India legal 23 march 2020

India legal 23 march 2020
NDIA EGALL STORIES THAT COUNT I March23, 2020 JusticeVenkatachaliah,whoservedaschiefjusticeofIndia,isoneofIndia’smostrespectedjurists.Anavid championofhumanvaluesandrights,hespoketo RAJSHRIRAI,MD,INDIALEGALonthejudiciary,religion, Ayodhya,upbringingofchildrenandwhytheSupremeCourtshouldbetrustedtodotherightthing JusticeVenkatachaliah ‘‘KeepFaithin theJudiciary’’ Coronavirus: India’s opportunity Exclusive Interview
4 March 23, 2020 HE Media Today special section of the prestigious Columbia Journalism Re- view (CJR), often called the most res- pected voice of press criticism, carries in its latest edition a fascinating piece by Jon Allsop on how the coronavirus could hurt the news business. Since the one-of-a kind journalism carried in CJR (and at this juncture allow me to boast that Columbia Journalism School is my alma mater) is not widely available to the general reader, I sometimes take the lib- erty of summarising and sharing its contents— of course with full credit to CJR—on the social media. In this article, Allsop, formerly with BuzzFeed and also a grad of Columbia J-School, reports that paywalls, which online media erect in order to earn their bread and butter (“you have now reached your limit of free reading please sub- scribe in order to read on…” etc, etc), have begun to crumble as more and more news outlets are freeing up content relating to news and special features related to the coronavirus, which Dean Baquet, the executive editor of The New York Times has described in a recent staff call as “the biggest story the world has seen since 9/11”. The New York Times, Bloomberg, The Wall Street Journal, The Atlantic, The Seattle Times and McClatchy are some of the major organisations now making available their virus coverage available free of charge to non-subscribers. In fact, reports Allsop, The Times has “collated its free coronavirus content on a special landing page; you’ll need to create an account to access it, if you don’t have one already”. It’s a great social service not just for the US but, indeed, for the world, when rumours, mis- information, fake news, denial modes, are cut- ting a swath of confusion across the globe. Universally available responsible and depend- able information is of the essence at times such as these. And in relaying it as a humanitarian gesture of grace and goodwill, the news business, already in the financial doldrums because of declining revenues—McClatchy, for example has filed for bankruptcy—risks taking a direct fiscal blow to the gut. But there could also be an upside. It may even be good for business, some analysts believe. Allsop quotes Tom Meyvis, a professor at New York University, telling Adweek’s Sara Jerde that for some outlets, freeing up information on the coronavirus may reach new readers “who may stick with the publication afterward and perhaps be willing to pay later if they are impressed”. Interest in news as against pure entertain- ment is at a peak right now and major national news organisations have moved quickly to capi- CORONAVIRUS COULD BE FATAL TO MEDIA Inderjit Badhwar T Letter from the Editor TheNewYorkTimes,Bloomberg,TheWallStreetJournal,The Atlantic,TheSeattleTimesandMcClatchy aresomeofthemajor organisationsmakingavailabletheirviruscoverageavailablefree ofchargetonon-subscribers,thustakingadirectfiscalblow. Ajay Suresh from New York, NY, USA
| INDIA LEGAL | March 23, 2020 5 talise, writes Allsop. “Collectively, they’ve flooded the market with coronavirus podcasts, newslet- ters, and other products, many of them free. BuzzFeed, for instance, launched a newsletter called ‘Outbreak Today.’ Its logo is an emoji wearing a face mask. The coronavirus has dominated regular programming on cable news, as both CNN and MSNBC have broadcast special programming in which medical experts have answered viewers’ questions. Last week, CNN hosted a coronavirus town hall with Dr Sanjay Gupta, its chief medical correspondent; (earlier) it held another one, with Facebook and Instagram users from around the world asking questions. There was no studio audience.” Allsop makes several absorbing observations which I reproduce verbatim in the larger public interest of disseminating public awareness, with some paraphrasing, in bulleted points below: The disorder caused by the coronavirus risks invading news organisations’ ability to function. Routine reporting will become harder the more society is walled off. And as Joshua Benton of Nieman Lab has noted, the virus has the potential to pull the bottom out of an advertising market that has been tough on many media companies for years. Last week, The Times said it was already seeing an advertising slowdown, which executives attribute to uncertainty caused by the virus—and that was before the rapid escalation of recent days. If the economy tips into recession, the effect on advertising could be dire. As Benton has observed, the coronavirus could prove to be a disaster for local outlets, in particu- lar. Despite industry-wide declines in print circulation, many newspapers still rely on dead-tree products for the bulk of their revenue; what hap- pens when newspaper carriers become virus carriers and get taken off their routes? Swathes of the local news market are controlled by a handful of financial firms that have already made painful cuts to their media properties; if owning newspapers becomes an (even more) unattractive propo- sition, the moneymen could simply decide to bail, and what then? Even the non-profit news model—which has often been held up as a viable alternative to the caprices of private ownership— is not immune. As markets sag, major foundation funders might scale back their giving to protect their endowments. Some local outlets are hurting already. Yester- day, Sarah Scire, Benton’s colleague at Nieman Lab, pointed to the example of The Stranger, an alt-weekly (which publishes biweekly) in Seattle, Washington, where the coronavirus first caused major problems on American soil. The Stranger derives 90 percent of its revenue from holding its own events and providing a marketplace for others—in short, its survival depends on “people get- ting together in groups”. On Wednesday, The Stranger’s Twitter account urged readers to do- nate to keep it afloat. “We pride ourselves on hav- ing navigated many storms in the world of independent local media,” the post read, “but this time is different.” Allsop ends his CJR article on a really sober- ing note that will probably send chills down the spines of most journalists: “In recent years, we’ve gotten used to hearing dire prognostications about the complete erosion of the local news business in the United States. The coronavirus risks accelerating almost all of the malign trends. Its impact could end up looking loosely analogous to that of the virus itself. Big media companies with healthy finances and growing subscriber bases will likely survive, and could even profit. Outlets with serious underlying health conditions might die.” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com DeanBaquet,theexecutiveeditor ofTheNewYorkTimes has observedthatthecoronavirus couldprovetobeadisasterfor localoutlets,inparticular. JonAllsop,formerlywithBuzzFeed andagradofColumbiaJ-School observesthatthedisordercausedby thecoronavirusrisksinvadingnews organisations’abilitytofunction.
6 March 23, 2020 ContentsVOLUME XIII ISSUE19 MARCH23,2020 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Junior Sub-editor Nupur Dogra Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographer Anil Shakya Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Former Chief Justice of India MN Venkatachaliah imparts his wisdom on many legal topics while talking to Rajshri Rai, MD, India Legal and Editor-in-Chief, APN “The Judiciary Makes the World a Better Place to Live In” LEAD 16 In his latest book, From the Trenches, eminent jurist, parliamentarian, columnist, thinker and commentator Abhishek Singhvi revisits eight defining cases of our times. An excerpt from one of them, Naveen Jindal vs the Union of India—the case that won all citizens the right to fly the tricolour Flying high 24 BOOKS
| INDIA LEGAL | March 23, 2020 7 Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE REGULARS Ringside............................8 Is That Legal...................10 Courts.............................12 Law Campus News........14 International Briefs ........44 Media Watch ..................50 Winners and Losers 48 An increase in fraudulent transactions related to trading in stocks should make investors careful about their investment with portfolio management organisations and trading brokers as it is better to be safe than sorry Taken For a Ride COMMERCE New auditing rules, CARO 2020, should lead to greater transparency and faith in the financial affairs of companies and bring the role of auditors and CFOs under the scanner 40No More Hide and Seek 26 According to a Bill, Andhra Pradesh will have an executive, a judicial and a legislative capital. While this decentralisation may seem good, there are legitimate concerns about additional costs and logistics A Viable Development Model? OPINION 30 The watchdog institution, Lokpal, conceived as a public bulwark against corruption in high places, seems a charade. It is unwieldy and top-heavy and chases petty bribe-takers while ignoring the big fish A Fundamental Right Rajasthan has prepared a law to ensure minimum water supply to every household and punishment for those misusing or wasting this precious resource 46 Even as the SC refused to refer Article 370’s scrapping to a larger bench, it’s obvious that the abrogation of J&K’s special status was achieved through legal fiction, showing the adroitness of the centre Outmanoeuvred? 32 An Opportunity for India With the import of pharmaceutical ingredients from China being hit due to the coronavirus, India should revive its own market by setting up fresh manufacturing centres and give incentives to this industry Just an Eyewash? 36 LEGALEYE In a smart move, President Gotabaya Rajapaksa of Sri Lanka has dissolved the parliament and called for early elections in a bid to cash in on popular support even as the UNP and SLFP are struggling to stay relevant STATES GLOBALTRENDS MYSPACE 42
8 March 23, 2020 Anthony Lawrence RINGSIDE The Last Resort “Special discount for BJP MLAs” “50% discount for Congress MLAs”
What is the legal procedure adopted for the dispersal of an unlawful assembly? Section 141 of the IPC defines an unlawful assembly. Accor- ding to the Section, whenever five or more than five people come together with a mutual intent of disturbing the peace of a place, it is considered an unlawful assembly. This may later lead to riots if the people are not dispersed in time. There are three sections in the CrPC dealing with unlawful assemblies—Sections 129, 130 and 131. Section 129 deals with the dispersal of unlawful assemblies by using civil force. Under this, an executive magistrate or police officer in charge of a police station or an officer not below the rank of a sub inspec- tor may issue directions to disperse any unlawful assembly. However, if the people assembled do not disperse even after his order, the police may proceed to disperse it with the help of force and if necessary even detain and arrest people. Section 130 says that if the assembled people do not disperse, the executive magistrate of the highest rank may ask the armed forces under his command to disperse the assembly. Section 131 says that any ga- zetted officer of the armed forces may disperse such assembly with the help of the armed forces under his command. Disturbing peace Can lawyers refuse to appear for the accused in court on any grounds? Recently the Karnataka High Court observed that it is unethi- cal and illegal for lawyers to not represent the accused in court. This was after the Hubli Bar Association had objected to representing the four students arr- ested on charges of sedition in the state. According to Article 22(1) of the Constitution every person has the fundamental right to be represented by a legal practition- er of his or her choice. Equality before the law and equal protection of the law are guaranteed by Article 14. Article 39A states that equal opportunity should be provided to everyone to secure justice. When all of these are read together, it becomes clear that it is the duty of the advocates to represent the accused before the court of law. The Supreme Court in a 2010 judgment said refusing to appear for the accused is illegal, against all traditions of the Bar as well as professional ethics. The top court also said that every person has a right to be defended however “wicked”, “depraved” or “vile” he may be. Lawyers can’t refuse to appear What is the life of a mercy petition? It is an established fact that a death row convict can’t be hanged until and unless he has exhausted all his legal remedies and the last legal remedy that is available to him is a mercy petition. A mercy petition is when a death row convict approaches the president of India to get his death sentence commuted under Article 72 of the Constitution. The petition, once submitted before the president, is forwarded to the Union ministry of home affairs. A mercy petition must be filed before the president within seven days after the jail superintendent informs the death row convict that all petitions filed by him against the capital punishment have been dismissed by the Supreme Court. On receiving the petition, the ministry of home affairs scrutinises it and it is then sent to the concerned state or Union Territory for their opinion. On receiving the letter, the state or the Union Territory is bound to give its opinion on the matter. After receiving the opinion, the home ministry prepares a “summary for the president”. On receiving the summary, the president goes through it and takes a final decision. ISTHAT —By Deepankar Malviya ? Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis 10 March 23, 2020 Pleading for mercy Anil Shakya
Operated by State Tax (Commercial Tax) Department, Uttar Pradesh Trader relations campaign Benefits from GST registration With the inspiration of the Chief Minister, the state government strived to increase GST registration base and the State Tax (Commercial Tax) Department, Uttar Pradesh conducted a merchant contact campaign and also made business people aware of the state and central government schemes for them During the campaign, the officers and employees of the State Tax (Commercial Tax) Department personally contacted the merchants in each market of each district of the state and provided them with the characteristics of the GST tax system and the merchants by the State Government and the Central Government. To make aware the business people, facilities were provided by the state govt and GST registration were provided to the unregistered traders thereby realizing them their contribution in country’s advancement During the campaign, the department collected general information related to registered and unregistered traders in the state. During the campaign, registration awareness seminars were organized in all the districts of the state. During the connectivity campaign, the traders of the state were made aware of the GST registration, GST return admission and composition scheme by the department. PAN number, mobile number, e-mail address, Aadhaar or digital signature Training was provided by the department in relation to the process of registration and return admission and technical problems of traders were diagnosed. GST registration a symbol of merchant honour. Active participation of registered persons under GST in the development plans of the country and the state. GST registration the first step to the possibilities of registering business growth. Under the GST tax system all tax work can be done online. There is no need to come to government office for any work related to GST Uninterrupted facility of I.T.C on goods purchased from any state of the country Samadhan Yojana for small and medium traders up who have the turnover of Rs 1.5 crore annually For traders registered in Uttar Pradesh, Rs 10 Lakh Merchant Accident Insurance Scheme has been earmarked No premium for insurance plan Very simple and easy return form for small and medium traders Facility of filing zero-sales-related returns through SMS Facility for filing Quarterly returns for traders who have an annual turnover limit of up to 5 crores Benefit of Central government-run pension scheme Required documents for registration Identity certificate Proof of Residence and business address Proof of bank account Website State Tax (Commercial Tax) Department, Uttar Pradesh E-mail Helpline Control Room Toll-free
12 March 23, 2020 Courts The Delhi High Court granted the custody of a 10-year-old boy to his NRI father, an industrialist living in Kenya, saying the man was in a better position to take care of the child. A bench of Justices GS Sis- tani (who has since retired) and Jyoti Singh said that while the woman, a Delhi-based lawyer, may be well within her rights to seek alimony from her husband, using the minor as a “chattel to be traded for alimony or other benefits can never be in the best interests of the child”. The High Court dismissed an appeal filed by the woman challenging a trial court’s order by which the child’s custody was granted to his father. “We are of the view that the father/respondent is in a better position to take care of the child and the best interests of the child would be protected by granting his custody to the father. Accordingly, we find no merit in the appeal and the same is dismissed,” it said. The Court said paramount consideration has to be given to the “welfare of the child” and the “best interest” principle. Minor’s custody given to NRI father Atwo-judge vacation bench of the SC refused to stay the Allahabad HC order asking the UP government to remove posters “naming and shaming” protesters who demonstrated against the Citizenship (Amendment) Act even as it wanted to know under which law the state government had publicly put up the posters. “There is no backing of law,” said Justice UU Lalit while refusing to stay the HC judgment but referring the question of law to a larger bench. “The matter requires further elaboration and consideration,” the bench said. Justice Lalit said that while there should not be unruly behaviour, there must be some law which backs the action of putting up such hoardings. Solicitor General Tushar Mehta, representing the UP government, then quot- ed a precedent set by the Court in R Rajagopal vs State of Tamil Nadu on the issue of privacy. He contended that people who resort to violence and point guns during protests cannot claim a right to privacy. The top court was hearing a plea filed by the UP government challenging the HC’s March 9 order directing it to remove hoardings containing photos and other personal details of people who allegedly took part in anti-CAA protests, on the grounds that it was an infringement of their privacy. The UP Police put up hoardings across Lucknow on March 5. The Karnataka High Court granted bail to 16 youths, accused by the police of attacking the Mangalore North police station in the violence related to anti-CAA protests on December 19, on the grounds that the same people were named in other similar cases in different locations at the same time. Mohammed Suhal and 15 others, accused of attacking the police station, were also allegedly part of a group of 21 persons granted bail by the High Court on February 17 after finding no prima facie evidence to link them to the mob violence last December. High Court judge John Michael Cunha granted bail to the 21—Mohammed Ashik and others—citing the partisan behaviour of the police and failure to register cases lodged against the police by two victims of alleged police firing. Later, following an appeal by the Karnataka government, the Supreme Court on March 6 stayed the bail of the 21 people. Karnataka HC grants bail to Mangalore anti-CAA protesters SC refuses stay on Allahabad HC order on poster row UNI
| INDIA LEGAL | March 23, 2020 13 AHubli court rejected the bail application of three Kashmiri students, who were booked for sedition after their video allegedly raising pro-Pakistan slogans went viral. The plea was filed under Section 439 of the CrPC. This comes after the Hubli Bar Asso- ciation withdrew its resolution against representing them and said that advocates who wish to appear for them can approach the Dharwad principal district court to file bail pleas. The three students are Basit Aashiq Sofi (22), Talib Majeed (20) and Amir Mohi Uddin Wani (20). They were booked under sedition charges for raising pro-Pakistan slogans in a video shared on social media. They were earlier transferred to Belgaum Hindalga jail from Hubli sub-jail and the case, registered at Gokul Road police station, was also transferred to the rural police station because the video was recorded in the college hostel room, which lies in its jurisdiction. The case had also become noticed as after their alleged offence, the Hubli Bar Association had vowed that none of its lawyers would represent them in the district court. The decision was later rever- sed under pressure from the Karnataka High Court and senior lawyers. —Compiled by India Legal team Delhi High Court issued a circular asking people to stay away from public gatherings in the wake of the coronavirus outbreak. “...advocates, general public and litigants are requested to adhere to the guidelines/advisory issued by the Govt of NCT of Delhi and avoid unnecessary overcrowding in the court premises,” the advisory said. The development came days after the Delhi government had put out a public advisory on the public gatherings. As per the recent advisory issued by the Government of NCT of Delhi, coronavirus is a contagious virus which causes respiratory infection and can be transferred from human to human through air by coughing, sneezing and personal contact, such as touching or shaking hands, touching an object or surface with the virus on it and then touching mouth, nose or eyes with unwashed hands. The circular also enclosed the advisory issued by the Delhi government on the do’s and don’ts to be kept in mind to prevent any further spread of the virus. The HC circular came even as the SC which was on a week-long recess for Holi began to consider extending the vacation by another week in view of the virus. The SC’s vacation bench is set up normally during the summer break and it was for the first time that the apex court set up a short duration vacation bench. The Bar Council of Delhi (BCD) wrote to the Minister of Consumer Affairs, Food and Public Distribution, Ram Vilas Paswan, opposing the inclusion of lawyers under the Consumer Protection Act. This followed media reports that the government of India was contem- plating including lawyers within the ambit of the Act. In its letter, the BCD said: “As per the information available, your Ministry is framing Rules under the Act and wants to surreptitiously include lawyers under the proposed Rules so as to bring lawyers across the country within the jurisdiction of Consumer Redressal Forum. This is highly deplorable and the lawyers across the country will never accept their inclusion within the definition of the provisions of the Consumer Pro- tection Act." Thus, requesting the minister not to proceed with any proposal to include lawyers within the ambit of the Act, the Council’s letter added: “The legal profession is an integral part of the justice delivery system and is not a commercial or trade activity and the legal professional cannot be included for any purpose under the Consumer Protection Act, 2019, or its Rules as is being contemplated.” Delhi Bar Council says “no” to lawyers in CPA Sedition-charged Kashmiri students’ bail plea rejected Delhi HC guards itself against coronavirus
ranked in the QS World University Subject Rankings 2020. JGLS has been ranked in the 101- 150 band amongst the world’s top law schools while NLSIU is in the QS 151- 200 band. Criteria on which the univer- sities were ranked include academic reputation, employer reputation, H-Index and citations per paper. QS Subject Ranking in Law measures the global relevance of institutions spe- cifically in the area of research in law along with combining reputation among the academic community and employ- ers. Out of 894 law schools shortlisted only 300 were ranked by QS. 14 March 23, 2020 LAW CAMPUSES / UPDATES Jindal Law School ranked No.1 in India, among top in the world, by QS Survey Afinal-year student of the Chanakya National Law University (CNLU), Patna, filed a writ petition in the Patna High Court challenging an advertisement by the Bihar Public Service Commission for the post of assistant prosecu- tion officer. The advertisement by BPSC inviting applica- tions for the post said that only law graduates on the date of application were eligible to apply. However, the petitioners, who are final-year law students and would be graduates on the date of appointment, wanted to apply for the post. The last date for application for the post was March 6 and the petitioners are due to take their final exams in April. Justice Madhuresh Prasad passed an order dismissing the writ petition and observed that “the petitioners have no enforceable claim as it is the admitted position that they have yet to obtain their qualification as Law Graduates”. Patna High Court dismisses petition by CNLU student The Britain-based education information firm Quacquarelli Symonds (QS) has ranked the Jindal Global Law Sc- hool (JGLS) of O.P. Jindal Global Univer- sity in Sonipat, Haryana the No. 1 law school in India. Along with JGLS the National Law School of India University (NLSIU), Bengaluru, has also been Indrajit Dey
| INDIA LEGAL | March 23, 2020 15 —Compiled by Nupur Dogra First national client counseling competition The special edition of the Law Journal of National Law University Odisha (NLUO) on the theme of Election Laws aims to foster discussion on legal issues related to elections. This volume aims to extend its scope beyond the status quo, looking into the future of elections in India in a world of breakneck social, legal, political and technological development. Submissions can be in the form of long articles, short notes, book reviews. The article/note/case-comment/book review may focus on any contemporary topic relating to election laws such as–representation of Anglo Indians in Parliament, post- poll alliances and constitutionality, election manifesto, electoral bonds and political funding, NOTA and its contemporary relevance, electoral justice and participation of under-represented groups, reg- ulating election campaigning on social media/online platforms, application and analysis of the model code of conduct, transparency, disclosure of assets and nominations, electronic voting machines, role of civil society in electoral process and so on. Amity University Maharashtra, Mumbai is hosting its first national client counselling and drafting competition from April 17 to 19. The competition is open to all students pursu- ing the LLB three year/ five year courses during the current academic year. Themes will be based on the laws related to domestic violence, land laws, contracts, copyright and law of tort. Participating teams can win cash prizes worth Rs 25000 with a one-month internship and free publication online. Last date to register is March 29. NLUO invites papers for law journal special issue Himachal Pradesh National Law University (HPNLU), Shimla, is hosting an environment conclave on June 5, 2020. The Centre for Environment- al and Disaster Manage- ment of HPLNU is organising the one-day student conclave to bring together several eminent personalities in the field of environment law to give valuable insights to the young students who will put forth different perspec- tives and pertinent questions relating to contemporary issues in environmental law. HPNLU has invited students enrolled in undergraduate and post-graduate pro- grammes in any recog- nised institution across India. Students interest- ed in submitting their papers should submit their original and un- published work on relevant topics by April 25. Environmental conclave at HPNLU
Lead/ Interview/ Former Chief Justice MN Venkatachaliah 16 March 23, 2020 People call you Non-age Narayan, a person who doesn’t age. Once you told us that the secret of your youth is green tea and omega fatty acids. How do you keep yourself young and vibrant? Once Sir Winston Churchill was asked what was the secret of his durability. He said enduring qualities of alcohol and tobacco. (laughs) I don’t take alcohol, but this is perhaps pure God’s blessing that has given me longish life. That’s all I can say. dentship of the country. One of his minister came here. I told him that the moment I signed this offer, I would bring the edifice of the Supreme Court several notches down. Therefore, I pleaded my inability to respond to that offer. Other judges can do arbitration. They are good people. But the CJI should keep away from it. This is my personal conviction. As a patron of India Legal, how do you see its role in the field of legal journalism and what is your take on the current When you retired, you refused to take up any position offered to you by the government. Instead you said that you will study Indian spiritualism and religion. Tell us about that decision of yours. I said I will study the Upanishads. I didn’t want to take paid assignments or arbitration because I thought that the chief justice of India has some restric- tions about his post-retirement options. I was sounded by the then prime minister whether I will accept the vice-presi- FORMER CHIEF JUSTICE OF INDIA (CJI) MN VENKATACHALIAH needs no introduction. He served as the 25th CJI from February 12, 1993 to October 24, 1994. His tenure was marked by efforts to reduce pendency. An avid champion of human values and rights, he served as the chairman of the National Human Rights Commission. In 2000, he headed the national commission to review the working of the Constitution where he gave many valuable suggestions. Justice Venkatachaliah was conferred the Padma Vibhushan in 2004. Currently, he is the patron and guiding light of India Legal. He impart- ed his wisdom on many topics—the judiciary, religion, Ayodhya, upbringing of children...—to RAJSHRI RAI, MD, India Legal and Editor-in-Chief, APN NEWS. Excerpts from the interview: “The Judiciary Makes the World a Better Place to Live In”
| INDIA LEGAL | March 23, 2020 17 Do you think that India Legal is main- taining the standards of legal journalism? Sometimes I think that India Legal is practising that virtue in excess. (laughs) That’s good. As long as it is bonafide. As every institution, the judiciary must also be open to external assessment. The judiciary must be open to assessment of its social relevance and utility. Your tenure is best remembered for your initiative to enforce judicial accountability. You famously said that no one can watch a watchman. You said that the judiciary has to adopt a culture of accountability. Please elaborate. My impression is judiciary down the years in India has been treated as a holy cow. but respect shouldn’t generate immunity from criticism. This will bring irresponsibility in the system. We should constantly guard against it. If the judicial system fails, the whole democratic system fails. The problem in judiciary is in the lack of speed in the disposal of state of legal journalism in India? Legal journalism has come of age. In England once photograph of three judges was published upside down and captioned ‘three-old fools.’ That sort of journalism was always there in the West. The Indian press was very defer- ential to the judicial system. Punch, the comic journal of UK, never touched the judges except one or two occasion. In this country judiciary was treated as a sacred cow. Now judiciary is more open to scrutiny. That is good.
Lead/ Interview/ Former Chief Justice MN Venkatachaliah 18 March 23, 2020 cases. We concentrated on the problem during my tenure. My team of judges did enormous work. They worked half an hour more daily. The result is for all to see. From 1991 to 1998 in eight years the backlog of cases fell from four and a half lakhs to 19 thousand. People said that it is the most commendable work of any post-Independence institution. That was the collective work of all the judges. There were great judges in our time. I am not in touch with the system now but I can say that those years were very productive. Pendency is a major problem facing India’s judicial system. We are badly understaffed in terms of judges. Now, with the advent of Artificial Intelligence (AI) and other high-end technologies, will the judiciary embrace it to solve pendency? Pendency is a serious problem plaguing our judicial system. There are 22,764 subordinate courts in the country. Each court lists around 60 case per day. Ar- ound one case per day is decided. There are 250 footfalls on the either side of advocates and clients. Multiply 22,764 by 300 footfalls everyday and then multiply that by 290 days of work. Then you will know the enormity in terms of loss of productivity and man hours. If you calculate it at the rate of Rs 300 per head, per day, it may amount to a lakh and fifty thousand crore rupees per year. This is the notional loss in addition to the actual expense involved in it. Talking about Artificial Intelligence (AI), the scanner can read some four- lakh pages in about three to four min- utes. But the language platform must be compatible with the material available in courts. Only then the advantage of AI solutions will accrue. AI has some limits but it can be done. You were part of the group formed to review the working of the Constitution. What changes are you looking for in the Constitution? We were part of the group which was Take the example of Kerala where social indices have dramatically improved. For example, social welfare is exemplified in maternal mortality figures which have come down significantly. You once said that you were the most unpopular chief justice ever. What did you mean by it? A judge is unpopular in every sense. His views and world pictures somehow in- fluences his decisions. Sometimes preju- dices enter into his principles. So greater wisdom is expected of judges than mere technical knowledge and details. He should have an idea that into what kind of society he is administrating, what kind of system. We coin beautiful formed to assess the Constitution. It was called the National Commission to Review the Working of the Indian Constitution. The Constitution provides the framework and if there is good and responsible governance, then the results of growth and development are visible. “Ididn’twanttotakeuppaid assignments.Iwasoffered vice-presidentshipbythethen primeminister,butIrefused.Ifelt thatbyacceptingit,Iwouldbring theedificeoftheSupremeCourt severalnotchesdown.”
| INDIA LEGAL | March 23, 2020 19 cendent of caveman. It is a new specie in itself. It has immense potential. We are not able to imagine the magnitude of potential of the human brain. This is my take on how system should change to suit the present generation. India is essentially a religious country. Does inculcation of scientific temper as envisaged in our Constitution preclude its religious ethos and practices? You can’t eliminate religion through scientific thinking. Science can’t replace religion. Both have a unique place and can mutually coexist. Religious values are of paramount importance and we shouldn’t abandon them. We should expose our children to religious values and traditions. Development of a scientific temper doesn’t in any way rule out embracing religious values. India is a land where diverse faiths have flourished. But now with modernisation and rapid social change, religious practices are being freely questioned and challenged in courts of law. Women’s rights and essential religious practices are at odds. Sabarimala is a case in point. What is your view about it? Cases involving questions of religion, essential religious practices and constitutional rights are being brought to courts more frequently. It’s being seen as the rule of law versus tradition and cul- tural practices. Courts have been adjudi- cating such matters for some time now. Arguments in such cases should be tele- vised live and people, especially children, should watch these proceedings. The bottomline is that we should value everything for the common good. Our political system is under tremen- dous strain. Deviant political behaviour and electoral malpractices have created havoc in the system. What solution do you prescribe for the ills affecting the political system so that it becomes healthy once again? BR Ambedkar once said: “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.” Democracy is a new soil and it has to be nurtured carefully. In India, strict electoral reforms are needed in order to overhaul the political system. Laws for the formation of political parties, funding and public scrutiny of the workings of political parties are needed. I worked along with a group to draft a model legis- lation to this effect. Sources of political funding should be revealed by proper audit. Cash and caste are a dangerous mix, and if used wrongly can ruin democracy. Dynastic politics should be done away with. Holding party presi- dentship on account of heredity is a crime. We have to bring changes in these areas. By political reform, we can nurture the soil of democracy and make it healthy and whole. slogans, use expressions borrowed from foreign experience and try to incorpo- rate them in our system. Indian predica- ment is totally different. It requires different solutions and one size doesn’t fit all. There are regional differences, regional imbalances and what is needed is a kind of pervasive wisdom which can assess the utility of any system appropri- ate to any situation. That instinctively should develop in a judge. It is very dif- ficult to straitjacket everything everything in one formula. Somebody asked what does it take to be a Lord Chancellor. The answer was first and foremost he must be a gentle- man. It doesn’t matter if he knows a little also. So the importance of technical knowledge is being emphasised today. That also is important. Law is increasingly becoming a junior branch of economics. Economics is increasingly becoming a junior branch of technology. When explosion of technology is wit- nessed then all other systems also have to change to suit the demands of inno- vation. That’s why every institution requires introspection. Because the world is changing rapidly. It should also suit the mindset of the present generation. According to me, the present generation of Homo Sapiens is not a genetic des- LEGAL ANGLE Rajshri Rai is all ears as Justice Venkatachaliah makes a point
Lead/ Interview/ Former Chief Justice MN Venkatachaliah 20 March 23, 2020 Today, the country is embroiled in controversies and conflicts related to the Citizenship (Amendment) Act, sedition laws and the National Population Register. What is your take on these controversies? Every nation has its laws and is free to enact them. If some apprehension has crept into the minds of a section of people regarding some law, then these fears need to be addressed. This can be best addressed by debate and discussion. You have to use the power of persuasion to show that nothing is intrinsically wrong with the laws. The apprehension that laws will be applied discriminately is probably creating problems. We today operate in a polarised atmosphere. Conflict is common and often leads to violence. In such a strife-ridden atmosphere, the role of the police is often under the scanner, and when matters relating to communal conflict reach courts, questions get raised on the judgments. How justified is this? We have to trust our judiciary and accept its decisions on critical issues. If we don’t trust the judiciary, we will lose confidence in it and also in democracy. Judges are aware of both sides of the matter. They know what is horrific for the nation. Don’t substitute their wisdom with your impositions. Let the system work. The judiciary must interpret the law and apply the rule of law. It should do so without taking sides or taking personalities into consideration. That is the only way in which it can gain public confidence. We shouldn’t depend on the judiciary for everything. It is a mark of a weak society. This will prevent people from settling disputes democratically. For the protection of human and fundamental rights, the judiciary is the best institution and we should trust it. In times when executive action is found wanting in important areas of public concern and policy matters, the judiciary takes on a proactive role. This is often termed as judicial activism. This has been on the rise, and in many cases, I don’t think so. There are limits of judicial intervention. The courts can only instruct and set goals. It is the executive that has to execute the action plan. The court sets the objective, for example, protect the structure, but the executive has to perform, taking into account all the ground realities. The Ayodhya judgment has now become a case study of sorts. It was not only one of the longest-running legal battles, but the judgment touched upon the sensitive issue of faith versus rule of law. How do you see the verdict in retrospect? This case didn’t turn on pure legal logic, but on the broader issue of national con- ciliation and consensus. There is a power peculiar to the Supreme Court under Article 142. It empowers the Court to pass such “decree or order as may be necessary for doing complete justice between the parties”. This power was invoked during the Ayodhya judgment. It was a broader exercise and not limited to mere determining of the legal rights of the land. It wasn’t an emotional judgment, but based on wisdom. You have given so many ideas to bring about reforms in the social, political, led to a face-off with the executive. What are your views on this? Judicial activism is a slippery slope. You are acting in an area where legislators or administrators should be doing their duty. You see somewhere and somehow some institutions are not performing their constitutional duties and obliga- tions. Then the courts have to intervene. Someone else has to do the job so that the demand of the Constitution is met. The government has no choice. It has to take the decision of the court in a gra- cious way and work out democratic equality. Going back in history, you were criti- cised for not acting to stop the appointment of a multi-member Election Co- mmission and for allowing the symbolic kar seva in Ayodhya. Given a chance, would you have acted otherwise? “Dynasticpoliticsshouldbedone awaywith.Holdingpartypresi- dentshiponaccountofheredityis acrime.Bypoliticalreform,wecan nurturethesoilofdemocracyand makeithealthyandwhole.”
| INDIA LEGAL | March 23, 2020 21 should be a buffer between them. Civil servants shouldn’t be misused by the political class. EVMs are seen as tools to correct electoral malpractices. Now a question mark is being raised over them also. Do you think EVMs are a good solution? There is an expansive message in the paper trail of EVMs. By collaborative evidence, model statistical analysis and big data analysis, we can assess the degree of divergence. It is working quite well and the results are coinciding with exit polls. It is one of the tests. You can’t achieve perfection in assessment but EVMs are better than paper ballots. I have seen bunches of paper ballots being manipulated. They are not reliable and are more open to mischief than EVMs. The paper trail analysis is signifi- cant. Some margin of error is all right. Swami Vivekananda said that if you are very logical, you can’t be spiritual. What is your view on this? Vivekananda says so many things beautifully. He talks about evolution and not revolution. He talks about diversity of religious traditions and the need for coexistence. Vivekananda stresses unity of religious values and their integration. He doesn’t talk about one religion for all, rather, to each according to his own is his motto. This is relevant for our times. The new generation is very attached to the internet which has become the pri- mary mode of knowledge transmission and interaction. However, the State has clamped down on the internet in trou- bled times. In this context, the Supreme Court recently held that access to the internet is a fundamental right. We are now thinking of its ill-effects and potential for misuse. The internet is one of the greatest inventions mankind has seen, almost next to the railroad. If the question is how to protect children from its ill-effects, the answer lies in the fact that the internet is a protection against itself. There lies a way in which the internet can be manipulated to prevent unwanted information reaching children or vulnerable groups. AI is excit- ing. It is based on logic and logic is a friend of justice. Humanity has a lot to look forward to. Spirituality and human evolution are taking an upward course. Can you expand on the underpinnings of the judgment on internet access and its importance? Times have changed. Access to the internet is equated with the right to information, the right to knowledge. It is an attribute of the human being or human personality. Internet access can be abused, but then everything can be abused. Social media has the potential for misuse. With current cyber laws, are we ready to regulate the internet? No, we are not conscious of the magnitude of the problem or the ill-effect it judicial and constitutional arena. Now, when optimism has become a political war cry and Prime Minister Modi’s slo- gan achhe din has been hailed as a game-changing mantra, when do you think the wait for better days will come? For the judiciary, there will always be achhe din. This is because they take the responsibility to resolve tensions and help people carry on with their lives. They make the world a better place to live in. It’s not their technicality but wisdom which we should respect. We should trust the Supreme Court. In the past and in recent times, inter- community strife has led to bloodshed. Politicians indulging in hate-mongering have been let off without punitive action. In this context, the political class needs to be more responsible and responsive. Political parties have the responsibility to evolve systems that go beyond their interests. They should sit together and evolve systems to improve electoral politics. Though the executive and the civil servant work in tandem, pressure is often brought on the bureaucracy by the political class to serve its interests. Hence, the executive and the civil serv- ices should be separate and there “Wehavetotrustourjudiciaryand acceptitsdecisionson criticalissues.Ifwedon’ttrust thejudiciary,wewillloseconfi- denceinitandalsoindemocracy.”
22 March 23, 2020 can produce. Take a kitchen knife. It can cut vegetables and it can injure a human being. Science is like that. The nuclear bomb killed millions but when nuclear science was used for medicine or con- structive purposes, it enhanced the quality of life. How to minimise bad effects and maximise good effects depends on the genius of the man. Religion seems to have become a divisive tool and much hatred is being generated in its name. Is the political system to be blamed for this? Religion per se doesn’t divide. No religion says that. Some religious practices are peculiar to a certain social context and when seen without that context, they are construed to be divisive. Nothing should be seen outside context. When we understand this, then the message of religious traditions is properly understood. We should also assess the potential of science and governance. Today, human dignity is coming centre- Finally, what message would you like to give our readers? Give kindness and understanding to one and all. Admire people who do good and can change the world. Take care of children. Make them good citizens with beautiful, blossoming minds. Give them positive thoughts. I am the founding chairman of Sarvodaya International Trust. It is a beautiful institution. We encourage that each Hindu boy should have a Muslim friend and vice versa. The families of boys meet every three months and this promotes mutual understanding and communal harmony. It is this spirit which we should promote in society. Be positive. Things will hap- pen. There is so much of beauty and goodness in the world. You are the patron of India Legal. What would you like to say to us? India Legal is providing substantial leadership and it will contribute in making a better future. It is examining critically every issue. Critical analysis is the foundation of progress. The India Legal conclaves are beautifully arranged. People who have participated in them are eminent personalities. The thoughts expressed by them are so relevant. There is no negative thinking about the society. Thirty thousand years back, we were cavemen. Now we are civilised. We are constantly evolving as human beings. People who consti- tute India Legal have great responsibility for bringing an era of peace, con- tentment and progress. We should aim for a society where everybody is happy and well looked after. We should aim for creating a society where everyone gets the best opportunity to develop one’s higher self. India Legal should aid this process. stage. The great challenge before today’s political leadership is how to mobilise positive forces for the good of one and all. Political leadership has the immense task of synthesising the positive forces and taking it forward. That can be done by the right-thinking sections of society. It is possible that some day, science will lead to that. Internet, AI will do that. Perhaps God will be made manifest by the scientist. Scien- tists will place before us the conception of God. Today, everyone has a mobile phone and this can cause mischief. Have we not properly harnessed the mobile phone revolution? A hand-held mobile phone is a symbol of immense social and technological change. We not only communi- cate through it but also access information and control devices. The responsibility to use it correctly lies with the individual. “IndiaLegalisprovidingleader- shipandwillcontributeinmaking abetterfuture.Itisexamining criticallyeveryissue.Thecon- clavesare beautifullyarranged.” Lead/ Interview/ Former Chief Justice MN Venkatachaliah
Bringing You The Stories That Count An ENC Publication To Stay Abreast With Today, Pick Up Yesterday’s India Legal ONLY THE STORIES THAT COUNT Every week India Legal will bring you news, analyses and opinion from the sharpest investigative reporters and most incisive legal minds in the nation on matters that matter to you Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends NDIA EGALL STORIES THAT COUNT I March16, 2020 LawandDisorderCrucialmattersthatcameupintheSupremeCourtandDelhiHighCourtindicateacrisisinIndia’s basicgovernance.TheCrPCandPoliceActsclearlylaydownthatitisthejobofDMsandSDMsto maintainlawandorder,buttheirrolehasbeentakenoverbythepolicewithquestionableresults Fast Track Courts: New scheme
LYING the flag is an act of patriotism. But it is important to remember that our case was not pegged on patriotism. It is a victory for our democracy that the constitutional basis on which it was decided was not whether an act is or is not patriotic. It is based on the freedom of speech. We found a rooting in a constitutional text and unless you find a rooting in a juristic principle, you are not making good law. If the Supreme Court had said you have a right to fly the flag because it is 24 March 23, 2020 patriotic to fly the flag, that would be uncharted and leave us without a principle to follow. Therefore, I am happy that we pegged it and rooted it in Article 19(1)(a), which is a well-known right. Abhishek Singhvi, as one of the top lawyers at the Supreme Court, has helped shape contemporary trends. In his latest work, From the Trenches (co-authored with Satyajit Sarna), he revisits eight defining cases of our times, and presents a view, as it were, from the trenches. Here is an excerpt from one of them, Naveen Jindal vs the Union of India—the case that won all citizens the right to fly the tricolour F twitter.com Books/ Extract/ From the Trenches Flying high NaveenJindalholdsaformal flagfunctionon26January everyyear,afterthejudgment inNaveen Jindal vs Union of India casecameout.
non-affiliated, not casteist, not sect dominated, not race dominated; it is the most secular symbol you can think of. And while this is true for every country, nowhere is it as true as in the world’s most diverse country–India. What drove Naveen Jindal to fight this long, hard, principled fight? After all, he is an industrialist, a busy person who has plenty of important things to deal with. Why did he fight the government for years over such an abstract principle? I think maybe it was an eccentricity. Society progresses on the backs of not only sensible people but also eccentrics and ordinary people who may have one overriding obsession. You may be a rational person, but it is the eccentric kink in you which leads to change and progress. Naveen Jindal had an unusual interest in the flag, an exceptional devotion to the cause and he fought for the principle he believed in. It is often this kind of passion, usually irrational, that wins us our rights and freedoms. —Excerpt reproduced with the permission of the publisher | INDIA LEGAL | March 23, 2020 25 Patriotism may be the underlying ethic but the judgement supports also my freedom of expression unrelated to patriotism. It is possible to use that right even in a critical sense, to use it to criticize the state of the nation. One could fly the flag at a demonstration, for example, to point out that soldiers are dying at the border for a poor policy of a government. Whether that is patriotic or not is open to question and there are people who would interpret it either way. But it is one’s right–to the extent, of course, that nobody burns the flag. O ne of the things I am most grateful for in the Jindal case is that the Court permitted it to be heard and decided on rights. The Union was not permitted to take it back and fix the gaps in the Flag Code, and put a soft end to the dispute. Judges who are not decisive prefer controversial disputes to be worked out broadly by consensus. That is simply a way for judges to decide not to decide. My biggest fear was the Court would back off from deciding by saying we agree there is a right, but let the government arrive at some convenient solution. It came very close to that many times in those two to three years. These things depend largely on the personality of the judge in question. It is natural for judges to want to avoid writing a judgement if the government is telling them the decision will yield unpoliceable consequences. But this time, Justice Khare, a little uncharacteristically, stood his ground and went on to decide the matter finally, and strongly, in our favour. Equally, even though the government had made it clear that Naveen Jindal would not be prosecuted, I am glad he decided not to withdraw the case, and allow the government to go forward with a modified Flag Code. Naveen Jindal has invited me every year after that on 26 January, when he holds a formal flag function at his house. He always sends me a flag and also a lapel pin. I have often attended the function. As a consequence of the judgement, a flag movement started, very much encouraged by Jindal. It started with schools educating children about the flag, then holding functions, passing out small lapel pins which children could wear. The flag movement now has become a larger movement of awareness, awareness of the unity and integrity of India through its diversity, a non-communal, secular symbol. The flag is our most secular symbol not merely in religious terms, but also, more broadly, where secular means “OneofthethingsI ammostgratefulfor inthiscaseisthat theCourtpermitted ittobeheardand decidedonrights. TheUnionwasnot permittedtotakeit backandfixthe gapsintheFlag Code”—DrAbhishek ManuSinghvi From the Trenches Author: Abhishek Singhvi & Satyajit Sarna Publisher: Juggernaut Pages: 225 Price: Rs 599 UNI
My Space/ Coronavirus Dr KK Aggarwal 26 March 23, 2020 NDIA produces a third of the world’s medicines, mostly in the form of generic drugs. But more than 80 percent of the raw materials or active pharmaceutical ingredients (APIs) for these drugs are imported from China. That gives it a virtual monopoly over pricing and supply, so much so that there are no domestic producers left for many essential medicines in India. An API, incidentally, is the most basic building block or component of a medicine. For example, acetaminophen (paracetamol) is the chief therapeutic entity in aspirin or crocin. Latest statistics from the Directorate General of Commercial Intelligence and Statistics tabled in Parliament reveal that in 2016-17, of the total import of bulk drugs and drug intermediates of Rs 19,653.25 crore, China constituted 66.69 percent (Rs 13,107 crore). In 2017-18, India imported Rs 21,481 crore worth of bulk drugs and intermediates, and the share of China increased to 68.36 percent (Rs 14,755 crore). Chinese imports levelled at 67.56 percent (Rs 17,263 crore) in 2018-19, still the largest share in total Indian imports worth Rs 25,552 crore. Also, overall India’s dependence on imports of bulk drugs and drug intermediates has gone up by 23 percent from 2016-17 to 2018-19. The Department of Pharmaceuticals (DoP) in the ministry of chemicals and fertilisers said that the imports from China are due to economic considera- tions. This essentially means that Chinese imports are cheaper and more cost-effective for pharma manufacturers. Though India looks at other sources like the US, Italy, Singapore and Hong Kong for such imports, there is fear of a sharp spike in the price of finished drugs when APIs are imported from other countries apart from China. And even as India’s dependence on imports is considerable, policies formulated by the government to minimise this and give a fillip to indigenous manufacturing have remained only on paper. It was six years back that the Congress instituted a high-level committee to fight the heavy dependence on Chinese bulk drugs. Later, the National Security Advisor had warned that this dependence could be a national security threat. Apart from the dependence on legal imports, a large number of illegal imports of APIs from China were also a cause of worry for the regulator. In another reply tabled in Parlia- ment, the DoP informed that an inter- ministerial task force was also constituted under the chairmanship of the minister of state (chemicals and fertilisers) on April 18, 2018 to formulate a road map for enhanced production of APIs in India. Unfortunately, the task force has not even met every alternate month since August 2018, when ideally it was supposed to meet every month to take crucial decisions for boosting API production in proposed bulk drug parks. The DoP has a scheme—“Assistance to Bulk Drug Industry for Common Facility Centre”—for providing assis- An Opportunity for India WiththeimportofactivepharmaceuticalingredientsfromChina beinghit,Indiashouldreviveitsownmarketbysettingupfresh manufacturingcentresandgiveincentivestothisindustry I 0 10 20 30 40 50 60 70 2016-17 66.69% 68.36% 67.56% 2017-18 2018-19 Rs 13,107 crore Rs 14,755 crore Rs 17,263 crore Source: Statistics from the Directorate General of Commercial Intelligence and Statistics tabled in Parliament DrugImportsFromChinaas a%ofTotalDrugImports
| INDIA LEGAL | March 23, 2020 27 tance to the bulk drug industry for a common facility centre in any upcoming drug park promoted by state govern- ments or state corporations, the ministry stated. Only in-principle approval was given for constructing these parks now in Himachal Pradesh, Telangana, Andhra Pradesh and Assam. It will be a couple of years before the projects see the light of day. India also more than doubled the import of antibiotic drugs from China in recent years and the trade is now worth billions of dollars. There are now no domestic producers left for penicillin and its derivative. There was always a fear of a public health crisis if China were to ever stop its supply. This has now come true after Covid-19 created a shortage of essential medicines as India has been dependent on China for many APIs. Drug companies blame the government, saying that low-cost imports have forced many manufacturers to close down. Some have now given up producing ingredients for other drug manufacturers and gone on to produce more complex formulations themselves, which they then export to developed markets in the US and Europe. Bureaucracy and lack of environmental clearances in India have also made it uneconomical to produce raw materials anymore. However, switching back to mass production of raw materials is not diffi- cult or too late. If the government acts quickly, things can turn around in less than 10 years. J ust as India is dependent on China for many APIs, other countries are dependent on India for other APIs. So there are companies which import in bulk from China and export in small amounts. The Directorate General of Foreign Trade (DGFT) has now restricted the export of 26 APIs—paracetamol, tinidazole, metronidazole, acyclovir, Vitamins B1, B6 and B12, progesterone, chloramphenicol, erythromycin and clindamycin salts, neomycin and ornidazole—with immediate effect as the Covid-19 epi- demic in China is seen affecting their supply. Companies planning to export these products will have to secure a no- objection certificate from the government. The government’s list of 26 APIs and medicines accounts for 10 percent of all Indian pharmaceutical exports. It is unclear how the restriction would impact the availability of these medicines in countries that import from India and also depend on China. In the US, for instance, Indian imports accou- nted for 24 percent of medicines and 31 percent of medicine ingredients in 2018. It is time to build infrastructure to make them in India. The government has decided to set up a 10-member technical committee to revive India’s lost capacity to make certain crucial drug ingredients. The committee is expected to suggest ways to revive India’s API segment, especially fermentation-based APIs. One of the duties of the committee is to look into the cost of setting up fresh API manufacturing capacities to RATTLED BY COVID-19 OUTBREAK A medical supplies factory in Linli, in China’s Hunan province ThoughIndialooksforimportsfromthe US,Italy,SingaporeandHongKong,there isfearofasharpspikeinthepriceof finisheddrugswhenAPIsareimported fromothercountriesapartfromChina. UNI
STRATEGIC ADVANTAGE India imports over 80 percent of the raw materials for medicines from China 28 March 23, 2020 My Space/ Coronavirus/ Dr KK Aggarwal wean India off its dependency on imports of these products. Around 58 such ingredients had been identified, including amoxicillin, Vitamin C, neomycin, acyclovir and tetracycline. T he Drug Controller General of India gave a list of these 58 key drugs (for which India is heavily dependent on China) to associations such as the Indian Pharmaceutical Alliance, Indian Drug Manufacturers Association and the Organisation of Pharmaceutical Producers of India and asked them to inform the government about the status of raw material stocks for manufacturing these drugs. These include blood pressure medication Telmisartan, antibiotics such as Levo- floxacin and Azithromycin, statins such as Atorvastatin and Rosuvastatin and a few vitamins. The list also includes anti-retrovirals such as Lopinavir and Ritonavir that have been approved by the ICMR for treating coronavirus affected patients. The key concern was in the case of anti- diarrheal drugs such as metronidazole and ornidazole for which Indian manufacturers depended heavily on China for APIs. To reduce the reliance on China, it was important that the raw material used for manufacturing APIs is also made in India. China offered many advantages such as free land, low-cost utilities like water, steam and power and negligible financing costs. China had reformed its drug approval processes to shorten schedules. It put in place a priority review process for drugs for critical conditions and reduced the time it took to approve process changes in clinical trials. Medi- cines for anemia and bowel cancer are manufactured in China and imported by India. So what does India need to do? Firstly, it should rationalise the prescription of drugs. Medical Council of India ethics regulation 1.5 on the use of generic names of drugs says: “Every physician should prescribe drugs with generic names legibly and preferably in capital letters and he/she shall ensure that there is a rational prescription and use of drugs.” This would mean practising only evidence-based medicine. Restrict use of paracetamol for high fever and don’t misuse tinidazole and metronidazole for acute diarrhoea and vitamins B1, B6 and B12. Antibiotics such as chloramphenicol, erythromycin, clindamycin salts and neomycin in any way have restricted uses. The government should make a list of non-essential drugs in shortage so that all doctors are aware about them and do not write them if not essential. To promote the API industry, the government should give its manufacturers free land, low-cost utilities such as water, steam and power and negligible financing costs. It should also liberalise policies for clinical trials and approval of already approved drugs in other countries. It should also liberalise the conditions for clinical trials. What is the idea of testing in India if the trials have already taken place in China (Mongolian population), Sri Lanka (Dravidian population) and Nepal (Aryan population)? The new India effort will also improve the safety and quality of drugs. Last year, the FDA issued an alert over a cancer-causing ingredient, NDMA, used in the blood pressure medication losartan and valsartan, made by Chinese company Zhejiang Huahai. This resulted in the recall of such drugs all across the globe. Also, last year, a scandal over tainted vaccine doses sold in China led to the arrests of executives of Changsheng Biotech, which was also accused of forging data during the production of a rabies vaccine given to infants. So it is time for India to become self- reliant in APIs to prevent another shortage like the one the coronavirus has inflicted on it. —The writer is President, Confederation of Medical Associations of Asia and Oceania, and Heart Care Foundation of India Thegovernmenthasdecidedtosetupa 10-membercommitteetoreviveIndia’s lostcapacitytomakecrucialdrugingredi- ents.Thepanelisexpectedtosuggest waystoreviveIndia’sAPIsegment. commons.wikimedia.org
Amaravati, the legislative capital, will also have the camp offices of the governor and the chief minister as well as a bench of the High Court The coastal city of Visakhapatnam is the executive capital, comprising the Raj Bhavan, the chief minister’s office and the secretariat, among others Kurnool is the judicial capital, where the High Court will be located Andhra Pradesh 30 March 23, 2020 CCORDING to the Andh- ra Pradesh Decentralisa- tion and Inclusive Deve- lopment of All Regions (APDIDAR) Bill, 2020, the state shall have three capitals. Visakhapatnam Metropolitan Region will host the executive capital comprising the Raj Bhavan, the chief minister's office, the secretariat and the offices of heads of departments, the summer session of the legislative assembly and a bench of the High Court. Amaravati-Mangalgiri Complex will be the seat of the legislative assembly and will inter alia accommodate camp offices of the governor and the chief minister as well as a bench of the High Court. The winter session of the legislative assembly shall be held here. Kurnool will be the judicial capital and the seat of the state’s High Court. Thus, the doctrine of separation of powers has been given a geographical dimension. A host of other administrative arr- angements too have been proposed. Thus, zonal planning and development boards and offices of divisional revenue commissioners shall be set up. The number of districts is proposed to be increased from 13 to 25. The offices of village and ward secretariats, along with village and ward volunteers, will also be established. Simultaneously, the Andhra Pradesh Capital Region Development Authority (APCRDA) Repeal Bill, 2020, proposes to wind up this Authority. It will be replaced by the Amaravati Metropolitan Region Development Authority (AMRDA). It has been argued that lopsided development of various regions of Andhra Pradesh over the years sowed the seeds for the separate Telangana movement that ultimately led to the bifurcation of the state in 2014. The new arrangement is based on the recommendations of professional agencies and expert committees. Over 20,000 farmers (70 percent of them small and marginal) pooled 33,000 acres on the promise of various benefits, all of which may not materi- alise if Amaravati is replaced by three capitals. The government has, of course, promised to increase the annuity accru- ing to the farmers from 10 to 15 years. Monthly remuneration to the landless poor is proposed to be increased from Rs 2,500 to Rs 5,000. However, the farmers consider the three-capital idea a breach of trust. They and their depen- dants may not get the promised jobs. Social and physical infrastructure may not develop as expected. Anticipated appreciation in the price of land may also not come about. It has also been argued that Amara- vati is neither Guntur nor Vijayawada, which were front-runners for the loca- AsperaBill,AndhraPradesh willhaveanexecutive,a judicialandalegislative capital.Whilethis decentralisationmayseem good,therearelegitimate concernsaboutadditional costsandlogistics Opinion/ Three Capitals in AP Vivek K Agnihotri A Viable Development Model? Over20,000farmersinAmaravatiregion havebeenprotestingagainsttheAndhra Pradeshgovernment’sintentiontoshift thestatecapital.Theygaveuptheirfer- tilelands,hopingfora“world-classcity”. A Rajender Kumar
| INDIA LEGAL | March 23, 2020 31 tion of the High Court and the executive capital. The infrastructure required to be created would entail an expenditure of more than Rs 1 lakh crore. More-over, if some of the construction activity is not permitted by the National Green Tribunal and River Conservation Act, only about 5,000 acres would be available for the development of Amaravati as a capital. There are also legitimate concerns about additional costs, as several facilities created in Amaravati may have to be re-established in Visakhapatnam and Kurnool. The project cost of the Amara- vati capital was estimated at about Rs 33,000 crore, of which almost Rs 5,500 crore has been spent, according to the government. But according to the opposition, it is Rs 10,000 crore. Thus, apart from the financial viability of the new configuration, there are also concerns relating to wastage. Logistics too are a bother. The dis- tance between Visakhapatnam and Amaravati is 367 km; between Visakha- patnam and Kurnool it is 692 km and between Kurnool and Amaravati it is 343 km. Commuting between the three capitals for the public and public servants (officers as well as legislators) may be a strain—on their time as well as the state’s resources. It would also mean more legwork for industry representatives to discuss and pursue their projects. Government employees, who moved to Amaravati from Hyderabad only a couple of years ago, would have to relo- cate to Visakhapatnam and Kurnool. Although the state government has given a thought to it, the physical and emotional ordeal cannot be avoided. A gain, in a government, the executive accounts for most of the offices. If all the government offices are to be located in the Visakha- patnam Metropolitan Region, how will the benefits of decentralisation percolate to other regions? The opposition has called the move a conspiracy to “kill” the Amaravati project. It is alleged that the ruling party does not want the credit for the new capital to go to N Chandrababu Naidu, the chief architect of the venture. Political observers are of the view that this whole imbroglio is part of the ingrained caste rivalries between the coastal Kammas, represented by Naidu and his followers, and the Reddys from Rayalseema. The Kammas would have gained from Amaravati. Chief Minister Jagan Mohan Reddy is seeking to rebal- ance the equation for the community he represents. Decentralisation and distribution of government offices in various parts of the state is not an idea to be dismissed in limine. It is also not unique. Locating the executive and the legislature at one place and the judiciary at another place is not uncommon. In Uttar Pradesh, the executive and the legislative branches are at Lucknow, whereas the High Court of Allahabad is located in Prayagraj. Similar is the situation in Rajasthan (Jaipur and Jodhpur) as well as Madhya Pradesh (Bhopal and Jabalpur). It is also in vogue to have assembly sessions at two venues during a year. This is so in Maharashtra and Karna- taka. However, locating the permanent seat of the legislature away from the executive capital of the state has not been attempted in India. Equitable distribution of government offices across the state in order to ensure “inclusive” development is also not uncommon. For instance, in Madhya Pradesh, of which Bhopal is the executive and legislative capital, the offices of the Board of Reve- nue, Excise Commissioner, Transport Commissioner and Commissioner of Land Records are at Gwalior. Indore is the seat of the Public Service Commi- ssion, Commissioner of Commercial Taxes and the Labour Commissioner. Given the constraints and the political compulsions, the objective of decentralisation and inclusion can still be achieved if the secretariat and the legislature are located at one place, which, of course, should be centrally situated. The offices of heads of department and other institutions may be distributed equitably across the state on the lines of other states, including Madhya Pradesh as mentioned above. The legislative assembly and the High Court cannot really be envisaged as engines of growth for regional development. A business magnate, in the context of corporate governance, had recently observed that three engines can never run a company successfully. —The writer is a former Secretary-General, Rajya Sabha, and a retired IAS officer of the AP cadre TheoppositioninAPhascalleditaconspiracyto“kill”theAmaravatiproject.Itis allegedthatCMJaganMohanReddy’s(right)partydoesnotwantthecreditforthe newcapitaltogotoChandrababuNaidu,thechiefarchitectoftheventure.
stated, inter alia, that the continuation or cessation of the operation of Article 370 after the dissolution of the Constituent Assembly of the state was not an issue before the Supreme Court in the Prem Nath Kaul case unlike in the Sampat Prakash case. To understand this issue, we need to examine the relevant provisions of Article 370 that governed the rela- tionship between the government of India and the state of J&K. India achieved independence through the Indian Independence Act, 1947 which provided that from August 15, 1947, there would be two independent dominions of India and Pakistan. The princely states were to join either of them. They were also given a third option—to remain independent. Quite a few of them were toying with the idea of remaining independent. However, all but the state of J&K joined India by August 15, 1947, or soon after. But when Kashmir was invaded on October 22, 1947, Maharaja Hari Singh sought military help from Delhi and simultaneously requested accession of Kashmir to India. Thus, Kashmir was acceded to India under exceptional cir- cumstances on October 26, 1947. Yet, the Maharaja slipped in certain clauses in the Instrument of Accession of Kashmir that would help him retain some extent of sovereignty over the state. Thus, the accession of Kashmir was different from those of other princely states, and it was a conditional one. Opinion/ Article 370 Sumit Dutt Majumder 32 March 23, 2020 FIVE-judge Constitution Bench of the Supreme Court passed a judgment on March 2, 2020, where the petitioners prayed that petitions challenging the constitutional validity of scrapping Article 370 in J&K be referred to a larger bench. The ground for such a prayer was that there were two conflicting judgments of the Supreme Court on the status of Article 370, and therefore, there was a need to get the issue settled by a larger bench. In the Prem Nath Kaul case (1959), the Supreme Court observed that Article 370 (2) shows that the continuance of the exercise of powers conferred on Parliament and the president by the provisions of Article 370 (1) is “made conditional on the final approval of the Constituent Assembly of Kashmir”. However, in the Sampat Prakash case (1968), the apex court decided that “Article 370 has never ceased to be operative” and it could be invoked even after the dissolution of the Constituent Assembly. The present five-judge bench, however, held that there was no conflict between the judgments of the Supreme Court in the cases under reference and therefore, there was no case for referring the matter to a larger bench. The bench Outmanoeuvred? EvenastheSCrefusedtoreferArticle370’sscrappingtoalargerbench,it’sobviousthattheabrogation ofJ&K’sspecialstatuswasachievedthroughlegalfiction,showingtheadroitnessofthecentre A Amitava Sen
| INDIA LEGAL | March 23, 2020 33 These facts had a bearing in the making of Article 370. The effect of Article 370 read with Article 1 of the Constitution can be summarised as follows: i) The act of accession of the state of J&K was unequivocally given legal effect by declaring J&K a part of the territory of India by virtue of Article 1 read with Serial No 15 of the First Schedule. ii) The legislative authority of Parliament over the state of J&K would be such that in addition to defence, external affairs and communication, which are specified in the Instrument of Accession of Kashmir, the Union Parliament can also make laws with regard to the items in the Union and Concurrent Lists, but only with the concurrence of the state government. iii) Article 238 which concerns application of certain provisions relating to the princely states will have no effect on J&K. iv) In terms of Clause (3) of Article 370, the president may, on the recommendations of the Constituent Assembly, issue an order that Article 370 will either cease to be operative or shall be operative only subject to such exceptions and modifications as may be specified by the president. Very briefly, it can be said that Article 370 extends autonomy to J&K by making it clear that except for the provisions so specified in the Constitution, no other provisions of the Indian Constitution would be applicable to it. A rticle 35A, introduced later on May 14, 1954, empowered the J&K Legislature to do a few things; these included defining “permanent residents” of the state and empha- sising exclusive and special rights and privileges with regard to the acquisition of immovable property in the state, employment under the state government, and so on. The idea was that the benefits to which the residents of the erstwhile princely state of Kashmir were entitled were not to be withdrawn with Kashmir joining the Indian Union. Thus, Article 370 and Article 35A took care of the restricted autonomy for Kashmir. The elements of such autonomy were also enshrined in the new Constitution of the state of J&K that was introduced in November 1956. Let us now understand certain specif- ic provisions of Articles 370 and 35A as they stood before August 5, 2019. Article 370 had barred application of certain provisions of the Indian Const- itution to the state of J&K. Article 370(1) (c) and 370 (1) (d) deal with the applica- bility of the Indian Constitution to the state of J&K. In terms of Article 370 (1) (c), the two articles, i.e. Article 1 and Article 370 of the Constitution will apply to J&K. Article 370(1)(d) is important. Under it, the Indian constitutional provisions could be applied to J&K from time to time, as modified through a presidential order and, importantly, after the concurrence of the state government. Another important provision of Article 370 was the proviso to Clause 3. This clause itself authorised the president to pass an order removing or modi- fying parts of Article 370. But, there is an equally important proviso to it which stated: “Provided that the recommenda- tion of the Constituent Assembly of the State referred to in Clause (2) shall be necessary before the President issues such a notification.” The issue is that the Constituent Assembly of J&K was dissolved and it ceased to function from January 1957. This led to a longstanding debate on whether Article 370 has become permanent effectively because there was no Constituent Assembly to give consent. A question was also raised whether it would require a revival of the J&K State Constituent Assembly to amend it or whether it can be amended through the normal amendment procedure under the Constitution. Further, the state of J&K was under President’s Rule from December 2018. Therefore, obtaining the concurrence of the state government was an issue as it was non-existent during this time. ThestateofJ&KwasunderPresident’s RulefromDecember2018.Therefore, obtainingtheconcurrenceofthestate governmentwasanissueasitwas non-existentduringthistime. WATERSHED MOMENT A newspaper headline announcing Kashmir’s accession to India on October 26, 1947
DECISIVE ACT Maharaja Hari Singh had signed the Instrument of Accession of Kashmir 34 March 23, 2020 Opinion/ Article 370/ Sumit Dutt Majumder In the present context, another important article is Article 367 which provides various guidelines about how the Constitution may be interpreted. The presidential order of August 5, 2019 added clause (4) with four sub-clauses to Article 367 where “Sadar–I Riyasat” will be construed as “governor of Jammu & Kashmir” and “State Government” shall include the governor. Further, the words “Constituent Assembly” used in Article 370(3) must be read as “Legislative Assembly of Jammu & Kashmir”. So how was the special state status as provided by Article 370 abrogated and J&K bifurcated? First of all, the Presidential Order C.O. 272 issued on August 5, 2019, used Article 370(1) (d) to apply all provisions of the Indian Constitution other than Articles 1 and 370 to the state of J&K. As mentioned, Articles 1 and 370 were already applicable to J&K by virtue of Article 370 (1)(c). Article 370(1)(d) does allow the president to amend or modify various provisions of the Constitution in relation to J&K, but with the concurrence of the government of J&K. Under Article 370(1)(b)(i) and (ii), similar concurrence of the government of J&K is needed for the president’s exercise of power in respect of matters in the Union List and the Concurrent List. So, the Presidential Order C.O. 272 used the power of the president under Article 370 (1) to indirectly amend Article 370 (3) and Article 370 (1) itself via a third constitutional provision i.e. Article 367, which provides various guidelines on the interpretation of the Constitution. By virtue of the aforesaid amend- ments of Article 367 through Presid- ential C.O. 272, the governor of J&K, who is a representative of the central government, became the government of J&K. Further, the Legislative Assembly became the Constituent Assembly. But there being no Legislative Assembly because the state was under President’s Rule, it fell upon Parliament to make the recommendations which were to come from the J&K Legislative Assembly. Thus, a number of legal fictions were created in order to achieve various objec- tives in respect of abrogation of special status of the state of J&K. F inally, on the issue of breaking up J&K, Article 3 of the Constitution gives Parliament the power to change the boundaries of a state and to form a new one by simple majority. But this change required that such a Bill be first referred to the concerned state assembly by the president for ascertain- ing its views. But as there was no Legis- lative Assembly, the Second Resolution of the Parliament stated that the president had referred the Jammu & Kashmir Reorganisation Bill, 2019 to Parliament for its views as it is vested with the powers of the state legislature of J&K. On passing by Parliament, the state of J&K got bifurcated into two Union Territories from October 31, 2019. In the best tradition of Indian democracy, debate started in various platforms on the correctness or otherwise of the government actions. Broadly, five main issues emerged out of them: (1) Was Article 370 just a temporary provision or has it effectively become permanent since there was no Constituent Assembly in Kashmir to give consent? (2) Can Article 370 be used first to amend Article 367, and thereafter the amended Article 367 be used to amend Article 370 itself, to call the Legislative Assembly as the Constituent Assembly? (3) Can the governor of the state under President’s Rule be called the state government? (4) Have the conditions relating to “sovereignty” in the Instrument of Accession of Kashmir been violated, and if so, are they valid? (5) Is the reorganisation of the State of J&K by bifurcating it and converting the parts into Union Territories without the approval of the state legislature and the state government valid in law? The jury is out on this. The Supreme Court judgment of March 2, 2020, has not gone into the merits of the issues. The wait starts for the final verdict of the Supreme Court on this. —The writer is former Chairman, Central Board of Excise Customs and author of the book “Article 370 Explained for the Common Man” ThePresidentialOrderC.O.272usedthe powerofthepresidentunderArticle370 (1)toindirectlyamendArticle370(3) andArticle370(1)itselfviaathirdcon- stitutionalprovisioni.e.Article367.
36 March 23, 2020 year after the Lokpal was formed, the government notified the Lokpal (Complaint) Rules 2020, finally enabling the anti- corruption ombudsman to act on the pleas made before it. According to the rules, a complaint filed against a sitting or a former prime minister will be considered at the admission stage itself by a full bench of the Lokpal, consisting of its chairperson and all members, for assessing whether an inquiry can be initiated. At least two- thirds of the members have to approve of the inquiry. If there are complaints against a current or former minister in the Union cabinet or an MP of either House, a bench consisting of not less than three members of the Lokpal shall consider every report that is received from the inquiry wing of the ombudsman or any agency. The bench will decide whether there exists a prima facie case after giving the public servant an opportunity to be heard. As per the rules, complaints can be filed either electronically, by post or in person. The complaint has to be within seven years of the alleged offence taking place as per Section 53 of the Lokpal Act. It has to be accompanied by an affidavit on a non-judicial stamp paper. Complaints whose contents are illegible, vague or ambiguous, trivial or frivolous, do not contain any allegation, are not filed within the limitation period of seven years or are pending before any other court, tribunal or authority will have to be disposed of within 30 days. So far, so good. But the big question is whether the Lokpal will ever function effectively or be one more drain on the public exchequer? To find out, we need to go back to 2009 when UPA-II formed the government with the Congress in a stronger position. This was when some serious cases of corruption and loot— the Satyam scam, 2G scandal, Jharkand mining—started surfacing. The big guns boomed against “corruption in high places”, creating an impression that ev- entually the debilitating cancer afflicting India’s governance and society would meet its nemesis and the aam aadmi could look forward to good and honest governance in the future. Prime Minister Manmohan Singh himself led the charge. Addressing a conference of CBI and anti-corruption officials at the state level, he said: “High-level corruption should be pur- sued aggressively. There is a pervasive feeling that while petty cases get tackled quickly, the ‘big fish’ escape punishment. This has to change.” Chief Justice KG Balakrishnan even sought confiscation of assets of persons convicted of offences under the Preven- tion of Corruption Act. The law minister went a step further and called for the amendment of Articles 309, 310 and 311 of the Constitution, thus removing protection and safeguards in prosecuting corrupt public servants. As if in respon- se to the cacophony, big scandals sur- faced—Commonwealth Games, Coal- gate, ISRO-Antrax, aircraft carrier Gorshkov, Tatra truck, AgustaWestland, NSEL, Air India purchase, etc. Many more, like the KG Basin loot, were churning too. In the Indian context, “big fish” means the prime minister, ministers, MPs, judges, top-rung bureaucrats and other constitutional/statutory func- tionaries who wield enormous power Just an Eyewash? Thiswatchdoginstitutionconceivedasapublicbulwark againstcorruptioninhighplacesseemsacharade.Itis unwieldyandtop-heavyandchasespettybribe-takerswhile ignoringthebigfish Opinion/ Lokpal (Complaint) Rules 2020 MG Devasahayam A Thebiggunsboomedagainst“corruption inhighplaces”,creatinganimpression thateventuallythecorruptiondebilitating India’sgovernancewouldmeetitsneme- sis,pavingthewayforgoodgovernance.
| INDIA LEGAL | March 23, 2020 37 and influence without corresponding accountability or rules to regulate their conduct. The Lokpal was precisely aim- ed at reining in and punishing such worthies. There are the CBI and CVC to discipline the small fry. The first Lokpal Bill was introduced and passed in the fourth Lok Sabha in 1968-69. However, while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, resulting in the first demise of the Bill. It was revived in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and 2008. On every occasion, the Bill was referred to some committee or other for “improvements”, and before the government could take a final call on the issue, the House got dissolved. Even 45 years after its initiation, this eminent “watchdog institution” conceived as the public bulwark against corruption in high places did not take off. In the event, while the venal and the corrupt strode this land like colossuses, dominating its political, administrative, judicial and business spectrum, the con- scientious and the honest shrunk and faded away. This has been India’s true tragedy and the harbinger of state kleptocracy. T he renewed struggle for Lokpal was started by the Gandhian Satyagraha Brigade, part of the Servants of the People Society founded by Lala Lajpat Rai in 1921 and inaugu- rated by Mahatma Gandhi. The struggle was led by nonagenarian Shambhu Dutt of Quit India vintage, and stalwart of the JP movement of the 1970s. He started his “fast unto death” on January 30, 2010, but was promptly dissuaded. This struggle was taken up by civil society led by Anna Hazare, Swami Agnivesh, Justice Santosh Hegde, Kiran Bedi and Arvind Kejriwal under the India Against Corruption (IAC) banner. Out of this emerged the draft Jan Lokpal Bill which was released in December 2010. After carpet-bombing the airwaves with anti-corruption rhetoric in full media glare, Kejriwal declared that civil society was impotent and the only way to combat corruption was to capture political power. Accordingly, he and his entourage morphed into a political party and he was propelled as the chief minister. Soon after, Kejriwal came out with the “rogues’ gallery” (Kejriwal List) of the most corrupt politicians and oligarchs. The Lokpal Act that came out of this glare is testimony to India’s immense propensity for jugaad—dramatise things, but achieve little. The Act is more of a charade. The institution, as contemplated, is unwieldy, top-heavy, and the focus has been heavily diluted by including millions of Class III and Class IV government employees within WATCHDOG IN A LIMBO Justice Pinaki Chandra Ghose (centre), chairperson of the Lokpal, along with other members of the Lokpal UNI
Opinion/ Lokpal (Complaint) Rules 2020/ MG Devasahayam 38 March 23, 2020 its ambit, though action on their corruption would be the responsibility of the CVC. This serious aberration would protect the corrupt “big fish” while chasing petty bribe-takers. In the event, the very purpose of setting up the high-profile ombudsman stands defeated. That probably was the intention behind all the theatrics. T he Lokpal Act received presidential assent on January 1, 2014 and became the law of the land. By the time the process of appointment of the Lokpal was put in place, the UPA government became a lame-duck one and lost power in May 2014. And when the NDA government appointed the Lokpal after five years in March 2019, it had also become lame-duck. From one lame-duck government to another, India’s Lokpal had a chequered history which by no means is edifying. Ironically, the watchdog of India’s governance and integrity was born out of gross impropriety, being appointed by a caretaker government after the general election 2019 was announced. That was not a good omen. Justice Pinaki Chan- dra Ghose was sworn in as the chairperson, Lokpal. Other judicial members were Justices Dilip B Bhosale, Pradip Kumar Mohanty, Abhilasha Kumari and Ajay Kumar Tripathi. Non-judicial members were former IAS officers Dinesh Kumar Jain and Indrajeet Prasad Gau- tam, former IPS officer Archana Rama- sundaram and former IRS officer Ma- hender Singh. Since then, it has been waiting for the complaint rules to be notified by the government to start working. In the meantime, it received over 1,100 complaints, most of which have been disposed of without initiation of any inquiry. Among them was probably included the case of Karnataka Chief Minister BS Yeddyurappa who had allegedly paid bribes to the tune of Rs 1,800 crore to the BJP’s top leadership. The Congress party pushed this, saying it was a fit case to be investigated by the newly appointed Lokpal, thereby setting the stage for its first acid test. Nothing has been heard of this since then. The fact that the Lokpal was not constituted for over five years after the law was enacted and it took one year to notify the rules, shows the NDA government’s real intentions. During this period, massive scandals in which “big-fish” were invariably involved got swept under the carpet. And courts dealt with such scandals with a “sealed cover”. Rafale and the ever-spiralling bank- ing scams are typical examples. And in the last five to six years, all “institutions of integrity”, including the ones embed- ded in the Constitution, are under se- vere assault, rendering them almost impotent. Even the 18 Lokayukts (state- level ombudsmen) are non-functional and ineffective against the “big fish.” The Lokpal, appointed by this government, cannot be any different. As for combat- ting corruption, the “Kejriwal List” had several “bigfish”. The question is: Where have these corrupt oligarchs and klepto- crats gone and where has Kejriwal van- ished? By all accounts, by adopting a “neither-fish-nor-fowl” political philoso- phy, he is prospering politically. With the rules in place, will the Lokpal at least look at the “Kejriwal List”? Or would it turn out to be just another sinecure at taxpayers’ expense while shadowboxing on corruption continues to play out? —The writer is a former Army & IAS officer ThisstruggleforLokpalwastakenupby civilsocietyledbyAnnaHazare,Swami Agnivesh,JusticeSantoshHegde,Kiran BediandArvindKejriwalundertheIndia AgainstCorruption(IAC)banner. Rajeev Tyagi

India legal 23 march 2020

India legal 23 march 2020

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India legal 23 march 2020