India Legal - 24 February 2020

NDIA EGALL STORIES THAT COUNT
I
February24, 2020
OutingtheCriminalsFlaggingan“alarmingriseinthecriminalisationofpolitics,”theSupremeCourtlays
downstrictinstructionsonmakingpublicdetailsofacandidate’scriminalhistory.
Whatimpactwillithaveonpoliticalpartiesandfutureelections?
Shiv Visvanathan on Shaheen Bagh Mothers

4 February 24, 2020
INCE most of the national press has vir-
tually stopped playing the role of critical
watchdog, and the mainstream parties
have been rendered politically impotent
in mounting credible campaigns against
misgovernance and malfeasance, the return to
power of the Aam Aadmi Party under the leader-
ship of Chief Minister Arvind Kejriwal in the Feb-
ruary 2020 Delhi elections is a momentous event.
It demonstrates that a leader who is perceived by
the public as being the most capable of taking on
the responsibility of ushering in reform, restoration
and revival can still knock the living daylights out
of a Goliathan political opponent in Indian politics.
Event management, the donning of fancy head-
gear, provocative, blood-thirsty harangues instigat-
ing majoritarian violence have often combined suc-
cessfully to cast their spells. But how long can you
keep a country beleaguered with crises and set-
backs mesmerised by bread-and-circuses routines?
For those who insist that Delhi does not represent
the realities of the rest of India, I would simply
respond that this megalopolis with a population
about that of Sri Lanka or Australia or Canada or
Belgium is possibly India’s most multi-lingual,
multi-ethnic, multi-cultural, multi-religious, multi-
cuisined, multi-caste pan-Indian habitat: A micro-
cosm. Its elected chief minister may not have the
same powers as that of a full state, but he or she
still represents the people not just of a state but
of India.
Post-independence India’s history is replete
with examples of the political chickens coming
home to roost at both the state and national levels.
And Prime Minister Narendra Modi, more than
most politicians, must surely be aware of this his-
torical certitude. One major takeaway from this
election which Modi’s own die-hard supporters
admit is that at the national level, during his first
term, he over-promised and under-delivered. Most
of the welfare schemes he promised remained
stuffed as paperwork in bureaucratic drawers and
cabinets as the promotion of cultural nationalism
took pride of place over rapid economic develop-
ment and poverty alleviation.
Still, his supporters, and those whom he drew
towards his political bosom through charisma,
polarisation, electoral arithmetic and his larger-
than-life all-India presence, appeared to believe
that no other leader was more capable of solving
India’s problems as decisively as Modi and there-
fore, in the 2019 general election, he must be given
a second chance lest a hodge-podge alliance come
into power and make things worse than they
already are.
And herein lay Modi’s challenge and opportuni-
ty. In the months following his spectacular victory
at the national hustings, would he ensure that
things got better during his second coming or
would he let matters slip, much to the disappoint-
ment of his supporters, among them the severest
critics of his non-performance who still voted for
him? The latter was a combination of those who
really believed he would be a better leader than
anybody in the Opposition, as well as those who
believe that nationalism requires all other issues to
be sacrificed at the altar of Hindu majoritarianism.
I
t was heartening to hear Modi, during his first
post-election speech, swear his allegiance to
the primacy of the Constitution. He raised the
hope that after the heat and dust of communal
campaigning and anti-minority dog whistles, this
signalled a continuing adherence to the founding
fathers’ vision of a multi-cultural, multi-religious
nation. Was Modi, after his national electoral victo-
ry, also signalling a renewed commitment to help
restore the credibility of institutions like the CBI,
the Election Commission, the RBI, the CAG, as
well as non-interference in the Judiciary? Would
he stand by his commitment to disengage with
those who had raised Nathuram Godse, the assas-
sin of the Father of the Nation, to an iconic figure
of worship?
In the past, the affairs of this nation have im-
proved only when the leadership has publicly
acknowledged and enunciated the issues. Nobody’s
purpose is served by running away from them or
BOX-OFFICE DISASTER
Inderjit Badhwar
S
Letter from the Editor
The2020Delhi
electionshave
shownthatthe
cinemahallsare
emptyingoutat
intervaltime.
Housefullscan
emptyoutpretty
fastifthefeature
presentation
doesn’tmatchthe
trailer.All
dishum-dishum
andnocredibleplot
orstorymakefora
box-officedisaster.

| INDIA LEGAL | February 24, 2020 5
arm-twisting government agencies to
juggle statistics. The challenges were
daunting. Modi’s economic advisers
admitted that the nation may be slip-
ping into a situation where middle
class purchasing power, which stimu-
lates the economy, had flattened out.
The liquidity crunch and palpable
economic slowdown because of de-
monetisation and uncertain indirect
tax policies showed no signs of abate-
ment. Rising unemployment, reverse
migration and severe under-employ-
ment were breaking the backs of the
rural poor. SMSEs and the unorgan-
ised sector stood reeling under the
weight of increased petroleum prices
which could damage India’s entire
economic infrastructure in the face of the
impending Iranian oil crisis caused by the
US-Iran standoff.
The faith of the public in the banking system
was eroding because of financial strains, the drying
up of rural credit and the scandalous rise of NPAs.
New investment in the manufacturing sector was at
a standstill. Ease of doing business remained a slo-
gan. Pledges to protect the environment and clean
up our rivers remained hollow. There was total
confusion on the issue of reservations across the
board ever since the announcement of 10 percent
quota for upper castes.
I
t was not as if the public was unaware of these
problems. Nor did it ignore them. You don’t
need the Opposition or the Congress party to
tell a hungry, suicidal peasant that he needs a solid
meal. The truth is that the voters believed that
Modi would be better equipped and capable of
solving these problems than any other leader com-
peting with him. So they re-elected him. They
put the burden back on his shoulders. And this
needed solid performance. Not event management.
Not long budget speeches without a long-term
recovery plan.
Modi’s first five years were a trailer—a preview
of attractive promises to be kept after the actual
show begins. In that sense, the prime minister’s
second term was the beginning of the real movie
and, as the voting percentages and voter turn-outs
indicated, it was housefull. There could be no more
excuses now. Grave policy and administrative laps-
es would no longer meet with benevolent accept-
ance on the ground that a first-time prime minister
with little experience of running anything larger
than the state of Gujarat should at least be given a
second chance in case, despite his best intentions,
he goofs up.
But as the 2020 Delhi elections have shown, the
cinema halls are emptying out at interval time.
Housefulls can empty out pretty fast if the feature
presentation doesn’t match the trailer. Remember,
India is the biggest film-going nation in the world.
All dishum-dishum and no credible plot or story
make for a box-office disaster.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
FRUITS OF
PERFORMANCE
(Top) Arvind Kejriwal’s
AAP knocked the
living daylights out of
a Goliathan political
opponent in the 2020
Delhi elections; The
Modi government
needs solid
performance not
event management
UNI
Anil Shakya

6 February 24, 2020
ContentsVOLUME XIII ISSUE15
FEBRUARY24,2020
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Flagging an “alarming rise in the criminalisation of politics", the Supreme Court has laid down
strict instructions on making public the details of a candidate’s criminal history. What impact
will it have on political parties and future elections?
Outing the Criminals
LEAD
14
The apex court’s crusade against criminalisation of politics began in 2002 when it said that
knowing the criminal antecedents, educational qualifications and assets of candidates was
part of the fundamental rights of citizens
Cleansing the Rot 18
The SC ruling on reservations in promotions is a signal to the political class to take a fresh look on
an old issue to usher in socio-economic participatory development with equity and dignity
A Shake-up Call
SPOTLIGHT
22

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Contact:editor@indialegallive.com
Cover Illustration & Design:
ANTHONY LAWRENCE
REGULARS
Ringside............................8
Is That Legal.....................9
Courts.............................10
Law Campus News........12
International Briefs ........36
Media Watch ..................46
Gender Justice
Living in No
Man’s Land
The cabinet’s decision to approve the Medical
Termination of Pregnancy Bill allowing abortion
up to 24 weeks will give an impetus to the
reproductive rights of women and save them
much physical and mental trauma
FOCUS
Around 300 law students from across India have drawn the
attention of the CJI, SA Bobde, to police excesses and mob
violence at various varsities across India over anti-CAA protests
Lawless Campuses 28
44
A study has linked levels of NO2 in
the air to autism and schizophrenia
in children. UNICEF has estimated
that air pollution is a major contribu-
tor to the annual deaths of six lakh
children under five years globally
Mental Health
Alert
STATES
The Madras HC has refused to grant age relaxation to OBC candi-
dates on a par with SCs/STs appearing for the district judge exam
Tough Luck
COURTS
25
COLUMN
40
Even as the citizenship law promises to
take in persecuted people from three
countries, Pakistani Hindus in Rajasthan’s
border districts face a hopeless future
Even as the SC decides to hold a hearing to stop the use of kids in
protests, it is a moving sight to see Shaheen Bagh’s mothers caring
for their progeny’s future. This will encourage similar acts elsewhere
Children’s Crusade
OPINION
26
LEGALEYE
With the increasing influence of social media, there are risks and
challenges for the legal sector. Judges can come under tremendous
pressure and should ensure ethics are not compromised
Uphold Judicial Integrity 30
HEALTH
The centre’s submission to the
SC that troops are not mentally
ready to accept women in com-
mand may seem sexist, but will
they be able to meet the tough
physical challenges of the job?
32
Walking a
Tightrope
MYSPACE
38

8 February 24, 2020
Anthony Lawrence
RINGSIDE
Current
Reverses

ISTHAT
—Compiled by India Legal team
There is a spate of
renovations in an up-
market housing socie-
ty, and the debris is
usually dumped a lit-
tle distance away.
Can the civic authori-
ties slap a penalty on
the residents of this housing society?
This is a rather sad aspect of urban life
but the law doesn’t have any teeth
against individual offenders. The civic
authorities cannot slap a penalty on the
residents in their individual capacity but
it can definitely take action against the
management or welfare association of
the said housing society for causing
inconvenience to the public by the act of
encroachment or dumping the debris on
public property.
?
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
A woman wants to leave her husband
because he snores. What would be the
advice of a family lawyer to the woman
in this case, and what would the family
court decide?
One of the grounds for divorce available
to both parties in a marriage is cruelty.
The definition of cruelty is subjective
and varies from person to person.
If the wife is
able to estab-
lish that her
husband’s
snoring is cru-
elty, she may
be able to
divorce him on
this ground.
Right to Sleep
A wife, keen on family plan-
ning, doesn’t want a child for
two years following marriage.
Can the husband ask for
divorce?
Refusal to bear a child within
marriage by the wife has been
held as legal ground for di-
vorce. In this case, it seems
the refusal is temporary and
only for the purpose of family
planning. The husband will
have to convince the court
that the refusal for two years
is tantamount to cruelty, in
order to get a divorce.
Illegal Dumping
of Debris
Child-free Couples and Divorce
Legal Rights for Maids A lady has daily fights with her maid over
the latter’s lack of hygiene and abruptly
sacks her one day. Does the maid have any
legal rights in such a situation?
In our country, household help is part of the
vast informal sector, which doesn’t have
any social security. People are hired and
fired as per the requirements—and often
the whims—of the employer. The maid
may not have any legal right in a face-off
over hygiene. However, if her appointment
has been made on the basis of stipulat-
ed terms and conditions or a con-
tract—which happens mostly in
cases of hiring through an agency—
she can approach a court for enforce-
ment of her legal rights for breach of any
of the terms and conditions.
A man cuts down the
branches of a tree in front of
his residence to get more
sunlight. What remains of the
tree is only the stump. Can
he be taken to court?
Legal proceedings can be ini-
tiated against him for cutting
down trees without obtaining
due permission from the
concerned authorities. How-
ever, minor trimming or cut-
ting may not attract any
legal penalty.
In the National Capital
Region, permission to fell
trees is regulated under pro-
visions of the Delhi Tree
Preservation Act, 1994,
according to which, if
a private individual
or company wants
to fell a tree or trees
anywhere in Delhi, an
application has to be sub-
mitted to the tree officer,
deputy conservator of forests
and conservator of forests,
Delhi. After obtaining
permission, the individ-
ual or company should
complete the task within the
time limit prescribed in
the licences.
Penalty for
Trimming Trees

Courts
10 February 24, 2020
The Supreme Court issued notice to
the centre, the Delhi government and
the Delhi Police on petitions seeking
removal of protesters from Delhi’s
Shaheen Bagh and the clearance of the
Kalindi Kunj road, where anti-CAA
protests have been going on for more
than a month.
Justice Sanjay Kishan Kaul, who pre-
sided over the bench, said: “You cannot
block a public road indefinitely. If every-
body starts protesting everywhere,
then what will happen? You can protest
at a designated area.” To that, Justice KM
Joseph added: “Can you block a public
highway?”
These observations came from the
bench when advocate Mehmood Pracha,
appearing for Bhim Army chief Chan-
drashekhar Azad, sought to intervene in
the matter. The Court, however, refused
to pass any interim order in favour of the
petitioners despite a fervent request by
them. It was hearing two petitions on
the same issue. The next hearing in the
matter has been fixed for February 17.
Cannot choke roads indefinitely: SC
The Supreme Court decided to examine the scope and ambit of
the fundamental right to freedom of religion vis-a-vis other rights
of citizens, arising out of a 2018 judgment which allowed entry of
all-age women to Kerala’s Sabarimala temple. A nine-judge bench
presided over by Chief Justice of India SA Bobde held that the top
court can refer questions of law to a larger bench in a review peti-
tion. It rejected the preliminary objections made by senior advocate
FS Nariman and others that the scope of review jurisdiction was
very limited.
The bench, also comprising Justices R Banumathi, Ashok
Bhushan, L Nageswara Rao, MM Shantanagoudar, SA Nazeer, R
Subhash Reddy, BR Gavai and Surya Kant, pronounced its order
and framed as many as seven issues to be taken up by it from
February 17 when it will hear the matter on a day-to-day basis.
A five-judge bench on September 28, 2018, had set aside the
age-old bar on the entry of women between 10 and 50 years of age
to the Lord Ayyappa Temple at Sabarimala on the ground that men-
struating females were not pure.
Following a batch of petitions for review of the judgment, which
faced strong protest from the devotees, a five-judge bench had on
November 14, 2019, by a majority view of 3:2 ordered for placing
the matter before a larger bench.
The Supreme Court has upheld the con-
stitutional validity of Scheduled Castes
and Scheduled Tribes (Prevention of Atro-
cities) Amendment Act, 2018, that rules out
any provision for anticipatory bail to a per-
son accused of atrocities against SCs/STs.
In March 2018, a two-judge bench
comprising Justices AK Goel and UU Lalit
had ordered that no arrests under the Act
could be made without prior permission—
from the appointing authority in case of
public servants, and from the Senior
Superintendent of Police (SSP) for others
—and a preliminary inquiry should be con-
ducted before registration of an FIR.
However, last year, the centre had brought
in an amendment to the SC/ST Act to nullify
the effect of the apex court’s 2018 judg-
ment. The three-judge bench of Justices
Arun Mishra, Vineet Saran and S Ravindra
Bhat had reserved its verdict in the matter
on October 3 last year, while hinting that the
amendment was likely to be upheld.
In the amended SC/ST Act, a prelimi-
nary inquiry is not a must and no prior
approval is required for appointing authori-
ties for senior police officers to file FIRs in
cases of atrocities against SCs and STs.
Apex court upholds
constitutional validity
of SC/ST Atrocities Act
SC refers questions of law in
Sabarimala to a larger bench

—Compiled by India Legal team
The Supreme Court said it will consider
reappointing a former woman judicial offi-
cer who now wants her job back. She had
earlier resigned after making allegations of
sexual harassment against a sitting judge of
the Madhya Pradesh High Court.
A bench headed by the Chief Justice of
India, SA Bobde, asked senior lawyer Ravin-
dra Shrivastava, appearing for the Registrar
General of the Madhya Pradesh High Court,
to seek instruction with regard to the possi-
bility of reinstating the former woman judicial
officer within four weeks.
The woman had moved the apex court,
seeking that the order passed by the Madhya
Pradesh High Court in January 2017 dis-
missing her application for reinstatement in
the Madhya Pradesh Higher Judicial Ser-
vices, should be set aside.
Earlier, the Madhya Pradesh High Court
had told the top court that the former woman
judicial officer could not be reinstated.
The apex court also made it clear that
after reinstatement, it would consider trans-
ferring her to the jurisdiction of some other
High Court.
Shrivastava, however, opposed the sub-
missions of senior advocate Indira Jaising,
appearing for the judicial officer, and said
that she had resigned voluntarily and at no
point took back her resignation.
SC may reinstate MP
judicial officer
Juveniles can’t be kept in jail or lock-up: SC
ADelhi court sentenced
Brajesh Thakur to impris-
onment till death for sexual
and physical abuse of mi-
nors at a shelter home in
Muzaffarpur, Bihar. It held
that being the owner of the
shelter home, he should
have shown “compassion,
sobriety and righteousness”.
Additional Sessions Jud-
ge (ASJ) Saurabh Kulshresh-
tha observed that Thakur
“not only betrayed the trust
and faith of the victim girls
but also displayed extreme
perversity and monstrosity
by committing such abhor-
rent acts with numerous
helpless minor girls”.
Therefore, the court ruled, “it
is not a fit case for adopting
the reformative and thera-
peutic approach”. On
January 20, the court had
convicted 19 people, includ-
ing Thakur, 55, the owner of
the shelter home.
Besides Thakur, Kul-
shreshtha handed five other
convicts life terms till their
last breath. Five of them got
life terms and six were sen-
tenced to 10-year imprison-
ment. Two others were sen-
tenced to three years and
six months in jail, respec-
tively. The Court also
imposed a fine of over `30
lakh on Thakur.
Brajesh Thakur and 19 others
sentenced by Delhi court
Juvenile Justice Boards
(JJBs) are not meant to
be “silent spectators”, the
Supreme Court said while
making it clear that a juvenile
could not be kept in jail or a
police lock-up.
The apex court said that
all JJBs in the country must
follow the “letter and spirit”
of provisions of The Juvenile
Justice (Care and Protection
of Children) Act, 2015, and
the law meant for the protec-
tion of children “cannot be
flouted by anybody, least of
all the police”.
A bench of Justices
Deepak Gupta and Aniru-
ddha Bose said this when its
attention was drawn to two
instances and certain allega-
tions appearing in the media
related to children being pur-
portedly detained in police
custody and being “tortured”
in Delhi and Uttar Pradesh.
“Even if bail is not grant-
ed, the child cannot be kept
in jail or police lock-up and
has to be kept in an obser-
vation home or place of
safety,” the Court said.
In a first in its history, the
Calcutta High Court allowed
live streaming of proceedings
in a case seeking entry of chil-
dren born to Parsi women and
non-Parsi men into a fire tem-
ple, a Zoroastrian place of
worship, in the city.
Seeking permission for live
streaming of the proceedings,
the Parsi Zoroastrian Associa-
tion of Calcutta (PZAC) lawyer
Phiroze Edulji submitted before
the Court that the hearings in
the case were of utmost im-
portance to all Parsis in the
country and that they would be
benefitted from the outcome
of the matter.
Allowing PZAC’s prayer, a
division bench comprising
Justices Sanjib Banerjee and
Kaushik Chanda directed that
two special cameras be placed
in the courtroom to telecast
the proceedings live on
YouTube. The Court also
directed that the cost of the
telecast be borne by PZAC.
Calcutta High
Court allows live
streaming

LAW
CAMPUSES / UPDATES
BCI and Law Colleges
to ensure internships
for students
The Bar Council of India (BCI)
has assured the Delhi High
Court that henceforth, the coun-
cil and the law schools will be
responsible to provide and make
arrangements for internships
to students.
The assurance from the coun-
cil came when the court was
hearing the suo motu proceed-
ings of the Sushant Rohilla sui-
cide case. Rohilla, a student of
Amity Law School, committed
suicide in 2016 when he was
barred from appearing in the
semester examination due to lack
of attendance. The court has also
asked for a list of all senior
lawyers who have agreed to pro-
vide internships to law students,
in terms of Rule 26 of Part IV,
Schedule III (Concerning the
Legal Education in India) of the
BCI Rules.
Justice League, the annual
sports festival at GNLU
Gujarat National Law
University (GNLU) is
back with its much awaited
inter-university sports festi-
val, Justice League. The
annual fest will include a
range of indoor and outdoor
games like chess, cricket,
carrom, volleyball, table
tennis, throwball, basket-
ball, swimming, skating,
badminton, athletics
and kabaddi.
Participants can
win cash prizes up to
`1,80,000. The sports fest
will be held over February
20-23, 2020
Loyd Law College, Greater
Noida, is hosting its first
diplomacy summit from
February 28 to March 1, 2020.
The summit aims to provide
students a platform for con-
structive debate through com-
mittees modelled after the Lok
Sabha, Prime Minister’s
Cabinet, the United Nations
Human Rights Commision, the
United Nations General
Assembly and so on.
The students can be part
of these committees as dele-
gates and discuss burning
Diplomacy summit at
Lloyd Law College

—Compiled by Nupur Dogra
National Moot at
Chembur Karnataka
College of Law
Symbiosis Law School
(SLS), Noida, hosted its
sixth annual national youth
festival, Symfiesta ’20
Safarnama: The Journey of
Celebrations over February
14 to 16, 2020.
The annual fest included
a diverse set of law related
events like mock trials,
client counselling, negotia-
tion and judgment writing.
Apart from these legal com-
petitions the students also
got an opportunity to dis-
play their talents in cultural
events like group dance,
battle of bands, solo sing-
ing, street plays, canvas
painting, graffiti, photogra-
phy, and fashion show.
The three-day festival
also included literary events
like general knowledge quiz,
debates and an open mic
competition for students.
The Chembur Karnataka College of Law,
Mumbai, is organising its first Hon’ble
Justice Shivaraj V. Patil National Moot
Court Competition. The competition
aims to provide law students a better
understanding of law, along with
providing them a platform to showcase
their legal proficiency in front of
legal experts.
The competition is scheduled over,
February 15 to16, 2020.
Symfiesta ’20 at SLS Noida
National Law University and Judicial
Academy, Assam (NLUJAA) has
announced the second edition of Vox
Anatolis National Moot Court Competi-
tion, 2020. Vox anatolis means voice of
the east. Last March, when the rest of
India was relatively oblivious to it, they
had made the constitutionality of the
Citizenship (Amendment) Act the sub-
ject of the moot court competition.
This time the subject is the NRC
and the rights of detained foreigners,
which is perhaps the next big conun-
drum that is going to appear in the
legal and political horizon of India.
The moot court competition is
open to all students enrolled in a full-
time undergraduate law course provid-
ed by a recognised college/university
in India.
A participating team should comprise
at least two members and not more than
three members. In case of a two-member
team, one of the speakers will be allowed
to take the researchers test.
The competition is scheduled over
March 6 to 8, 2020.
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Lead/ Supreme Court/ Criminalisation in Politics
HE Supreme Court (SC)
on February 13 directed
political parties to furnish
justification for choosing
candidates with criminal
antecedents in elections
and expressed grave concern over the
“alarming increase” in the number of
those with pending criminal cases.
Incidentally, as per the Election Co-
mmission (EC), 43 percent of members
of the 17th Lok Sabha have pending
criminal cases against them as com-
pared to 34 percent in 2014.
The top court observed that political
parties don’t offer explanations as to
why candidates with pending criminal
cases are selected. Exercising its consti-
tutional powers under Articles 129
and 142, the apex court directed all
political parties to publish the criminal
history of their candidates on their
websites, newspapers and social media
platforms along with reasons for
choosing them over others without a
criminal background within 48 hours of
their selection.
“It shall be mandatory for political
parties [at the Central and State elec-
tion level] to upload on their website
detailed information regarding individ-
uals with pending criminal cases (in-
cluding the nature of the offences, and
relevant particulars such as whether
charges have been framed, the concer-
ned Court, the case number etc.) who
Outing the Criminals
Inabidtostemthe“alarmingrise”ofcriminalisationinpolitics,theSChaslaiddownstrict
instructionstomakepublicdetailsofacandidate’scriminalhistory.Willitimpactfuturepolls?
By Prashant Mukherjee
Anand Singh, BJP, Karnataka minister
16 pending criminal cases
Cases related to illegal mining under
the forest act, rioting and possessing
dangerous weapons
T
Lalu Prasad Yadav, RJD, Ex-CM, Bihar
7 criminal cases
Cases related to forgery, cheating and
criminal conspiracy
Convicted by the CBI in four cases of
fodder scam, in jail
Mukhtar Ansari, BSP MLA of UP
16 criminal cases
Cases related to murder, rioting, for-
gery, cheating, illegal possession of
arms; all cases pending in court
Photos: UNI

have been selected as candidates, along
with the reasons for such selection, as
also as to why other individuals without
criminal antecedents could not be
selected as candidates,” the order said.
In a bid to hold the political parties
accountable, the SC also directed them
to furnish the reasons for the selection
based on merit, educational qualifica-
tion and not mere “winnability”. It held
that winnability cannot be the sole rea-
son for selecting a candidate with a
criminal background. It directed the
parties to send the same to the EC with-
in 72 hours of the candidate’s selection.
“If a political party fails to submit such
compliance report with the Election
Commission, the Election Commission
shall bring such non-compliance by the
political party concerned to the notice of
the Supreme Court as being in contempt
of this Court’s orders/directions,” the
order said.
The petitioner in the case, Advocate
Ashwini Kumar Upadhyay, who is also
the BJP’s national spokesperson, said:
“It is a landmark judgement. It will root
out corruption, criminalisation, casteism
and communalism from politics.”
Speaking to India Legal, the BJP’s
national spokesperson and senior coun-
sel Nalin Kohli echoed Upadhaya. “The
orders of the Supreme Court have to be
complied with. It strengthens the elec-
toral and democratic process in enabling
voters to make a choice keeping all fac-
tors in mind,” he said. However, con-
trary to this stand, the BJP appointed
Anand Singh, an MLA accused of illegal
mining and forest crimes in 16 cases as
Karnataka minister for forest, environ-
ment and ecology in the BJP-led gov-
ernment of BS Yediyurappa.
Although the apex court judgment
seeks to address the long-standing
demands of electoral reforms, the perti-
nent question is whether there is a penal
provision in the IPC to actually bar can-
didates with criminal antecedents from
contesting elections. As per Section 8
(3) of The Representation of the People
Act, 1951, if a person is convicted of any
offence and sentenced to an imprison-
ment of two years or more, he will be
disqualified from contesting elections.
This followed a July 10, 2013 judg-
ment of the SC in Lily Thomas vs Union
of India case (along with Lok Prahari vs
Union of India), stating that a Member
of Parliament, a Member of the Legis-
lative Assembly or a Member of a Legis-
lative Council who is sentenced for a
crime and granted at least two years of
imprisonment will lose his membership
of the concerned House with immediate
effect. The then government had att-
empted to overrule the order by intro-
ducing a bill in the Rajya Sabha on Aug-
ust 30, the Representation of the People
(Second Amendment and Validation)
Bill, 2013. However, it didn’t succeed.
I
n 2018, the Supreme Court in
Public Interest Foundation & Ors vs
Union of India & Anr, laid down a
set of directives, asking each candidate
to fill up a separate form and state in
bold letters the pending criminal cases
against him. It also asked political par-
ties to publish the same on their web-
sites and in all forms of media in a bid
to curb the criminalisation of politics.
Reacting to this order, AAP’s nation-
al spokesperson Dr Ajoy Kumar said: “It
is a step in the right direction. However,
unless it is backed by a penal provision,
it would be nothing but a cosmetic exer-
cise. Instead, the SC should have asked
the centre to frame laws taking into con-
sideration other aspects of political re-
forms such as putting a cap on expendi-
ture incurred during elections by politi-
cal parties, etc.”
Other Opposition parties voiced
Raghuraj Pratap Singh (Raja Bhaiya),
Independent MLA, UP
8 pending criminal cases
Cases related to attempt to murder,
kidnapping, dacoity, robbery, etc.
Currently lodged in jail
MPswithpendingcriminalcasesinLokSabha
Figures in percent Source: ECI
2004
2009
2014
2019
24
30
34
43

Lead/ Supreme Court/ Criminalisation in Politics
the same concern. Leader of the
Opposition in the Lok Sabha and
Congress leader Adhir Ranjan
Chowdhury wondered if the apex court
had transgressed boundaries. “The
Election Commission is an autonomous
body. It has laid down rules for prohibit-
ing candidates with criminal back-
grounds. A candidate provides every
information to the EC,” he said.
In the 17th Lok Sabha, 57 percent of
Congress members have criminal cases
against them, the highest among all par-
ties, followed by the BJP with 39 per-
cent, according to the Association of
Democratic Reforms.
C
howdhury also questioned the
quantum of crime in the cases
filed against political leaders,
stressing that many of them were due to
political rivalry. “I have 20 cases pend-
ing against myself. Most of them are
cases filed by political opponents. Can I
stop people from filing cases? They have
the right to file, so do I have to defend
myself. If I chose to protest against a
government policy, I will be charged
with a case,” added Chowdhury.
The Left parties, which have taken
up the issue of electoral reforms time
and again, also didn’t welcome the SC
judgment. CPI(M)’s Politburo member
and former party General Secretary
Prakash Karat told India Legal that the
SC had seen the issue of pending cases
against candidates in isolation with the
ground reality. “While lauding the larger
cause of electoral reforms, this SC judg-
ment is impractical in real terms. A
large number of cases are filed against
political activists. Even a case registered
under Section 144 of the IPC is consid-
ered a criminal offence. Nowadays, sedi-
tion cases are being filed against a num-
ber of Opposition leaders,” he said.
He added: “Left leaders in trade
unions face a number of cases as they
are in continuous conflict with the man-
agement. They can’t be equated with
criminals. The judicial system has its
fallacies. Thousands of serious criminal
cases are pending before courts. This
judgment should not be seen in isolation
from the ground reality.”
The Election Commission seems to
have a tough job on its hands.
“I have 20 cases pending against myself. Most of them
are cases filed by political opponents. Can I stop peo-
ple from filing cases? If I chose to protest against a gov-
ernment policy, I will be charged with a case.”
—Adhir Ranjan Chowdhury, senior Congressman
and Leader of the Opposition in the Lok Sabha
“Unless the order is backed by a penal provision, it would
be nothing but a cosmetic exercise. Instead, the SC
should have asked the centre to frame laws taking into
consideration other aspects of political reforms such as
putting a cap on expenditure incurred during elections by
political parties, etc.”
— Dr Ajoy Kumar, AAP’s national spokesperson
“Left leaders in trade unions face a number of cases as
they are in continuous conflict with the management. They
can’t be equated with criminals. The judicial system has
its fallacies.”
—Prakash Karat, CPI(M)’s Politburo member
“The orders of the Supreme Court have to be complied
with. It strengthens the electoral and democratic
process in enabling voters to make a choice keeping all
factors in mind.”
— Nalin Kohli, BJP’s national spokesperson
“Itisalandmarkjudgement.Itwillroot
outcorruption,criminalisation,casteism
andcommunalismfrompolitics.”
—AshwiniKumarUpadhyay,petitioner
inthecase
Voicesofconcern

Lead/ Supreme Court/ Electoral Reforms
N January 31, the Supre-
me Court endorsed a su-
ggestion from the Elec-
tion Commission (EC)
that political parties be
directed to publish the
credentials, achievements and criminal
antecedents of their candidates in news-
papers, social media platforms and the
party’s website along with the reasons
for preferring a candidate facing crimi-
nal charges. It was felt that embarrass-
ment over having to justify the criminal
record of a candidate may deter a po-
litical party from nominating him and
make it more discriminating in its cho-
ice of candidates. This judgment should
be seen against the fact that 43 percent
of MPs have criminal records.
The Court, however, turned down the
EC’s request to empower it to take ac-
tion against the political party and the
candidate under Article 324, including
cancellation of the nomination in case of
non-compliance. The bench took into
account opponents resorting to malic-
ious litigation to get a candidate’s
selection disallowed.
The two-judge bench, led by Justice
Rohinton P Nariman, also asked its
Cleansing the Rot
Theapexcourt’scrusadeagainstcriminalisationofpoliticsbeganin2002whenit
saidthatknowingthecriminalantecedents,educationalqualificationsandassets
ofcandidateswaspartoffundamentalrights
By Vivek K Agnihotri
TOWARDS AN INFORMED CHOICE
Justice Rohinton P Nariman (above) told ad-
vocate Vikas Singh (above right) and Gopal
Sankaranarayanan (right) to give a joint pro-
posal to check funding of criminals in politics
O
Anil Shakya

counsel, senior advocate Singh and
Gopal Sankaranarayanan (senior advo-
cate appearing on behalf of the petition-
er, Ashwini Kumar Upadhyay), to come
up with a joint proposal on
how it can be ensured that parties do
not sponsor the candidature of
such politicians.
Incidentally, in 2018, the Supreme
Court had directed political parties to
publish online pending criminal cases of
their candidates and urged Parliament
to bring a strong law to cleanse the
parties of those facing trial for serious
crimes. It directed that in the form to
be prescribed by the EC, each contesting
candidate would declare criminal cases
pending against him/her. Insertions of
the table recording criminal cases
would be made in print and audio-
visual media by the candidate and his
political party, if any.
The purpose is to help the voters
make an informed choice.
Accordingly, the EC revised the for-
mat for the poll affidavit to be filed by
the candidate along with the nomina-
tion paper. This will now include a table
recording full details of his criminal
antecedents. Candidates are also re-
quired to publish the details in newspa-
pers of wide circulation on three differ-
ent dates after the last date of withdraw-
al. The declarations will also have to be
aired on television channels on three
different dates. The matter must be
published in font size of not less than 12.
Copies of these insertions have to be
supplied to the EC along with the
account of poll expenses.
T
he Supreme Court’s crusade
against criminalisation of politics
is a long-drawn out one. It all
began in 2002 (Association for Demo-
cratic Reforms vs. Union of India),
when the Court mandated the disclosure
of information relating to criminal
antecedents, educational qualifications
and personal assets of candidates con-
testing elections. Seeking this informa-
tion, it said, was part of the fundamen-
tal right of the voter to be informed of
all relevant details about a contestant;
it was extension of the freedom of
expression [Article 19 (1) (a)].
In 2013, on a petition filed by Lily
Thomas and Lok Prahari, an NGO, the
Supreme Court stated that if a sitting
MP/MLA is convicted in a case, punish-
ment for which is more than two years’
imprisonment, then he will be diquali-
fied immediately and the seat declared
vacant, setting aside clause 8(4) of the
Representation of People Act, 1951.
Clause 8(4) had provided special privi-
lege to MPs/MLAs to hold office even
after conviction if an appeal had been
filed in a higher court within a period of
three months of the conviction. In 2013
again, in the case of People’s Union for
Civil Liberties vs Union of India and
Anr, the Supreme Court recognised
negative voting as a constitutional right
of a voter and directed the government
to provide the NOTA (none of the
above) option in EVMs (electronic vot-
ing machines). Further, on a petition
filed by Subramanian Swamy, the
Supreme Court directed the EC to
introduce Voter Verifiable Paper Audit
Trail (VVPAT).
In 2014, in Public Interest
Foundation vs. Union of India, based on
the recommendations of the Law Co-
mmission, the Supreme Court ordered
that criminal trial pending against any
MP or MLA must be disposed of within
one year from the date of framing of the
charge. Taking it from there, in 2017, the
Supreme Court directed that the gov-
ernment should set up special courts to
exclusively conduct time-bound trials of
law-makers accused of corruption and
criminality. The government accordingly
set up 12 special courts.
In 2018, the Supreme Court empha-
sised the need for 70 special courts to
hear and decide criminal cases against
legislators as the 12 courts were grossly
inadequate in view of a large number of
cases (over 3,900) pending in courts.
Subsequently, the Court decided to con-
sider a request to designate a court
FollowingtheSC's2018direction,the
ECrevisedtheformatforthepoll
affidavittobefiledbythecandidatesto
includeatablerecordingfulldetailsof
his/hercriminalantecedents.
eci.nic.in

in each district to take up pending cases
against law-makers on a priority basis.
A
s an extension of its order of
2002 relating to declaration of
assets by the contesting candi-
dates, in 2018, the Supreme Court also
ruled that candidates at the time of fil-
ing of nomination should disclose the
sources of their income. Non-disclosure
would amount to a corrupt practice,
according to Section 123 of the Repre-
sentation of People Act, 1951.
The Court further directed the gov-
ernment to set up a permanent mecha-
nism to monitor the accumulation of
wealth of sitting MPs and MLAs and
their spouses and associates in order to
maintain the purity of the electoral
process and the integrity of the
democratic system.
There are several other matters
relating to electoral reforms which are
pending before the Supreme Court. In
2018, the Court decided to consider a
life ban on contesting elections for per-
sons convicted in criminal cases by
declaring Section 8 of the Represent-
ation of People Act, 1951 ultra vires
the Constitution.
Section 8 imposes only a six year ban
on contesting elections for politicians
serving a sentence of two years or more
in jail in criminal cases.
In 2018, the Supreme Court found
ambiguity in the appointment of
Election Commissioners and referred
the question to a Constitution bench to
consider the request of the petitioner
who said that the appointments be
made under a “collegium system”.
Another PIL has been filed for clarity
on the procedure for removal of the two
Election Commissioners. It said that
they should be provided the same pro-
tection (removal through impeachment
as in the case of a Supreme Court judge)
as the Chief Election Commissioner
[first proviso to Article 324 (5)].
In its affidavit, the EC requested the
Supreme Court that it should be vested
with the power to make rules under
election laws, instead of the govern-
ment. Several decisions of the Supreme
Court have come against the backdrop
of some significant reports of commit-
tees and commissions.
In 1990, the Goswami Committee on
Electoral Reforms highlighted the crip-
pling effect of money and muscle power
in elections. In 1993, the NN Vohra
Committee (in the context of the 1993
serial bomb blasts in Mumbai) conclud-
ed that agencies, including the CBI, IB
and RAW, had unanimously expressed
their opinion that the criminal network
was virtually running a parallel govern-
ment. Money power was being used to
develop a network of muscle power,
which was also used by politicians
during elections. In 2007, the 18th
Report presented by a parliamentary
committee to the Rajya Sabha said that
politics should be cleansed of persons
with an established criminal back-
ground. “Criminalisation of politics is
the bane of society and negation of
democracy,” the Report said. The Law
Commission, in its 244th Report, put it
succinctly: “Instead of politicians having
suspected links to criminal networks, as
was the case earlier, it was persons with
extensive criminal background who
began entering politics.”
These judgments of the Supreme
Court, as well as reports of committees,
make it amply clear that there is no
dearth of wisdom coupled with guide-
lines and instructions for improving the
electoral ecosystem.
The exhortations of the Supreme
Court and the parliamentary committee
notwithstanding, the will to cleanse the
system is missing among those who
have to act. The million-dollar question,
as usual, is: “Who will bell the cat?”Two
senior advocates have been entrusted
with the responsibility of detailing the
framework of putting the Supreme
Court’s direction into practice.
It is time parties explain why they
have chosen to nominate persons with
criminal antecedents and suggest an
appropriate proforma for filing the
nomination paper along with a sample
dummy form. After all, the devil lies in
the details. But naming and shaming,
will it work? It is a billion-dollar
question now.
—The writer is a former
Secretary-General, Rajya Sabha
In2013,theSCrecognisednegativevot-
ingasaconstitutionalright.Thus,NOTA
appearedonEVMs.Inanotherorder,the
CourtdirectedtheECtointroduceVoter
VerifiablePaperAuditTrail(VVPAT).
Lead/ Supreme Court/ Electoral Reforms
UNI

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Chhattisgarh: The Scam of all Scams

Spotlight/ Supreme Court/ Reservations
HE Supreme Court of
India has set the cat
among the pigeons by rul-
ing that quotas and reser-
vations for promotions for
government jobs are not
fundamental rights. In a verdict deliv-
ered on appeals on reservations for the
SC/ST community members in promo-
tions to Assistant Engineer (Civil) posts
in the Public Works Department of the
Uttarakhand government, the Court
decreed: “There is no doubt the state
government is not bound to make reser-
vations. There is no fundamental right
which inheres in an individual to claim
reservation in promotions. No man-
damus can be issued by the Court
directing state governments to provide
reservations.”
This judgment has justifiably caused
some political alarm. Over a period of
time, a series of Constitution amend-
ments and judgments have created a
legal framework for reservations in pub-
lic employment, subject to the fulfilment
of certain constitutional requirements.
Reservation has also become political
capital and is often used as a tool by
politicians to sway votes in their favour.
Using the rhetoric of reservation, politi-
cians have for long exploited the citizens
of the country and in the process
A Shake-Up Call
Theapexcourtrulingonreservationsforpromotionsisasignaltothepoliticalclasstotakeafresh
lookonanoldissuetousherinsocio-economicparticipatorydevelopmentwithequityanddignity
By MG Devasahayam
T

become a means of empowerment.
4. Weak persons always deserve some
extra care. Similarly, the weaker sections
of Indian society require some extra
support, which is being provided in the
form of reservations in jobs and seats
in legislatures.
5. The Constitution of India gives
directives to the states to take special
care for protecting the interests of the
weaker sections of society. The best way
of protecting their interests is to
provide them some facilities by way
of reservations.
Opponents counter with the follow-
ing arguments:
1. The policy of reservation was
designed as an ad hoc measure for 10
years. But it is continuing and getting
extension after the end of every 10 years.
It is creating some sort of frustration
among high caste people as they are
deprived of opportunities either to get
a job or to take admission in educational
institutions due to the reservation
policy.
2. The reservation policy has created a
“new class of vested interests” in society.
They have permanently benefitted from
the reservation policy. Thus, the policy
has created the psychology of dependen-
cy among them.
3. The policy of reservation is contrary
to the principle of equality. Equality pre-
supposes equal treatment to all and
equal protection of all people. But spe-
cial privileges and extra protection to a
certain class of people is against the pol-
icy of equality. It violates the very spirit
of democracy.
4. The policy of reservation of jobs is
violating the efficiency and merit system
of recruitment. While the meritorious
and talented persons are deprived of
their due share of appointment, the
authorities are forced to make compro-
mises with quality. While reservation in
jobs itself severely compromises merit,
extending it to promotions would
destroy whatever merit is left.
5. The policy of reservation has
given rise to the politics of casteism in
the Indian political system. The
reduced a significant percentage of them
to mendicants.
All these have solidified into an enti-
tlement for the backward classes,
including the SCs and STs. This judg-
ment, however, is a reminder that the
“reservation” programmes allowed in the
Constitution flow from “enabling provi-
sions”, and are not rights as such.
This legal position is not new. Major
judgments—including from Constit-
ution benches—note that Article 16(4),
on reservation in posts, is enabling in
nature. In other words, the state is not
bound to provide reservations, but if it
does so, it must be in favour of sections
that are backward and inadequately rep-
resented in the services based on quan-
tifiable data.
For this purpose, data collection on
the adequacy or inadequacy of represen-
tation of SC/ST candidates in the State’s
services becomes imperative.
T
he enormity and criticality of
“reservation” as a subject in India
can be gauged from this: reserva-
tion for SCs/STs and OBCs accounts for
49.5 percent of the jobs in central gov-
ernment service (15, 7.5 and 27 percent,
respectively). The addition of another 10
percent recently has taken the reserva-
tion pie to 59.5 percent. It is therefore
natural that there are strong proponents
and opponents for this deemed “Affir-
mative Action” (AA) considered as the
hallmark of social justice. This is what
the proponents have to say:
1. Preamble to the Constitution aims
to secure Justice—Social, Economic and
Political—among all its citizens. But so
long as the social and economic inequal-
ities continue, this objective cannot be
secured. The SCs, STs and Other
Backward Castes are victims of such
inequalities. So, it is necessary to pro-
vide them special care and protection
through reservations until they come
forward, on a par with others.
2. The weaker sections of society, like
STs, SCs and Dalits, have been the vic-
tims of exploitation for many centuries.
Their backwardness, underdevelopment
and deprivation can be removed
through the compensatory provisions
of reservation.
3. Empowerment of the weaker sec-
tions of society will be possible through
reservation. They can play their role in
the political process of the system with
confidence. In India, reservation has
Reservationhasbecomepoliticalcapital
andisoftenusedasatoolbypoliticians
toswingvotesintheirfavour.Politicians
haveforlongexploitedthecitizensofthe
countryand,intheprocess,reduceda
largenumberofthemasmendicants.
CALL FOR QUOTA IN PROMOTIONS
Members of the Rashtriya Dalit Panchayat at
a maha-rally for reservation in promotions, at
Parliament Street in New Delhi

over-consciousness of caste identity is
obstructing the process of national inte-
gration. Moreover, castes have been
used as instruments for maintaining
the vote-banks of different political par-
ties. They are competing among them-
selves for enhancing the percentage of
caste-based reservation. It has already
reached 69 percent in Tamil Nadu.
“Reservation” as practised in India
falls into three categories:
(a) Posts and services of the State and
other entities which come under the
rubric of “State” defined in Article 12;
(b) In admission to seats in educational
institutions; and,
(c) In elections to the Lok Sabha, State
Assemblies, Rural and Urban Local
Bodies.
A
rticle 334 was titled in the
Constitution, on November 26,
1949, as “Reservation of seats
and special representation to cease after
twenty years.” Basically, when the
Constitution of India was written, the
goal was set for 20 years to bring
reform among SCs/STs.
However, lack of accountability am-
ong politicians, absence of proper imp-
lementation of government policies and
vote-bank politics have resulted in repe-
ated extension of the time-line. Despite
this, the situation of the SCs/STs does
not seem to be that favourable even
after extended periods of reservation.
Things are only getting worse with
the BJP government reserving 10 per-
cent posts for the “Economically Weaker
Sections”. At the income limit of `8 lakh
per annum, this reservation is meant to
pamper comparatively well-off forward
communities.
All this chaos and chicanery in the
name of social justice is because the
precept and practice of “reservation” is
a straitjacketed and blinkered version
of AA which is born out of the doctrine
of Compensatory Discrimination—a
welfare state giving preference to a
group or groups of people with a stated
goal of countering and compensating
the past or ongoing atrocities, excesses,
injustice, or discrimination of any sort
against them.
Among the countries where AA is
in vogue, South Africa is the most rele-
vant, because like India, it has a long-
standing history of social discrimina-
tion. Combating racial inequalities is the
main aim of AA in South Africa. Foll-
owing the attainment of democracy, the
government led by the African National
Congress chose to implement AA legis-
lation to correct previous inequalities
and this policy came to be known as
“employment equity”.
The Reconstruction and Develop-
ment Programmes thus began to redress
past imbalances.
South Africa adopted a holistic
approach to AA to achieve social justice.
Much of the liberation struggle in SA
was focused on ending the discrimina-
tion against and exclusion of the black
majority from many spheres of life,
including the economy.
The new South African Constitution
(1996) made provisions for policy and
legislation to be formulated to allow
efforts to redress the inequalities of the
past. Even before the establishment of
any formal AA or empowerment strate-
gies, some voluntary redress initiatives
were undertaken in the private sector.
These fragmented efforts did not satisfy
the expectations of a majority popula-
tion denied access to many aspects of
the South African economy for years.
Institutional and legislative settings
for AA policies in SA are:
a. Employment Equity Act of 1998:
This aims for equality by imposing the
duty on the State to (i) eliminate unfair
discrimination in current employment,
and (ii) take positive or affirmative
measures to attract, develop and retain
individuals from previously disadvan-
taged groups.
b. Broad-based Black Economic
Empowerment Act of 2003 for “eco-
nomic empowerment of all black people,
including women, workers, youth,
people with disabilities and people liv-
ing in rural areas”.
c. Codes of Good Practice by the
Department of Trade and Industry in
February 2007 notified under Economic
Empowerment Act.
As against this holistic approach of
AA, India has been indulging in patch-
work reservation policy and practices
for jobs in the government sector and
admission in educational institutions.
This mess-up has made India perhaps
the only country in the world where
communities en bloc are struggling
to continue occupying the backward
status to get a share of the shrinking
government cake! This, seven decades
after independence and in a country
aspiring to be an economic super-
power!
This Supreme Court judgment
should come as a shake-up call. Instead
of bemoaning it and allowing reserva-
tion to wither away, the political class
should get together, study the whole
situation and enact comprehensive leg-
islation to usher in socio-economic AA
to achieve participatory development
with equity and dignity.
—The writer is a former Army
& IAS officer
Spotlight/ Supreme Court/ Reservations
TheReservationPie
Scheduled Tribes (STs)
Economically
Weaker Sections
(EWS)
7.5%
Scheduled
Castes (SCs)
15%
Other Backward
Castes (OBCs)
27%
10%
Merit
40.5%

Courts/ OBCs
bench of the Madras High
Court dismissed a batch of
petitions seeking relaxation
in the upper age limit from
45 years to 48 for Other
Backward Classes (OBCs) appearing for
the district judge exam on a par with
Scheduled Castes and Scheduled Tribes.
The petitioners argued that they too
belonged to the reserved category and
denying age relaxation to them would
amount to discrimination under Article
14 of the Constitution. The second argu-
ment put forth by them was that they
were claiming relaxation for the vacan-
cies available in 2013 when the last
selections were held. These selections
were inordinately delayed and com-
menced in 2019. This deprived them of
the opportunity to avail of the benefits
in the selection process.
The bench of Chief Justice AP Sahi
and Justice Subramonium Prasad, how-
ever, said that this issue had been
finalised and attained finality with the
acceptance of the Shetty Commission
Report. It said that “the judgement in
All India Judges’ Association and others
vs Union of India is, therefore, a con-
scious decision on the Shetty Com-
mission Report, which even having ta-
ken notice of relaxations being available
to the other Backward Classes in IAS
recruitments, did not make any recom-
mendations for such relaxation in upper
age limit to Backward Classes in the
judicial services”.
It further said that the equality
clause cannot be inferred as uniformity
in rules of relaxation because it was an
admitted fact that SCs/STs had been
placed on a different footing as com-
pared to OBCs and the constitutional
scheme also makes different provisions
for both the classes.
The petitioners said that other High
Courts had extended such benefits. But
this did not cut any ice with the bench
as it said that granting such benefits in
other states would not render the rules
in the present state invalid. It said that
“under the federal structure of the Judi-
ciary, there is no such All India Judicial
Services in place and each State having
its own independent judicial organiza-
tion as envisaged under the Constitu-
tion, each of the States and its High
Court having exercise of autonomy over
such services are empowered to either
extend such benefits or otherwise make
some other provision of relaxation
which cannot be pressed into service
for an argument of invidious discrimina-
tion for providing relaxation in upper
age limits”.
The bench also rejected the petition-
ers’ contention that due to the gap in the
selection process of six years, they were
deprived of the opportunity to avail of
the benefits. The bench, relying on JS
Yadav vs State of UP, observed that “a
legitimate expectation can only be
pressed into as an argument, provided
there is an existing right. The right
should be legally sustainable and should
be an accrued one. A mere chance or an
expectancy of appearing in a recruit-
ment process cannot by itself be a right
unless it is shown that it violates
Article 14 of the Constitution of India or
any other constitutional provision or
legal provision”.
The bench said that the Court while
accepting the Shetty Commission Re-
port was not barred from further granti-
ng age relaxation up to 48 years but
the scale of 48 years for SC/ST and 45
years for OBC was “a valid indicator
of prescription”.
ToughLuck
TheMadrasHChasrefusedtograntagerelaxationtoOBC
candidatesonaparwithSCs/STsappearingforthedistrict
judgeexamastherearedifferentprovisionsforbothclasses
By Shaheen Parween
A
ThebenchofChiefJusticeAPSahi(left)andJusticeSubramoniumPrasadsaidthat
theequalityclausecan’tbeinferredasuniformityinrulesofrelaxationasSCs/STshad
beenplacedonadifferentfootingascomparedtoOBCs.

Opinion/ Demonstrations Shiv Visvanathan
AJORITARIAN regimes,
with middle class preten-
sions, have a predictable
way of delegitimising pro-
test. The first objection
would be that the protest
violates the rules of the game, that it is
a threat to law and order. If there is a
sense of scale, the protest threatens the
security of the regime. If the crowd is
small but the protest effective, the de-
monstration is seen as a law and
order problem.
If narratives around the alleged sta-
bility of the regime do not work, it
appeals to value frames. A protest like
Shaheen Bagh is seen as threatening
the very being of childhood. In modern-
ist terms, it raises visions of a “back-
ward” community exploiting children as
“child labour”, even if that labour is an
act of politics. Such a critique invokes a
vision of a progressive society getting
hysterical over the use of innocent chil-
dren. But the hysteria is more hypocrisy,
as child labour and child abuse run ra-
mpant. Of course, this critique invokes a
primordial historical fear, originating in
the act of children being used as chim-
ney sweeps in the early days of the in-
dustrial revolution. The archives, in fact,
claim that families exchanged children
to perform hazardous jobs.
The regime objecting to children
gathering around a protest organised by
mothers is desperate to show that these
demonstrations are unlawful. There is
a fear that the presence of children in a
protest organised by Muslim women
would give it the colour of a children’s
crusade. Such narratives, I must confess,
will give the BJP few points with the
UNICEF or any children’s organisation.
In fact, this question of childhood
and child labour assumes that all labour
is industrial, that adults perform work
and children go to school. But such a
norm hardly works in a craft system
where children learn the craft by assist-
ing their parents. The learning process
is informal and the child absorbs the va-
lues and competence of a craft. Such an
example emphasises that craft societies
are a different form of life, and as Cro-
atian-Austrian philosopher Ivan Illich
and others have pointed out, the school
with its panopticonizing fantasies may
be part of the enclosure movements of
industrialism. The idea of child labour
laws is important, but they need to be
applied sensibly and sensitively. The
current objections to the protest at
Shaheen Bagh show no evidence of that.
Yet the question of exploiting child-
hood goes beyond labour. The use of
children for political purposes has to be
confronted. It violates a code of values
when protesters use children as a cover,
where they become cannon fodder.
Such use of children is both exploitative
and mercenary. This can arise out of de-
speration as protesters feel vulnerable
and helpless before an all-powerful re-
gime. One must emphasise that exploit-
ing children in this manner evokes little
sense of sacrifice and martyrdom.
In fact, a dualism becomes obvious
between the use of violence on children
by terrorists and ideological groups and
the role of children in community pro-
tests. In the former, politics is conducted
by cadres, which are professionally or-
ganised groups. The use of children here
is violative of basic values. The decision
can be read across two oppositions, me-
rcenary terror versus martyrdom, and
organization versus community.
Anthropologist JPS Uberoi said that ter-
Children’sCrusade
EvenastheSCdecidesto
holdahearingtostoptheuse
ofkidsinprotests,itisamov-
ingsighttoseeShaheen
Bagh’smotherscaringfor
theirprogeny’sfuture.This
willencouragesimilaracts
elsewhere
M UNI

ror is on the side of death. The merce-
nary and the terrorist are not bothered
about who dies or how many die. Such
groups are literally necrophilic. But a
martyr in his sacrifice is on the side of
life and is life-affirming. He does not
want to die but is ready to sacrifice him-
self to affirm life and life-giving values.
T
he second dualism is equally
critical. Cadres as organisation
are trained professional groups
where children are used for war or pro-
test. That’s when a sense of the macabre
enters. One destroys childhood and
worse, one can brutalise them perma-
nently. One saw it with children’s armies
in South Africa which could not return
to the normalcy of peace. Violence be-
came the way of life for these children
and they developed a certain hardness.
Even the Truth Commission under Bi-
shop Desmond Tutu was unable to per-
suade these children that the war was
over. They preferred to retain a state of
war because peace offered little that
was attractive beyond the mundanity
of the routine.
Shaheen Bagh, in that sense, was a
community protest with all the anarchy
of one, allowing a few domestic rhythms
into public spaces. A protesting commu-
nity operates differently from a cadre.
A cadre is a formal organisation with
clear boundaries separating private from
public. There is little that is domestic
about cadres. In fact, they often frown
on family life as distracting. One can
witness this attitude both in RSS shakh-
as and in communist party cadres.
Community lives are ambiguous. They
have to combine the domestic and the
public in an act of protest. Protesting
women encamped all night at a protest
site cannot leave their children in crèch-
es. It is their concern for children, that
sense of caring that keeps mothers and
children together. In a caring communi-
ty practising the transparency of protest,
there is little exploitation visible.
I must confess that my visits to Sha-
heen Bagh gave a deep sense of exhilara-
tion. One sensed hope as one saw a
peaceful group of women protesting,
invoking the Constitution as a sacra-
ment, insisting on citizenship even for
the most vulnerable and demanding a
responsibility to and for the Constitut-
ion. The Preamble and the Constitution
provide a double sense of sacredness.
But more than that, what one witnessed
was not a mere protest univocal in its
slogans but a protest of a community
which was a festival, a carnival and a
demonstration reminding the regime
that vulnerable marginal communities
regard citizenship as precious.
Even the joint rhythms of voting
and the continuity of protest during the
Delhi elections were an important exer-
cise in political pedagogy. The protesters
were reminding our policy-makers that
citizenship, as membership, evokes com-
munity, not the rules of certification.
In protesting against the regime, they
were celebrating citizenship, arguing
that protest is one of the rituals of citi-
zenship and a community needs to em-
phasise. No family, no caring communi-
ty wants to see a child die.
Unfortunately, protest as a rite of
passage is not conducted in five-star co-
mfort. It demands facing the cold win-
ters of Delhi, it demands abandoning
the ease of domestic rhythms. But when
women care, they are caring for their
children’s future. Maybe a whole folklore
of storytelling and protest will grow
around Shaheen Bagh. It is a moving
sight and encourages similar acts of sup-
port elsewhere. In fact, it is this poetic
sense of Shaheen Bagh, its epidemic
quality of democracy and dissent that
is frightening the regime and its cohorts
into knee-jerk changes against the
mothers there. But the public under-
stands the moral economy of this com-
munity of protest. It is assuring the wo-
men that the mothers of Shaheen Bagh
are as precious as the mothers of Ar-
gentina protesting against an authori-
tarian regime.
—The writer is a member of the Compost
Heap, a commons of ideas exploring
alternative imaginations
SECURING THE CHILDREN’S PRESENT
AND FUTURE
Women protesters (left) along with their chil-
dren (above) at Shaheen Bagh are demon-
strating to protect not only their own but also
their children’s citizenship in the country
Theregimeobjectingtochildreninapro-
testbymothersisdesperatetotagthese
demonstrationsasunlawful.Theyfear
thepresenceofchildrenmightportrayit
asachildren’scrusade.
Anil Shakya

Focus/ Law Students/ Letter to CJI
FTER parliament passed
the Citizenship (Amend-
ment) Act (CAA) and talk
of implementing a coun-
trywide National Register
of Citizens (NRC) started
doing the rounds, a string of peaceful
protests were witnessed across the co-
untry. Students were the backbone of
this movement and came out in large
numbers to mobilise people and organ-
ise peaceful protests. Consequently,
they have been at the receiving end of
a state crackdown.
In Delhi’s Jamia Millia Islamia uni-
versity, around 100 students had to
undergo treatment in hospitals after a
brutal attack by the police. One student
received bullet injuries when a right-
wing activist opened fire at a group of
protesters outside the university gate.
Another student suffered serious eye
injury, leading to partial loss of vision,
and many students got fractures due to
insensitive police action.
In Aligarh Muslim University, there
were reports of students being picked up
by the police from their hostels. Around
100 suffered injuries and close to 20
students were gravely injured.
On January 5, a masked mob attack-
ed hostels in Jawaharlal Nehru Univer-
sity (JNU). The student union president
walked out with blood smeared all over
her face. Reports of goons carrying
sharp weapons and acid made headlines
in the media.
Now another group of students has
entered the fray. Concerned at the rise
in violence on campuses, around 300
law students from across India have
written an open letter to the Chief Jus-
tice of India (CJI), Sharad Arvind
Bobde. In the letter, students have quot-
ed reports by the media and fact-finding
teams to draw the attention of the top
court towards the police excesses and
mob violence against students. “With
Lawless Campuses
Around300lawstudentsfromacrossIndiahavedrawntheattentionoftheChiefJusticeof
India,SABobde,topoliceexcessesandmobviolenceatvariousvarsitiesacrossIndiaover
anti-CAAprotestsandurgedhimtotakesuomotu action
By Nupur Dogra
NO TO CITIZENSHIP LAW
The AMU law faculty students at a protest
A

the recent turn of events, we, as law stu-
dents of a democracy, find ourselves in a
state of fear and absolute shock.” the
letter said.
The students, in the letter, started by
citing the disturbing reports coming in
from reputed campuses. Referring to
past cases of activism taken up by the
Supreme Court and citing the judg-
ments in Navtej Singh Johar and Ors vs
Union of India and Justice KS Putta-
swamy and Ors vs Union of India, the
students appealed to the CJI to step in
and uphold the role of the Court as the
guardian and the protector of the funda-
mental rights of citizens. The law school
students, in the letter, expressed “utter
dismay” over the Supreme Court’s
refusal to step in and order any inquiry
into the police action. They called this “a
violation of basic principles of natural
justice, the students were not even given
an opportunity of being heard”.
F
urther criticising the Delhi police
for its ineffective and lukewarm
response to stop the mob attack
in JNU, the letter said: “Audio and video
evidence and numerous gut-wrenching
eye-witness accounts clearly indicate
that the police did not enter the campus
to control the violence, but instead,
made arrangements for the miscreants
to safely exit the campus after the
attack.” The students in the letter ex-
pressed concern over the police’s high-
handedness in dealing with the incident
and its failure to identify the culprits.
“…the police forces are duty-bound
to safeguard and protect the rights of
the citizens. In view of the same, the
failure of the police to identify the cul-
prits and take anyone connected to the
violence into custody or make any arr-
ests is absolutely unjustified. Moreover,
the FIR against the students, including
the JNU Students’ Union President
Aishe Ghosh who was thrashed by the
mob, is completely undemocratic and
reeks of the high-handedness of the
police. This amounts to the muzzling of
voices of dissent and sabotaging the stu-
dents’ right to democratic protests,” the
letter read.
They called the attack “a total break-
down in campus safety” which not only
jeopardises their human rights under
the law and the Constitution but is also
likely to adversely affect the administra-
tion of justice and the rule of law in
the country.
They demanded a formal inquiry
against the JNU registrar, Pramod
Kumar, and vice-chancellor, M Jagadesh
Kumar, on account of their failure to
prevent the occurrence of the said attack
and sought their suspension till the
completion of inquiry.
The students, in the scathing letter,
criticised the police atrocities and urged
the Supreme Court to take suo motu
cognisance of the matter to prevent the
situation from culminating in one of
tacit acceptance of disproportionate vio-
lence against students.
Asking for a free and fair judicial
probe, the students demanded due pun-
ishment for the perpetrators to prevent
these acts from gaining any legitimacy
and becoming the new “normal”.
The students concluded the letter by
putting forward a few suggestions for
the top court.
The setting up of a Commission of
Enquiry to probe police inaction in con-
trolling the violence and the role of the
Delhi police in allegedly facilitating the
mob attack on January 5, 2020.
Strict action against police officials
who, as reported, have engaged in the
manhandling of activists and journalists
at the JNU gate after the attack took
place, and failed to ensure peace and
security.
An interim order of suspension/ter-
mination of the Registrar and the Vice-
Chancellor of JNU be passed in view of
their failure to ensure the safety of stu-
dents and members of the faculty.
Due punishment should be given to
the complicities that enabled the vio-
lence and the persons responsible for
executing the attack which resulted in
severe injury to the students and exten-
sive damage to property.
Reiterating the need to protect the
Constitution and the fundamental rights
of an individual to protest peacefully,
the students implored the CJI to take
active steps for ensuring justice to those
who were injured and affected by the
violent mob attack in JNU.
They also pleaded that this must be
done immediately to restore public con-
fidence in the judiciary as well as the
Supreme Court.
Thelawschoolstudentsintheirletter
(aboveright)toCJISABobdeexpressed
utterdismayovertheSC’srefusalto
orderanyinquiryintothepoliceaction
andcalleditaviolationofnaturaljustice.

Legal Eye/ Judiciary & Social Media
ECHNOLOGY has ensu-
red that we live in a cons-
tantly connected world.
Every moment can be
captured, saved and sha-
red through innovative
apps like Facebook, Twitter, Instagram,
LinkedIn, WhatsApp et al with just one
click. Smartphones and better connec-
tivity have revolutionised the way we
share information, communicate and
make decisions. With over seven billion
mobile subscriptions worldwide and ov-
er three million people using social me-
dia to share opinions, photos and videos,
constant participation and updates have
found their way into almost every sph-
ere of life—professional and personal.
There is no denying the reach of so-
cial media and the opportunities it pres-
ents for judges and lawyers to stay con-
nected with the community they serve
in. Within the judicial system, many
judges and legal professionals have
started to use these applications actively.
In the US, a Texan Supreme Court judge
uses Twitter to share a mix of family
outings and political commentary, with
a community of 1,03,000 people keep-
ing track of his profile. In England and
Scotland, similar profiles are used to up-
date the public on the work of judges
and magistrates continuously. A High
Court judge in England recently used
Twitter to make a direct appeal to urge a
woman who disappeared with her three-
year-old son to return home.
However, there are also risks and
challenges inherent in the use of social
media by the judiciary, which highlight
issues of ethics and integrity. Active use
of social media platforms as well as in-
direct engagement can both impact and
have severe consequences for the indi-
vidual involved.
For instance, active usage can lead to
questions of ethics and integrity of the
judiciary. A Kentucky judge got disqual-
ified because he “liked” a political cam-
paign post on Facebook, which was per-
ceived as political endorsement. In
2019, a New York judge was disbarred
for posting a picture of a noose on Face-
book. The State of New York Commi-
ssion on Judicial Conduct (via their
written complaint against him) found
that the judge had failed to act in a
Uphold Judicial Integrity
Withtheincreasinginfluenceofsocialmedia,therearerisksandchallengesforthelegalsector.
Judgescancomeundertremendouspressureandshouldensureethicsarenotcompromised
By Anurag Bana and Merle Balki
T
Anthony Lawrence

manner that promoted public confiden-
ce in the integrity and impartiality of
the judiciary. In another case, a Wis-
consin judge became the Facebook
Friend of a woman whose child custody
case he was presiding over. The Wiscon-
sin appeals court ordered the custody
case to proceed before a different judge
because the Facebook friendship could
effect bias.
Remarks and quotes from the public
can put pressure on judges, and media
trials have become commonplace. Jud-
ges need to be aware of how they are
perceived on social media. This is not
based only on their active use of social
media, but also on what information
they receive and from whom.
Chief Justice of India SA Bobde re-
cently expressed concern about the har-
assment judges receive on social media.
Additional Solicitor General of India
Madhavi Divan stated that “judges can
be put under pressure because they are
as human as anybody else”. Lord Chief
Justice of England and Wales Sir Ian
Burnett even stated: “There have been a
number of very highly publicised cases
in recent years where individual judges
have been put under intolerable pres-
sure from abuse.”
A case not yet taken up by the court
but already discussed online by the pub-
lic could have an influence on how a
judge decides it. And as mentioned
before, even if an individual does not
use social media actively, it is nearly
impossible to escape the increasingly
connected online universe.
T
he interconnectedness of plat-
forms and their potential to en-
hance work productivity makes
them more prevalent and not opt-out
options. For example, Skype and
LinkedIn are owned by Microsoft; Ins-
tagram and WhatsApp by Facebook and
YouTube and Gmail by Google-linked
apps are a common practice. Once sign-
ed into one platform or one email pro-
vider, data and services can be shared
through linked third party applications.
These challenges are here to stay,
with upcoming generations growing up
with a permanent social media pres-
ence. Therefore, focusing on guidelines
and principles to ensure integrity and
ethics is of the highest priority for an
impartial judiciary. This was acknowl-
edged by the International Bar Asso-
ciation (IBA) in 2014 and endorsed by
the United Nations Office on Drugs and
Crime (UNODC) in 2019.
In 2014, the IBA’s Legal Policy and
Research Unit (LPRU) published its
International Principles on Social
Media Conduct for the Legal Profession.
These Principles address both the opp-
ortunities and risks that legal profes-
sionals should be aware of when using
social media. However, given the fast
pace of technological development,
LPRU is updating these Principles to
reflect current trends and suggest im-
plementation mechanisms.
UNODC also embarked on the devel-
opment of Non-Binding Guidelines on
the Use of Social Media by judges. In
November 2019, this was launched at
the annual Law, Justice and Develop-
ment Week hosted by the World Bank
in Washington.
These Guidelines illustrate the pros
and cons of the use of social media and
provide guidance and training frame-
works which are consistent with inter-
national and regional standards of judi-
cial conduct and ethics. The Guidelines
cover a broad range of topics—risks and
opportunities in judges’ awareness and
use of social media, judges’ identifica-
tion on social media, content and behav-
iour on social media, friendships and
relationships online, privacy and securi-
ty policies and training.
IBA Principles and UNODC
Guidelines address the need for the legal
profession and the judiciary to have a
framework to regulate and guide social
media engagement. However, for effec-
tive implementation by different judici-
aries, there is a need for training, capac-
ity building and regular updating.
Therefore, together with UNODC, IBA
is working to create awareness through
seminars across the globe. IBA is also
creating modules for dynamic training
for different members of the legal pro-
fession, in consultation with social
media experts which can be delivered
through interactive workshops.
—Anurag Bana is Senior Legal Advisor,
Legal Policy & Research Unit,
International Bar Association, London,
while Merle Balki is a trainee lawyer and
former legal intern at the International
Bar Association, London. (Additional
inputs from Shweta Rajwade of the
British Psychological Society.)
CJISABobde(aboveleft)expressedcon-
cernabouttheharassmentjudgesre-
ceiveonsocialmedia.AdditionalSoli-
citorGeneralMadhaviDivansaidthat
judgescanbeputunderpressure.

My Space/ Women Commanders Col R Hariharan
ALE troops won’t
accept women
commanders:
Government to
SC,” “India’s sol-
diers not ready
for women in combat”…these were some
of the media headlines that flayed the
government for being sexist in army se-
lections. The centre had submitted to
the Supreme Court that troops, mainly
from a rural background “with prevail-
ing societal norms” were not “mentally
schooled to accept women in command”.
The case related to a few women offi-
cers (WOs) of the army challenging alle-
ged gender discrimination in appoint-
ments and the army’s reluctance to acce-
pt them in combat arms like infantry
and armoured corps and in command
appointments. The government’s argu-
ment was criticised not only by the
media and civil society activists but also
by veteran army officers. Brigadier
Rahul Bhonsle tweeted: “This claim is
patently false. I had women officer com-
manding a signal company with great
aplomb way back in 2003. Have things
regressed further?”
In damage control mode, Solicitor
General Tushar Mehta, who appeared
before the Supreme Court, said that the
centre did not intend to advance the
arguments that male officers cannot
take orders from female officers. App-
earing before the bench of Justices DY
Chandrachud and Ajay Rastogi, he said
that in his opinion “women must not
Walking a Tightrope
Thecentre’ssubmissiontotheapexcourtthattroopsarenotmentallyreadytoacceptwomenin
commandmayseemsexist,butwilltheybeabletomeetthetoughphysicalchallengesofthejob?
M“
IN FULL PREPAREDNESS
A women’s marching contingent gets a brief-
ing after the Army Day parade in New Delhi

strive to be equal to men. They are in
fact above men in all respects and better
than men”. He said there was no gender
discrimination in matters of commis-
sioning and appointments. None of the
rules perpetuated this discrimination.
The counsel for the petitioners
argued that the respondent’s argument
was flawed as empirical data suggested
otherwise. WOs were not on a par with
male officers, she added. Justice Chan-
drachud, while questioning why women
were not commissioned in the field,
observed: “Two things are required to
alter empirical data to rid any form of
Gender Discrimination—administrative
will and a change in mindset.”
Since 1993, the government has pro-
gressively opened up the three services
for WOs in selected branches. At pres-
ent, the number of WOs in the three
services is—Army: 1,561; Air Force:
1,594 and Navy: 644. It works out to 3.8
percent, 13.09 percent and six percent,
respectively. They are commissioned
into the Army Service Corps, Ordnance,
Army Education Corps, Judge Advocate
General, Engineers, Signals, Intell-
igence, Electrical and Mechanical Eng-
ineering branches. The Army doesn’t
allow women in combat roles like infan-
try, armoured, mechanised infantry, avi-
ation and artillery.
In spite of the progress that the gov-
ernment has made so far, two operative
paragraphs in its submission before the
Supreme Court have drawn the ire of
various sections of society. These are:
“x. Command appointments:
Command of units entails setting per-
sonal example and leading from the
front and Commanding Officers must
do everything the troops were required
to do. However, existing physical fitness
standards of WOs are distinctly lower
than their male counterparts. Compo-
sition of rank and file being male, pre-
dominantly from rural background, with
prevailing societal norms, were not yet
mentally schooled to accept WOs in
command of units. Further, they also
lack combat exposure in the form of
infantry attachment and service with
Rashtriya Rifles units.
“xi. Equal opportunity is for equals:
It is submitted as apparent from the
preceding paragraphs equality of WOs
with male SSCOs does not exist. Some
important issues are highlighted here:
“(a) Different physical standards:
The physical standards for women are
considerably different than men viz. in
the Battle Physical Efficiency Tests
(BPET). Excellent timing for males is 24
minutes 40 seconds while for women
the excellent timing is 31 minutes 30
seconds, which is even below the failed
standard for males i.e. 27 minutes and
30 seconds.”
It is evident that from the govern-
ment point of view and presumably the
armed forces’ one too, the two issues
relating to WOs’ intake in combat arms
are: doubts about the acceptance of
women in command appointments by
troops and their lack of physical stan-
dards required to lead men in combat.
P
rof Srinath Raghavan, Senior
Fellow at Carnegie India, was not
far off the mark when he tweeted:
“An extraordinary and regressive claim.
Reminiscent of British Raj’s claim that
Indian soldiers would never accept
Indian commanders. Military training is
about fundamentally reshaping norms
and attitudes that soldiers bring from
their social backgrounds.”
For trained soldiers “acceptance” is
not an option; they have undergone rig-
orous regimentation to accept orders
from the command. Social background
is not such a big issue for the soldier
within the unit as long as he is treated
fairly. Those of us who have handled dis-
contentment among troops, even bor-
dering on mutiny, succeeded in defusing
the situation only by showing them that
the orders were fair and just, both in
spirit and action. So the argument that
women commanders may not be accept-
ed by troops indicates the patriarchal
mindset of policymakers, including
“Twothingsarerequiredtoalter
empiricaldatatoridanyformofGender
Discrimination–administrative
willandachangeinmindset.”
—JusticeDYChandrachud
“Womenmustnotstrivetobe
equaltomen.Theyareinfact
abovemeninallrespects,and
betterthanmen.”
—SolicitorGeneralTusharMehta

political leaders, senior bureaucrats and
commanders.
However, tough physical standards
required in combat arms like infantry,
armoured corps and artillery are a chal-
lenge. The experience of the US Army in
throwing open infantry and other com-
bat arm jobs to women soldiers would
be useful to understand the professional
complexities in implementing any blan-
ket order on recruiting women. In
January 2013, US Defence Secretary
Leon Panetta ordered all services to
open combat arms for women soldiers.
The services were given three years till
2016 to make it happen.
T
he US Army was cautious in
implementing the order,
although the Marine Corps had
already done so. General Robert Cone,
commander, Training and Doctrine
Command, explained this guarded
approach in the November 2013 issue of
Army magazine. He wrote: “We must do
this right, lest we put women and our
institutional credibility at risk…The
combat readiness of our well-seasoned
Army must remain the first priority.”
By 2013, the Marine Corps had
already exposed women recruits to the
physically demanding standards
required to serve in the male-dominated
infantry and special operations units
after considerable research. Both the
Marine Corps and the Army examined
the issue of lowering physical standards
required for these jobs before allowing
women in combat arms. The Marine
Corps maintained that women would
have to meet the required performance-
based standards if they wanted to serve
in the infantry units.
According to General Cone, a survey
of 2,500 soldiers revealed that across
the Marine Corps and the army, every-
one, including female soldiers and lead-
ers, insisted the standards for service in
combat units should not be lowered.
The general suggested that the
demands of modern combat must be
considered while setting recruiting stan-
dards. The army looked at the most phys-
ically demanding tasks artillerymen,
engineers, infantrymen and armoured
crews must perform to determine how to
measure a soldier’s ability to perform
them. The respective branches sent out
teams to identify 31 tasks across these
“closed” arms to establish performance
standards for each task through actual
performance of them by trained troops.
Perhaps our armed forces need to
undertake such an exercise to determine
physical fitness standards required for
meeting the minimum operational stan-
dards (MOS) required for each arm. It
should recruit persons meeting the
MOS, regardless of gender. This time-
consuming exercise should be undertak-
en with political and organisational sup-
port of the government and the services
if they seriously want to lift existing
GENDER BENDERS
Three newly commissioned women fighter
pilots in New Delhi; (facing page) Union
Minister Nityanand Rai with the Women Dare-
devils group of the CRPF in New Delhi
My Space/ Women Commanders /Col R Hariharan

CaptainLekshmyNatarajan,aveteranof
theIntelligenceCorps,saysthatwomen
officersincombatshouldbeadiscussion
thatshouldn’tbejustoneforglobal
applauseorforshowcasing.
restrictions on women’s entry in all
branches of the armed forces.
H
ow do WOs who served in the
Army view their experience?
Captain Lekshmy Natarajan, a
veteran of the Intelligence Corps, firmly
believes that man and woman “are not
equal and is a point not worth debate or
discussion”. She felt that men and
women in the organisation should func-
tion just as man and woman “by com-
plementing each other’s strengths” as in
a family. She said that “women in uni-
form can no doubt perform any tasks
given” with their intelligence and train-
ing, “but women officers in combat
should be a discussion that shouldn’t be
just one for global applause or to show-
case that we are at par with the world”.
She added that while “femininity may
rejoice the bold decision of inducting
woman combatants”, only the wearer
would know where the shoe pinches.
She cautioned that a lot of changes
would be required to be made in policies
as well as in the minds of men, whom
these women are to command “in risky,
dangerous and hostile terrain (hostility
may not be entirely external)”. The WO
induction (in combat arms) should only
be initiated when the ground and the
elements are thoroughly prepared. She
acknowledged that there was a great
shortage of officers in supporting arms.
It is also a given that the married WO,
who is also a mother, finds it extremely
difficult to cope with bizarre postings
and separation from spouse and chil-
dren. So it makes sense to apply WO
strengths in areas where they comple-
ment the system while performing their
natural duties as women.
The fact is that sexual misconduct is
the real elephant in the room. The US,
UK and other countries, which have
integrated women in all ranks of the
armed forces, have found that the issue
has snowballed into a major organisa-
tional conundrum not only for the
armed forces but governments as well.
This issue will loom large when women
are inducted in large numbers in all
ranks and branches of the armed forces.
This will require rigorous re-examina-
tion of the Army Rules and Army Act.
In the US, a national group of sexual
assault survivors is enlisting public sup-
port to convince the presidential candi-
dates to sign “Protect Our Defenders” to
commit to military justice reforms in
cases of sexual assault and rape. Out of
15 candidates, so far 11 have signed the
pledge to eliminate the chain of com-
mand prosecution authority in “non-
military crimes like rape and murder”.
As one would have guessed, President
Donald Trump, Joe Biden, Joe Walsh
and Mike Bloomberg have not signed
the pledge.
While ensuring that women get their
rightful place to serve in the armed
forces before introducing any measure
to improve gender equity, it should not
weaken the fighting capabilities of the
sword arms of national security. That is
the bottom line.
—The writer is a military intelligence
specialist on South Asia, associated with
the Chennai Centre for China Studies
and the International Law and Strategic
Studies Institute

T
he effect of China’s coronavirus is hav-
ing a domino effect all over the world
as major events planned over the next
few weeks have been postponed or cancelled.
They include the world’s biggest phone show,
Mobile World Congress, scheduled for Feb-
ruary 24, which represents over 1,200 com-
panies across the mobile ecosystem. The ev-
ent, held annually in Barcelona, is where
partnerships are forged and new products are
launched. It generates business worth mil-
lions of euros. Asia is the biggest hit by can-
cellations. Art Basel and Art Central, two of
the biggest Hong Kong art events in Asia,
have cancelled this year’s edition which was to
be held from March 19-21. Also cancelled is
the Singapore Airshow, Asia’s biggest.
Sporting events have also taken a huge hit.
The Shanghai F1 race has been postponed
while a slew of golf tournaments in Asia have
been called off as has the Hong Kong Mara-
thon, the Formula-E Grand Prix and the
2020 World Athletics Indoor Championships
which was due to take place in Nanjing. In
Japan, there are fears that the world’s biggest
sporting event, the Tokyo Olympics, to be
held in July, may also be affected unless the
outbreak is brought under control by then.
Cancellation Virus
International Briefs
Till last week, he was relatively unknown outside
America, but in a huge surprise, the man with
the unpronounceable surname, Buttigieg, has em-
erged as an unlikely contender for the Democrat
party candidate to take on Donald Trump in the
November elections in the US. Paul Montgomery
Buttigieg is the first openly gay candidate and his
political credentials so far are as mayor of a city in
Indiana. His sexual preferences did not seem to
have dented his chances against Democrat heavy-
weights like Bernie Sanders, ex-vice president Joe
Biden or Elizabeth Warren in the Iowa primaries.
Butting In
bdnews24.com

India Legal - 24 February 2020

India Legal - 24 February 2020

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