merely a “procedure established by law”, the doctrine of procedural due process mandates that this procedural law must be “fair, just and reasonable”. To be absolutely certain that the four accused were, in fact, the rapists/mur- derers of the vet, a trial should have been conducted and this would have happened in a court of law and not by the police. The police, being an arm of the civil services, has to be entirely neutral. Substantive due process refers to the Supreme Court’s examination of the reasons why the government passed a law or otherwise acted in a manner denying a citizen or a group of citizens life, liberty, or property (regardless of the procedure the law provides). The big question here is whether we in India want to go down the route of becoming a police state. Do we want armed policemen amongst us who will- ingly do the bidding of their superiors? Originally an Austrian construct, a police state is a regime which exercises its powers arbitrarily through the power of the police force. People living in a police state may experience restrictions on fundamental freedoms like free movement and on freedom to express or assemble. It refers to regimes that deny fundamental freedoms to their people, especially a free press, freedom of expression and assembly. Such states control the actions and movements of their people with the help of repressive police and security forces that act in an arbi- trary way. In a police state, the following are commonly seen: raids, harassment and intimidation of dissidents by police, mil- itarisation of domestic law enforcement, disproportionate prison sentences for political activists, creation of new laws for people because of their political beliefs, creation of special prison units, pervasive use of surveillance and crimi- nalisation of ideology. The US, though originally modelled on the UK, has certainly become somewhat of a police state for many, including legal immigrants. So also for African Americans, Hispanics, and Native Americans. One does not define a police state as a place that represses all; it is a place that app- lies the tools of repression on those who challenge it. The US legal system has permitted virtually unlimited and un- checked police power, including repressive actions against the supposedly constitutionally protected free press. T here are several examples of police states. North Korea has mass surveillance routinely employed, including a vast network of informants who report to the authorities citizens they suspect of criminal or abnormal behaviour. China’s construc- tion of a vast, all-seeing police state in its fractious far west has triggered a government spending spree worth billions to firms providing a hi-tech network of cameras and “re-education” centres. A country’s responsibility to protect its citizens from attacks that target the general population and that genuinely endan- ger public order and the survival of the state must be proportionate and as nar- row and targeted as needed to address the specific threat. What we see in China, as elsewhere, are overreactions and vilification of entire ethnic or religious groups rather than efforts tar- geting individuals who commit crimes. The Saudi government’s murder of Jamal Khashoggi also portrays a police state action. The Saudis brutally sup- press women’s rights activists too, especially after the alleged reforms, and reform leaders are known to have disap- peared. More liberal-minded people like Khashoggi often left the country. Finally, US studies have shown that racial profiling means that police with weapons end up hurting or killing far more African-American people than Caucasians. “Hurricane”, a protest song by Bob Dylan and co-written with Jac- ques Levy, is about Rubin “Hurricane” Carter, an American-Canadian boxer who was wrongfully convicted of murder and released after serving almost 20 years in prison. The song illustrates acts of racism and profiling against Carter, which Dylan describes as leading to a false trial and conviction: While Rubin sits like Buddha in a ten-foot cell An innocent man in a living hell That's the story of the Hurricane. We need our Indian police force to remain unarmed and clearly on the side of civilians—not kowtowing to the powers that be. A police force that protects us and does not intimidate us. Is that asking for too much? —The writer is Barrister-at-Law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With research assistance from Kabilan P Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Oneofthepetitions filedintheSCagainst theallegedencounter madeparliamentarian JayaBachchan(left)a partyfor“appreciating”theencounter andDelhiCommission ofWomenchairperson SwatiMaliwalfor seekinga“quickhang- ing”oftheaccused. Legal Eye/ Hyderabad Encounter

22. Legal Eye/ Hurdles in Justice Delivery 22 December 23, 2019 ONG delays in the criminal justice system are increasing- ly leading to horrific insta- nces of society taking the law into its own hands. The recent killing in an “encounter” of all the four accused in the rape and murder of a 25-year-old veterinarian in Hyderabad is the latest example of this and has divided the nation on the question of justice. What made it more unpalatable was the kind of voices raised in favour of the killing, now under investigation. Rajya Sabha MP Jaya Bachchan demanded lynching of the accused in Parliament and added: “Der aaye, durust aye (better late than never).” Former Uttar Pradesh CM Mayawati praised the Hyderabad police while bad- minton champions PV Sindhu and Saina Nehwal tweeted about justice being served. Those who cautioned against vigilante justice were drowned out. The reactions raised serious questions about faith in the judiciary. Chief Justice SA Bobde went to the heart of the issue when he said: “Justice can never be instant. I believe justice loses its character as justice if it becomes revenge.” He added: “Recent events in the country have sparked off the old debate with new vigour. There is no doubt that the criminal justice system must reconsider its position, must reconsider its attitudes, towards time, towards laxity, and towards the eventual time it takes to dispose of a criminal matter.” Former Supreme Court justice Madan Lokur, in a hard-hitting column in a national newspaper, wrote: “Can we Courting Trouble Longdelaysincriminalcaseshaveledtotheemergenceof retributivejustice.WhiletheCJIhassaidthatjusticecan neverbeinstant,itistimeforcourtstogettheiracttogether By Nupur Dogra “Justicecanneverbeinstant.Ibelievejusticelosesits characterasjusticeifitbecomesrevenge.Recenteve- ntsinthecountryhavesparkedofftheolddebate...” —ChiefJusticeofIndiaSABobde L Photos: Anil Shakya

23. | INDIA LEGAL | December 23, 2019 23 be brutally frank and admit that the criminal justice system (not the entire judicial system) has collapsed, or is it still on the precipice?” adding: “Delays are endemic and go to such an extent that in a criminal case, the trial court granted a staggering 94 adjournments!” He also asked readers not to forget that “our society is governed by the rule of law and a progressive Constitution where everyone is presumed innocent till proven guilty through a fair trial”. A glaring example of justice delayed and denied is the infamous Nirbhaya case. It has been seven years since that brutal incident and her parents are still fighting for justice. Is it any wonder then that her mother, Asha Devi, said after the Hyderabad encounter: “I am extremely happy with this punish- ment...I demand that no action should be taken against the police personnel.” Her angst is understandable. According to the National Judicial Data Grid, there are over 3.53 crore pending cases in our courts. District and subordinate courts account for 87.54 percent of these. In High Courts, there are 49 lakh pending cases. This huge backlog is primarily due to shortage of judicial personnel. According to the India Justice Report: “At an all-India level, in 27 states and UTs there is just one subordinate court judge for over 50,000 people. This includes 17 of the 18 large and mid- sized states, where 90 percent of the country’s population resides. But in five of these states, the ratio exceeds one judge per lakh population at the subordinate court level.” The report states that not a single high court or subordinate court is working at its full capacity. Under Articles 233 and 235 of the Constitution, high courts have absolute control over district and subordinate courts’ administration and are vested with powers to appoint judges. According to All India Judges Association vs Union of India (2010) which came up before the apex court, 10 percent of all posts are filled by competitive examinations, 25 percent through direct recruitments from the Bar Council of India and 65 percent through promotion from the cadre of civil judges. None of the three are working efficiently and the recruitment process is often marred by corruption cases and other malpractices. I n 2013, the UP Public Service Commission (UPPSC) asked 15 fac- tually incorrect questions in the Provincial Civil Service-Judicial exam. In the last six years, the UPPSC has postponed, cancelled or reviewed 16 examinations. Recently, the examination controller at the UPPSC was arrested for conniving with the printing press and leaking papers. In Haryana, the recruitment process has not been done for the last three years. In 2017, the Haryana High Court had to scrap the preliminary exam due to a paper leak. In 2018, the High Court again came out with an advertisement for vacancies but only nine candidates qualified in the mains examination for 107 posts. These delays have led to the piling up of vacancies and cases. There is also no unifor- mity across states in their recruitment process. Age, qualifications, syllabus and exam patterns differ in every state. In Rajasthan, a 21-year-old who never represented a client has become a PAINFUL DELAYS Litigants waiting at a district court

24. Legal Eye/ Hurdles in Justice Delivery 24 December 23, 2019 judge. In Punjab, the minimum age to become a judge is 23 years, while in Karnataka it is 25 years. The process of recruitment too varies. While in Kerala a written exam is followed by an interview, in UP there is a preliminary exam, a mains exam and an interview. This results in the varying quality of judges in the states. A nother hurdle in attracting young talent to high courts is the age barrier for appearing in exams. Currently, an advocate who has practised for a minimum of seven years is eligible to appear for the examination for the post of district judge. Former CJI PB Gajendragadkar had observed that mostly unsuccessful lawyers opt to try for the post of a district judge. A lawyer with a successful practice of seven to 10 years won’t find the idea of being a subordinate judge and getting transferred from time to time attractive, he said. Justice Jasti Chelameswar, while giving his dissenting statement in the five-judge bench Supreme Court judgment that struck down the NJAC Bill, argued: “This provision, could have acted ‘as a check on unwholesome trade-offs within the collegiums and incestuous accommodations between Judicial and Executive branches’.” He went on to quote Ruma Pal, a former Supreme Court judge: “Consensus within the collegiums is sometimes resolved through a trade-off resulting in dubious appointments with disas- trous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.” The idea of an All India Judicial Services (AIJS) has been discussed frequently in India yet no concrete action has been taken. A centralised recruitment process is seen as a threat to the independence of high courts and the federal structure of the country. But is the AIJS really such a big threat? Justice Chelameswar, in the same NJAC judgment, had said: “We the members of the judiciary exult and frolic in our emanci- pation from the other two organs of the State. But have we developed an alter- nate constitutional morality to emanci- pate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence, maturity and nature could digest?” His observations raise serious concerns. In the name of independence of the judiciary, can we allow inefficiency to plague the rule of law? Keeping the quasi-federal structure of our Cons- titution in mind, the 116th Law Comm- ission report explains that a centralised recruitment system won't affect the control of high courts in the administration of subordinate judiciary. It adds that an AIJS would not only help to conduct the selection process in a fair and transpar- ent manner but also unburden the already overworked high courts. Malpractices, inefficiency, lack of trans- parency and, above all, inordinate delays in concluding a case, corrode confidence in the judiciary. Rule of law as a deterrent to crime loses its credibility if the delivery of justice takes so long. The Hyderabad encounter will serve as a constant reminder of that truism. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Pendencyin lowercourts Source: National Judicial Data Grid Bihar| 39.5 Odisha| 38.0 UttarPradesh| 37.8 WestBengal| 32.1 Gujarat| 27.2 Maharashtra|23.1 Rajasthan|22.0 Jharkhand|21.3 Uttarakhand|11.0 Chhattisgarh|10.3 AndhraPradesh| 9.2Telangana| 9.2 MP| 8.1 Kerala| 7.0 Punjab| 2.7 Haryana| 1.1 Sikkim|0.4 Mizoram|10.1HimachalPradesh|11.0 14.1|Goa 21.9|TripuraMeghalaya|26.0 TamilNadu|16.8 Karnataka|13.9 Cases pending in subordinate courts for over 5 years (%, 23 August 2018) Small states Large and mid-sized states Aglaringexampleofjusticedelayed anddeniedistheinfamousNirbhaya case. Ithasbeensevenyears sincethatbrutalincidentandher parentsarestillfightingforjustice. Rajender Kumar

25. NDIA EGALEEL STORIES THAT COUNT ` 100 NI www.indialegallive.com November11, 2019 Kathua Rape: Crackdown by the court Right to Bail by Prof Upendra Baxi Inalandmarkruling,theDelhiHighCourtorderedsocialmediagiantstoremoveonaglobalbasis contentdefamatorytoRamdev,therebybalancingtherighttodefendoneselfwiththatoffreespeech I l d k li h D lhiHi hC d d i l di i JudiciousBalancingAct NO HOLDS BARRED Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends For advertising & subscription queries editor@indialegalonline.com SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS ` ` ` ` ` GAL tto es ci NDIA EGALL STORIES THAT COUNT NI November18, 2019 Shiv Visvanathan on flaws in New Education Policy Judicial Delays: The Supreme Court steps in NDIA EGALEE , AVERDICT ATLASTThelongestandmostcontentioussuit inIndianjudicialhistoryfinallygets closurewithastructuredjudgment fromtheConstitutionbench,but questionsremainaboutthefuture courseofthesensitivedispute GAAL NDIA EGALEEL STORIES THAT COUNT ` NI November25, 2019 India Justice Report Trump and Impeachment BLOCKBUSTER WEEK SUPREME COURT ent Chief Justice office under RTI Disqualification of Karnataka MLAs Babri Masjid Demolition case Sabarimala verdict fallout Rafale Deal GAL ST T R a M a u NDIA EGALEEL STORIES THAT COUNT NI December2, 2019 Chief Justice under RTI Act by Prof Upendra Baxi The Pegasus Trap ConstitutionDayThedocumenthasbeenamendedover100timesbutjudicialvigilance hasensuredthatthe basicstructureremainsintact GAL nut in NDIA EGALEEL STORIES THAT COUNT NI December9, 2019 Code of Ethics by Kalyani Shankar NRC: A dangerous path CONSTITUTIONAL MORALITYHowtheSupremeCourtcheck-matedthebrazendisplayofnakedpoliticalmuscle powerinMaharashtrabystandingupfortheruleoflaw Justice N V RamanaJustice Ashok Bhushan Justice Sanjiv Khanna GGAALL NN YYkkakk eo NDIA EGALEEL STORIES THAT COUNT NI December16, 2019 Madhav Godbole: The erosion of secularism Char Dham: State versus the priests NoWoman’sLandThegangrapeofaHyderabaddoctorhasonceagaindemonstratedthatbetween patriarchallawandurbananomie,sucheventswillrecurtocompoundthehollownessof governanceandrightsinIndia

26. 26 December 23, 2019 N December 5, M Venkai- ah Naidu, chairman of the Rajya Sabha, convened a meeting of the chairpersons of all the standing committees administered by the Rajya Sabha Secre- tariat. This was against the backdrop of reports of large-scale absence of MPs from the sittings of these committees. There was a general consensus at the meeting that members who were per- sistently absent from these committees should be dropped from them after being duly cautioned. This action of the chairman, Rajya Sabha, was predicated by the fact that a few days ago, there were adverse reports in the media about MPs and bureau- crats skipping the meeting of the Dep- artment-Related Parliamentary Stan- ding Committee (DRPSC) on Urban Development on November 15 to discuss the worsening air quality in the national capital. As only four out of 29 members of the Committee drawn from the Lok Sabha as well as the Rajya Sabha were present, the meeting had to be called off. As far as DRPSCs are concerned, there are 24 of them to oversee all the ministries and departments of the government of India. Each committee has 21 members from the Lok Sabha and 10 from the Rajya Sabha. Excluding ministers, all the members of both Houses, by and large, are accommodated on one or more of these committees. Who Will Bell the Cat? Thelarge-scaleabsenceofMPsfromstandingcommitteesisdisturbingandaremedyhastobe foundforit.Thisshouldincludeaproportionatereductioninsalaryandotherallowances Column/ Absenteeism in Parliamentary Panels Vivek K Agnihotri O PLAYING TRUANT MPs outside Parliament. They tend to be lackadaisical in attending meetings of DRPSCs to discuss important issues UNI

27. | INDIA LEGAL | December 23, 2019 27 Out of the 24 committees, eight are serviced by the Rajya Sabha secretariat and 16 by the Lok Sabha secretariat. Accordingly, eight committees are chai- red by members of the Rajya Sabha and 16 by those of the Lok Sabha. The chairpersons of these committees are appointed by the chairman, Rajya Sabha and the speaker, Lok Sabha, as the case may be. However, the committee system of the Indian Parliament does not begin or end with the DRPSCs. There are a large number of other standing committees, some of them joint, while others are identical but function independently in the two Houses. In addition, there are ad hoc committees too. The chairman of the Rajya Sabha had convened a meeting of chairpersons of all the standing committees within his purview. In addition to the eight DRPSCs, these included 10 Rajya Sabha committees. Apparently, the situation relating to absenteeism of the MPs from the committees is as “severe” as the air quality in the National Capital Region. According to the data reported, at the macro level, 28 MPs (of the Lok Sabha and the Rajya Sabha) out of 248 nominated on the eight DRPSCs serviced by the Rajya Sabha secretariat, had not attended even a single meeting since their constitution in Sep- tember 2019. A hundred MPs had skipped two or more suc- cessive meetings of their res- pective committees. On the po- sitive side, 18 MPs (including eight chairpersons) attended all the meetings of their committees. T he issue of members attending the meetings of committees, particularly DRPSCs, has come to the fore against the backdrop of the opposition parties’ constant criticism that the government was bypassing all parliamentary scrutiny of bills by not routing them via the DRPSCs, which are regarded as mini-parliaments. Here, members are able to deliberate on issues without the constraint of the party whip as well as the prying scrutiny of the media. Very often, the recommendations of these committees, by way of amendments to legislative proposals, are acc- epted by the government. Hence the need for the members to attend these meetings and make collective contribu- tion to improve the quality of parliamentary legislation. In the meeting of chairpersons of the committees convened by the chairman, Rajya Sabha, he made an important observation. He said that since not all MPs are represented in each of these mini-parliaments, every member of a committee represents the voice of 25 MPs. As far as imposing of sanctions on MPs who wilfully default in attending the meetings of the committees, is concerned, the rules of the two Houses have very specific provisions. Omnibus Rule 260 of the Rules of Procedure and Con- duct of Business in the Lok Sabha says that if a member who is elected to the committee is absent from two or more consecutive sittings without the permission of the chairperson, a motion may be moved in the House for his “discharge” from that committee. This rule is applicable to all committees in which the members of the House participate. However, if a member is nominated to the committee by the speaker, he may be discharged by him too. As far as the Rajya Sabha is concerned, a similar rule (75) in the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha) provides for “discharge” of a member of a Select Committee on Bills, with the approval of the Rajya Sabha. This provision is applicable to the members of DRPSCs administered by the Rajya Sabha. Prima facie, the rules appear to be very strict, but there are escape routes. A member can avoid discharge if he is absent with the permission of the chairperson. Secondly, in case of appointment to a committee though election (e.g. Public Accounts Committee and Select Committees), a motion has to be moved in the House; but who would like to move that motion and annoy the member? The malaise of absenteeism is, however, not confined to the committees of Parliament only; it goes much deeper as two recent occurrences have highlight- ed. Delivering the first Arun Jaitley Memorial Lecture instituted by Delhi University on October 29, 2019, Ven- kaiah Naidu had expressed concern over poor attendance of lawmakers in the House. He urged that political parties need to evolve a “roster system” for ensuring attendance of at least 50 percent of their members in the legislatures all through the proceedings of the “Hon’blemembers,Iamsorry,Ihavetomake anobservation.Thisishappeningtimeand again…Afterhavingaskedthequestionifthey areabsent,itisasorrystateofaffairs.” —MVenkaiahNaidu,whenMPswantedduring QuestionHourintheRajyaSabhawereabsent

28. Column/ Absenteeism in Parliamentary Panels/ Vivek K Agnihotri 28 December 23, 2019 House every day to address the issue of lack of quorum. Again on December 2, 2019, as many as six out of 15 MPs, against whose names questions for oral answer were listed in the Rajya Sabha, were found absent during Question Ho- ur. Venkaiah Naidu observed: “Hon’ble members, I am sorry, I have to make an observation. This is happening time and again…After having asked the question if they are absent, it is a sorry state of affairs.” In a study (The Parliamentary Man- date) conducted by the Inter-Parliamen- tary Union in 2000, it was found that forfeiture of part of a member’s salary (or supplementary allowances) is un- doubtedly the most common penalty for absence without a valid reason. This was done in Costa Rica, Cyprus, France, Ga- bon, Germany, Guatemala, Hungary, Jordan, Luxembourg, Paraguay, Poland, Republic of Korea, Spain and Uruguay. In India too, the defaulting member loses his sitting fee, but not any part of his salary or other allowances. Deputies in the French National Assembly who participate in less than two-thirds of open votes during a session have one- third of their salary docked for a period equal to that of the session. Failure to attend more than one-third of committee meetings during a session may also entail financial penalties. Absence without a valid reason also invites disciplinary action in some countries (e.g. Lao People’s Democratic Rep- ublic and Gabonese Senate). In Benin, in the event of repeated absence for one- third of the meetings held during a session, members may be suspended for one year. Definitive forfeiture of a man- date is less frequent but nevertheless quite common, particularly in countries with a British parliamentary tradition, including India (Article 101 (4) of the Constitution). It also exists in Armenia, Austria, Japan, Thailand and Turkey. Turkish members who have been absent without a valid reason for five sittings during a one-month period may be expelled by the assembly. What then is the remedy for the Indian malady? Naming and shaming, as Venkaiah Naidu did by sharing the data with the media, is only the beginning. Moreover, in addition to non-payment of sitting fee for the days of absence, a proportionate deduction from the salary and other allowances should automatically follow. Absence, with or without permission, from more than five consecutive sittings should entail discharge from the committee. Absence from the sittings of the House for more than one year continuously, with/without permission, should result in the seat of the member being declared vacant. Perhaps that is the only way to tackle such truancy. —The writer is a former Secretary-General, Rajya Sabha Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Whatistheremedyforabsenteeismby MPsinIndia?Besidesnamingandsham- ing,thelawmakerscouldbedischarged fromcommitteesiftheyarefoundabsent formorethanfiveconsecutivesittings.

29. | INDIA LEGAL | December 23, 2019 29 Opinion/ GST Sumit Dutt Majumder HE non-payment of a substantial amount of the promised compensation cess by the centre to the states has taken away the sheen from the much- acclaimed spirit of cooperative federal- ism in the context of the Goods and Services Tax (GST). It was in 2006 that negotiations started between the centre and the states for finalising the form and structure of GST under the auspices of the Empowered Committee of State Finance Ministers. It was headed by Dr Asim Dasgupta, then West Bengal finance minister. From the beginning of the negotiations, a bone of contention was payment of compensation to the states by the centre on account of the appre- hended loss of revenue due to GST. During the UPA rule, when the negotiations started, the government was appreciative of the apprehensions of the states and was ready to compensate them through a suitable means to be determined later. But the states demanded that the promise of compensation be put in the Constitution. The UPA government refused and the negotiations suffered. In order to break the stalemate, a Constitution Amendment Bill for introduction of GST sans the clause for compensation was presented in Parliament in March 2011 by Pranab Mukherjee, then Union finance minister. However, it could not be passed due to strong opposition, led by the BJP. After the NDA government led by the BJP came to power in 2014, it agreed to put the states’ demands for compensation in the Constitution. Thus, Parliament passed the amendment Bill and it became the 101st Const- itution Amendment Act, 2016. It dealt with the introduction of GST and clearly covered compensation by the centre to the states. Section 18 of this Act that dealt with “Compensation to States for loss of revenue on account of introduction of goods and services tax” says: “Parlia- ment shall, by law, on the recommen- CompensationBlues Despiteitsconstitutionalobligation,thecentrehaslaggedbehindincompensatingstatesfortheirlossof revenueduetoGSTasitdoesnothaveenoughmoney.Thewayoutistoinduceconsumption T FIXING THE BUGS Union Finance Minister Nirmala Sitharaman at the GST Council meeting in Goa gstcouncil.gov.in

30. 30 December 23, 2019 Opinion/ GST/ Sumit Dutt Majumder and Refunds”, “Crediting Proceeds of Cess to Fund” and other issues related to cess. The Schedule attached to the Act specifies the list of items with their tariff headings and the maximum rates at which GST compensation cess may be collected. The Schedule includes items like pan masala, tobacco and cigarettes, coal, aerated water and motor cars. Section 7 of the GST Compensation Act that deals with “Calculation and Release of Compensation” says: “The compensation payable to a state shall be provisionally calculated and released at the end of every two months period, and shall be finally calculated for every financial year after the receipt of final revenue figures, as audited by the Comptroller and Auditor-General of India”. Section 8 authorises the levy and collection of cess “for the purposes of providing compensation to the states for loss of revenue”. Section 10 provides for crediting the proceeds of compensation cess to the non-lapsable GST Com- pensation Fund which will be utilised for the purpose of payment of compensation to the states. GST Compensation Cess Rules, 2017 have also been notified for adaptation of Central GST Rules, subject to certain modifications. Thus, a bridge was built between two sets of rules. It is, therefore, clear that it is the constitutional obligation of the centre to compensate dation of the Goods and Services Tax Council, provide for compensation to the States for loss of revenue arising on account of implementation of the Goods and Services Tax for a period of five years.” Subsequently, Parliament passed the GST (Compensation to States) Act, 2017. Its broad features are that the centre would compensate the states fully for the loss of revenue for five years a day after the GST was introduced. In order to fund this, the centre would levy a cess on demerit goods and luxury goods that attract a GST rate of 28 percent, in addition to the revenue collected through the laid down GST rates. The entire cess amount was meant to be utilised by the centre to compensate the states. T his Act has 14 sections on sub- jects such as “Projected Growth Rate” of revenue, “Base Year” for calculation of the compensation amount, “Base Year Revenue”, “Projected Revenue for Any Year”, “Calculation and Release of Compensation”, “Levy and Collection of Cess”, “Returns, Payments “Ifnecessary,theKeralagovernmentwillapproachthe SupremeCourtunderthearticle131.” KeralaFinanceMinisterThomasIsaac,inatweet “ShockingthattheCentreisdelaying theGSTcompensationamountingto `4,100croreascompensation& arrearstoPunjab.UrgePM@naren- dramodiji&FM@nsitharamanjito intervene&solvetheproblemwhich hasthepotentialtobringgovernance ofthestatetoagrindinghalt.” PunjabCMAmarinderSingh,inatweet Photos: UNI

31. | INDIA LEGAL | December 23, 2019 31 the states every two months. But the problem is that the centre has not been able to collect adequate amount of compensation cess which was to be reim- bursed to the states. In fact, the collection of GST itself has been significantly below the target. After the lowest dip of `91,916 crore in September 2019, GST collections rose to `1,03,492 crore, but that was mainly due to the festive demands of Diwali. It has to be seen whether this rise can be sustained. E conomic slowdown and tax evasion are the two main reasons for less collection of GST. The first one led to less consumption and hence, less supply and less collection of GST. Substantial evasion of GST, as recently revealed by the scale of detection of the evaded taxes, has also dented the GST kitty significantly. As compensation cess is also a levy on the “supply” of goods and services, its collection too has been hit. The net result is that the centre does not have enough money to pay compensation to the states. Seven opposition- ruled states, including Punjab and Kerala, recently demanded immediate payment of pending cess of `50,000 crore lying unutilised with the centre in the GST Compensation Fund. The states have said that in addition to the compensation for August-September, that of October-November is also due. This, they said, has impacted their public expenditure as well. The centre reportedly told the states that while it will honour the commitment of GST compensation, there will be a delay due to inadequate collection of compensation cess. This is bad news, not only for the states but also for the economy. There is no dispute that currently, it is public expenditure that is driving growth. Delay in payment or cut-back of the compensation cess will lead to a cut in development expenditure by the states. In fact, states account for a greater share of total government expenditure. So a cutback on the compensation amount will hit the development of states more and intensify the slowdown across the country. The centre seems to be aware of this critical situation and hence is planning to discuss ways and means to revive the economy in the next GST Council meeting, tentatively slated for December, 18. There is talk of increasing the rate of compensation cess. There is even a pos- sibility of rejigging the tax structure by increasing the GST rates of a few final products. This has been suggested in order to avoid the inverted duty rate structure where the finished product is exempted or it attracts a lower rate of GST as compared to the higher rates for the inputs. In such a situation, the unutilised input tax credit gets accumu- lated and becomes a “cost” to the suppli- er. This sounds good so long as the benefits of credit utilisation are truthfully passed on to the consumers and there is no price rise. Otherwise, it will cause more consumption worries. The need of the hour is to facilitate revival of consumption. No step should be taken where it makes goods and services dearer, causing consumption worries which will, in turn, hit supply and result in less collection of GST as well as compensation cess. Keeping this in mind, any further increase in the rates of GST or compensation cess would have its own risks. The solution will have to be found in reducing the income tax rate for the lower and middle income group in order to give a spurt to consumption. It is uni- versally known that the moment extra money is available to both groups they spend it in purchasing goods and services. This is unlike those at the upper end who do not generally invest the extra money during bad times and prefer to save it for better times. As for the demand for extending the compensation period beyond five years, i.e. 2022, it’s too early to take a view on this. This decision can wait till 2021. —The writer is former Chairman, Central Board of Excise & Customs, and author of “GST–Explained for the Common Man” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Theneedofthehouristofacilitate consumption.Nostepshouldbetakento makegoodsandservicesdearer,causing consumptionworrieswhichwillhit supplyandresultinlessGSTcollection. 1,20,000 1,15,000 1,10,000 1,05,000 1,00,000 95,000 90,000 85,000 80,000 Apr May Jun AugJul Sep Oct Nov Dec Jan Feb Mar GSTcollectionsareshortofexpectations 2017-18 2018-19 2019-20 Figures in `Crores Rajender Kumar

32. Spotlight/ Electoral Expenses 32 December 23, 2019 HE Representation of the People (Amendment) Bill, 2014, was introduced by Congress MP Rajeev Gowda on the ground that the ceiling on election expenses ends up being counterproductive and encourages candidates to under- report their expenditure. The Rajya Sabha discussed this private member’s Bill recently. The amendment sought to remove the limit on expenditure by candidates during an election. There was both support and opposition to it in the Rajya Sabha. As of now, a candidate contesting polls in major states can spend up to `70 lakh in the Lok Sabha election and `28 lakh in an assembly election. In Ma- nipur, Meghalaya, Mizoram, Nagaland and Tripura, it is `70 lakh and `20 lakh, respectively, while in Arunachal Pra- desh, Goa, Sikkim, Andaman & Nicobar Islands, Chandigarh, Dadra & Nagar Haveli, Daman & Diu, Lakshadweep and Puducherry, it is `54 lakh and `20 lakh, respectively. The consensus is that the limit of `70 lakh is adequate. But the question is: “Where can an ordinary person bring `70 lakh from?” This issue becomes important in the context of the 2019 Lok Sabha election being seen as the world’s costliest. Ar- ound `55,000 crore or $8 billion was spent during this election, according to a report by the Centre for Media Studies (CMS). This is more than the US presi- dential election of 2016 that, according to the Centre for Responsive Politics, saw an expenditure of about $6.5 billion. India’s polling exercise, involving over 90 crore voters, spanned 75 days and involved extravagant rallies, wide- The Big, Fat Indian Election Removingthelimitonexpenditurebycandidateswillnot ensureequityandalevelplayingfieldandcannotalonebringin electoralintegrity.Theneedofthehourismajorreforms By MG Devasahayam SPENDING BINGE (Right) The amount of money spent during the 2019 Lok Sabha polls by political parties was unprecedented; (below) the quantity of cash and other items seized was also historic T Photos: UNI

33. | INDIA LEGAL | December 23, 2019 33 spread advertising and social media campaigns. All of which comes at a huge cost. The report suggests that the maximum amount—roughly a third of the total expense—was spent on campaign- ing and publicity. The second big expenditure head was putting money directly in the hands of the voter. CMS estimates that roughly 25 percent (about `15,000 crore), was distributed among voters, ill- egally. “This practice is not new, but the extent it happened in 2019 was significant and has become part of the overall strategy of most parties,” says the report. The New Delhi-based research orga- nisation admits that this is only a frac- tion of what actually would’ve been spent. CMS criticised the Election Commi- ssion (EC) for its inaction despite the exorbitant election expenditure. “Huge rallies and fanfare” seen during cam- paigning indicated high expenditure which were “in violation of codes and ceilings”, the report said. “And yet, no- where anyone was issued notice or rep- rimanded.” CMS recommended that the EC should take an open review of election expenditure across states and put the data out in public. The catch here is that while individual candidates have their expenditure limits, political parties have none. This is what Section 77 of the Representation of the People Act, 1951 (RP Act) says: “Account of election expenses and maximum thereof: (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in con- nection with the election incurred or authorised by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive…. (3) The total of the said expenditure shall not exceed such amount as may be prescribed.” P olitical parties get exempted from the ceiling by default. As is known, any expenditure by the party is meant for the candidate it has field- ed in that election. With electoral bonds adding to their coffers, the ruling BJP is supposed to have spent over `25,000 crore in the last parliamentary elections where it contested 383 seats. That means that the party spent about `64 crore on each candidate. Even 50 percent of this amount seems scandalous. However, in the 2014 election, the BJP is stated to have spent `30,000 crore. Under these circumstances, what is the meaning of an expenditure ceiling of `70 lakh per Lok Sabha candidate? Be that as it may, election expenditure can broadly be divided into two cat- egories. First is the legal expenditure, which is allowed under the law for electioneering, subject to it being within the permissible limit. This would include expenditure connected with campaign- ing, which is spent on public meetings, public rallies, posters, banners, vehicles, advertisements in print or electronic media and such variables. The second is on items which are not permitted under the law, e.g., distribu- tion of money, liquor, or any other item given to the electors with the intent to influence them. This expenditure comes under the definition of “bribery” which is an offence under the IPC and RP Act. Under this category also comes surro- gate advertisement, paid news and social media. Expenditure on such items is illegal. For the first category, it must be ensured that all election expenditure on permitted items is truthfully reported and considered while scrutinising the expenditure account submitted by the

34. Spotlight/ Electoral Expenses 34 December 23, 2019 candidates. The second category of expenses will never be sincerely reported by political parties/candidates. Social media expenditure tends to be underre- ported, if at all, especially by candidates. The system should be robust enough to catch such expenditure as well and initi- ate penal action. R egarding excess election expenditure being treated as a corrupt practice, the Supreme Court said in Kanwar Lal Gupta vs Amar Nath Chawla: “The object of the provision li- miting the expenditure is twofold. In the first place, it should be open to any individual or any political party, howsoever small, to be able to contest an election on a footing of equality with any other individual or political party, howsoever rich and well financed it may be, and no individual or political party should be able to secure an advantage over others by virtue of its superior financial strength….The other objective of limit- ing the expenditure is to eliminate, as far as possible, the influence of big money in the electoral process. If there was no limit on expenditure… the pernicious influence of big money would play a decisive role in controlling the democratic process in the country….” According to Section 78 of the RP Act, every contesting candidate is req- uired to lodge a true copy of the account of his election expenses with the district election officer within 30 days of the declaration of the election result. Failure to do this without good reason or justifi- cation may result in disqualification of the candidate concerned by the EC under Section 10A of the Act. In LR Shivaramagowde vs TM Chandrashekar, the Supreme Court held that the EC can go into the correct- ness of the account of election expenses filed by the candidate and disqualify him under Section 10A of the Act in case the account is found to be incorrect or untrue. Exceeding the prescribed ceiling of expenditure can be a ground for an election petition against a win- ning candidate. How does the EC check poll expenses? Expenditure observers appointed by the EC have been tasked with ensuring constant vigilance of the campaign expenses of candidates. Flying squads are deployed in various places and static surveillance teams have been post- ed at inter-district checkposts for sur- prise inspections. A video surveillance team is also in place to record footage of meetings, processions and other programmes. The EC also directs candidates to get permission from the district administration prior to holding campaign programmes and to submit expenditure plans in advance. Every single item to be used in electioneering by a candidate has a price fixed by the EC to check abuse of money power. Even the price of a candle has been fixed at `10 per piece. Despite such procedures, provisions of law and Supreme Court judgments, the EC has not been able to rein in vul- gar election spending by candidates and political parties. On July 13, 2014, a full coram of Chief Election Commissioner VS Sampath and Election Commissioners HS Brahma and SNA Zaidi did attempt this in Dr Madhavrao Kinhalkar & Ors Vs Ashok Shankarao Chavan in which a show cause notice was ordered in terms of Rule-89(5) of 1961 to disqualify Chavan under Section 10A of the RP Act. But within weeks, on September 12, 2014, this order was set aside by the Delhi High Court on some technical grounds. With one stroke, the EC was rendered ineffective in enforcing provisions of the RP Act which had been upheld by the Supreme Court. So the ravaging of the electoral process goes on unabated, with equity and a level playing field remaining elu- sive. Removing the ceiling on a candidate’s election expenses alone cannot bring about electoral integrity. The remedy lies in stringent holistic measures like countermanding elections and removing appeal provisions in High Courts. The need of the hour is major electoral reforms and severe restriction of expenses by political parties. —The writer is a former Army and IAS officer Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com In2014,ChiefElectionCommissioner VSSampath(centre)andElection CommissionersHSBrahmaandSNAZaidi (right)didtrytodisqualifyacandidate undertheRPActbutcouldnotsucceed.

35. | INDIA LEGAL | December 23, 2019 35 International Briefs I t’s a unique, even historic moment in global politics and for women and the proverbial glass ceiling. Finland last week elected Sanna Marin, 34, as prime minister, making her the youngest head of state in the world. New Zealand prime minister Jacinda Ardern is 39, while Ukrainian premier Oleksiy Hon- charuk is 35. More remarkably, Ms Marin heads a left-wing coalition whose five parties are all led by women, three of whom are under 35. Her cabinet will contain 12 women and seven men—at 63 percent, the female component is the highest in the European Union. Thanks to the historic vote, Finns are literally lapping up the global attention as the world’s media hails this incredible empowering moment. No less inspiring is the uncovering of Marin’s backstory. She was raised in what is called a “rainbow family”, living in a rented apartment with her mother and her mother’s female partner. She told a local website that as a child she felt “in- visible” because she was unable to talk openly about her family. She was the first person in her family to go to a university and also the first to get into politics. She joined the Social Democrats, becoming an MP in 2015 when she was just 30. Last June, she joined the cabinet under her predecessor, as transport and communications minister. Marin has a 22-month-old daughter and is now the proud symbol of gender equality in politics. Power Shift It seems an absurd example of art. Italian artist Maurizio Cattelan taped a banana to a wall, titled it “Comedian” and priced it at $120,000. It was an ordinary banana, not sculpted, but it resurrected an age-old question: What constitutes art? Cattelan is known for stretching the definition. In 2016, he created a functioning, 18-karat gold toilet, an expensive counterpoint to Marcel Duchamp’s store-bought urinal which he put on a pedestal. Yoko Ono, better known as John Lennon’s widow, put an apple in a glass case and exhibited it at a price of $200. More controversial was Tracey Emin’s “My Bed” which con- sisted of her unmade bed strewn with body fluids and surrounded with con- doms and unwashed underwear. “My Bed” went under the hammer for $4.3 million at Christie’s in 2014. When it comes to art, there’s no accounting for tastes. Or taste, as was the case with Cattelan’s banana. Going Bananas This is the time when tech magazines and de- dicated websites bring out their annual list of the best tech products of the year. Based on their evaluation, the mobile phones that earned the most marks was the Motorola Moto G7 in the budget category and the Samsung Galaxy Note 10 in the high-end one while Apple’s iPhone 11 got great marks for its upgrades and price drop. Others that made the cut were OnePlus 7 Pro, Samsung Galaxy A50 and Google Pixel 3A. Other tech products that experts were raving about were Apple watch series 5, Fitbit Versa 2, Apple AirPods Pro, and Jabra Elite 75t earbuds, while in the laptop category, the HP Spectre x 360 13 and the Microsoft Surface Pro 7 were the top two models for 2019. Best Technology of 2019 Apple iPhone 11 HP Spectre x 360 Samsung Galaxy Note 10

India Legal - 23 December 2019

India Legal - 23 December 2019

India Legal - 23 December 2019

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