India Legal - 27 January 2020

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

4. 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 repeatedly even in the face of hidebound recalcitrance by the executive branch. In the iconic Kesavananda Bharati and SR Bommai judgments, the Supreme Court cast in stone the invi- olable sanctity of the basic structure of the nation’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 judgments on the tussle between Delhi’s elected government 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 ordinary 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 against 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 protest? 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 constitution of India outside the Jama Masjid walled city. In this regard I may observe that for judges, legal persons and the officers under the constitution, the constitution of India is a sacred document, 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 declared 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

5. 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/accused specifically reaffirms he read out the preamble, whereas on the other hand, the investigating 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 regard I may observe that in our democratic set up we have a Fundamental Right to peaceful assembly 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 schedule to the DCP (Crime) and SHO police station 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

6. ContentsVOLUME XIII ISSUE11 JANUARY27,2020 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographer Anil Shakya Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 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

7. Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE Cover Photo: UNI | INDIA LEGAL | January 27, 2020 7 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 officers 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 government 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 generated 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. 8 January 27, 2020 Anthony Lawrence RINGSIDE Busting Myths “Arjuna’s arrows had nuclear power, chariots flew” —Bengal Governor Jagdeep Dhankhar

9. 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 | INDIA LEGAL | January 27, 2020 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —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 government. The deadline for payment 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 government 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 operators, 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 lavatory 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 approached 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 media. “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

10. 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 consideration. The court first deter- mines whether the child is capable of making an informed choice, and if the child is, his/her opinion 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 different 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, custody 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 knowledge 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 reasons, 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. ? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis 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 international assignments? Even if the person faces charges of damaging property and is jailed, what matters 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. 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 government residential uni- versities in the category of government institutions 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 workplace, 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 conference is “Law and Justice in Asia”.

13. —Compiled by Nupur Dogra Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com 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, governments 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 announced 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 international 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 university. The Centre for Aerospace and Defence Laws (CADL), NALSAR University, is organising the conference in collaboration 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 conference but individu- als can register online. The conference 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 academicians. Course on “Soft Law” at NLU, Jodhpur | INDIA LEGAL | January 27, 2020 13

14. 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

15. | INDIA LEGAL | January 27, 2020 15 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 example of civilised coexistence among people 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 joined 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 ministers 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 widespread discomfort and disquiet that the legislation has caused. Rather than trea- ting it as a controversy over the question of whether a state assembly is competent to question the law on a matter within the Union government’s domain, the centre should have reflected on the issue. 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 implement central laws. Khan went to the extent of saying that the state government’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. 16 January 27, 2020 W ith Kerala showing the way to other non-BJP chief ministers by becoming the first state to challenge 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 jurisdiction 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 move 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 dispute 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 discrimination 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 registration 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

17. | INDIA LEGAL | January 27, 2020 17 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement 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 allegations against its chief minister and some ministers. The majority view in the 4:3 judgment held that a state would be concerned where any action affected its government. 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 amendments 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 country of origin of the person criteria for grant of citizenship and result in classifications based on religion and based on country, both classifications being appa- rently and manifestly discriminatory, arbitrary, 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 individual cannot form a reasonable classification based on an intelligible differentia.” The suit also argues that there is no rationale in selecting the three countries, and is, in fact, discriminatory towards migrants from countries like Sri Lan- ka, Myanmar and Bhutan. “The Impu- gned Amendment Act and Rules and Orders are bereft of any standard principle or norm in discriminating migrants from other countries such as Sri Lanka, Myanmar and Bhutan, which are sharing international borders with India and to which and from which there has been trans-border migration. There is no rationale in not extending the rights con- ferred to a class of minorities from Paki- stan, Afghanistan and Bangladesh to religious 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 without 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 government has asked the Court to pass a judgment and decree declaring CAA violative 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 governments 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.

18. 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 national 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 matter 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 ‘investigation’ 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 government 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 violates 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 petition 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 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com A VOICING DISSENT Chhattisgarh Chief Minister Bhupesh Baghel Twitter

19. | INDIA LEGAL | January 27, 2020 19 Column/ Internet Lockdown/ Justice Bhanwar Singh and Dr NK Bahl IGHT to Information and Right to Know are important 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 rights. 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 guarantees 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 primary 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 sovereignty 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 expression. The freedom of the press, as part of freedom of speech and expression, is a valuable and sacred right, The Question of Internet Access TheSupremeCourthasdeclaredthataccesstotheinternetisafundamentalrightprotected underArticle19oftheConstitution.TherulingisinsyncwithUNrecommendations R whether access to the internet is a fundamental 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 citizens 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. 20 January 27, 2020 hence magistrates, while passing prohibitory 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 commerce through medium of internet is also constitutionally protected under Article 19 (1)(g).” This automatically cir- cumscribes these rights by the restrictions 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 services like hospitals and educational institutions, and to review all orders imposing curbs in the UT of J&K within a week and to review all orders suspending internet services forthwith. The restrictions imposed by the government 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 fundamental 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 temporary, proportionate and justified by reasons which LEGIT DEMAND Journalists protesting against the communication 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

21. 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 suspension must not extend beyond the requisite duration. Another aspect of the order of the Supreme Court will be for media persons, 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 restrictions circumscribed under Article 19 (2) to (6) while using social media as a platform to profess opinions. After the January 10 ruling, the central government, and the government of UT of J&K have implemented the directions 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 judgment, 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 | INDIA LEGAL | January 27, 2020 21 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com 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 temporary, must have a clear nexus with the necessity to combat an emergent situation. Suspension of internet services directly affects right to education also because education is not possible without 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 higher 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 fundamental rights in the light of new tech- nologies will begin. T emporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, framed 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 provision for periodic review of orders suspending 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

22. “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 judgment 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 provisions 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 applying 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 criticism 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 immediate prevention or speedy direction is required to prevent ‘danger to human life, health or safety’, ‘obstruction, annoyance or injury to any person lawfully employed’, and ‘disturbance of the public tranquility, or a riot”. The duration of these restrictions cannot be more than two months. In situations where the state government feels that the restrictions 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.

23. 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 authorities. But there are also those who say Theapexcourtexpectsthegovernment toemphasiseonproportionalityand reasonableness.Removingthecloakof secrecycouldhelpinreducingthenum- berofarbitraryordersandshutdowns. | INDIA LEGAL | January 27, 2020 23 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 government 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, friendly 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 constitutionality 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. 24 January 27, 2020 Section 144 must be exercised in the interest 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 movement 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 lockdown, 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 government 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 planning 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 danger: 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 expression 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 proportionality 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 protect civil liberties along with laying down guidelines for the future. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com 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

26. 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 figures, 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 underestimate 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 different levels of the forest department, invariably approved, and then forward- ed to the state government for its approval. 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 certain 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-forestry 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 diverted would reduce. The FDs were happy because they saw their role being widened and strengthened. Project proponents 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-forest 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 different 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 oxygen 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

27. | INDIA LEGAL | January 27, 2020 27 and handing over an equivalent area of revenue land to the FD for “compensatory afforestation”, the state governments 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 secretary 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 “compensatory 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 proponent. The only victims were the trees (and the associated biodiversity) in the forests. In 2002, based on a report submitted 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 addition to the costs of compensatory afforestation, the economic value of the forests that were being destroyed needed to be paid for. When forests are destroyed, the benefits (both tangible and intangible) in terms of ecosystem goods and services are lost. These are obviously not accounted for in the costs of compensatory 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 afforestation area attained maturity and could provide the benefits that were co- mparable to those that were being provided 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 established 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 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Whenforestsaredestroyed,thebenefits (bothtangibleandintangible)intermsof ecosystemgoodsandservicesarelost. Theseareobviouslynotaccountedforin thecostsofcompensatoryafforestation.

28. 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 government, 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 former head of business Gazi Salauddin, vice-president, Swapan Kumar Roy, former 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 prevent 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 intimidation 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

29. | INDIA LEGAL | January 27, 2020 29 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 departure, the Supreme Court issued a statement 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 unconstitutional. 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 dismissed the appeal upholding the High Court’s verdict. On September 13, 2017, the parliament passed a resolution calling 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. 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 parliamentary 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 independence 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 atmosphere, 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 individual that can stand up to the most influential 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 departure 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.” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com 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

31. NDIA EGALEEL STORIES THAT COUNT NI December16, 2019 Madhav Godbole: The erosion of secularism Char Dham: State versus the priests NoWoman’sLandThegangrapeofaHyderabaddoctorhasonceagaindemonstratedthatbetween patriarchallawandurbananomie,sucheventswillrecurtocompoundthehollownessof governanceandrightsinIndia NO HOLDS BARRED Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends For advertising & subscription queries editor@indialegalonline.com SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS ` ` ` ` ` GAL LLLstr po NDIA EGALEEL STORIES THAT COUNT NI December23, 2019 Hyderabad Encounter: Instant justice and judicial logjam CABCoupTheOppositioniscaughtnappingasthecontroversialCitizenship(Amendment)Bill,2019 getsparliamentaryapproval.Theprotestsagainstitsdiscriminatoryclausesexposeitsflawsand minorityfears.TheSupremeCourtremainstheonlyhopetosalvageIndia’ssecularcredentials Students protesting against the Bill in Guwahati GAL (A(A cla In NDIA EGALEEL STORIES THAT COUNT NI December30, 2019 PEOPLEPOWERFromarestrictedstudentmovement,theanti-CAAprotestshavesnowballedintoanation-wide agitationandmetwithjackbootedresponse.WiththeSupremeCourtdenyingastayontheAct, thisisatippingpointinIndia’sdemocratichistory Invoking Fundamental Duties by Prof Upendra Baxi GAL Wow td sto 2019192019 January 6, 2020 `100 NDIA January 6, 2020 `100y , EGAL JJ EEEL www.indialegallive.com NI YEAR-END SPECIAL GGAL NDIA EGALEEL STORIES THAT COUNT NI January13, 2020 ParallelPowerCentres?TheKeralagovernor’ssupportoftheCAAandsimilarstatementsbyBJP-appointed governorsisaworryingsign.HasthetimecometoimplementtheSarkaria Commission’srecommendations? Lawless in UP Book Extract: The Cases India Forgot Arif Mohammed Khan, Kerala Bhagat Singh Koshyari, Maharashtra Jagdeep Dhankhar, West Bengal enmee GGAALL emm NDIA EGALEEL STORIES THAT COUNT NI January20, 2020 BLOODONTHECAMPUSJNUsymbolisedcitizenship,democracyandfreedom,writesnotedcolumnistShivVisvanathan, whoanalysesthereasonswhytheUniversityhasbecomeapoliticalandideologicalbattleground Capital Punishment: What judges think Iran Crisis: India’s options JNU students being taken into police custody

32. 32 January 27, 2020 For the first time, research on the effects of texting 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 period, 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 looking 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

33. | INDIA LEGAL | January 27, 2020 33 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 keyboard. Developed after extensive 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 powered 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 implemented 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

34. 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

35. | INDIA LEGAL | January 27, 2020 35 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 ownership 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 under 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 control of the Orthodox faction. D espite the best efforts of the government to make both factions come to a common platform 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 former’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 cemetery. 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

36. 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 worship 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 conduct 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 burial 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 society can support such type of factional feud,” he told the media. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com “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

37. 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 television has dropped from around 80 percent 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 million 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 tribunal judgment damned the broadcaster’s argument that Ahmed’s job as presenter of Newswatch was sig- nificantly different to Vine’s as a presenter of Points of View, concluding that there were only “minor differences” in the work the two presen- ters did in presenting the two com- parable programmes. The report from the panel headed 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 | INDIA LEGAL | January 27, 2020 37 Media Watch Costly Exposure Rise of the Fifth Estate

38. Opinion/ Nursing Courses Dr KK Aggarwal 38 January 27, 2020 HE Indian Nursing Coun- cil (INC) recently framed draft rules permitting students 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 student 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 guidelines. 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 nurses 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 nursing 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 nursing 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 nurses, 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

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