India Legal - 27 January 2020

NDIA EGALL STORIES THAT COUNT
I
January27, 2020
TheLegalChallengeFollowingKerala’slead,PunjabandChhattisgarhhavejoinednon-BJPstatesthathave
challengedtheconstitutionalvalidityoftheCAAandtheNationalInvestigationAct2008in
theSupremeCourt.Howstrongisthelegalargument?
Internet Curbs:
Analysing the apex court’s ruling

HENEVER an Indian judge or
magistrate waves the Indian
Constitution in the face of an
errant official sworn to uphold its
precepts, proscriptions and pre-
scriptions in word and deed but fails to do so, it
is an act of great majesty and patriotism in its
purest form. Indian courts have done so repeat-
edly even in the face of hidebound recalcitrance
by the executive branch. In the iconic
Kesavananda Bharati and SR Bommai judg-
ments, the Supreme Court cast in stone the invi-
olable sanctity of the basic structure of the na-
tion’s founding document grounded in the rule
of law and liberties enshrined within specifically
articulated fundamental rights.
The nation’s high courts have often taken the
lead in endorsing these principles, especially in
matters of habeas corpus and prevention of
police excesses. In recent years, the Supreme
Court has repeatedly asserted—as in the judg-
ments on the tussle between Delhi’s elected gov-
ernment and the centre’s appointed lieutenant
governor, and the internet lockdown in Jammu
and Kashmir—that the powers of the centre
cannot be arbitrarily exercised.
Even as the apex court is seized of matters
arising out of constitutional challenges to the
legitimacy and validity of the Citizenship (Am-
endment) Act (CAA) in the midst of snowballing
nationwide protests, the lower courts have been
quick to recognise and reassert the right of ordi-
nary citizens to launch peaceful public street
demonstrations against government policies and
initiatives and grant bail to protesters dragged
away by the police and charge sheeted under
various criminal provisions of the Indian Penal
Code (IPC).
The most celebrated case last week was that
of the firebrand Dalit leader Chandrashekhar
Azad, leader of the Bhim Army. He was arrested
some weeks back by the Delhi police for partici-
pating in an anti-CAA demonstration that began
at the capital’s grand Jama Masjid. His release
on bail by Additional Sessions Judge Kamini
Lau made headline news not only because of
Azad’s high profile but also because of the app-
arent contrast between the stirring language
used by the learned judge in defence of liberty
and the right to dissent, and the restrictions she
imposed on Azad as a condition of his release.
For starters, the judge completely trashed the
police’s claim that Azad had indulged in any
destruction of property, violence or had incited
violence. She ruled that the police could not
back up any evidence on which they based his
arrest on December 21. In addition, she scolded
the public prosecutor who was opposing Azad’s
bail in open court. When the prosecutor read
out some of Azad’s social media posts which
were used as grounds for his arrest, she noted
that these posts merely called for protests ag-
ainst the citizenship law and the National Regis-
ter of Citizens (NRC) near the Jama Masjid, and
there was nothing violent about them.
“Where is the violence? What is wrong with
any of these posts? Who says you cannot pro-
test? Have you read the Constitution?” Judge
Lau asked the lawyer. “You are behaving as if
Jama Masjid is Pakistan. Even if it was Pakistan,
you can go there and protest. Pakistan was a
part of undivided India.”
Here are direct quotes from her judgments:
“(The petitioner) does not claim that he had any
permission to hold the protest and claims that
he had only read out the preamble to the consti-
tution of India outside the Jama Masjid walled
city. In this regard I may observe that for judges,
legal persons and the officers under the consti-
tution, the constitution of India is a sacred doc-
ument, and if this is correct the reading of this
document cannot be taken as incitement…And
it is We the People of India who are the source
of authority of the constitution. We have dec-
lared our country to be a sovereign, socialist,
secular, democratic republic and to secure to
ourselves justice—social, economic and political;
liberty of thought, expression, belief, faith and
MR AZAD GETS BAIL
Inderjit Badhwar
W
ThereleaseofBhim
Armychiefand
firebrandDalitleader
Chandrashekhar
Azadonbailgivenby
AdditionalSessions
JudgeKaminiLau
madeheadlinenews
notonlybecauseof
Azad’shighprofile
butalsobecauseof
theapparent
contrastbetween
thestirringlanguage
usedbythelearned
judgeindefenceof
libertyandtheright
todissent,andthe
restrictionsshe
imposedonAzad
asaconditionof
hisrelease.
Letter from the Editor
4 January 27, 2020

worship…equality of status and of opportunity
and to promote amongst us all, fraternity, assur-
ing the dignity of the individual and the unity
and integrity of the nation.
“While on the one hand the applicant/acc-
used specifically reaffirms he read out the pre-
amble, whereas on the other hand, the investi-
gating agency claimed that he had made inflam-
matory statements, details of which have not
been placed on record, so much so there is no
statement of any eyewitness to affirm the same.
“Secondly, coming to the argument that no
permission was taken by the applicant/accused
while the call for protest was made. In this re-
gard I may observe that in our democratic set up
we have a Fundamental Right to peaceful ass-
embly guaranteed by the constitution, which
right cannot be curtailed by the state. However,
our constitution strikes a fine balance between
the rights and duties…Violence or destruction of
property is totally unacceptable…”
B
ut even as Judge Lau found “no direct
evidence” to connect (the accused) with
damage to public property, she imposed
several restrictions on Azad even as she granted
him bail on a `25,000 personal bond with two
sureties of a like amount. The terms include:
Banning Azad from entering Delhi for the next
four weeks. “The applicant shall not misuse the
benefit of bail by indulging in commission of
similar offence in future keeping in view the
pending assembly elections in Delhi…Whenever
the applicant/accused is required to come to
Delhi for his medical treatment [he suffers from
a rare blood disorder], he shall inform his sch-
edule to the DCP (Crime) and SHO police sta-
tion Fatehpur, Saharanpur, U.P. [Azad’s home-
town] who shall convey the same to DCP
(Crime), Delhi. During the period of his visit the
applicant/accused shall be under an escort.”
The applicant/accused shall surrender his
passport with the investigating officer.
That the applicant/accused shall mark his
presence before the SHO police station, Fateh-
pur, Distt Saharanpur, UP, on every Saturday for
next four weeks from the date of his release and
thereafter on last Saturday on every month till
further orders by the learned trial court.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
| INDIA LEGAL | January 27, 2020 5
Twitter
RIGHT TO DISSENT
Bhim Army chief
Chandrashekhar
Azad at Tihar Jail
after his release

ContentsVOLUME XIII ISSUE11
JANUARY27,2020
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6 January 27, 2020
By being the first state to move the Supreme Court to declare CAA unconstitutional,
Kerala has shown the way for other non-BJP states to follow
The Legal Challenge 14
LEAD
The state has filed a plea in the apex court saying that the NIA is unconstitutional as it
gives unfettered power to the centre to investigate offences listed under it
Chhattisgarh Joins the Chorus 18
The Supreme Court has
declared that access to
the internet is protected
under Article 19 of the
Constitution. The
ruling is in sync with UN
recommendations
A Fundamental Right 19
COLUMN

Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
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Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
REGULARS
Ringside............................8
Courts ...............................9
Is That Legal...................10
Law Campus News........12
International Briefs ........32
Media Watch ..................37
Price of Prize
Postings
The UP police is at the centre of
a storm after details are leaked
of a report that levels serious
allegations, including bribery for
postings, against top police offi-
cers of the state
GLOBALTRENDS
After the tussle between the executive and the judiciary in Bangladesh
led to the resignation of the country’s first Hindu chief justice, he now
faces arrest over charges of embezzlement
Paying a Heavy Price 28
CONTROVERSY
To ensure a decent burial
for Jacobites whose
churches were taken over
by the Orthodox faction
under an apex court
order, the Kerala govern-
ment has brought in an
ordinance to douse
the flames
Grave Crisis 34
44
STATES
Maharashtra is planning to enact a Public Security Act akin to Chhattisgarh, but critics
say it will only lead to State repression and infringe upon people’s rights
40Follow Thy Neighbour
22
The top court’s landmark order related to internet restrictions
in J&K upholds the need to protect constitutional guarantees
and civil liberties
A Beacon of Hope
SUPREMECOURT
The Supreme Court recently noted that the value of oxygen generat-
ed by a tree in its lifetime should be taken into account in determin-
ing damage caused to the environment by its felling
Cost of Free Air 26
In a welcome move, the Indian Nursing
Council will allow non-science students
to join BSc Nursing. This will help meet
the shortage of nurses worldwide
38
Join In,
One and All
A legal help desk has been
launched by the prosecution
department in MP to help
witnesses with the status of
cases. This, along with an
“eProsecution MP” app,
could change the face of the
legal system in the state
Witness for the
Prosecution 42
MYSPACE
OPINION

8 January 27, 2020
Anthony Lawrence
RINGSIDE
Busting Myths
“Arjuna’s arrows had nuclear
power, chariots flew”
—Bengal Governor Jagdeep Dhankhar

The execution of the four Nirbhaya case
convicts will finally take place on Feb-
ruary 1 at 6 am, the Patiala House Court
said. The order meets the statutory 14
days’ notice that must be accorded to the
convict between the rejection of the mercy
plea and the date of execution. President
Ram Nath Kovind had earlier rejected the
mercy petition of Mukesh Singh.
As per the warrant initially issued by a
Delhi Court, the four convicts—Vinay
Sharma, Mukesh Singh, Akshay Thakur and
Pawan Gupta—were to be hanged on
January 22 at 7 am inside Delhi’s Tihar jail.
The death sentence came seven years after
Nirbhaya, a student pursuing physiotherapy,
was gang raped in a moving bus on the
night of December 16, 2012. She later
succumbed to her injuries at a hospital
in Singapore. Doubts about the execution
first arose after Singh filed a mercy petition
which the Delhi government rejected “at
lightning speed”, as Deputy Chief Minister
Manish Sisodia put it. Rules say that death
row co-convicts must be hanged at the
same time and thus any appeal/SLP/mercy
petition by even one must constitute a stay
of the death warrant for all others as well.
Courts
—Compiled by India Legal team
Saffron-coloured
loos irk Raipur
lawyers
In a major setback to the
telecom sector, the Sup-
reme Court dismissed pleas
that sought the review of its
earlier judgment which had
asked operators, including
Bharti Airtel and Vodafone
Idea Ltd, to pay nearly `1.5
lakh crore to the govern-
ment. The deadline for pay-
ment of the past dues
expires on January 24. The
cumulative amount of `1.47
lakh crore is computed on
the adjusted gross revenue
of about `92,000 crore. Of
this, Bharti Airtel has to pay
`35,586 crore to the gov-
ernment and Vodafone Idea
over `50,000 crore. Both
companies said they were
evaluating filing curative
petitions.
The Court’s refusal to
review its order is the latest
setback for the telecom op-
erators, which have reported
record losses in the
September quarter and are
struggling under mountains
of debt. Both Vodafone Idea
Chairman Kumar Mangalam
Birla and Bharti Airtel Chair-
man Sunil Mittal have said
there’s no option but for the
government to bail them out.
Nirbhaya case hangings moved to Feb 1
Agroup of lawyers practising
at the sessions court in the
Chhattisgarh capital broke a la-
vatory complex inside the court
premises as they were livid at
the colour of the lavatories—
saffron. Armed with hammers
and chisels, a few of them
stormed into the lavatories
behind the courtrooms and
caused extensive damage to the
walls and said that no one would
be allowed to use the lavatory
until the colour was changed. A
lawyer accused the contractor of
playing with religious sentiments
by painting the lavatories saffron.
The group of lawyers also app-
roached the district judge and
asked him to look into the matter.
The matter came to light after
people posted pictures of the
saffron lavatories on social me-
dia. “We don’t know when it was
made, but a couple of days ago,
we saw pictures doing the ro-
unds on the social media. We
can’t accept such insults to the
saffron colour,” a lawyer said.
Pawan Gupta Akshay Thakur Mukesh Singh Vinay Sharma
Wireless
Shock

A couple gets divorced, and after a legal battle
the mother gets the custody of the children.
But after a few years, the children, still minors,
don’t want to stay with the mother but with the
father. What happens in such cases?
A child’s preference is
also taken into considera-
tion. The court first deter-
mines whether the child
is capable of making an
informed choice, and if
the child is, his/her opin-
ion is sought. A child of
around nine or 10 years
is usually thought capable
of making an informed choice. If there are two
children or more and they want to live with dif-
ferent parents, the court will try not to separate
the children, and will then decide which parent
the children must live with. This will obviously
be emotionally devastating for the child who
wants to live with one
parent and not the
other, but it is a difficult
choice which the court
often makes. If it can
be shown that staying
with one parent is
harming the child, cus-
tody can be given to
the other parent.
ISTHAT
Eyewitnesses give their statements to the police
but sometimes back out by the time the matter
reaches court, often due to threat to their lives.
Is there any precedent from other countries,
where a recorded statement given to the police
is accepted as evidence?
Generally, a witness is labelled as hostile when
he furnishes a certain statement on his knowl-
edge about commission of a crime before the
police but refutes it when called as witness
before the court during the trial. However,
Section 154 of the Indian Evidence Act, 1872,
that deals with this subject, does not define the
term hostile witness. The matter is left entirely to
the discretion of the court. A witness is consid-
ered hostile when, in the opinion of the judge, he
bears a “hostile animus” to the party calling him
and not merely when his testimony contradicts
his proof. Under the Evidence Act, only the
statement recorded before a court of law and
not the one given before the police is given evi-
dentiary value. There is no precedent from other
countries, where a recorded statement given to
the police is accepted as evidence.
— Compiled by India Legal team
Hostile Witnesses
What is parole and on what
grounds does one get it?
Parole is either early release of a
prisoner on account of his good
behaviour, or release for a speci-
fied period of time, provided he
agrees to abide by the conditions
laid down by law. It is granted once
the prisoner has served a certain
tenure of the jail term. In India, the
grant of parole is largely governed
by the rules made under the Prison
Act, 1894 and Prisoner Act, 1900.
It is often given for medical rea-
sons, especially when the prisoner
needs treatment which he can’t get
in the confines of the jail. Recently,
the Madras High Court granted 15
days’ parole to Ravichandran, one
of the seven life convicts in the
Rajiv Gandhi assassination case, to
serve his ailing mother and attend
to family matters.
?
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 student leader is arrested
at the height of a student
movement on charges of
damaging public property.
He spends a few days in jail
before being released on
bail. The case drags on for a
few years and charges
against him are dropped.
Will his past come to haunt
him if he applies for interna-
tional assignments?
Even if the person faces
charges of damaging prop-
erty and is jailed, what mat-
ters is that the charges
against him have been
dropped eventually. There-
fore, it’s not a hurdle in his
applying for international
assignments. He will be
treated as innocent, like any
other person.
Had he been convicted
then the matter would have
been different.
No Issue if Cleared by Courts
Conditional Release
from Jail
Child’s Prerogative
10 January 27, 2020

12 January 27, 2020
LAW
CAMPUSES / UPDATES
WBNUJS
“uninvites”
State Governor
Astudent group from the West Bengal
National Law University (WBNUJS)
“uninvited” Governor Jagdeep Dhankar
from a prestigious university event to
register dissent against his stand on the
Citizenship (Amendment) Act. The Inter-
national Mock UN, or MUN, was sched-
uled to have the governor attend its
closing ceremony as the chief guest.
Interestingly, Trinamool Congress MP
Derek O’Brien was invited to inaugurate
the event on Friday.
Feted for Cleanliness
The Rajiv Gandhi Na-
tional University of
Law (RGNUL), Punjab,
has been adjudged the
cleanest amongst gov-
ernment residential uni-
versities in the category
of government institu-
tions in the Swachh
Campus Rankings 2019
drawn up by the Union
Ministry of Human
Resource Development.
RGNUL was honoured
for its positive contribu-
tion to the environment.
The award was con-
ferred by Union HRD
minister Ramesh
Pokhriyal.
The National University of Study
And Research In Law, Ranchi,
the National Commission for
Women, New Delhi, and the
Centre for Human Rights and
Subaltern Studies have collaborat-
ed to organise a national seminar
on “Gender Sensitive Education: A
Necessity to eradicate Gender
Discrimination in India” on
February 8, 2020. The university
has called for submission of
papers for it. The themes of the
seminar include a range of gender
issues—gender discrimination at
home and workplace, economic
empowerment of women to bridge
gender gap, sex ratio and its
impact on demography, sexual
harassment of women at work-
place, unequal wages to men and
women in unorganised sectors,
sex-selective abortions, safe cities
and gender issues and so on.
Gender-sensitive
Seminar at NUSRL
ASLI Conference at NLU, Delhi
The National law
University (NLU),
Delhi will host the
17th Asian Law
Institute (ASLI)
Conference this year
in June. ASLI was
established in 2003
for fostering Asian
legal scholarship and
facilitating greater
interaction among
legal scholars in Asia,
and those working on
legal issues related to
Asia. NLU, Delhi was
among the founding
members of ASLI. The
theme of the confer-
ence is “Law and
Justice in Asia”.

—Compiled by Nupur Dogra
First International
Legal Conference
at NALSAR
The National Law
University, Jodhpur is
offering a certificate
course on “The Role of
Transnational Codes of
Conduct in the Energy
Sector and Beyond: Do
They Promote Socially
Sustainable Globali-
zation?” The course will
look at the large body of
transnational “soft law”
that has developed in the
petroleum industry and
many other sectors to
respond to the demands
from citizens, govern-
ments and NGOs for better
environmental, safety,
labour and human rights
standards in the global
operations of multinational
companies. Prof. Jacque-
line L Weaver, professor
emirita, University of
Houston Law Centre, US,
is the course instructor.
The duration of the
course is February 14-16,
2020. Registration started
from January 12. Students
will have to pay `2,000
while professionals will be
charged `3,500 for the
certificate course.
Multi-disciplinary Event at GNLU
The Centre for Law and Society at Gujarat
National Law University is organising a
two-day international conference on Feb-
ruary 1 and 2, 2020, related to social work,
law and human rights. The conference aims
to encourage the interdisciplinary study of
social work, law, and human rights among
scholars and social workers and provide
them a platform to discuss research, practi-
cal knowledge and gain experience with
national and international peer groups and
professionals. Academicians, activists,
lawyers, students, research scholars and
corporate professionals can participate.
Must on Your Legal Calendar
DR BR Ambedkar National Law
University, Sonipat has ann-
ounced its first National Moot Co-
urt competition on human rights/
environment law. The competition
will be held over March 20-22.
National Law University, Jab-
alpur is organising an internation-
al Conference on “Changing Di-
mensions of Human Rights in the
Global World” from February 29
to March 1, 2020.
NALSAR Uni-
versity of Law,
Hyderabad, has
announced its first
International Legal
and Policy
Conference on
“Future of
Transport,
Opportunities and
Challenges in
Aviation and
Space Industry”
to be held on
February 2 and 3,
2020 at the uni-
versity.
The Centre for
Aerospace and
Defence Laws
(CADL), NALSAR
University, is
organising the
conference in col-
laboration with the
University of Mi-
ssissippi School
of Law, Sarin &
Co., and the
Indian Journal of
Law and Public
Policy.
There is no
registration fee to
attend the confer-
ence but individu-
als can register
online.
The confer-
ence aims at de-
bating a wide
range of legal and
policy issues
relating to the
aviation, space,
and transport
se-ctor in general
by experts from
government and
industry, legal
and policy
analysts, as
well as academi-
cians.
Course on “Soft Law” at
NLU, Jodhpur

Lead/ Supreme Court/ CAA/ NIA
14 January 27, 2020
Bybeingthefirststatetomove
theCourttodeclareCAA
unconstitutional,Keralahas
shownthewayforother
non-BJPstatestofollow
By Ashok Damodaran
The Legal
Challenge
TAKING THE LEAD
Chief Minister Pinarayi Vijayan
addressing LDF and
Opposition UDF leaders
at an anti-CAA dharna
in Thiruvananthapuram

T a time when large parts
of the country are witnes-
sing protests and violence
over the Citizenship (Am-
endment) Act (CAA), in a
rare gesture, a church in
Ernakulam district of Kerala threw its
gates open in late December to Muslim
protesters. The protesters had come
marching from several kilometres away
to voice their discontent over CAA. Not
only did the church authorities make all
arrangements for them to offer namaz
within the precincts of the building, but
the vicar himself poured water for the
mandatory ablutions before prayers.
Kerala, which has always set an exa-
mple of civilised coexistence among peo-
ple of different faiths, is once again
assuming a crucial role, this time in the
political sphere. Congress-ruled Punjab
too has joined it in taking on the centre
with regard to CAA.
On the last day of 2019, Kerala’s nor-
mally warring political class from both
the ruling Left Democratic Front (LDF)
and the opposition United Democratic
Front (UDF) buried the hatchet and joi-
ned hands to pass a resolution in the
assembly denouncing CAA even as they
affirmed that it would not be allowed in
the state. Later, Chief Minister Pinarayi
Vijayan wrote to 11 non-BJP chief min-
isters asking them to take similar steps
against the controversial law and pitch-
ing for unity to protect democracy and
secularism. “People from various cross-
sections of society, irrespective of any
differences they might have, need to
stand united in preserving the basic
tenets of our polity which form the cor-
nerstone of Indian democracy,” Vijayan
said in the letter.
The resolution reflected the widespr-
ead discomfort and disquiet that the le-
gislation has caused. Rather than trea-
ting it as a controversy over the question
of whether a state assembly is compet-
ent to question the law on a matter wit-
hin the Union government’s domain, the
centre should have reflected on the iss-
ue. Instead, it unleashed, among others,
the state’s governor, Arif Mohammed
Khan, and Union Law Minister Ravi Sh-
ankar Prasad to denounce the resolution
on the grounds that states had to imp-
lement central laws. Khan went to the
extent of saying that the state governm-
ent’s move was a “breach of protocol”. “…
common courtesy demanded that prior
permission (should have been) taken
from me... at least I should have been
kept in the loop,” he reportedly said.
The principal objection of both Khan
and Prasad was that citizenship was a
matter concerning the Union and was
thus not open to state assemblies to give
their opinion on it. Yet, experts say that
to the extent that a state government
believes that a parliamentary law is not
A
Thecentreunleashed,amongothers,thestate’sgovernor,ArifMohammedKhan,and
UnionLawMinisterRaviShankarPrasad(right)todenouncetheresolutionon
thegroundsthatstatesareboundtoimplementcentrallaws.
UNI

16 January 27, 2020
W
ith Kerala showing the way to
other non-BJP chief ministers by
becoming the first state to chal-
lenge CAA, it has brought the focus on
Article 131 under which the challenge
was initiated. Article 131 strictly involves
the government and one or more states.
It places checks-and-balances on the
centre’s power to push laws into motion
which call for an interpretation of the
Constitution.
Article 131 reads: “Original jurisdic-
tion of the Supreme Court: Subject to the
provisions of this Constitution, the
Supreme Court shall, to the exclusion of
any other court, have original jurisdiction
in any dispute –
“(a) between the Government of India
and one or more States; or
“(b) between the Government of India
and any State or States on one side and
one or more other States on the other; or
“(c) between two or more States, if and
in so far as the dispute involves any
question (whether of law or fact) on
which the existence or extent of a legal
right depends: Provided that the said
jurisdiction shall not extend to a dispute
arising out of any treaty, agreement,
Articleoffate
constitutional, it is entirely in order for
the state legislature to call for its repeal.
That is what the state did on January
14 when it became the first state to mo-
ve the Supreme Court to declare CAA
unconstitutional. The government made
the prayer under Article 131 of the Con-
stitution. Under the Constitution, states
are not allowed to take any action which
undermines or “impedes” the powers of
the centre. The centre tells the states
which laws to implement and how they
are to be implemented. However, under
Article 131, the Supreme Court is given
the power to step in between any dis-
pute between states and the centre.
M
eanwhile, Punjab too has
sought repeal of CAA. It will
also seek an amendment to
the form of the National Population
Register (NPR) to allay fears regarding
it and the National Register of Citizens
(NRC). The draft resolution prepared by
it states that the CAA has caused “coun-
trywide anguish” and “social unrest with
widespread protests”.
“Alongside the religion-based discrim-
ination in granting citizenship, it is
apprehended that the CAA is also likely
to endanger the linguistic and cultural
identity of some sections of our people.
CAA also envisages cancellation of regis-
tration of overseas citizens of India
card holders if they violate any law,” the
draft said.
In Kerala’s suit, it had sought the
apex court pass a judgment declaring
CAA violative of Articles 14 (right to
equality), 21 (right to life and personal
liberty) and 25 (freedom of religion) as
well as violative of the basic structure of
and principles of secularism. In addition
Lead/ Supreme Court/ CAA /NIA
RAISING CONCERNS
Social activist Medha Patkar leads an
anti-CAA rally in Thiruvananthapuram
UNI

covenant, engagements, and or other
similar instrument which, having been
entered into or executed before the com-
mencement of this Constitution, continues
in operation after such commencement,
or which provides that the said jurisdiction
shall not extend to such a dispute.”
In a federal polity, where the centre
and states work on independent and
concurrent subjects, there may be
moments when both clash–especially
when the party at the centre is not ruling
in a state. However, if the court delineates
the inter-governmental dispute as one
with a political character, it will direct the
parties to sort it as a writ petition in the
concerned High Court and come for
appeal later, if required. When Arvind
Kejriwal’s government in Delhi tried to
use Article 131 during its tussle with the
lieutenant-governor, the Supreme Court
sent it back saying it was a political issue.
Kerala has sorted the “political” from
the “legal” by passing a joint resolution
by the LFD and UDF members, thus
establishing that the representatives of
the people unanimously demand the
scrapping of CAA. There is a fair chance
that the Supreme Court upholds the
maintainability of the suit.
The scope of Article 131 is to deter-
mine a question of law.
Justice PN Bhagwati had observed
this in a 1977 judgment where Karnataka
had challenged the appointment of a
commission to probe corruption allega-
tions against its chief minister and some
ministers. The majority view in the 4:3
judgment held that a state would be con-
cerned where any action affected its gov-
ernment.
The Kerala suit may be referred to a
larger bench if the judges opine different-
ly from earlier cases involving Article 131
where up to seven judges decided on
centre-state relations.
—By Ishita Purkaystha
to CAA, the state also challenged the
Passport Amendment Rules, 2015 as
well as the Foreigners (Amendment)
Order, 2015 and sought the Court
declare the two ultra vires the
Constitution and void.
T
he centre had in September 2015
made changes to the Passport Act
and the Foreigners Act allowing
the stay of minorities—Hindus, Sikhs,
Buddhists, Jains, Parsis and Christia-
ns—belonging to Bangladesh and Pak-
istan on condition that they prove that
they were fleeing religious persecution
and had entered India before December
31, 2014.
A year later, the centre made amend-
ments to the two Acts to include Afgh-
anistan in the list of countries from
where non-Muslim refugees seeking
shelter would be allowed to stay on in
India without threat of deportation.
Stating that CAA, the Passport Ame-
ndment Rules, 2015 and the Foreigners
(Amendment) Order, 2015 contravene
the principles of secularism by looking
at the religious identity of a person, the
Kerala government mentions in its suit:
“The same make religion and the coun-
try of origin of the person criteria for gr-
ant of citizenship and result in classific-
ations based on religion and based on
country, both classifications being appa-
rently and manifestly discriminatory, ar-
bitrary, unreasonable and have no ra-
tional nexus with the object sought to be
achieved. It is trite and settled law that a
legislation discriminating on the basis of
an intrinsic and core trait of an individ-
ual cannot form a reasonable classificat-
ion based on an intelligible differentia.”
The suit also argues that there is no
rationale in selecting the three countri-
es, and is, in fact, discriminatory towar-
ds migrants from countries like Sri Lan-
ka, Myanmar and Bhutan. “The Impu-
gned Amendment Act and Rules and
Orders are bereft of any standard princi-
ple or norm in discriminating migrants
from other countries such as Sri Lanka,
Myanmar and Bhutan, which are shar-
ing international borders with India and
to which and from which there has been
trans-border migration. There is no rati-
onale in not extending the rights con-
ferred to a class of minorities from Paki-
stan, Afghanistan and Bangladesh to re-
ligious minorities belonging to the said
countries of Sri Lanka, Myanmar, Nepal
and Bhutan. The arbitrary classification
of the aforesaid three countries of Paki-
stan, Afghanistan and Bangladesh with-
out any rationale or standard principles
constitutes manifest arbitrariness and
violates Article 14 of the Constitution.”
The state government’s suit states
that CAA, Passport Amendment Rules,
2015 and the Foreigners (Amendment)
Order, 2015 are discriminatory on the
grounds that they cover only religious
persecution, and argues that persecu-
tions are for varied reasons like ethnici-
ty, linguistics, etc. The Kerala govern-
ment has asked the Court to pass a jud-
gment and decree declaring CAA viola-
tive of Articles 14, 21 and 25 of the
Constitution and violative of the basic
principle of secularism enshrined in it
and declare it as something that was
done beyond the scope of authority and
hence void.
Further, it sought that the Passport
(Entry to India) Amendment Rules,
2015, the Foreigners (Amendment)
Order, 2015, Passport (Entry to India)
Amendment Rules, 2016 and Foreigners
(Amendment) Order, 2016 be declared
violative of Articles 14, 21 and 25,
violative of secularism and so, ultra vires
and void.
Seven non-BJP ruled state govern-
ments have already said they will not
implement CAA. Kerala’s example of
going to the apex court may well set the
stage for a wider confrontation between
the centre and the states.
Thestatehasalsochallengedthe
PassportAmendmentRules,2015,and
theForeigners(Amendment)Order,
2015,andsoughttheCourtdeclarethe
twoultravirestheConstitution.

Lead/ Supreme Court/ NIA
18 January 27, 2020
FTER Kerala and Punjab,
it is Congress-ruled
Chhattisgarh that has
challenged the centre. It
has filed a suit in the
Supreme Court challeng-
ing the constitutional validity of the
National Investigation Act, 2008.
The NIA, incidentally, investigates
cases it thinks are important for nation-
al security with unfettered access any-
where in India.
The petition was filed through senior
advocate Vivek Tankha under Article
131 of the Constitution. The main prem-
ise for the challenge is that policing is a
state subject and cannot be bypassed by
the centre through an overriding Act.
The petition said that the Act “is beyond
the legislative competence of Parliament
since it empowers the Centre to create
an agency for ‘investigation’, which, not-
withstanding the NIA, is carried out by
the state police, which is a subject mat-
ter of the state under Entry 2, List II,
Schedule 7”. List II is the list of state
subjects.
Further, it says that “no such entry of
‘police’ or even any incidental or ancil-
lary entry was provided in List I (Cen-
tral List) which suggests that the fram-
ing of legislation such as the NIA Act by
Parliament, which creates an ‘investiga-
tion’ agency having overriding
powers over the ‘police’ of a state, was
never the intention of the makers of
the Constitution”.
The petition adds that the NIA
Act “confers unfettered discretionary
and arbitrary powers on the defendant”
to act “without providing any reason or
justification” because it has no rules
governing the centre’s exercise of that
power.
The NIA Act was passed by the UPA.
So what was the reason for the present
petition which goes against the Cong-
ress’s own legislation in 2008? Congress
general secretary and state in charge
PL Punia said that the amendment
enacted last year by the NDA govern-
ment had made the Act autocratic and
was completely against the original one
envisaged.
That amendment leaves no room for
coordination or for the centre to seek
prior consent from the state. This vio-
lates the constitutional idea of states’
sovereignty. Even the Delhi Police Act
under which the CBI operates makes it
mandatory for the centre to seek prior
consent of the state government. The
Bhupesh Baghel government has
already withdrawn blanket permission
for the CBI to operate in the state.
The immediate trigger for the peti-
tion seems to be the NIA taking an act-
ive interest in the murder case of Bhima
Mandavi, a BJP MLA from Bastar. The
state contends that there are 59 other
cases of Naxal violence, including the
Jheeram Ghati case where top state
Congress leaders were among 25 killed
by Naxals in 2013 which is pending but
the NIA has sought to pick and choose a
case without consulting the state.
Tankha has drawn up a water-tight
petition but it would have been tighter if
he had focused his arguments against
the amendment rather than the Act
itself. The Congress had, for the record,
voted against the amendment.
Chhattisgarh
Joins the Chorus
ThestatehasfiledapleaintheapexcourtsayingthattheAct
isunconstitutionalasitgivesunfetteredpowertothe
centretoinvestigateoffenceslistedunderit
By Neeraj Mishra in Raipur
A
VOICING DISSENT
Chhattisgarh Chief Minister Bhupesh Baghel
Twitter

Column/ Internet Lockdown/ Justice Bhanwar Singh and Dr NK Bahl
IGHT to Information and
Right to Know are impor-
tant aspects of freedom of
speech and expression and
the internet is at present
the greatest supplier of
information, if not of knowledge. It
facilitates Right to Information, hence it
has been equated with fundamental rig-
hts. The telephone and the internet are
means of expression because a person
talking on the phone or communicating
through the internet exercises his right
to freedom of speech and expression.
The Supreme Court did not examine
ocation of Article 370.
Our Constitution guaran-
tees freedom of speech and
expression as a fundamental
right for all citizens under
Article 19(1)(a). The latest
expansion of this right makes
this constitutional provision
keep pace with innovation of
technology in as much as the
internet has become the pri-
mary source of information
for millions of citizens.
The State can make laws
for imposing restrictions on
the right to freedom of speech
in the interest of the sover-
eignty and integrity of India,
the security of the State,
friendly relations with foreign
states, public order, decency
or morality or in relation to
contempt of court, defama-
tion or incitement to offence.
Section 144 of the CrPC
authorises executive magistrates to take
preventive steps for the prevention of
breach of peace. These include ban on
assembly of more than four persons, ban
on processions, use of water cannon and
even curfew and shoot-at-sight orders.
It has to be seen whether such orders
affect freedom of speech.
The Supreme Court has said that
prohibitory orders issued under Section
144, CrPC, cannot be used indefinitely
to suppress freedom of speech and exp-
ression. The freedom of the press, as
part of freedom of speech and expres-
sion, is a valuable and sacred right,
The Question of
Internet Access
TheSupremeCourthasdeclaredthataccesstotheinternetisafundamentalrightprotected
underArticle19oftheConstitution.TherulingisinsyncwithUNrecommendations
R
whether access to the internet is a fun-
damental right as this issue was not
raised by the petitioners. However, it
was held that “Freedom of Speech and
Expression through the medium of
internet is an integral part of Article 19
(1)(a)” and the Supreme Court has thus
formalised access to the internet as a
part of fundamental rights and has held
that the government cannot deprive citi-
zens of any fundamental right, except
under certain conditions. This ruling
came during a hearing of a plea in con-
nection with the internet blockade in
J&K since August 5, 2019, after the rev-
Anthony Lawrence

20 January 27, 2020
hence magistrates, while passing pro-
hibitory orders under Section 144, CrPC,
should apply their mind and follow the
doctrine of proportionality.
Such orders cannot be used to quell
dissent, and repetitive clamping of such
orders may amount to abuse of powers.
Such orders should be revoked if no
longer required, in accordance with the
preventive spirit of the law.
It is surprising that all orders passed
by the J&K administration under Sec-
tion 144, CrPC, were not even produced
before the Supreme Court.
Hence, the Court directed the State
to publish all orders in force and any
future orders under Section 144, CrPC,
and for suspension of telecom services,
including internet, to enable the affected
persons to challenge the same before the
High Court or an appropriate forum.
It also directed a review of the need
for continuance of any existing orders
passed under Section 144, CrPC.
Our Constitution also guarantees the
fundamental right to practise any pro-
fession, or to carry on any occupation,
trade or business under Article 19(1)(g).
Today, professional practice, trade
and businesses are to a large extent
internet-based. Online business is bur-
geoning: tickets for airlines, train jour-
neys, cinema and music shows, museum
visits, taxis, doctor visits, hotels, house-
hold requirements like vegetables and
milk, passports and visas, not to speak
of payment of utility bills like electricity,
piped gas, phone and water bills, are all
paid for online.
If the use of the internet is restricted,
it is bound to affect the freedom of trade
and business to a considerable extent.
Thus, the importance of the internet
cannot be underestimated, in as much
as from morning to night we are encap-
sulated within cyber space and most of
our basic activities are enabled by the
use of the internet.
In the backdrop of the above dimen-
sions of trade, the Supreme Court has
rightly held that since the internet has
become an important tool for trade and
commerce, “freedom of trade and com-
merce through medium of internet is
also constitutionally protected under
Article 19 (1)(g).” This automatically cir-
cumscribes these rights by the restric-
tions prescribed under Article 19 (6).
Blockade of the internet directly
affects essential services like hospitals
and education. Kudos to our Supreme
Court that in this milestone judgment,
the three-judge bench, headed by Jus-
tice NV Ramana, has directed the J&K
government to restore internet services
in institutions providing essential serv-
ices like hospitals and educational insti-
tutions, and to review all orders impos-
ing curbs in the UT of J&K within a
week and to review all orders suspend-
ing internet services forthwith.
The restrictions imposed by the gov-
ernment upon any fundamental right
should be in consonance
with the mandate of
Article 19(2) to (6) and it
must stand the test of
proportionality because
reasonableness demands
proportionality. A law or
executive order which
curtails any of the funda-
mental rights without
appropriate justification
will be classified as dis-
proportionate. In order to
balance the right to access
to the internet and
restrictions to be imposed,
the Court adopted the line
that access to the internet
should be the norm and
deviations could be
allowed in the interest of
public order and safety
provided they are tempo-
rary, proportionate and
justified by reasons which
LEGIT DEMAND
Journalists protesting against the communica-
tion gag at the Srinagar Press Club
Column/ Internet Lockdown/ Justice Bhanwar Singh and Dr NK Bahl
TheSupremeCourthassaidthat
prohibitoryordersissuedunder
Section144,CrPC,cannotbeused
indefinitelytosuppressfreedomof
speechand expression.
UNI

ices should expressly be made subject to
judicial scrutiny by amending the above-
mentioned rules. The word “temporary”
in the rules of 2017 indicates that sus-
pension must not extend beyond the
requisite duration.
Another aspect of the order of the
Supreme Court will be for media per-
sons, exercising free speech on social
media. They will be held accountable for
their words if they fall foul of any of the
restrictions enumerated in Article 19 (2)
and (6) of the Constitution of India
because “your right ends where mine
begins,” is an adage which social media
users must keep in mind before sitting
down to write or troll.
One has to be mindful of the restric-
tions circumscribed under Article 19 (2)
to (6) while using social media as a plat-
form to profess opinions.
After the January 10 ruling, the cen-
tral government, and the government of
UT of J&K have implemented the direc-
tions and internet facilities in certain
areas of J&K have been restored, albeit
for a brief period of seven days, after
which there will be a review.
Be that as it may, it appears that
today’s life is unimaginable without the
internet and apprehensions of its misuse
by anti-social elements cannot be ruled
out completely.
All said and done, the Supreme Court
is the true guardian of fundamental
rights of citizens and through this judg-
ment, the highest court has held that in
this day and age, the internet is as
essential as air and water.
—Justice Bhanwar Singh is a former
judge of the Allahabad High Court and
Dr NK Bahl is Director, Judicial
Training Academy, and Dean, DME
School of Law, Noida
are spelt out clearly and are reviewed
periodically.
Indefinite suspension of net services
is impermissible according to the Sup-
reme Court. The degree and scope of
restrictions, both territorial and tempo-
rary, must have a clear nexus with the
necessity to combat an emergent situa-
tion. Suspension of internet services
directly affects right to education also
because education is not possible with-
out the internet. It affects education at
primary level since you need to down-
load BYJU’S app for primary education.
It badly affects education at the high-
er level, especially research level, where
one is totally handicapped without the
internet.
Projects and research cannot be
submitted due to internet blockade. Not
only this, cyber cafes will be closed in
the absence of the internet, which will
not only affect their right to carry on
trade, but indirectly affect their right to
livelihood too.
Although this judgment of the
Supreme Court has come in the context
of J&K, it will have far-reaching conse-
quences for the country in times to
come, because the law declared by the
Supreme Court is binding on all subor-
dinate courts and authorities within the
territory of India by virtue of Article 141
of our Constitution. This is a welcome
judgment in as much as it will curb the
hegemony of the government to block
internet indefinitely in an arbitrary
manner and an era of looking at funda-
mental rights in the light of new tech-
nologies will begin.
T
emporary Suspension of Telecom
Services (Public Emergency or
Public Service) Rules, 2017, fra-
med under Section 7 of the Indian Tel-
egraph Act, 1885, provide for suspension
of telecom services and consequently the
suspension of internet services in India.
The order for suspension of telecom
services can be made by a competent
authority. It is submitted that a provi-
sion for periodic review of orders sus-
pending internet services should be
included in the rules and there should
be a time limit on suspension of internet
services.
Such order, suspending internet serv-
phys.org
Today,tradeandbusinessesaretoa
largeextentinternet-based.Online
businessisburgeoning.Ifuseofthe
internetisrestricted,itisboundtoaffect
thefreedomoftradeandbusiness.
RELEVANT CHANGE
Online retail is part of today’s technology-dri-
ven lifestyle

“As emergency does not shield the
actions of Government completely;
disagreement does not justify desta-
bilisation; the beacon of rule of law
shines always.”
—Justice NV Ramana
Supreme Court/ Section 144
22 January 27, 2020
N January 10, a three-
judge bench of the Sup-
reme Court comprising
Justices NV Ramana, R
Subhash Reddy and BR
Gavai gave its final jud-
gment on the multiple writ petitions
filed against the Kashmir lockdown and
laid down certain directions regarding
restrictions placed under Section 144 of
the CrPC.
The order drew attention to the pro-
visions of this Section. Multiple orders
have been passed by the government on
multiple occasions regarding this Sect-
ion. On August 5, 2019, a constitutional
order was issued by the president revok-
ing the special status of J&K and apply-
ing all provisions of the Constitution of
India to the state. Due to the circum-
stances, the district magistrate imposed
restrictions on movement and public
gatherings, apprehending breach of
peace and tranquility. Similarly, in Dec-
ember, there were multiple protests
against the Citizenship (Amendment)
Act in various cities. The government
passed orders to restrict the protesters
from gathering against or in favour of
the law passed by Parliament.
Section 144 is a legal provision that
gives the government the power to issue
orders for immediate remedy in cases of
emergency and apprehended danger.
However, the government has faced crit-
icism for these restrictions. A district
magistrate, sub-divisional magistrate or
any other executive magistrate can issue
such an order to an individual or the
general public in a particular place to
“abstain from a certain act” or “to take
certain order with respect to certain
property in his possession or under his
management”. Therefore, under this
Section, people can be restricted from
moving, having public gatherings, using
the internet, and so on.
A crucial part is that the order can be
passed only “if such Magistrate consid-
ers that there is sufficient ground for
proceeding under this section, and im-
mediate prevention or speedy direction
is required to prevent ‘danger to human
life, health or safety’, ‘obstruction, ann-
oyance or injury to any person lawfully
employed’, and ‘disturbance of the pub-
lic tranquility, or a riot”. The duration of
these restrictions cannot be more than
two months. In situations where the
state government feels that the restric-
tions are still required, the order can be
extended to six months. When such an
order is passed, a notice needs to be
served to those who are being restricted
and an opportunity to be heard needs to
be given to them. However, in cases of
emergency when there is no time to
A Beacon
of Hope
Inalandmarkorder,thetopcourthasreviewedtheinternet
shutdowninKashmirandupheldtheneedtoprotect
constitutionalguaranteesandcivilliberties
By Srishti Ojha
O
EventhoughSection144placesacheck
onmagistratestoensurethattheirpow-
ersarenotunbridled,itiscriticisedfor
givingthemtoomuchpowerastheimpo-
sitionofthelawrestsontheiropinion.

However, on numerous occasions,
there have been accusations that this
provision has been used stealthily, trea-
cherously and deceptively and for con-
ferring unlimited powers on the authori-
ties. But there are also those who say
Theapexcourtexpectsthegovernment
toemphasiseonproportionalityand
reasonableness.Removingthecloakof
secrecycouldhelpinreducingthenum-
berofarbitraryordersandshutdowns.
serve such a notice, an order can be
passed ex parte.
This order also mentions the subjects
the Section is imposed on and every-
thing that needs to be done in order to
prevent damage to life, health, property,
etc. For example, an order by the gov-
ernment in Kashmir last year stated that
“there shall be no movement of public
and all educational institutions shall
also remain closed, all public movement
has been curtailed and educational
institutions will remain closed”.
that in exceptional times, exceptional
measures are required.
Even though the Section places a
check on magistrates to ensure that
their powers are not unbridled, it is still
criticised for giving them too much
power as the onus to prove that urgent
action is needed rests completely on
their opinion and conscience.
This Section has also been criticised
for being violative of fundamental rights
such as the right to freedom of speech
and expression. Article 19(1)(a) of the
Constitution provides the freedom to
express one’s views and opinions, and
has also been called the “Ark of the
Covenant of Democracy” by the Sup-
reme Court. However, that right is not
absolute and can be restricted in the
interests of the sovereignty and integrity
of India, the security of the state, friend-
ly relations with foreign states, public
order and decency or morality, under
Article 19(2).
T
he Supreme Court has time and
again decided cases involving the
question of validity of orders
under this Section. In Madhu Limaye vs
Sub-Divisional Magistrate (1970), the
Supreme Court upheld the constitution-
ality of Section 144 on the grounds that
it constituted a reasonable restriction in
the interest of public order. Chief Justice
Mohammad Hidayatullah had stated
that if applied properly, the Section is
not unconstitutional and the possibility
of it being abused is no ground for it to
be struck down.
In the case of Babul Parate (1961),
the Court had held that power under
Section 144 could be exercised in cases
of both the presence of danger as well as
its apprehension. The magistrate should
be satisfied that immediate prevention
is necessary to counteract danger to
public safety.
In the Ramlila Maidan case (2012),
the Court had stated that power under
CRITICAL OBSERVATION
The SC noted the imposition of Section 144 in
J&K and said the law needed to be justified
UNI

24 January 27, 2020
Section 144 must be exercised in the in-
terest of public order, for public safety
and tranquility. The threat should not be
a mere perception but a definite and
substantiated one.
And on January 10, the Supreme
Court, while deciding the petitions chal-
lenging the constitutionality of the Ka-
shmir lockdown, curtailment of move-
ment and all forms of civil liberties, gave
its final order which could help in seeing
Section 144 in a new light. Though the
order mostly focused on the importance
of the internet and validity of the lock-
down, it was relevant for two reasons:
Firstly, restrictions were imposed on the
internet under Section 144 and secondly,
the Court gave directions on how power
under this Section would be executed
from now on. As part of the three-judge
bench, Justice Ramana stated that an
important question of law that arose for
the bench’s consideration was if the gov-
ernment could claim exemption from
producing all the orders passed under
Section 144, CrPC, and if imposition of
the restrictions was valid. The directions
given and the legal position stated in the
order are as follows:
Restrictions be based on the concept
of proportionality: This concept has to
be applied to an order passed under
Section 144, CrPC, said the Court. The
magistrate should balance the rights of
citizens and the restrictions he is plan-
ning to impose and apply the least inva-
sive measure.
Publication of orders: All orders
under Section 144 must be published
and be open to being challenged before
the Court. The state or competent
authorities will be responsible for doing
the same.
Subject to judicial review: The orders
will also be subject to judicial review. To
enable judicial scrutiny, all important
and material facts should be stated in
the order.
Order in cases of apprehension of dan-
ger: While an order can be passed in
case of danger and apprehension, in the
latter case the danger should be in
nature of an “emergency” and the order
should be for preventing obstruction,
annoyance or injury to any person
lawfully employed. Therefore, power
under Section 144 is both remedial
and preventive.
No suppression of speech and expres-
sion of opinion: The right to speech
and expression forms the basis of a
democracy. Orders under Section 144
cannot be used to suppress legitimate
expression of opinion or exercise of
democratic rights.
In short, the apex court expects the
government to emphasise proportionali-
ty and reasonableness. Removing the
cloak of secrecy could help in reducing
the number of arbitrary orders and
shutdowns. This judgment can be seen
as a call for further action and a ray of
hope as the Court has attempted to pro-
tect civil liberties along with laying
down guidelines for the future.
TheverdictoftheSupremeCourt
benchcomprising(clockwisefrom
above)JusticesNVRamana,R
SubhashReddyandBRGavaionwrit
petitionsagainsttheKashmir
lockdown,andcurtailmentof
movementandcivillibertiescould
helpinseeingSection144inanew
light.JusticeRamanastatedthat
animportantquestionoflawwasif
thegovernmentcouldclaim
exemptionfromproducingallthe
orderspassedunderSection144,
CrPC,andifimpositionofthe
restrictionswasvalid.
Supreme Court/ Section 144

My Space/ Forest Conservation Debi Goenka
26 January 27, 2020
AVE you wondered why
our bureaucrats love cost-
benefit analyses (CBA)?
The answer is simple—by
juggling around with fig-
ures, any project that they
want to push through can be justified on
that basis. If you want to build a Metro,
or a railway line, or a road, you can hap-
pily inflate the number of commuters
and users, and simultaneously under-
estimate the costs of land acquisition,
displacement, and the destruction of
forests, wetlands and other natural
assets. And hey presto, your project will
sail through the approval process and
get sanctioned.
The question above posed by the
learned judges is thus quite significant.
Almost all linear projects—rail, road,
transmission lines, canals, Metros, etc—
pass through forested areas and necessi-
tate the cutting of trees. For allowing
this to happen, an application has to be
made to the Forest Department (FD) of
the state government to allow the use of
forest land for “non-forestry” purposes
under the Forest (Conservation) Act,
1980 (FCA).
This application is screened at differ-
ent levels of the forest department,
invariably approved, and then forward-
ed to the state government for its ap-
proval. Once this formality is completed,
the application is sent to the Ministry of
Environment, Forests and Climate
Change (MoEF) for its approval. This
too, is another formality, and all projects
are invariably approved subject to cer-
tain conditions.
The FCA was initially brought in by
Indira Gandhi in 1980 via an ordinance.
The Constitution was amended so that
forests, which were under the control of
the state governments, were shifted to
the Concurrent List. The ordinance was
then quickly replaced by the FCA. The
basic intent of the FCA was to stop state
governments from indiscriminately dis-
tributing forest land to all their suppli-
cants, and the FCA mandated that no
forest land could be used for non-forest-
ry purposes without the prior approval
of the MoEF. A statutory committee
called the Forest Advisory Committee
(FAC) was also required to be set up to
scrutinise all such proposals for diver-
sion of forest land.
The FCA was welcomed by environ-
mentalists and by the FDs. Environ-
mentalists were happy because they
thought the area of forests being divert-
ed would reduce. The FDs were happy
because they saw their role being
widened and strengthened. Project pro-
ponents were unhappy, and so were the
state governments, but in those days,
they did not have much of a say when
faced with a powerful prime minister,
whose love for forests and wildlife came
from her heart.
For a few years, the FCA did work as
it was intended. The projects were scru-
tinised, and two important principles
were observed. The first principle was
that if x acres of forest land were being
diverted, an equivalent area of non-for-
est land was required to be handed over
to the FD by the revenue department.
Secondly, the project proponent would
fund the costs of “compensatory
afforestation” of this revenue land.
However, slowly but inevitably, the
effectiveness of the FCA was eroded by
the simple expedient of adopting a dif-
ferent formula. Instead of identifying
Cost of Free Air
TheSupremeCourtrecentlynotedthatthevalueofoxygengeneratedbyatreeinitslifetime
shouldbetakenintoaccountindeterminingdamagetotheenvironmentcausedbyitsfelling
H
FUDGING FACTS
Bureaucrats, juggle around figures to
underestimate deforestation caused by
development projects to get quick approvals
“Why do authorities, while comput-
ing environmental compensation, not
take into account the volume of oxy-
gen a tree would release into the
atmosphere in its lifetime? Look at
the amount of oxygen generated by a
single tree in its lifetime....”
—A three-member bench of the
Supreme Court headed by Chief
Justice SA Bobde and comprising
Justices BR Gavai and Surya Kant on
January 10, 2020
Twitter

and handing over an equivalent area of
revenue land to the FD for “compensa-
tory afforestation”, the state governmen-
ts and the MoEF formulated a frame-
work wherein no compensatory land
would be provided to the FD to make up
for the loss of forest land. Instead, the
project proponent would pay the FD the
cost of plantation on twice the area of
degraded forest land. All that was
required was a letter from the chief sec-
retary stating that no revenue land was
available, and unfortunately, such letters
were available for the asking.
W
hat was then left was the pal-
try amount required to be
paid to the FD for the “com-
pensatory afforestation” by the project
proponent. Since this was based on the
plantation estimates of the FD, the sums
involved were a few thousand rupees per
acre, and made no real dent in the cost
of the projects. It thus became a win-
win situation for the state governments,
the FD, the MoEF and the project pro-
ponent. The only victims were the trees
(and the associated biodiversity) in the
forests.
In 2002, based on a report submitt-
ed by the Central Empowered Com-
mittee (CEC), a body created by the
Supreme Court itself, the concept of Net
Present Value (NPV) was brought in at
the national level. The rationale behind
bringing in the NPV was that in addi-
tion to the costs of compensatory af-
forestation, the economic value of the
forests that were being destroyed need-
ed to be paid for.
When forests are destroyed, the ben-
efits (both tangible and intangible) in
terms of ecosystem goods and services
are lost. These are obviously not
accounted for in the costs of compensa-
tory afforestation. Also, while the loss of
benefits is immediate, the gains accru-
ing from the compensatory afforestation
would increase slowly (assuming that
the plantations were successful). Thus
the idea behind NPV collection was to
balance the uncompensated benefits
until such time the compensatory af-
forestation area attained maturity and
could provide the benefits that were co-
mparable to those that were being pro-
vided by the forests that were destroyed.
Based on the CEC report, the NPV
values, ranging from `4.38 lakh to
`10.43 lakh per hectare, were estab-
lished depending on the Forest Eco
Value Class and Canopy Cover Density
Class. It was also recommended that the
NPV rates should be revised every three
years. However, the emphasis was not
on preventing the destruction of forests,
but collecting money as compensation
for the destruction of forests.
But as it happened, while many com-
plicated parameters for arriving at the
cost of services provided by different
kinds of forests of different densities at
different locations were discussed
threadbare, and the benefits of carbon
sequestration were being computed, the
value of the oxygen provided by the
forests seems to have been overlooked
by all the economists.
That the Supreme Court judges have
posed this question to the government is
something to be welcomed. We can only
hope that in the quest for oxygen, the
need to protect our forests will once
again emerge as the central issue, and
the quest to collect money for the
destruction of our forests will become a
secondary one.
—The writer is Executive Trustee,
Conservation Action Trust
Whenforestsaredestroyed,thebenefits
(bothtangibleandintangible)intermsof
ecosystemgoodsandservicesarelost.
Theseareobviouslynotaccountedforin
thecostsofcompensatoryafforestation.

Global Trends/ Bangladesh/ Ex-Chief Justice Warrant
28 January 27, 2020
former chief justice of
Bangladesh, Justice
Surendra Kumar Sinha,
who had to quit in 2017
under pressure from the
Sheikh Hasina Wajed gov-
ernment, is facing arrest on charges of
embezzlement. Justice Sinha was Bangl-
adesh’s first Hindu chief justice and
lived in Australia since resigning.
He has been charged with embez-
zling 40 million taka in 2016 by the
Anti-Corruption Commission (ACC).
Judge KM Imrul Kayes of Dhaka’s
Senior Special Judges’ Court took cogni-
sance of the graft charges against him
and 10 others. The other accused are
former senior officials of Farmers Bank,
including its ex-managing director.
The ACC also quizzed the Bank’s for-
mer head of business Gazi Salauddin,
vice-president, Swapan Kumar Roy, for-
mer manager (operations), Lutful
Haque, credit in-charge, Shafiuddin
Ahmed, and executive officer, Umme
Salma. The ACC has asked the Special
Branch of the police to take steps to pre-
vent them from leaving the country.
Justice Sinha served as the 21st chief
justice of Bangladesh from January
2015 to November 2017. He earned the
wrath of the Sheikh Hasina government
after his autobiography, A Broken Drea-
m: Rule of Law, Human Rights, &
Democracy, opened a Pandora’s Box and
he was forced to resign following intimi-
dation and threat.
Justice Sinha’s book describes the
backdrop of his resignation and gives
insights into Bangladesh’s numerous
social and political issues, including its
Paying
a Heavy Price
Afterthetusslebetweentheexecutiveandthejudiciaryled
totheresignationofthecountry’sfirstHinduchiefjustice,
henowfacesarrestoverchargesofembezzlement
By Prakash Bhandari in Dhaka
ACAUGHT IN A
WRANGLE
Justice Surendra
Kumar Sinha,
former chief
justice of
Bangladesh

evolving state of governance.
His troubles began after he gave a
verdict in 2017 where the Supreme
Court annulled the 16th amendment to
the Constitution which empowered Pa-
rliament to impeach SC judges for mis-
conduct or incapacity. As it upheld the
independence of the judiciary, it miffed
Sheikh Hasina, who accused Justice
Sinha of “humiliating” the country. He
was accused of corruption and misuse of
power, allegations that he denied.
Justice Sinha has delivered many
important judgments, including one on
the killing of Sheikh Mujibur Rahman,
the country’s founder, and the validity of
the 5th, 7th, and 13th amendments to
Bangladesh’s Constitution.
In the Mujibur Rahman case, the
court sentenced 12 killers of the leader
to capital punishment. After his eleva-
tion, a five-member bench headed by
him in 2016 upheld the death sentence
of a top Islamist leader for war crimes
during the 1971 independence struggle,
paving the way for his execution.
Later, in October 2017, Justice Sinha
left Bangladesh for Australia, calling his
leave “temporary”. A day after his depar-
ture, the Supreme Court issued a state-
ment saying other judges of the Court
had decided not to sit on the bench with
him over allegations of graft and moral
lapses brought to their notice by Presi-
dent Abdul Hamid. The law minister
subsequently announced a probe against
Justice Sinha.
I
n November, Justice Sinha resigned,
three months before the completion
of his tenure, and he alleged that he
was forced to do so because he opposed
the country’s “undemocratic” and
“authoritarian” regime. He has been in
exile since.
In Dhaka’s legal circles, the move by
the ACC is seen as retaliatory action by
the government over the book that
exposed its various illegal designs. It
chronicled the various events that led to
his forced resignation.
There was a series of unprecedented
events leading to tension between the
executive and the judiciary. On Sept-
ember 22, 2014, the parliament brought
in the 16th amendment that deleted the
provision regarding removal of judges
through an influential committee of
peers known as the Supreme Judicial
Council. This process was intended to
protect judges from political interfer-
ence. On May 5, 2016, a special bench
declared the amendment unconstitu-
tional. Soon after the verdict, MPs blast-
ed the judges and began displaying dis-
respect for the judiciary.
On an appeal by the State, a seven-
member bench headed by Chief Justice
Sinha on July 3, 2017, unanimously dis-
missed the appeal upholding the High
Court’s verdict. On September 13, 2017,
the parliament passed a resolution call-
ing for legal steps to nullify the verdict.
Chief Justice Sinha was accused of mis-
conduct and corruption. While he was
confined to his residence, lawyers and
judges were prevented from visiting
him. Various ministers suggested he
leave the country on medical leave.
Finally, he was compelled to do so on
October 14, 2017.
During his departure, he made bold
statements to the press saying he was
neither unwell nor had sought medical
leave. Facing intimidation and threats to
his family from the Directorate General
of the Forces Intelligence, he resigned
on November 11, 2017. Soon after, Pre-
sident Hamid announced that he faced
11 charges, including money laundering
and corruption.
Justice Sinha was born in Moulvi
Bazar district in northeast Bangladesh
where he grew up in a family of six sib-
lings—five brothers and a sister. His
father was a dedicated teacher and
scholar of the Hindu religion. He pur-
sued a law degree from Sylhet Law
College without his father’s consent. His
father believed that lawyers make a liv-
ing by lying. From this backdrop, Sinha
rose to become chief justice.
Sinha drew a lot of criticism when he
wrote in an opinion piece:
JusticeSinha’sverdictin2017on
the16thamendmenttothe
constitutionmiffedPrimeMinister
SheikhHasina,whoaccusedhimof
“humiliating”thecountry.
UNI

30 January 27, 2020
“Parliamentary democracy is immature
and to attain its maturity, there is a
necessity of practicing parliamentary
democracy continuing for 4/5 terms!”
He was referring to 154 unelected par-
liamentary members and questioned the
legitimacy of the government. Political
scientists believe that having an election
under such a government could not be
fair. Whatever semblance of independ-
ence the judiciary had was eroded after
Justice Sinha’s exit.
Reviewing the book, the prestigious
South Asia Journal wrote: “The present
government has neutralized all other
organs of the state; military, police, civil
servants and all administrations to the
lowest cadres at the local level. Election
Commission has been made into a tool
for implementation of the wishes of the
government. If the next election is not
conducted in a fair and secure atmos-
phere, Bangladesh will be lost in the
darkness of authoritarianism for an
unforeseeable future. Ordinary Bangla-
deshi citizens are just riders on a rud-
derless vessel. With Chief Justice Sinha
out of the way, there is not a single indi-
vidual that can stand up to the most in-
fluential person in Bangladesh; the 35th
dominant female in the world according
to Forbes magazine. This award has em-
boldened her, and she became a source
of pride for her party stalwarts.”
It added that the book portrays the
struggle of the judiciary to protect its
independence in contrast to the erosion
of values in judicial service and political
corruption. It said that Sinha’s critics
accused him of treason, claiming that by
giving a verdict that directly challenged
the locus standi of the government, he
attempted to topple the government by
hatching a conspiracy. “With the depar-
ture of Sinha, the Supreme Court has
been virtually turned into a department
under the Ministry of Law. Once an in-
stitution is broken, it is difficult to bring
it back to its original position. Broken
Dream is a must read for those that are
interested in studying the emerging pat-
tern of politics of Bangladesh and how a
number of factors, both internal and
external, are contributing to its march
towards authoritarianism.”
IN THE EYE OF THE STORM
Among the other 10 accused by the ACC
are former senior officials of Farmers Bank;
(right) the controversial autobiography
Global Trends/ Bangladesh/ Ex-Chief Justice Warrant

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versus the priests
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Iran Crisis:
India’s options
JNU students being taken into police custody

32 January 27, 2020
For the first time, research on the effects of tex-
ting while walking is available and shows just
how serious its effects can be in terms of head and
neck injuries. Roman Povolotskiy, from the Dep-
artment of Otolaryngology—
Head & Neck Surgery at Rutgers
New Jersey Medical School in
Newark, is the author of the first
research paper to investigate
the effects.
The researchers looked at
emergency department visits
between January 1998 and Dec-
ember 2017 to examine “the inci-
dence, types, and mechanisms of
head and neck injuries associated
with cell phone use”. During the
study period, they found that
2,501 people landed up at the
emergency department with head
and neck injuries related to cell
phone use. A third of the injuries
occurred in the head and neck
area, and another third were
facial injuries, including eyes,
eyelid area, and nose. Over 12 percent of the injuries
were to the neck. People aged 13-29 years were
most at risk of these injuries.
“Cell phone-related injuries to the head and neck
have increased steeply over the recent 20-year peri-
od, with many cases resulting from distraction,” say
the study authors.
Texting Travails
International Briefs
Despite the worrying slide in
sales in India, automobile
manufacturers are planning to
launch close to 20 new models in
2020, led by Mercedes with three
new launches, followed by Hyun-
dai and Tata Motors. However,
the one that will catch most eyes
is the Lexus LC 500. Lexus is the
luxury brand under the Toyota
umbrella and only made its
debut in India in 2017 but as it
gains in popularity among the
uber rich, its latest offering,
which will hit showrooms by
end-January, is set to change its
image as a maker of boring look-
ing luxury cars.
The LS 500 is a youthful and
unique design, with a stunning
profile. Slotted as a sports coupé,
the one coming to India is the
hybrid model. The signature
grille gets a sharper look along
with three-element LED head-
lamps while the massive 21-inch
alloy wheels and the well-defined
shoulder line are clearly the high-
lights. The coupé is powered by a
five-litre V8 engine with a 10-
speed automatic gearbox. For all
that bang, there’s bound to be a
lot of bucks, the price tag in
India will be around `2 crore.
Auto Focus
Anil Shakya

India seems to hold the
key in defining the global
popularity of social media
and apps. According to data
firm Sensor Tower, TikTok
has grown massively in
terms of reach during 2019,
with over 700 million
downloads worldwide,
inching ahead of both
Facebook and Facebook
Messenger.
The rise was the highest
in India, with the data firm
revealing that 45 percent of
TikTok’s downloads originated in India.
The number one app across the world
remains WhatsApp, which registered 850
million downloads in 2019, again thanks
to its popularity in India. WhatsApp gar-
nered more than 400 million users in
India in 2018-19, reaffirming its gigantic
reach in its biggest market. WhatsApp's
growth in the fourth quarter of 2020 was
up 39 percent over the previous quarter,
Sensor Tower said.
However, the rise of TikTok, the
video-sharing social networking service,
is the story of 2019, attracting a growing
number of users who are mostly teens
and young adults and is currently rated
the most valuable startup in the world.
The Tok
is Ticking
For many of us, constant use
of the computer keyboard
can be tiresome and also bring
medical problems like Repe-
titive Strain Injuries and Carpal
Tunnel Syndrome. Now, Logi-
tech has come out with the Ergo
K860 keyboard that promises
much needed relief.
The K860 is a compact,
split, curved ergonomic key-
board. Developed after exten-
sive laboratory testing, it is
designed to reduce muscle
activity and allow for a more
natural posture. Users can
adjust the palm rest tilt which
allows for a position where your
wrists aren’t constantly bent
while typing.
Slim and wireless, it is pow-
ered by two AA-size batteries
and connects to the computer
via Bluetooth. The keyboard is
designed to allow you to move
your cursor between two
computers but above all, the
split design requires less hand
movement.
The curved wrist rest reduces
strain and is made from high-
density memory foam and
Logitech says it allows very little
strain even after hours of typing.
The Ultimate Keyboard
With many corporations
across the world switch-
ing to a five-day week and, in
some cases in America, Japan
and parts of Europe, a four-day
one, the debate has focused on
the benefits. While largely
unproven, proponents of a
shorter work week believe the
benefits lie in cost-cutting,
increased productivity and
work-life balance.
Now, we have a new model.
A digital marketing agency in
Australia has introduced a mid-
week off. The Wednesday holi-
day means staff get a four-day
week, working Mondays and
Tuesdays, then return for
another two on Thursday and
Friday. Bosses at Versa, the
company, find that meetings are
more focused and productivity
is higher.
Since the policy was imple-
mented last year, revenue has
increased by 46 percent but top
management is not crediting
the new work cycle for increased
profits. What they have found is
that a mid-week break lets staff
get more house work done,
spend more time with children
and generally chill out. The idea
of a mid-week break means staff
return to work on Thursdays
fresh, when people feel most
productive.
Mid-week Break

Controversy/ Kerala/ Church Spat
34 January 27, 2020
HERE is no doubt that
even if one is denied a
dignified life, a decent
burial/cremation should
be accorded to everyone.
But in Kerala, the Jaco-
bite faction under the Malankara Chur-
ch has been denied this right for quite
some time following a feud with the Or-
thodox factions based on power grab.
Disturbed over the ugly fights taking
place even in front of bereaved families
when they bring the bodies of their dear
ones for burial in the parish cemetery,
the state government has approved an
ordinance which will ensure that every
faithful gets a burial in his home parish.
Sadly, the warring factions would
more often seize burial time as an
opportunity to settle scores with their
opponents. The state cabinet has ratified
the ordinance and sent it to the gover-
nor for consent.
There have been several instances of
Grave Crisis
ToensureadecentburialforJacobiteswhosechurchesweretakenoverbytheOrthodoxfaction
underanapexcourtorder,thegovernmenthasbroughtinanordinancetodousetheflames
By NV Ravindranathan Nair in Thiruvananthapuram
TJUSTICE ELUDES
The bishop of the Jacobite
Syrian Church, Joseph Mar
Gregorios, and other bishops
talking to the media in
Thiruvananthapuram during their
protest against the poor
implementation of the SC verdict
in the church feud
UNI

funerals of ordinary people, including of
women who died in their late nineties,
turning into battlegrounds as the Ortho-
dox faction opposed the burial of Jaco-
bites in parish cemeteries under their
control. In some cases, families kept the
bodies in mobile mortuaries for several
weeks as they waited for the judiciary or
the police to intervene.
However, in many cases, the Ortho-
dox Church had agreed to the burial of
Jacobites in the parish cemetery but
opposed Jacobite priests performing the
funeral rites there. This was objected to
by the Jacobites who wanted their own
priests to perform the rituals.
The tussle between the factions has
even spilled into the streets and church
premises following a dispute over own-
ership of parishes and their properties,
including cemeteries. Finally, the Ortho-
dox Church approached the Supreme
Court, which on July 3, 2017, ruled that
all churches under the Malankara Chur-
ch would be governed as per the Church
constitution of 1934. Accordingly, over
1,100 churches under dispute came un-
der the control of the Orthodox Church.
The Court order was implemented
with police swinging into action in some
parishes. A majority of the churches
under dispute are still with the Jacobite
Church, which is enjoying tacit support
from the LDF government. However,
the present issue of denial of burial
came up after the Orthodox faction
refused to allow Jacobites to use their
family vaults in cemeteries under con-
trol of the Orthodox faction.
D
espite the best efforts of the
government to make both fac-
tions come to a common plat-
form and agree at least on the issue of
burial, they have refused to budge. It
has now become a social issue not only
for Christians but for people of other
religions who live adjacent to the for-
mer’s parishes.
Chief Minister Pinarayi Vijayan said
the state government had intervened as
the delay in burials had become a social
issue affecting the entire Christian com-
munity. “The Jacobites can conduct
funeral rites as per their belief outside
the parish and cemetery. They will have
the right only for burial at the family
vault or other graves in the same ceme-
tery. The ordinance also suggests a
penal provision of imprisonment up to
one year and a fine of `10,000 for
obstructing the burial,” he said during
the post-cabinet briefing.
“We had been taking all efforts to
resolve the issue. Though we tried to
hold discussions, one section refused to
listen to us. Even the governor had
stepped in to resolve the vexed issue.
But after failing to find an amicable
solution, the government decided to
bring in the ordinance,” he added.
The cabinet had appointed a sub-
committee to look into the issue and
solve it amicably. The Orthodox faction,
which had expressed lack of trust in the
government’s stand, did not cooperate
with the committee’s efforts and did not
even bother to hold talks with a delega-
tion of heads of other churches who
came forward to resolve the issue. It
said that the apex court had decided in
its favour and the government was try-
ing to scuttle the process of dispensation
of justice. Incidentally, initial attempts
at mediation before the court case was
filed failed as the Jacobite faction
refused to come to the negotiating table.
The Orthodox faction has said that it
will challenge the ordinance if it goes
against the spirit of the Supreme Court
verdict. Malankara Orthodox Church
secretary Biju Oommen said: “If the
ordinance is counter to the Supreme
Court verdict, that would be seen as a
bid to ‘challenge’ the legal system of the
country. We will challenge it legally. We
don’t think that the government would
come up with such legislation.”
Jacobite Church spokesperson
Kuriakose Mor Theophilose welcomed
the LDF government’s move as a “brave
decision” taken to ensure “a dignified
burial” for the bodies of their faithful.
“Following the Supreme Court’s order,
the bodies of our faithful were being
denied a dignified burial. Our human
rights and fundamental rights were
being violated during this period. We
hope that the Orthodox faction will
cooperate and support this
Funeralsofordinarypeople,includingof
womenintheirlatenineties,haveturned
intobattlegroundsastheOrthodox
factionopposestheburialofJacobitesin
parishcemeteriesunderitscontrol.
thenewsminute.com

Controversy/ Kerala/ Church Spat
36 January 27, 2020
ordinance,” he told mediapersons.
The chief minister said that relatives
of the deceased have the right to com-
plete the funeral rites with a priest of
their choice outside the church and then
bring the body back to the place of wor-
ship for burial. He said every person has
the right to be interned in their family
cemetery as per the ordinance. He said
that the government’s only concern was
to ensure speedy burial of the dead.
There were several instances when the
issue had turned emotive and law and
order problems had cropped up, he said.
Recently, the family of Mariamma
Rajan, a 91-year-old woman from Ala-
ppuzha who had passed away on Octo-
ber 28, had to wait for over a month to
hold her funeral because the Orthodox
faction disapproved of a Jacobite priest
conducting the funeral service. Maria-
mma’s family too reportedly insisted
that only a Jacobite priest would con-
duct it.
The St Mary’s Church in Kattachira
in Alappuzha where the burial was to
take place was also closed for a few
months after clashes over its ownership.
In July 2019, amidst police protection,
the church was handed over to the
Orthodox sect. Due to the delay in bur-
ial at the church cemetery, Mariamma’s
family members and friends finally
trespassed into the church and buried
her body around 5.48 am on December
6, 2019.
S
imilarly, the burial of Benoy
Abraham, a Jacobite BSF jawan
who had died in an accident in
Rajasthan, was held in Ernakulam on
November 19, but saw chaotic scenes as
his relatives tried to take his body inside
St Mary’s Church in Piravom. Though
the family had permission to bury him
in the cemetery there, Jacobites are not
allowed to do the funeral rites in the
church. Police personnel posted at the
Church asked the family to leave as cha-
os ensued. Later, the jawan’s wife plead-
ed with the police to allow his body to
be kept inside the Church for a few min-
utes. The police did so and the rites
were eventually held in another church
of the Jacobite faction. The body was
later buried in the cemetery of St
Mary’s Church.
Wary of this factional war, a family
decided to donate their 86-year-old
mother’s body for medical research
instead of sullying her memory with a
battle in a burial ground. On August 23,
Karakkattil Sara Varkey passed away in
Kolenchery in Ernakulam district.
Though the family wished to bury her
after performing Jacobite rituals, they
decided against it. “Our family did not
wish to create a tense situation before
the burial,” said KG Paulose, Sara’s son.
He finally donated his mother’s body to
the Government Medical College in
Thiruvananthapuram. “No civilised soci-
ety can support such type of factional
feud,” he told the media.
“IftheordinanceiscountertotheSC
verdict,thatwouldbeseenasabidto
‘challenge’thelegalsystemofthe
country.Wewillchallengeitlegally.”
—MalankaraOrthodoxChurchsecretary
BijuOommen
“FollowingtheSC’sorder,thebodiesof
ourfaithfulwerebeingdeniedadignified
burial.Ourhumanrightsandfundamental
rightswerebeingviolated.”
—JacobiteChurchspokespersonKuriakose
MorTheophilose
“Wehadbeentakingeffortstoresolve
theissue.Wetriedtoholddiscussions,
butonesectionrefusedtolistentous.
Afterfailingtofindanamicablesolution,
wedecidedtobringintheordinance.”
—KeralaChiefMinisterPinarayiVijayan

I
n a digital dominant age, one of the
most coveted spots for advertisers is
what is called the YouTube masthead.
It is a digital billboard placed on
YouTube’s homepage for 24 hours.
The reason it is so desirable is that it
reaches around 60 million people (the
video platform receives 1.8 billion users
every month). The homepage billboard
can have multiple videos and social
media sharing buttons.
Now, thanks to its popularity, You-
Tube has raised its rate to a humungous
`2.8 crore per day. It used to be `72
lakh and was raised last January to
`1.4 crore per day.
The huge jump in the past two years
now has advertising agencies and their
clients having second thoughts on using
such an expensive property. The prob-
lem is that in terms of instant reach,
there is nothing that has more bang for
the buck in terms of ad spends.
Additionally, advertisers can now
customise who sees the ad according
to their target audience which does,
to some extent, justify the steep
price hike.
T
raditionally, the Fourth Estate ref-
ers to newspapers and television.
We now have the rise of the Fifth
Estate, digital media, which, according
to author and Wall Street analyst Ruchir
Sharma, has overtaken traditional media
in India.
His data shows that the percentage
of people who get their news from televi-
sion has dropped from around 80 per-
cent to around 50 percent and for print it
has dropped from around 50 percent to
just 15 percent in the last 20 years. He
has also revealed that the percentage of
Indians below 35 years of age who get
their news online is close to 56 percent.
He feels that “this is something which is
going to accelerate”. His research also
shows that the percentage of users who
get their news from Twitter is an incredi-
ble 71 percent.
Sharma’s research was part of a bro-
ader annual interaction with NDTV’s
Prannoy Roy where he predicted the top
trends of the next decade. In support,
GroupM’s latest report says advertising
on digital has overtaken print in 2019 in
India. While print contributed $2,616 mil-
lion to the overall ad spend this year,
digital touched $3,183 million.
I
n a ruling that could send out a
message to media organisations
around the democratic world,
BBC anchor Samira Ahmed has
won an equal pay claim against the
broadcaster in a landmark case.
Ahmed, the presenter of viewer
feedback programme Newswatch,
filed the claim in a British tribunal,
citing the difference between her
£440-an-episode rate and the
£3,000 an episode her male coun-
terpart, Jeremy Vine, received for
hosting the similar Points of View
programme. The employment
tribunal unanimously concluded that
the BBC had failed to provide con-
vincing evidence that the pay gap
was for reasons other than gender
discrimination.
The ruling has wider implications
since there are about 20 other
cases involving claims of unequal
pay at the BBC. The 40-page tribu-
nal judgment damned the broad-
caster’s argument that Ahmed’s job
as presenter of Newswatch was sig-
nificantly different to Vine’s as a pre-
senter of Points of View, concluding
that there were only “minor differ-
ences” in the work the two presen-
ters did in presenting the two com-
parable programmes.
The report from the panel head-
ed by Judge Harjit Grewal did not
specify whether Ahmed would re-
ceive the hundreds of thousands of
pounds she had claimed in back-
pay as a result of the discrepancy.
Gender Bender
Media Watch
Costly Exposure
Rise of the Fifth Estate

Opinion/ Nursing Courses Dr KK Aggarwal
38 January 27, 2020
HE Indian Nursing Coun-
cil (INC) recently framed
draft rules permitting stu-
dents from the arts and
commerce streams to sign
up for BSc nursing. Until
now, the four-year degree course was
only open to students from the science
stream. Once the draft comes into effect,
all students passing out of Class XII
with a score of at least 45 percent would
be eligible to appear for the entrance
test. This would make them eligible to
join the professional course in colleges
across India.
However, there are many naysayers.
Perhaps the biggest one is that nursing
requires full knowledge of biology, phy-
sics and chemistry, while Auxiliary Nur-
se Midwifery (ANM) courses (diploma
courses where science subjects are not
required) are mainly for mother and
childcare and usually not assigned for
surgery and mainstream medical care.
This move may lead to producing nurses
with B grade knowledge, they say.
First, one should understand what a
BSc nursing course entails. After a stu-
dent from the science stream completes
the basic BSc programme, he/she can go
for advanced courses like MSc nursing,
PG Diploma in Nursing, MPhil Nursing
or a PhD programme. BSc nursing com-
prises eight semesters. These prepare a
student to become a registered nurse
qualified to practise in a variety of set-
tings in public/government or private
healthcare. It adopts a credits system
and semester system as per UGC guide-
lines. The programme encompasses
foundational, core and elective courses.
The choice-based system is applicable to
electives only and offered in the form of
modules. The programme prepares nur-
ses for generalist nursing practice. Kno-
wledge of wellness, health promotion,
illness, disease management and care of
the dying is core to nursing practice.
In addition to a range of nursing
skills, students get knowledge on nurs-
ing practice. This is achieved through
learning in skill/simulated labs and a
clinical environment. Simulation will be
integrated throughout the curriculum to
enable them to develop competencies
before entry into the real world of nurs-
ing practice. Through this educational
process, students assimilate and synthe-
sise knowledge, cultivate critical think-
ing skills and develop care strategies.
Competencies that reflect practice
standards of the INC address the areas
of cultural diversity, communication
technology, teamwork and collaboration,
safety, quality, therapeutic interventions
and evidence-based practice. They are
prepared to provide safe and competent
care to patients and influence patient
outcomes.
The question that needs to be add-
ressed is why is there a change in the
criteria wherein even commerce and
humanities students can join the
course? There are some reasons for this.
Shortage of nurses: Currently, India
has only 1.7 nurses available per 1,000
population. This is less than the WHO
recommendation of 2.5 nurses per 1,000
population. In other words, India is
short of 2.5 million nurses, a number
that has now dwindled to 1.56 million.
Without the prescribed number of nurs-
es, it is not possible for hospitals to
legally function.
Decline in student enrolments and
poor educational facilities: It is a fact
Join In, One and AllInawelcomemove,theIndianNursingCouncilwillallownon-sciencestudentstojoinBSc
nursing.Thiswillhelpmeettheshortageofnursesworldwide
T
ACKNOWLEDGING THEIR ROLE
President Ram Nath Kovind at an International
Nurses Day function in Rashtrapati Bhavan
Photos: UNI

India Legal - 27 January 2020

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