India legal 30 march 2020

India legal 30 march 2020
NDIA EGALL STORIES THAT COUNT I March30, 2020 Judgesandlawyersincourtsarestrugglingtodispensejusticeevenasthefearoftransmissionof thevirustakeshold.IndiaLegal’sspecialpackagelooksat measuresbeingtakenbytheSupreme CourtandHighCourtsacrossthecountryandhowitaffectsthejusticesystem CoronavirusPlagues TheCourtSystem Special Supplement: The Idea of Citizenship Analysing SC’s Annual Report: Prof Upendra Baxi
4 March 30, 2020 E are living in extraordinary times, facing existential questions of life and death and absorbing new words like “social distancing’’ and “lockdown’’ into our daily existence. The overall atmosphere is one of fear, fear of the unknown, fear of discrimination. Even as we as individuals and a society struggle to understand and react to the dangers of exclusion and isolation provoked by Covid-19, there is a question that has been haunting many of our countrymen and women for some time now, and it concerns the issue of citizenship. Our cover story in this issue examines how the Judiciary is coping with the outbreak of Covid-19 and imposing restrictions which will cripple the dispensation of justice, but we also have an equally compelling analysis to do with the concept of citizenship and the threat of forced isolation, exclusion and even internment or expulsion which the Citizenship (Amendment) Act (CAA) entails. To tackle such a complex and contentious issue, we felt it deserved to be in the form of a Special Supplement, the first in a series of planned specials on the burning issues of the day. In today’s India, the spread of Covid-19 has dominated the mind space of individuals, communities, politicians, civil society, op-ed writers and television anchors. That has led to a shifting of focus away from one of the most controversial and discriminatory legislations any government has passed. The issue of citizenship has raised fears and apprehensions, much like Covid-19, enhanced further by the National Register of Citizens (NRC). At India Legal, our focus has always been on issues of contemporary legal relevance. The debut of the Special Supplement allows us to pick subjects that deserve a more rigorous and in-depth analysis, written and researched by an acknowledged expert on the subject. The author of our special supplement on the newly contentious issue of citizenship is Dr. Abhishek Atrey, a legal expert and Advocate on Record in the Supreme Court of India. In a detailed and extensively researched article, he traces the concept of citizenship in India to ancient times, ref- erencing the Vedas and the Upanishads, as well as its origins and privileges in ancient Greece, the Roman Empire, Europe and England. His analysis is based on the constitutional and legal definition of citizenship under the Indian Cons- titution, what are the legal privileges and rights afforded to citizens, the various types of citizenship and who qualifies and who does not. In essence, Atrey’s essay is an attempt to clear up misconceptions and controversies surrounding the CAA and the NRC, and explain frequently asked and all-important questions about the idea of citizenship. The coronavirus is the more immediate threat and it may have pushed other issues like the CAA into the back- ground, but it still lurks there, like a virus waiting to strike. Both issues represent defining moments in the country’s history. DEFINING MOMENTS W Letter from the Editor ThedebutoftheSpecialSupplement allowsustopicksubjectsthat deserveamorerigorousandin-depth analysis,writtenbyanacknowledged expert.Inthisissue,wetracethe conceptofcitizenshipinIndia.
6 March 30, 2020 ContentsVOLUME XIII ISSUE20 MARCH30,2020 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Junior Sub-editor Nupur Dogra Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographer Anil Shakya Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Judges and lawyers in courts are struggling to dispense justice even as the fear of transmission of COVID-19 takes hold. So benches are being reduced, crowds curtailed and only urgent matters listed Coronavirus Plagues the Court System LEAD 14
| INDIA LEGAL | March 3O, 2020 7 Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design & Illustration: ANTHONY LAWRENCE REGULARS Ringside............................8 Courts.............................10 Law Campus News........12 International Briefs ........32 Media Watch ..................50 A Brand Called Happiness 48 MYSPACE The Supreme Court Annual Report 2018-19 is replete with crucial information about the judicial system, its achievements and innovations. However, we must study both what it chooses to say and what it does not..., says PProf Upendra Baxi 28 Towards Democratic Judicial Accountability 18 COVID-19 has led to consequences which policymakers should look at, such as inadequacies in India’s health infrastructure, deficiencies in distance education and distress among SMEs Lessons from its Freakonomics 22 The Idea of Citizenship The Citizenship (Amendment) Act, 2019 has created much uncertainty and fear. The supplement traces its history in India, examines its legal and constitutional position, and clears up misconceptions 34 The impact of the coronavirus, financially and psy- chologically, is going to last a long time and change America forever US Lockdown 26 Corona And Punishment Tough laws exist in India to deal with violation of quarantine and isolation norms but it does not appear as if anyone has been punished for non-compliance The move to start a happiness plan is in line with former CJI Ranjan Gogoi’s state- ment that such classes should be introduced in judicial academies. Has the cor- poratisation of this concept begun? SPECIAL SUPPLEMENT OPINION
8 March 30, 2020 Anthony Lawrence RINGSIDE Safety First
10 March 30, 2020 Courts The Supreme Court held that serving women Short Service Commission officers were entitled to be considered for grant of permanent commission in the Indian Navy. “The battle for gender equality is about confronting the battles of the mind,” a bench comprising Justices DY Chandrachud and Ajay Rastogi said while rejecting arguments that the current design of mostly Russian- origin ships in the Navy were not sufficient to accommodate women, calling the explanations “devi- ces adopted to justify an action”. The verdict comes a month after the top court had directed the centre to ensure that women were given permanent commission in the Indian Army, including command post- ings. If granted permanent commission, women naval officers can serve till the age of retirement and will be entitled to pension. Reading out pertinent portions of the judgments, Justice Chandrachud said, “A level playing field en- sures that women have the opportunity to overcome their histories of discrimination with the surest of res- ponses based on their com- petence, ability and performance. Women officers have worked shoulder to shoulder with their men counterparts in every walk of service.” First Army, now Navy: permanent commission for woman The Supreme Court stated that no self- assessment or re-assessment of Ad- justed Gross Revenue (AGR) dues can be done by telecom companies even as it turned down the central government’s plea that telcos be allowed to spread the payment of their AGR dues over 20 years. “The court order is clear, no further objections will be allowed against pay- able dues,” a three-judge bench consist- ing of Justices Arun Mishra, SA Nazeer and MR Shah said, adding that if the telecom firms violate the rules, they will be held for contempt of court. The top court said this while questioning the Solicitor General of India on telcos’ self-assess- ments without the permission of the Court, calling it contempt. “Serious fraud is being committed by telecom companies by asserting to do self-assessment of AGR dues,” said the bench while hearing the telecom companies’ AGR case. The Supreme Court said that the judgment on AGR dues is full and final and it should be followed in letter and spirit. During the hearing, Justice Mishra said the companies have earned a lot of money and will have to pay from 2002. “Telcos are usurpers of public money, you don’t even want to pay a fraction of the revenue earned. Even the media is in grossest contempt of court,” he said. The Supreme Court asked the centre and the Jam- mu and Kashmir administration about plans to release former Chief Minister Omar Abdullah, who has been under detention since August when the abrogation of Article 370 was announced in the state. A bench of Justices Arun Mishra and MR Shah told the counsel appearing for the centre that Abdullah’s sister, Sara Abdullah Pilot’s plea against his detention will be heard on merit if he is not released soon. “If you are releasing him, then release him soon or we will hear the matter on mer- its,” the bench said. Sara had filed a plea in the apex court challenging the detention of her brother under the Public Safety Act. Sara contended that apart from the fact that her brother had disagreements with the policies of the centre, it was a lawful right of a citizen in a democracy (especially for a member of the opposition) to demon- strate and make his point of view publicly known. Any plans to release Omar? SC asks centre Pay up: SC tells telecom firms on AGR
| INDIA LEGAL | March 30, 2020 11 Seven years, three months and three days after the gruesome rape-cum- murder, justice was finally delivered when at 5.30 am on March 20, 2020, the four death row convicts in the Nirbhaya case were hanged inside Delhi’s Tihar jail. The end came after months of delaying tactics that saw lawyers for the four resorting to ingenious methods to stall their hanging which had been confirmed from the lower courts to the highest court in the land and the rejection of their mercy petitions by the President of India. Nirbhaya’s mother, Asha Devi, who fought battles on several fronts to get justice for her daughter, said all women would definitely feel safer now. She said though justice was delayed, it was not denied. "We will request the Supreme Court to issue guidelines so that no one can adopt delaying tactics in such cases in future," she said. Prime Minister Narendra Modi said justice had prevailed after all four convicts were hanged. “Justice has prevailed. It is of utmost importance to ensure the dignity and safety of women. Our Nari Shakti has excelled in every field,” he tweeted. —Compiled by India Legal team ADelhi court sent suspended AAP councillor Tahir Hussain to four days of police custody for the murder of IB staffer Ankit Sharma during the anti-CAA riots that rocked Northeast Delhi. It noted that his custody was required to unearth the conspiracy behind the riots. Hussain, who had on three earlier occ- asions been produced before the judge at his residence in a riot-related case, was produced before Chief Metropolitan Magistrate Pawan Singh Rajawat for the first time. He was questioned inside the courtroom for an hour, following which an application seeking his custody for five days was moved. Hussain is one of the prime accused in the Ankit Sharma murder case. The police told the Court, “We need to confront him (Hussain) with Salman (another accused). Everything was done on his command.” It said that the custody was crucial to “unearth the conspiracy behind the riots which led to the murder of Ankit Sharma and identify other members from the mob”. Hussain’s lawyers opposed the police demand, stating that identifying the other accused and recording Hussain’s confession could not be a ground for his remand. The judge, while granting four-day police custody, said: “I find force in the submissions of the IO that to unearth the conspiracy which led to the riots and massive loss of life and property, police remand is required.” The Yogi Adityanath government in Uttar Pradesh filed an affidavit in the Allahabad High Court seeking more time to file a compliance report in the case related to hoardings with details of the anti-CAA protesters put up in Lucknow. Last week, the High Court had ordered the Lucknow administration to remove the hoardings and the banners carrying photographs and details of over 50 people accused of violence during an anti- CAA protest in the city last year. The Court also said a report of satisfactory compliance was required to be submit- ted by the district magistrate to the reg- istrar general of the Court on or before March 16. “The state government filed an affidavit seeking more time to file a compliance report. The state government also referred in the affidavit about SLP filed in Supreme Court against the Allahabad High Court order directing it to take down name-and-shame hoardings. We have stated in the affidavit that the SLP is pending in the Supreme Court,” said Additional Advocate General Neeraj Tripathi. On March 12, a two- judge bench of the Supreme Court, hearing UP’s challenge of the High Court order on the hoardings, had referred the matter to a larger bench. UP government seeks more time for hoardings report Delhi court sends Hussain to police custody Delayed but not denied Akshay Thakur Mukesh Singh Vinay Sharma Pawan Gupta
12 March 30, 2020 LAW CAMPUSES / UPDATES Law campuses shut down in the wake of coronavirus threat National Law University Odisha (NLUO) Centre for Women & Law has invited contributions for its edited volume on “Socio-Legal Andro- centrism and Gender Inequalities”. Centre for Women & Law at NLUO proposes to bring out an edited volume with a multidiscipli- nary approach on “Socio- legal Androcentrism and Gender Inequalities”. Objective of the proposed book is to contribute in the dismantling of the metanarrative of patriarchy which relegates NLUO invites submissions for its volume on androcentrism and gender inequalities In the wake of an outbreak of COVID- 19 in India, various law colleges and campuses have suspended classes and are encouraging self-quarantining for students and trying to minimise face-to- face contact amongst students, teachers and staff members. Events, competitions and seminars due across campuses stand suspended till further notice. Following a UGC advisory the National Law Institute University (NLIU), BhopaL, Maharashtra National Law University Aurangabad, NLU Ranchi, NLSUI Bangalore, CNLU Patna, HPNLU Shimla, ICFAI Law School Dehradun, NLU-Odisha, etc have either suspended classes till further notice or have issued guidelines to minimise contagion. Amity University has called off all face-to-face classroom activities until March 31. Instead they have arranged for online classes. However, its faculties and staff would continue to observe normal working hours until further notice.
| INDIA LEGAL | March 30, 2020 13 —Compiled by Nupur Dogra The Journal for Environmental Law Policy and Development (JELPD), published yearly by the Centre for Environmental Law Education, Research and Advocacy, National Law School of India University (NLSIU), has invited authors to send their contributions for Volume-vii. 2020. The JELPD is now UGC-CARE certified (2019). Authors can contribute short articles, long articles, book reviews and case comments. The contributions are invited on a broad theme of Environmental Law Governance and Jurisprudence: Contemporary issues and chal- lenges. The authors are requested to send their submissions on or before April 10. The selected authors will be notified by April 20. postponed due to the sudden outbreak of the COVID-19 virus in the country. The postponed dates will be announced in due course of time. Inconvenience caused is regretted,” read a notification by the university. “On account of health concerns over the outbreak of COVID-19 in India, the University has taken the tough decision to postpone the 2nd NLUJ Deal Mediation Competition (previously scheduled to be held from March 19-22, 2020) to August 20-23, 2020,” read an NLU Jodhpur notification. A workshop on blockchain technology and e-governance scheduled on March 14, 2020 at the Gujarat National Law University (GNLU) through its Cen- tre for Law and Technology in collabo- ration with the government of Gujarat has been deferred till further notice. Following the UGC notification dated March 5, instructing students to minimise large gatherings on campus and to control any activities that might trig- ger further spread of the novel coronavirus, law campuses across India are taking such steps to ensure healthy campuses. Sudden outbreak of COVID- 19 highlights the preparedness of campuses to deal with an emergency situation. It also points at the need for more online classes as well as the availability of technical infrastructure across campuses in India to facilitate such classes. Jamia Milia Islamia University has directed its teachers to make the study material available online and has issued an advisory to minimise face-to-face contact. The schedule for University examination remains the same in Jamia. National Law Institute University (NLIU), Bhopal has not only been shut down until further orders but the examinations have also been cancelled. Students of the Hidayatullah National Law University (HNLU), Raipur were told to leave the University premises within a day. The University further issued a notice saying that it would resume classes once it was sure about its preparedness to deal with the corona outbreak. On March 10, the Kerala government ordered a partial lockdown in the state to curb the outbreak. Following which the National University of Advanced Legal Studies (NUALS), Kochi suspended its classes as all educational institutions were directed to be closed until March 31. As the classes remain suspended various events also have been postponed. “The NUJS International Conference on Criminal Justice Administration: Emerging Issues in 21st Century which is scheduled to be held during March 20-22, 2020 has been women to the ‘second sex’ and hinges their existence relative to the men. Androcentrism and metanarrative of patriarchy has tradi- tionally influenced and shaped social behav- iours, norms and cul- tural outlook. The authors can submit on themes like patriarchal metanarrative and gender inequalities, epistemol- ogy of gender, mod- ernism, post-mod- ernism and gender, third and fourth wave of feminism gender stereotypes and its impact on socio-legal perception of gender, law and gender inequalities, customary practices and gender discrimination, religious personal law and gender discrimination and so on. Last date of submission is June 30, 2020. NLSIU calls for paper for JELPD
Lead/ COVID-19 & Judiciary 14 March 30, 2020 HE global outbreak of COVID-19 or the coronavirus, which has been declared a pandemic, has had far-reaching consequences. Efforts to limit its spread and treat all those seen with the slightest symptoms have left governments worried. The turmoil associated with it has not only affected the health of citizens but all spheres of life—economic, financial, political, educational, travel and tourism, aviation…. In fact, it has simply changed the way we live. The government through a notification on March 5, 2020, advised that mass gatherings be avoided, and if possible, be postponed till the spread of COVID-19 is contained. In these cir- cumstances, the judiciary too has made attempts to ensure the safety and well- being of litigants, judges, advocates, visitors and staff. Notices and circulars have been issued by different courts in India, starting with the Supreme Court, with various directions to curb the spread of this deadly virus. A Supreme Court circular on March 13, 2020, said that only six benches would be sitting. This was further reduced to four on March 19. The Court restricted the functioning of courts to only urgent matters and directed that only lawyers who were going to argue a case be allowed in. It also restricted the visits of casual visitors and non-essential work. All cafeterias, including the dep- artmental canteen in the Court premises and the Supreme Court Museum, remain closed. The guided tour in the Court too has been suspended. The Court premises have been stocked with alcohol-based sanitisers and all common Coronavirus Plagues The Court System Judgesandlawyersincourts arestrugglingtodispense justiceevenasthefearof transmissionofthevirus takeshold.Sobenchesare beingreduced,crowds curtailedandonlyurgent matterslisted By Srishti Ojha T Anthony Lawrence
| INDIA LEGAL | March 30, 2020 15 areas such as restrooms, corridors and staircases are to be sanitised on a daily basis. In addition, a self-declaration form has been introduced for entry into the premises. Details regarding a visit to a foreign country in the last 15 days and any symptoms of fever, sore throat, runny nose, cough or breathing problems have to be filled in. The Court has also asked everyone to be well aware of the regulations issued in this regard, particularly on “screening” and “dealing with suspect and symptomatic cases”. It has also said that the guidelines for home quarantine, use of masks by the public and do’s and don’ts issued by the health ministry be followed. Every person entering the Supreme Court has to subject himself to thermal screening and if anyone is detected with high body temperature, he will not only be denied entry but be subject to the standard operating procedure prescribed by the health ministry. All lawyers and litigants from across the country who want to avoid visiting the Court will be allowed to do so on request and their matters will not be listed. All those entering the Courts have been advised not to crowd at any spot to ensure their safety and that of others and to exit as soon as their official business is over. In a direct interaction with journal- ists in the Court, Chief Justice of India (CJI) SA Bobde agreed that there would be a daily briefing of the day’s news and prompt uploading of orders on the website. He also stated that restrictions due to COVID-19 cannot be relaxed for jour- nalists. The CJI had called an urgent meeting to discuss the steps required to be taken for the functioning of all courts in the country in the wake of the corona-virus. It was attended by Justices Arun Mishra, UU Lalit, DY Chan- drachud and L Nageswara Rao. He had stated that there cannot be a complete shutdown of courts but a limited one is required as virtual courts are on the verge of commencement. Justice Chandrachud, being the chairman of the Supreme Court E-Com- mittee, has assured that soon people-to- people contact will be reduced and video-conferencing will be introduced where separate rooms for the counsel for each of the parties will be made available in the apex court premises. CJI Bobde along with Justices Nageswara Rao, Ashok Bhushan and Sanjay K Kaul took a round of the Supreme Court to ensure that the directions issued by the Court were being followed by lawyers. They took note of crowd management and other matters and questioned lawyers on why the Court was still crowded. S afety measures are also being taken by the High Court and district courts. Through a notification on March 13, the Delhi High Court informed that it would only be hearing matters which are urgent and dates would be given in routine matters before the Court assembles. It also issued an advisory to district courts that they should not insist on the presence of parties unless unavoidable and appropriate measures should be taken to regulate the entry of litigants and the public in the court complex to avoid overcrowd- ing. In the absence of the parties concerned, adverse orders shall not be passed by courts and adjournments should be allowed, it said. Written submissions should be called for and the time for oral submissions should be reduced. Video-conferencing should be put to optimum use for the purposes of recording of evidence and physical production of undertrials from jails should be avoided. District and sessions judges were also advised to consult prison authorities and take steps to curtail unnecessary crowd- ing in lock-ups. The High Court has also advised that medical dispensaries in courts should be equipped to deal with the present situation, sanitisers be made available for everyone and the house- keeping staff be asked to ensure that the highest level of hygiene is maintained in the court complex and disinfectants sprayed on a regular basis. CJISABobdeagreedtoadailybriefingof theday’snewsandpromptuploadingof ordersonthewebsite.Hecalledan urgentmeetingtodiscussthesteps requiredforthefunctioningofallcourts. BETTER SAFE THAN SORRY A doctor measuring the temperature of a woman at the Allahabad High Court entrance UNI
Lead/ COVID-19 & Judiciary 16 March 30, 2020 Meanwhile, this outbreak has even affected exam schedules. The Delhi Hi- gher Judicial Service (Mains) Examina- tion-2019, scheduled to be held on Mar- ch 14 and 15, and the viva voce of the Delhi Judicial Service Examination- 2019, scheduled to be held from March 23, have been postponed. New dates will be notified later. The Coordination Committee of the District Courts also passed a resolution on March 15 requesting that court buil- dings be sanitised regularly, temperature guns be used at the entry gates and lawyers be asked to not gather in groups. Lawyers of district courts have been asked to abstain from work and attend urgent hearings only such as bail, stay, etc. The advisory has also requested judges to not order any dismissal on grounds of default or have evidence recorded, consider the applications for condonation of limitation period and adjourn regular matters. I n the case of National Company Law Tribunal (NCLT) benches, they will only take up matters which require urgent hearing on request by the concerned parties. It will adjourn the remaining matters listed before March 27 and parties and counsel presence will not be compulsory. An NCLT notice also directed that there be restricted use of air conditioners as low temperatures could aggravate the problem. The National Consumer Commission too has decided to adjourn all matters till April 15 and will only hear urgent matters. For the convenience of counsel, the Commission has clarified matters that will be treated as urgent matters, including the stay of arrest warrants, orders which cannot be deferred till the next hearing, etc. Urgent matters will only be listed after prior approval of the listing officers and filing of an affidavit by the applicant. The Commission has also directed that only advocates who have to argue, along with one party, will be allowed to enter the courtrooms. Fresh matters will only be filed and not listed till April 15. The Commission has also clarified that any person suffering from COVID-19 or showing symptoms like fever, dry cough or breathlessness will not be allowed to enter the premises. Also, advocates and litigants entering the Commission have to ensure that no material filed or brought by them is con- taminated in any manner. The fear of the coronavirus has begun to grind the scales of justice as judges and lawyers struggle to balance the constitutional rights of people against the concern of transmission to multiple people. But the steps that are being taken are required considering the number of identified cases of COVID-19 in India, the severe risk it poses to the public and the recommendations of public health authorities. Punjab and Haryana High Court: Instructions from the Court said rotation arrangement of offi- cials in different sessions divisions be made to reduce footfall in the premises and all regular listed cases be adjourned. All fresh criminal and civil matters will be listed by mentioning only. Medical teams with thermal guns will be dep- loyed at each entry gate and litigants will not be required to come unless specifically ordered. Bombay High Court: Courts in the High Court as well as benches will listen only to urgent matters, entry of litigants is restricted and orders of ad interim and interim relief shall continue to operate. Madhya Pradesh High Court: Only cases filed in 2020 will be listed in the daily causelist while those filed up to 2019 will stand adjourned. Work will be restricted to urgent matters. The presence of parties must not be insisted upon. High Court of Meghalaya: Only urgent matters to be taken up to avoid mass gathering, video-conferencing to be used at the lock-up, screening for everyone entering the Court, premises to be vacated at 6 pm and sanitised thereafter. Patna High Court: Organise an awareness camp in the premises, physical presence of parties not to be insisted upon, entry of litigants and the public to be regulated, mediation proceedings to be postponed and no functions to be organised. Kerala High Court: Total restriction on entry unless summoned by the Court. Mediation and adalat proceedings to be suspended, frequent sanitisation and thermal screening to be ensured. High courts all over the country have released a slew of instructions to curb the spread of the coronavirus Highcourtsonalert TAKING PRECAUTIONS A nurse uses a thermal screening device on an advocate inside the Patna High Court UNI
Bringing You The Stories That Count An ENC Publication To Stay Abreast With Today, Pick Up Yesterday’s India Legal ONLY THE STORIES THAT COUNT Every week India Legal will bring you news, analyses and opinion from the sharpest investigative reporters and most incisive legal minds in the nation on matters that matter to you Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends NDIA EGALL STORIES THAT COUNT I March23, 2020 JusticeVenkatachaliah,whoservedaschiefjusticeofIndia,isoneofIndia’smostrespectedjurists.Anavid championofhumanvaluesandrights,hespoketo RAJSHRIRAI,MD,INDIALEGALonthejudiciary,religion, Ayodhya,upbringingofchildrenandwhytheSupremeCourtshouldbetrustedtodotherightthing JusticeVenkatachaliah ‘‘KeepFaithin theJudiciary’’ Coronavirus: India’s opportunity Exclusive Interview
Lead/ Column/ Coronavirus & Quarantine Laws Dr KK Aggarwal 18 March 30, 2020 TALY counts its dead at over 2500 with its stretched resources struggling to grapple with a gargantuan medical crisis sparked by the coronavirus. Reports have emerged that anyone showing symptoms of the disease who refuses to self-isolate risks being charged with causing injury and being jailed for six months to three years apart from being slapped with a fine. And if a “careless” coronavirus suf- ferer goes on to pass the bug to an elderly person or someone made vulnerable by a pre-existing health condition, they can be charged with “intentional murder” and can spend up to 21 years in jail. Other countries are no less strict when it comes to dealing with such cases, though not surprisingly, the Chinese hand out the harshest punish- ments. China which had similarly threatened execution and long jail sen- tences during the 2002-03 SARS epidemic for anyone avoiding quarantine and spreading the disease has said it would severely punish 36 crimes related to the prevention and control of the epidemic in accordance with the law, in which violators could face the death penalty. Spreading rumours about the outbreak has been linked to “subversion of state power” and will attract swift and harsh punishment. In the United States, depending on state and local statutes, individuals could face fines, criminal charges, and even jail time for breaking quarantine. According to the Centre for Disease Control and Prevention, “federal, state, or local public health orders may be issued to enforce isolation, quarantine or condi- tional release.” In Hong Kong, police nabbed a part-time security guard at a shopping mall for allegedly writing on social media that multiple staff members had caught a fever and gone on sick leave. The messages “caused panic” and helped “breed paranoia”. Singapore imposes severe penalties for non-compliance with the quarantine order, including fines or jail time. In Saudi Arabia, a fine of up to 500,000 riyals ($133,000) is imposed on people who do not disclose their health-related information and travel details at entry points. In India, the central government has taken several measures to deal with the epidemic, including setting up of quarantine facilities and rescuing Indian citizens stranded abroad. Both the centre and state governments are empowered to regulate health-related matters. The Epidemic Diseases Act is the main legislative framework at the cen- ToughlawsexistinIndiatodealwithviolationof quarantineandisolationnormsbutitdoesnot appearasifanyonehasbeenpunishedfor non-compliance I tral level for the prevention and spread of dangerous epidemic diseases. The Act empowers the central government to take necessary measures to deal with dangerous epidemic disease at ports of entry and exit. The Act also empowers the states to take special measures or promulgate regulations to deal with epi- demics within their state jurisdictions. Powers executed by the Union home secretary under the disaster management Act were “delegated” to the health ministry to enhance preparedness against the coronavirus outbreak. The Union home ministry order said the powers are exercised by the Union home secretary under Section 10 of the Act and he being the Chairman of the Corona And Punishment
or vessel leaving or arriving at any port and for the detention of any person arriving or intending to sail. Any person who disobeys any regulation or order made under the 1897 Act may be charged with an offence under Section 188 of the Indian Penal Code. It is not necessary that the offender should intend to produce harm or contemplate his disobedience as likely to produce harm. It is enough that he knows of the order which he disobeys, and that his | INDIA LEGAL | March 30, 2020 19 National Executive Committee (NEC), the powers are vested with him. Under the Epidemic Diseases Act 1897, thus, any state government, when satisfied that any part of its territory is threatened with an outbreak of a dangerous disease, may adopt or authorise all measures, including quarantine, to prevent the outbreak of the disease. S imilarly, the central government, when satisfied that there is an imminent threat of an outbreak of an epidemic disease and that the provisions of the law at that time are insuffi- cient to prevent such an outbreak, may take measures and prescribe regulations allowing for the inspection of any ship DEALING WITH A PANDEMIC People wearing masks waiting in queue at Patna airport to get tested In the time of the coronavirus, pan- icky people have tried to escape quarantine and invited legal action An 18-year-old Kolkata patient of COVID-19, the son of a top bureaucrat in West Bengal, has reportedly flouted norms on returning from the UK. He was advised by airport authorities to get admitted to Beliaghata ID Hospital on March 15. He reportedly defied the authorities and went on with his social life and met many people. Finally, on March 17, the state health department forced him to get admitted, following which he tested positive. A Briton, part of a travel group, was among 20 passengers who were offloaded from a Dubai-bound Emirates flight at Kochi airport. He was under quarantine at a Kerala resort but left it and reached Kochi. Authorities stopped the plane and deplaned him. Meanwhile, the resort was closed even as the staff there expressed displeasure that they were not advised properly. Authorities were thinking of taking legal action against the Briton for violating the Public Health Act, the travel agent who coordinated the tour programme and the manager of the resort. A woman and her husband, a Google employee, returned to Bengaluru after a honeymoon in Italy. While the husband, who tested positive, was placed under quarantine, she took a flight to Delhi and then a train to Agra and hid in her parental home. It was only after the police was called in that she was taken to an isolation ward. As she and her father had misled authorities, they have been booked by the police under the Epidemic Diseases Act, 1897. A man under observation in the isolation ward of a district hospital in Pathanamthitta, Kerala, fled, but was tracked and brought back within hours. A couple from the US who had symptoms linked to the coronavirus were traced to Kochi international airport and put under isolation after they fled Alappuzha Medical College. Trackingthemdown UNI
20 March 30, 2020 disobedience produces, or is likely to produce, harm. Such offence, at the dis- cretion of the trial magistrate, may be tried summarily. No suit or legal pro- ceeding lies against any person or authority for anything done, or in good faith intended to be done, under this Act. U nder Section 270 of the Indian Penal Code, whoever malig- nantly commits any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. So far, testing in India has been done mostly on visitors coming in from abroad. The process involves a health officer who is appointed by the central government posted and empowered at the port of entry. The health officer may demand to see the aircraft journey log- book, which shows the places the aircraft visited. He may also inspect the aircraft, its passengers, and its crew, and subject them to medical examinations after their arrival. The officer must follow specific precautions about communicable diseases that require a period of quarantine (such as yellow fever, plague, cholera, smallpox, typhus, and relapsing fever) and other infectious diseases that do not require a period of quarantine. He may prohibit the embarkation on any aircraft of any person showing symptoms of any quarantinable disease and any person whom the health officer considers likely to transmit infection. Regulations require that airline staff report any suspected cases or passengers who in their opinion, from observations made in-flight, may be suffering from symptoms of a quarantinable disease. It is argued that quarantine affects the fundamental right “to move freely throughout the territory of India.” However, this right is subject to reason- able restrictions that the state may impose in the interest of public health. The Epidemic Diseases Act also gives wide-ranging powers to the states. In such emergencies, the state may delegate some of these powers to the deputy commissioners in the districts typically through state health acts or municipal corporation acts. A state government may also take measures and prescribe regulations for the inspection, vaccination, and inoculation of persons travelling by road or rail, including their segregation in a hospital, temporary accommodation, or otherwise, if such persons are suspected by the inspecting officer of being infected with any such disease. A state government, by general or special order, may also empower a deputy commissioner to exercise, in relation to his district, all the powers under Section 2 of the 1897 Act that are exercisable by the state government in relation to the state, other than to deter- mine the manner in which and by whom any expenses are to be defrayed. Many of these powers are prescribed in municipal corporation acts governing “major municipal areas,” or public health acts that also provide municipal- level commissioners or collectors with quarantine or other powers. These can be in relation to removal of a person to separate premises for medical treat- ment, cleansing or disinfecting any building or part of any building or any articles, taking special measures in case of the outbreak of dangerous or epidemic diseases. The ambit of Section 2 of the Epidemic Diseases Act is wide enough to allow a state or a lower functionary in the administration, in dealing with an emergency caused by the outbreak of a dangerous disease, to seek or require the cooperation of the public or corpo- rate bodies in the public or private sectors. If the desired cooperation is not forthcoming, a regulation may be imposed. Failure to obey or comply with restrictions imposed by such a regulation constitutes a punishable violation. Violations of quarantine laws (see box) have been reported from some places in India but it does not appear as if anyone has been punished. —The writer is President, Confederation of Medical Associations of Asia and Oceania, and Heart Care Foundation of India and a former national President, IMA TREADING WITH CAUTION An elderly woman being screened by authorities before entering an airport Lead/ Column/ Coronavirus & Quarantine Laws/ Dr KK Aggarwal UNI
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Lead/ Opinion/ COVID-19 S Narendra 22 March 30, 2020 HE government of India has done well to declare the existential threat of corona virus-19 (CV-19) a national disaster. There could be two opinions about the adequacy of measures taken so far to protect people against this pandemic. It is well to remember that it has overtaken the seven continents with the least warning and overwhelmed most countries’ governments. Countries with enormous financial and health-related resources are finding it difficult to cope with the CV-19 challenge. It is a time for citizens to proactively support the official measures by following the guidelines regarding personal hygiene and social distancing. The latter is a tough call in a densely populated country like India where people live cheek by jowl. The burden of keeping the virus away largely falls on the individual and the family, calling for a total transformation of social and personal behaviour. As of now, the government’s attention is concentrated on putting in place policies and programmes to control its spread and on mitigating the pandemic’s adverse effects on the economy and people’s livelihoods. India, like many other countries such as China, the US, Britain and members of the European Union, is contemplat- ing fiscal and monetary measures to stimulate the economy. As many econo- mists have said, economic theory has no answers as it has never faced, nay, never contemplated the dislocation of life caused by the CV-19 pandemic. It is outside the demand-supply framework (the invisible hand of market forces) of the discipline. Noted American economist Tyler Cowan in a recent online post wrote Lessons from its Freakonomics Thenationaldisasterhasledtoconsequenceswhichpolicymakers shouldlookat.TheseareinadequaciesinIndia’shealthinfrastruc- ture,deficienciesindistanceeducationanddistressamongSMEs T
| INDIA LEGAL | March 30, 2020 23 that basic economic concepts like “inflation” are no longer useful when toilet paper, face tissues, sanitisers, soaps and masks become more valuable than the commodities in the normal basket of goods whose prices are studied for measuring inflation and adjusting lend- ing interest rates. G overnments are now required to deal with a hydra-headed problem on an emergency basis. CV-19 has arrived on the back of an economic slowdown that had drastically reduced the government’s revenues. The shutdown of vital economic activities in most sectors due to the pandemic will further dim governments’ revenue outlook. It is a double whammy because now they are required to deal with a many-headed problem using massive resources. Considering the enormity of the challenge, they will do well not to rush to bail out businesses which are making the most noise. Perhaps, the outlines of the economic and social chal- lenges are yet to emerge fully in order for a measured response to be thought of. The world, including India, seems to be headed for the long haul. There are likely to be some unin- tended consequences from the ongoing “national disaster” which may need to be reckoned by policymakers. Such consequences are studied under the title of Freakonomics by some noted econo- mists. CV-19 is exposing in both rich and poor countries massive inadequacies in health infrastructure, a key con- tributor to any nation’s human resources. It will do a lot of good if the media and experts are allowed to put the In- dian public health infrastructure and the economic model that tilts it in fa- vour of privatising health to a lot of public scrutiny. Perhaps, for the first time, the nation will be X-raying this sector, hopefully gaining it the priority it deserves in central and state budgets. Many health sector experts have lamented that the centre and state governments’ combined expenditure on health is far lower than India’s neigh- bours’. Economist Joseph Stiglitz has said that the trend of moving away from public to private healthcare in India was pushing more people into poverty fast. The present situation is a great opportunity for bringing back healthcare into the national political agenda. Unfor- tunately, the gains in the health sector are post-dated, invisible and offer less scope for political kickbacks that accrue from building physical infrastructure. Hence, it tends to receive lip-service. The COVID-induced closure of educational institutions also offers an opening for examining the deficiencies of distance education and utilising the tre- mendous possibilities offered by technology for delivering quality education and skills to the masses at less cost. Its quality has to be improved vastly and used for improving the standard of education imparted in government schools and colleges. The government, academia and technology innovators need to be brought together to collaborate in this sector. If governments care to use a significant part of the stimulus money for the above two objectives, it would improve India’s competitive advantage, encashing the available demographic dividend. A third priority should be to bring relief to the informal sector due to the shutdown. This sector provides the bulk of employment to about 472 million people. The formal sector accounts for just 10 percent of jobs but has more A HYDRA-HEADED PROBLEM (Below left) Ward boys and nurses oversee preparations in an isolation ward related to the coronavirus at a Lucknow hospital; a nurse thermal screening a patient in Patna CV-19isexposinginrichandpoorcoun- triestheinadequaciesintheirhealth infrastructure.Perhapsforthefirsttime thenationwillbeX-rayingthesector, hopefullygivingitthepriorityitdeserves. Photos: UNI
24 March 30, 2020 voice in policymaking. The economic distress caused to workers who have no job guarantees and no social security cover is unimaginable because of the shutdown. Going by the experts’ opinion, the COVID emergency could last fairly long. Announcements such as facilitating more credit to SMEs are conventional solutions which may not be adequate in this dire situation. The livelihood of a huge number of wage earners whose only tradable asset is physical labour is under threat. How to fulfil their basic food needs requires immediate attention. One does not know whether governments should consider opening something like free soup kitchens. In New York, according to a New York Times report, some 7,50,000 schoolchildren were depend- ent on their school which provided one daily meal. The shutting down of schools has deprived them of this. If that is the situation in the US, imagine the plight of children and their families in India who have no daily, regular wage-earning work. This is mentioned here mainly to point out the enormity of the problems facing the polity. T here was a report that the air quality over China had improved due to the COVID 19-induced lockdown. Ironically, global warming effects will be less due to the economic shutdown. Every past year this millenni- um has seen an increase in global temperature; 2020 may be an exception. This is one of the Freakonomics effects. Policymakers, if so inclined, can draw some lessons and build them into post- COVID policies. CV-19 is compelling us to change our social and personal behaviour. We have the option to resume our life with business as usual in the post-COVID era, leaving our fate and that of the universe to market forces and climate change. We also have the option, having come out of an existential threat, to modify our lifestyles which were defined by instant gratification of wants and adopt a more environment-sustainable one. One hopes that traditional economic theory, hinged to consumption-based capitalism that shapes government policies, learns lessons from the COVID crisis and its consequences for people whose life is on the fringes of the market forces but who are vital to the overall economy. The challenge posed by COVID-19 has to be fought at the state, district and village level without a clash of political egos. In this humbling moment in the nation’s history, the sagacity of leaders in Delhi and state capitals will be tested. It is time to show a shared vision and resolve for infusing confidence in the people that the political system is united in navigating them out of the pandemic. —The writer is a former information adviser to the PM and a government spokesperson Lead/ Opinion/ COVID-19/ S Narendra Theclosureofeducationalinstitutions duetoCV-19offersanopeningfor examiningthedeficienciesofdistance educationandusingtechnologyto deliverqualityeducationatlesscost. TOUGH BUT NECESSARY (Left) Citizens must follow the guidelines on personal hygiene and social distancing; Union Health Minister Harsh Vardhan has laid stress on community surveillance
Lead/ Global Trends/ Corona Effect 26 March 30, 2020 T would be comedy if it weren’t so painful and deadly. People strip- ping grocery store shelves bare of toilet paper and hand sanitiser. A virus from China named like Mexi- co’s Corona beer brand has brought the United States to a state of siege where the economy is crashing, people are dying and with it diminishing opti- mism among Donald Trump’s advisors and pundits that he can be reelected. You cannot gaslight a pandemic. The states of New York, Connecticut and New Jersey have ordered restau- rants and clubs to only provide take- away, no sit-down dining or entertain- ing. A few days ago, a drive into New York City and a walking tour indicated that the Big Apple had lost something, as Broadway shows were closed and now the restaurant ban is in effect. The Broadway show closings alone put nearly 250,000 people on leave, most of whom do not get paid if they don’t work. Add in all the support businesses—suppliers of services to the hospitali- ty business—and it becomes quickly obvious that without the bells and whis- tles, New York City is a very quiet and dismal place. US Lockdown Theimpactofthecoronavirus,financiallyandpsychologically, isgoingtolastalongtimeandchangeAmericaforever By Kenneth Tiven in Washington IA THOUSAND WORDS (Above) The desolate streets of New York City, the empty Columbia University quadrangle and empty shelves at a store after shoppers grabbed almost everthing due to the anxiety caused by the coronavirus
particularly ineffective given the mag- nitude of the problem. There’s a lot of confusion about respirators vs ventilators. And it comes from a lack of understanding just how few hospital beds exist in a nation of 330,000,000 people. Respirators protect the doctors, allowing them to breathe safe, filtered air. Critically ill patients require venti- lation—hence ventilators, a shortage that directly results in death. Indirectly, the respirator shortage will result in infected healthcare workers, some of whom will die. Memories and anger are long-lasting when loved ones die and fail to make the graduation ceremonies. The impact, both financially and psycholog- ically, is going to last a long time and change America forever. The question no one can answer right now is in which direction. — The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels | INDIA LEGAL | March 30, 2020 27 A Friday afternoon felt like an early Sunday morning, not much traffic, a few people jogging in Central Park, while others sat on the steps of closed muse- ums and art galleries. On a warm March day, the Columbia University quadrangle was empty. Usu- ally it would have been filled with students relaxing in the 17-degree Celsius sunlight. Schools across America have been shut for the foreseeable future. Will there be graduation ceremonies in May as promised by a Columbia poster? Doubtful and with it goes an entire sub- set of business services that make grad- uations festive, from caps and gowns, to all the food and drink served outdoors to the graduates and their families. All of this was in stark contrast to New York City in the days after the 9/11 terrorist attacks on the World Trade Center. Then the resilience and bravado of Americans was on full display with flags and signs and a desire to rebuild quickly. Now an air of resignation ele- vated by fear is on display. New York Governor Andrew Cuomo, a Democrat and son of a famous former governor, took a very proactive position from the start of the health crisis, while criticising President Trump’s lack of political leadership. Cuomo emphasised that the priority must remain slowing the spread of the virus, saying: “You are past the time of monetising these decisions. You are at a point of deciding: how many people are going to live, how many people are going to die?” T he imposition of behavioural controls doesn’t conform to the mythology of America—wide- open roads and spaces, a go anywhere, do anything, wherever you want to sort of a place. And more distressing to some is that this is an unseen assailant that knows no class or geographic boundaries. What we do know is that it has a higher fatality rate among elderly people, especially those with underlying health issues. For several weeks, the president of the United States kept insisting that it was just like the flu. It is not flu, it is a lung disease. For the most part, the health experts assembled around Trump kept their mouths shut, with only grim faces and crossed arms con- tradicting him. The American health system looks Forseveralweeks,USPresidentDonaldTrumpkeptinsistingitwasjustliketheflu.But itisnotflubutalungdisease.Forthemostpart,thehealthexpertsassembledaround himkepttheirmouthsshut,withonlytheirgrimfacescontradictinghim. UNI NewYorkGovernorAndrewCuomo tookaveryproactivepositionfromthe startofthehealthcrisis,whilecriticising PresidentDonaldTrump’slackof politicalleadership.
My Space/ Supreme Court Annual Report 2018-19 Prof Upendra Baxi 28 March 30, 2020 HE Supreme Court has begun issuing annual reports concerning the administration of justice by it and High Courts since 2015-16, but the media and academic journals have largely maintained an unwelcome discreet silence about these. This frustrates a great innovation; indeed, I recall as a compar- atively young research scholar that I had to perform almost Heraclitan labours in the eighties even to obtain the irregular- ly published annual reports on administration of justice by High Courts! Diffi- culties of access accompany even the new legal regime of right to information. Now, this goldmine of information is simply available at the click of a digi- tal mouse! In introducing the 2018-2019 Re- port, Chief Justice Sharad A Bobde has expressed the institutional commitment of the judiciary towards “a democratic discourse between all stakeholders of the Indian Judiciary” and articulated a hope that this “periodic stock-taking of our role as ‘Guardians of the Consti- tution’ as entrusted on us by the Cons- titution of India” will generate and nourish “a symbiotic relationship” among all “stakeholders” in the “actualisa- tion of goals set by the Constitution”. One hopes that this relationship is enriched by not only a close study by many publics, including all sections of the Bar, but by law schools, judicial academies and students of judicial process and power everywhere. An Annual Report comprising 335 pages, with 157 dedicated to the Sup- reme Court (which this article engages here because of space constraints), and replete with crucial information about the judicial system, its achievements and technological and managerial innovations makes a fascinating but difficult reading. Difficult because it is at once a medium that clarifies but also obscures information; the interplay of creative and censorious aspects deserves notice. For example, most Indians would never have known that Mohandas Gandhi appears twice in the Court’s architecture. He appears first in “a beau- tiful mural of coloured porcelain tiles in the Judges Gallery, with the Goddess of Justice on the right”. This juxtaposition is of great significance for achieving the constitutionally desired social order, an expression that I developed as early as 1967! And second, while one does not even know why the statue of Mohandas Gandhi was installed as late as August 1, 1996, in the lawns of the Supreme Court, one at least knows now that it “was sculpted by the renowned artist Fredda Brilliant Marshall”. Khushwant Singh wrote: “The memory of her stand- ing stranded behind a giant copy of the statue of Gandhi stuck between the front door and her studio remains a telling image of her constant struggle with her art and the world about her.” In different ways, the ascetic Mahatma and the woman artist thus signify a potent symbol of gender equality and justice. The reason given why the Goddess of Justice is not blind-folded “is that as per Towards Democratic Judicial Accountability Thisgoldmineofinformationisrepletewithcrucialinformationaboutthejudicial system,itsachievementsandinnovations.However,wemuststudybothwhatit choosestosayandwhatitdoesnot... T
| INDIA LEGAL | March 30, 2020 29 Vedic sutras, the deity of Justice does not close its eyes but allows the graceful rays from its eyes to illumine the administration of justice”. This re-symboliza- tion is of great value, and not just for the miniscule visual anthropologists! So is the annotation that the inscrip- tion surrounding Dharma Chakra (Wheel of Justice) with 24 spokes is in Sanskrit: “Satyamevoddhaharamyaham” which means “Truth alone I uphold”, which applies to judicial duty and valour as well. What impact this summation has on the Bench and the Bar remains a formidable theme. An ordinary citizen would also never have known that there was such a deep affinity between pigeons and doing of justice! But we now authoritatively learn that among the recent initiatives is a “pigeon protecting mechanism” installed “outside Court Nos. 16 and 17 on trial basis”. Doves proverbially carry a message of peace, within which alone justice and good order remain possible. One also hopes that Article 51—fundamental duty of all citizens to develop “compas- sion for all living beings”—is fully borne in view. The Report mentions all the present justices of the Supreme Court and High Courts, which covers 2018-2019. The periodic and piecemeal increase in judge–strength (from eight Justices to 11, 14, 18, 26, 31 and now to 34), is, of course welcome. But we still do not know how far the exertions by the Law Commission, especially by Justice DA Desai (Report 120, 1987) and reinforced by Justice AP Shah (Report 245, 2014) were guided by any sense of judicial “manpower” planning. Pending a full examination of the comparative figures, it may be said that the Collegium system has achieved a five+ years tenure. This compares rather favourably with the system of executive- dominated appointment system. S pectacularly, the learned chief justice will have nearly served full eight years when he lays down the august office on April 23, 2021. Among Justices who would have served the Court for eight plus years by the time they retire are Justices NV Ramana, Dr DY Chandrachud, Uday Umesh Lalit and Surya Kant. Justices with a six-year- plus tenure are 12, whereas the rest mainly serve about four years. Second, of the 46 chief justices of India (excluding the present CJI), only Justice YV Chandrachud served as CJI for more than seven years, while Justice Bhuvneshwar Prasad Sinha served for five+ years and Justice AN Ray nearly for four years. A considerable number enjoyed nearly a three-year term. The median term is 1-2 years with some exasperating terms as short as a few weeks or months. While the Report has to let facts speak for themselves, further institutional development of the judicial Collegium system must consider the issue of appointment of justices in such a way as best promotes stability of leadership by ensuring at least a two-year term as CJI. One advantage of the frequently proposed extension of the age of superannuation to 70 is that it provides just this sort of stable leadership. Third, there are only three women judges (Justices Banumathi, Indu Malhotra and Indira Banerjee). Justice Banumathi completes her term (on July 19, 2020) with a six-plus year tenure, probably the longest for a woman justice (See my comment in the India Legal issue of November 26, 2018). It is significant that the Collegium left it to the leadership of CJI Dipak Misra to make two further appointments, one from the Bench and the very first from the Bar LONG INNINGS (From below left) Of the 46 CJIs (excluding the present one) only Justice YV Chandrachud served for more than seven years; Among SC judges who will serve for eight-plus years by the time they retire are Justices NV Ramana, UU Lalit, Dr DY Chandrachud and Surya Kant ThereasongivenwhytheGoddessof Justiceisnotblind-folded“isthatasper Vedicsutras,thedeityofJusticedoesnot closeitseyesbutallowsthegracefulrays fromitseyestoilluminetheadministra- tionofjustice”.
30 March 30, 2020 (Justice Malhotra). The Report does not disclose allegations against the then CJI Ranjan Gogoi in a workplace sexual harassment case; these were examined, by an administra- tive committee of the Court comprising Justices Bobde, Indira Banerjee and Indu Malhotra. Ordinary citizens would never know why it closed the matter because the entire proceedings and the final decision remain shrouded in silence and secrecy. The annual report does not provide information on the performance of its own committees on sexual harassment at the workplace nor does it offer information on whether deliberations are underway to devise a procedure that is fair and accountable for the future. Surely, so crucial a matter as allegations of sexual harassment in the court precincts deserves the dignity of reasoned elaboration and an articu- late procedure for all is certainly over- due after four decades of the Mathura Open Letter written by four law aca- demics (1979) and especially after the landmark Visakha ruling (1997). The Report gives ample details on arrears, workload and disposals; this is welcome and it is good news that the judiciary is now fully alive to this matter. While this calls for a detailed analysis, we cannot but help noting that a large number of cases are awaiting disposal for over ten years! Most welcome would have been an indication of the variety of these matters and of final disposal. And simple announcements like the creation of single-judge benches (to hear transfer matters and bail cases carrying up to seven years imprisonment) do not give us rea- sons why this is a worthy measure and why it took five years to notify this amendment to the Supreme Court Rules! C hapter 14 lists 16 “landmark judgments” which overall give a sense of the astonishing norma- tive work thus accomplished. Naming many of its leading judgments would be an easy task—for example, related to sexual minorities, leprosy patients, adul- tery, right to privacy, experimental intra- net access, restricted availability of live streaming of judicial proceedings, bar girls and the jurisdiction under the Right to Information Act as applied to the Supreme Court. But that cannot be said for all the hits and misses! True, the criterion for selection of decisions as “landmark judgments” even when explicated will also remain a con- tested terrain. But, for example, Item 13 referring to the case filed by Dr Ashwani Kumar for certain facilitative and enab- ling directions for a standalone com- prehensive legislation against custodial torture on the basis of a UN Convention on Torture remains incomprehensible. It is a very odd “landmark”, given other feats and feasts of interpretation. The Court held that it would not be “appropriate … to enforce its opinion, be it in the form of a direction or even a request, for it would clearly undermine and conflict with the role assigned to the judiciary under the Constitution”, although it would continue to deal with individual cases. How even a judicial request for significance may violate constitutional judicial role remains a mys- tery. The oddity lies not in judicial self- restraint as such but in the celebration of judicial comity with the executive, even as regards a core dignity—reinforc- ing right against torture which some eminent international lawyers suggest rightly has already become an aspect of international customary law. —The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer My Space/ Supreme Court Annual Report 2018-19/ Prof Upendra Baxi WOMEN POWER The Report mentions only three women judges in the SC—(from left) Justices Banumathi, Indu Malhotra and Indira Banerjee Thereportdoesnotprovideinformationon itsowncommitteesonsexualharassment attheworkplacenordoesitoffer informationonwhetherdeliberationsare underwaytodeviseaprocedurethat’sfair.
NDIA EGALEEL STORIES THAT COUNT NI February17, 2020 AQuestion ofBailAfive-judgeConstitutionbenchtakesafreshlookatpre-convictionbail.Byinsistingon avoidanceofreflexivereasonsfordenyingbail,theapexcourthasactedprogressively, saysProfUpendraBaxi Chhattisgarh: The Scam of all Scams 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 ct ha NDIA EGALEEL STORIES THAT COUNT NI February24, 2020 OutingtheCriminalsFlaggingan“alarmingriseinthecriminalisationofpolitics,”theSupremeCourtlays downstrictinstructionsonmakingpublicdetailsofacandidate’scriminalhistory. Whatimpactwillithaveonpoliticalpartiesandfutureelections? Shiv Visvanathan on Shaheen Bagh Mothers GAL m””t”t id tu NDIA EGALEEL STORIES THAT COUNT NI March2, 2020 TheIronFistIncreasingly,Section144isbeenusedbypoliticiansandbureaucratsto deprivecitizensoftheirfundamentalrights.Nowthecourtshavesteppedin tostemthemisuse,butisitenough? Justice Chandrachud: “Dissent not anti-national” GAL an ou ? NDIA EGALEEL STORIES THAT COUNT NI March9, 2020 Judiciary’sRoleina ChangingWorld TheInternationalJudicialConference2020wasthefirstofitskindorganisedbytheSupreme Courttodiscusscontemporarychallengestothejudiciary.Therangeofspeakers,fromthe chiefjusticeofIndiaandotherseniorjudges,gavevaluableinsightsontohowthecourtsview theirresponsibilitiesinrapidlychangingtimes Coronavirus: How prepared is India? GAL eee o or nge so es NDIA EGALEEL STORIES THAT COUNT NI March16, 2020 LawandDisorderCrucialmattersthatcameupintheSupremeCourtandDelhiHighCourtindicateacrisisinIndia’s basicgovernance.TheCrPCandPoliceActsclearlylaydownthatitisthejobofDMsandSDMsto maintainlawandorder,buttheirrolehasbeentakenoverbythepolicewithquestionableresults Fast Track Courts: New scheme GAL ootturtt sthh ce NDIA EGALEL STORIES THAT COUNT NI March23, 2020 JusticeVenkatachaliah,whoservedaschiefjusticeofIndia,isoneofIndia’smostrespectedjurists.Anavid championofhumanvaluesandrights,hespoketo RAJSHRIRAI,MD,INDIALEGALonthejudiciary,religion, Ayodhya,upbringingofchildrenandwhytheSupremeCourtshouldbetrustedtodotherightthing JusticeVenkatachaliah ‘‘KeepFaithin theJudiciary’’ Coronavirus: India’s opportunity Exclusive Interview DIIAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA EEEEEE
32 March 30, 2020 As in all global crises and pandemics, the urge to find scapegoats and apportion blame leads to bizarre, unsubstantiated conspiracy theories. That is exactly what is happening in the wake of the coronavirus outbreak as China and the US blame each other. The spokesman at the Chinese Ministry of Foreign Affairs, Lijian Zhao (above right), has claimed that “it might be the US Army who brought the epidemic to Wu- han…. US owes us an explanation!” He then quoted a report from the Center for Research on Globalization, a Canadian- based outfit that promotes conspiracy theories that generally align with Russian prop- aganda, which said that the virus originated in the US. The US, led by President Donald Trump, directly blames China while conser- vative politicians and pundits claim that the Coronavirus is a bio-weapon which may have been developed in a scientific labora- tory located in Wuhan. Republican Senator Tom Cotton has repeatedly suggested in Congress and on talk shows that the virus could have come from the Wuhan lab. President Trump repeatedly calls Covid-19 “the Chinese virus,” a phrase echoed by Secretary of State Mike Pompeo. The conspiracy theories have been debunked by respected journal Nature Medicine, which revealed that scientists, using public genome sequence data, have confirmed that the virus was a result of “natural processes,” subsequently backed by other credible scientists, communicable disease experts and specialised publications. International Briefs The Conspiracy Clash There are conflicting reports about exactly how long the coronavirus can survive on different surfaces. In a new research paper published in the New England Journal of Medicine, scientists now say it can stay alive on plastic and stainless steel surfaces for up to three days. As far as its longevity in tiny particles or droplets in the air released by infected people is concerned, it only lasts for three hours. The study, funded by the US National Institutes of Health, found that the stability of this virus is similar to the Severe Acu- te Respiratory Syndrome (SARS) epidemic in Lasting Effects UNI
| INDIA LEGAL | March 30, 2020 33 Till now, the longest scheduled passenger service flight was flown by Singapore Airlines between Singapore and Newark, a distance of 9,534 miles. Quantas set its own record flight between the UK, the US and Austra- lia, taking more than 19 hours and covering over 10,000 miles, but this was a test flight with no passengers. Now, thanks to the coronavirus outbreak, one side effect has been the setting of a new world aviation record for the longest ever scheduled passenger flight. On March 14, French airline Air Tahiti Nui flew 9,765 miles from Papeete, in Tahiti, French Polynesia, to Paris' Charles de Gaulle airport. The flight, which took approximately 16 hours, is now the world’s longest com- mercial flight in terms of distance travelled. The flight, however, was not a scheduled one—its normal route includes a stopover at Los Angeles International Airport where some passengers disembark. However, thanks to travel restrictions by the US government, passengers were not allowed to deplane and the flight was forced to fly on, arriving in Paris early morning on March 15, just short of 16 hours later. After actor Tom Hanks and his wife posted inspirational messages on being released from a Syd- ney hospital, having recov- ered from the coronavirus, a host of other celebrities who have not caught the virus but are restricted to their homes have been putting up messages or live streaming songs and skits just to keep spirits up and use their tal- ents for the greater good. They include actor Anthony Hopkins, who has opted to enliven his self- imposed quarantine by live streaming himself playing the piano while his cat looks on unappreciatively. Another famous star, Lady Judi Dench, 85, posted a video recording of herself wearing a bizarre looking hat with a dog’s face, and saying we need to have a few laughs in such times. She was followed by comedian Mel Brooks who appeared in his son’s tweet about the importance of social distancing. Then there was the educational video posted by singer/actor Elaine Paige which showed her wearing jokey rubber gloves while cleaning phones and bank cards. Pop stars have joined in the move to uplift spirits by posting videos of themselves singing while under house quarantine, and include John Legend singing his hit Everybody Knows, and Coldplay’s Chris Martin in his home studio, who took to Instagram for a 30-minute live stream playing some of the band’s hits in what he called a solidarity session in partnership with the World Health Organisation (WHO) and Global Citizen. Celebrities to the Fore 2002. The latest findings show that the new virus was viable up to 72 hours after being placed on stainless steel and plastic, up to four hours after being placed on copper, and 24 hours after being put on cardboard. These findings are similar to experiments done after the SARS outbreak. However, a separate study in The Journal of Hospital Infection found that human coronaviruses have been found to persist on surfaces—including metal, glass or plastic—for as long as nine days if the surface is not disinfected. The SARS virus bears the closest resemblance in terms of infection spread to the novel coronavirus. The journals, however, added that further studies were ongoing and the findings could be re-evaluated. The Longest Flight In Poland, people panicked after a wave of rumours surfaced about the government cutting off transporta- tion in cities and a message, recorded by a man who claimed to have close ties to political decision-makers, which said the president would introduce an “emergency state” and that people wouldn’t be able to leave their houses for three weeks. It turned out to be fake but such panic-inducing fake news and rumours have hit countries around the world. In France, an audio message from a woman claiming sources in high places, said the whole country would soon be in full quarantine. On Facebook, a message that went viral claimed to be from a bulletin board in Stanford University, an Ivy League college with a recognised scientific temper. It advised that holding your breath for 10 seconds could show whether you were infected or not, and other seemingly credible ad- vice. It turned out to be fake. Irish Prime Minister Leo Varadkar reached out to citizens on social media: “I am urging everyone to please stop sharing unverified info on WhatsApp groups. These messages are scaring and confusing people and causing real damage.” WhatsApp has become the major source for misinformation as it is less regulated and allows people to share personal messages with large groups. The Fake News Virus
34 March 30, 2020 Special Supplement The leitmotif of India Legal magazine has been its focus on subjects of contemporary legal relevance. We are now taking that concept a stage further by introducing a Special Supplement on issues and topics that deserve more rigorous and in-depth analysis, written and researched by an expert on the subject. The first in the series appears in this issue and concerns citizenship, the issue that has caused much controversy and even violence. The author, Dr Abhishek Atrey, traces the history of citizenship and its rights and privileges. In particular, the author examines the various aspects of citizenship in India, its legal and constitutional interpretation, and the events that have led to the controversy surrounding the Citizenship (Amendment) Act and the National Register of Citizens. The Idea of Citizenship Anthony Lawrence
| INDIA LEGAL | March 30, 2020 35 FROMancient times, citizenship remained a concept that was sovereign in nature. Even in the Vedas and the Upanishads, there were several chapters of duties of the Raja (King) towards his praja (subjects or citizens). To grant or refuse citizenship is the prerogative of the sovereign, which cannot be tested on any scale of equality, arbi- trariness or reasonableness. According to Kautilya, it was the king's duty to protect the subjects from both internal and external insecurities. Amendments to the Citizenship Act in 2019 have been brought in to protect Indian citizens from illegal migrants and the threats arising out of their uncontrolled invasion into the country. Citizens are a part of a sovereign state and the state cannot be called a state until it is sovereign and the sovereign has the right to command. Citizenship is the most privileged form of nationality. This broader term denotes various relations between an individual and the State that do not necessarily confer political rights but imply other privileges, particularly protection abroad. It is the term used in international law to denote all persons whom a state is entitled to protect. Nationality also serves to denote the relationship to a state of entities other than individuals; corporations, ships and aircraft, for example, possess a nationality. The concept of citizenship first arose in towns and city- states of ancient Greece, where it generally applied to property owners but not to women, slaves, or the poorer members of the community. A citizen in a Greek city-state was entitled to vote and was liable to taxation and military service. The Romans first used citizenship as a device to distin- guish the residents of the city of Rome from those whose territories Rome had conquered and incorporated. As their empire continued to grow, the Romans granted citizenship to their allies throughout Italy proper and then to people in other Roman provinces, until in AD 212, citizenship was extended to all free inhabitants of the empire. Roman citizenship conferred important legal privileges within the empire. The concept of national citizenship virtually disappeared in Europe during the Middle Ages, replaced as it was by a system of feudal rights and obligations. In the late Middle Ages and the Renaissance, the holding of citizenship in various cities and towns of Italy and Germany became a guarantee of immunity for merchants and other privileged persons from the claims and prerogatives of feudal over- lords. Modern concepts of citizenship crystallized in the 18th century during the American and French Revolutions, when the term citizen came to suggest the possession of certain liberties in the face of the coercive powers of abso- lutist monarchs. In England, the term citizen originally referred to membership of a borough or local municipal corporation, while the word subject was used to emphasise the individual’s subor- dinate position relative to the monarch or state. The word subject is still used in preference to citizen in British common-law usage and nationality legislation, but the two terms are virtually equivalent as British constitutional mo- narchy is now a ceremonial one that has lost its former political powers over its subjects. Citizenship in a democracy (a) gives membership status to individuals within a political unit; (b) confers an identity on individuals; (c) constitutes a set of values, usually inter- preted as a commitment to the common good of a particular political unit; (d) involves practising a degree of partic- ipation in the process of political life; (e) implies gaining and using knowledge and understanding of laws, docu- ments, structures, and processes of governance. The legal status of citizenship includes the entitlement of civil rights and protection by the rule of law in the corre- sponding political community or polity. It is, by all intents and purposes, a membership, with benefits, values and entitlements. The bestowal of rights, obligations and legislation revolves around this dimension of citizenship. Citi- zenship is a source of identity, the ties of belonging to a particular community and in a general sense related to our present political paradigm which is centred around the nation state. The rights a citizen enjoys will partly define the range of available political activities, while explaining how citizenship can be a source of identity by strengthen- ing a person’s sense of self-respect. Citizenship Under the Indian Constitution Citizenship is defined in Articles 5 to 11 of our Constitution. Article 5 says that at the commencement of this Consti- tution, every person who is residing in the territory of India and who is born in India or either of his parents is born in India or who has been ordinarily resident in the territory of India for not less than five years immediately before commencement of the Constitution shall be a citizen of India. It means that any person who is born in India or any of his parents is born in India is a citizen of India by birth and his citizenship is guaranteed by no other document except the Constitution which is the supreme law of the land. Therefore, the fear of any person who is born in India or either of his parents is born in India that he can be deprived of his citizenship by any act or rule is baseless. It is devoid of merit because any Act of Parliament or any state or any rules made thereunder cannot supersede the Indian Constitution. Article 6 of the Constitution provides citizenship to per- THE FEAR OF ANY PERSON, WHO IS BORN IN INDIA OR EITHER OF HIS PARENTS IS BORN IN INDIA, THAT HE CAN BE DEPRIVED OF HIS CITIZENSHIP BY ANY ACT OR RULE IS BASELESS.
36 March 30, 2020 sons who do not fulfil the criteria of Article 5 but migrated to India from Pakistan at the time of division. Article 6 provides that any such person who migrated to India from Pakistan, who or either of his parents or either of his grandparents is born in India as defined in the Government of India Act, 1935 and (i) if he migrated before July 19, 1948, he has been ordinarily resident in India since the date of his migration, or if such a person migrated to India after July 19, 1948 and he has been registered as a citizen of India by an officer appointed by the central government on an application made by him before commencement of this Constitution. However, the only condition for such an application is that the person concerned must be residing in India at least six months before he applies. Article 7 provides that notwithstanding anything in Arti- cles 5 and 6, a person who after March 1, 1947, migrated to Pakistan, shall not be deemed a citizen of India provided that after migration, he returned to India under a permit for resettlement or permanent return issued by or under the authority of any law and shall also be deemed to be so migrated to India under Article 6(b) after July 19, 1948. With the intention to restore and recognise the rights of citizenship of the persons who are residing out of India, our Constitution under Article 8 provides that if any person who or either of whose parents or any of his grandparents was born in undivided India and who is residing in any country outside India shall be deemed to be a citizen of India, if he is so registered by the diplomatic or consular representative of India in that country. As such, Article 8 provides an opportunity to the persons of Indian origin who are residing outside India if any of his parents or grandparents are born in India to apply to an Indian consulate and take up citizenship of India if he so chooses. No doubt in that condition he has to leave the citizenship of the country in which he is residing for the basic reason that a person cannot hold citizenship of two countries. The same principle is also there in Article 9 which says that if a person voluntarily acquired citizenship of any other country, he shall not be deemed to be a citizen of India by virtue of Article 5 or 6 or 8. Article 10 provides continuance of the right of citizenship subject to any law made by Parlia- ment. Article 11 read with entry 17 of the Central List of the Seventh Schedule of the Constitution says that it is only Parliament which can make a law to regulate citizenship. India is a federal state and there is no concept of dual citizenship in India. Therefore, states have no role to play in granting or refusing citizenship to any person. Citizenship is a subject which squarely falls in the domain of Par- liament only. Nehru-Liaquat Agreement In order to protect the rights of minorities in both India and Pakistan, an agreement was entered into between both the governments on 8.4.1950, which was commonly known as the Nehru-Liaquat agreement. This agreement was done after incidents of looting, destruction of property, killing, kidnapping and rape in both countries after their division. In order to bring harmo- ny among the people of both minorities and majority communities and to punish the offenders and to protect per- SIGNIFICANT TREATY The Nehru-Liaquat pact was signed on April 8, 1950, to protect the rights of minorities in India and Pakistan Special Supplement
| INDIA LEGAL | March 30, 2020 37 sonal and property rights of the migrating people, it was decided by both the governments that they would ensure to the minorities throughout their territories complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship subject to law and morality. Minorities shall have equal opportunity along with the majority community to participate in the public life of their country, to hold political or other office and to serve in their country’s civil and armed forces. Both governments declared these rights to be fundamental and undertook to enforce them effectively. It was the policy of both the governments that the enjoyment of these democratic rights shall be assured to all their nationals without distinction. Both governments emphasised that the alle- giance and loyalty of the minorities is to the state of which they are citizens and it is to the government of their own state that they should look for redress of their grievances. By this agreement, it was also agreed by the governments of both the countries that they shall ensure freedom of movement and protection in transit, rights of their moveable and immoveable properties, to restore their immoveable properties if they return till 31.12.1950. Especially in East Bengal, West Bengal, Assam and Tripura, it was decided to establish Special Courts to restore normal life and to punish the offenders, to restore looted property and abducted women, not to recognise forced conversions, to appoint a Commission of Inquiry with a High Court judge as its head at once, to enquire into causes and extent of disturbances and to appoint Minority Commissions to look into the grievances and welfare of minorities. Citizenship and Rights of Minorities in Afghanistan, Pakistan and Bangladesh The three neighbouring countries of India—Afghanistan, Pakistan and Bangladesh—are Islamic countries by their Constitutions. Still, in the Constitutions or in the Citizenship Acts of these countries, there is no apparent discrimination against the minorities in getting citizenship, right to vote, right to profess religion or to enjoy other rights equally with that of the majority. Seats are reserved for non-Muslims in their National and Provincial Assemblies. But by comparing the census data of these countries and media reports, there is a steep depletion in the percentage of non-Muslims of these countries in the last few decades due to atrocities and religious persecution. However, the claim of the governments of these countries is contrary. Citizenship in India Under Citizenship Act, 1955 While exercising the powers given under Article 11 read with Entry 17 of the Central List of the Constitution, the Indian Parliament enacted the Citizenship Act, 1955, which received the assent of the President on December 30, 1955 and came into force since then. Since its inception, the Citizenship Act has been amended 10 times—firstly in 1957 w.e.f. 27.12.1957, then in 1960 w.e.f. 26.12.1960, then in 1985 w.e.f. 7.12.1985, again in 1986 w.e.f. 15.5.1986, then in 1987 w.e.f. 1.7.1987, then in 1992 w.e.f. 10.12.1992, then in 2004 w.e.f. 3.12.2004, then in 2005 w.e.f. 28.6.2005, then in 2015 w.e.f. 6.1.2015 and now in 2019 w.e.f. 12.12.2019. Before coming to the controversial Citizenship (Amend- ment) Act of 2019, we have to first understand the provisions of the Citizenship Act, 1955 and what amendments were done in 2019. The Citizenship Act is a very small Act comprising of only 19 provisions. Section 2 of this Act is a definition clause. In subsection (a), the government of India is defined as the central as well as the state government. In subsection (b), an “illegal migrant” is defined, which is very important to understand in the present atmosphere of controversy. Only two categories of persons were held as illegal migrants—any foreigner who enters India without a valid passport or any other travel document and those who enter India with a valid passport or any other travel document but remain in India beyond the permitted period of time. In the present Amendment Act, 2019, a proviso was added to the definition of illegal migrants. By implication, it means any person belonging to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan who entered India on or before December 31, 2014 and who has been exempted by the central government under Section 3 of the Passport Entry Into India Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule made thereunder, shall not be treated as an illegal migrant for this purpose. Therefore, persons of these six communities from these three countries shall not be treated as illegal migrants if they fulfil two criteria—firstly they entered India before December 31, 2014 and on an application, they are exempted by the central government under the Passport (Entry into India) Act, 1920 or Foreigners Act, 1946. Therefore, by virtue of this amendment, these persons shall not automatically become citizens of India but first they have to prove they entered into India before December 31, 2014 and take permission from the central government. According to the Citizenship Act, the citizenship of India can be provided in four ways—citizenship by birth, by descent, by registration and by naturalisation. CITIZENSHIP OF INDIA CAN BE PROVIDED IN FOUR WAYS—BY BIRTH, BY DESCENT, BY REGISTRATION AND BY NATURALISATION.
38 March 30, 2020 Citizenship by Birth According to Section 3, every person who is born in India after January 26, 1950, but before July 1, 1987 or is born after July 1, 1987 but before December 3, 2004, and either of his parents is a citizen of India at the time of his birth or he was born after December 3, 2004 and both his parents are citizens of India or one of his parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be deemed to be a citizen of India by birth. However the validity of Section 3 (1) (a) and (b) are under challenge before the Supreme Court and has been referred to a Constitution Bench. This Section was amended firstly in 1987 and then in 2003. Subsection (2) of this section further provides that a person shall not be deemed to be a citizen of India by virtue of this Act as a result of his birth if at the time of his birth, any of his parents possesses such immunity from suits or legal process as is accorded to invite to an envoy of foreign sovereign power accredited to the President of India and he or she is not a citizen of India or any of his parents is an enemy alien and the birth occurs in a place then under occupation by the enemy. Therefore, if we carefully look at this section, it appears that the Parliament tried to control conferment of citizenship by birth time and again as and when the Indian government faced new problems. By the first amendment in this section in 1987, the government prescribed that a person who took birth in India after January 26, 1950 but before July 1, 1987 is a citizen of India irrespective of any condition, whereas by the amendment of 1987, a condition was imposed on conferring citizenship by birth— if a person took birth in India after July 1, 1987, he can be conferred citizenship by birth only in case any of his parents is a citizen of India and this exemption was provided only up to 2003 and was confined by the Amendment Act, 2004. This Amendment provided that if a person takes birth in India after commencement of the Amendment Act, 2004, i.e. 3.12.2004, he can be conferred citizenship by birth only if both his parents are citizens of India or one of his parents is a citizen of India and the other is not an illegal migrant at the time of his birth. Citizenship by Descent Section 4 of the Citizenship Act prescribes citizenship by descent. According to it, a person who is born outside India is a citizen of India by descent (i) if he is born after January 26, 1950 but before December 10, 1992 and his father is a citizen of India at the time of his birth and if he is born after December 10, 1992, either of his parents is a citizen of India at the time of his birth. The proviso of the Section puts certain conditions on citizenship by descent. The proviso says that if the father (or either of his parents if born after 10.12.1992) of such person is a citizen by descent, that person shall not be a citizen of India unless his birth is registered at an Indian consulate or his father is in the service of the Government of India. Subsection (1) of Section 4 further prescribes that no such birth shall be registered unless his parents declare that the minor does not hold the passport of any other country. Subsection (3) of Section 4 also prescribes that if a person is born outside undivided India and was a citizen of India at the commencement of the Constitution, he shall be deemed to be a citizen of India by descent only. Citizenship by Registration Section 5 of the Citizenship Act prescribes conferment of citizenship by registration. Under this Section, the central government on an application made in this behalf by any person who is not an illegal migrant, may grant citizenship if he belongs to any of the following categories: A person of Indian origin who is ordinarily resident in India for seven years before making such an application. A person of Indian origin who is ordinarily a resident in any country outside undivided India. A person who is married to a citizen of India and is ordinarily a resident of India for seven years before making such an application. Minor children of citizens of India. A person of full age and capacity whose parents registered as citizens of India under Section 6 (1) (a). A person of full age and capacity who, or either of his parents, was earlier a citizen of independent India and is ordinarily a resident of India for 12 months immediately before application. A person of full age and capacity, who has been registered as an Overseas Citizen of India Card Holder (OCI) for five years and who is ordinarily a resident of India for 12 months before making such an application. For the purpose of the first and third category, a person shall be deemed to be ordinarily resident in India if he is residing here for a period of 12 months immediately before making an application and who has resided for not less than six years during the last eight years preceeding the aforesaid period of 12 months. For the purpose of this subsection, a person shall be deemed to be of Indian origin if he or either of his parents was born in undivided India or in such other territory which became part of India after August 15, 1947. Subsection (3) of Section 5 prescribes that no person who has renounced or has been deprived of his Indian citizenship or whose citizenship has been terminated shall be reg- THE CITIZENSHIP (AMENDMENT) ACT, 2019 CHANGED NOTH- ING IN THE POWERS OF THE CENTRE TO GRANT OR TAKE AWAY CITIZENSHIP. Special Supplement

India legal 30 march 2020

India legal 30 march 2020

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India legal 30 march 2020