Law and DisorderCrucial matters that came up in the Supreme Court and Delhi High Court indicate a crisis in India’s basic governance. The CrPC and Police Acts clearly lay down that it is the job of DMs and SDMs to maintain law and order, but their role has been taken over by the police with questionable results. 

1. NDIA EGALL STORIES THAT COUNT
I
March16, 2020
LawandDisorderCrucialmattersthatcameupintheSupremeCourtandDelhiHighCourtindicateacrisisinIndia’s
basicgovernance.TheCrPCandPoliceActsclearlylaydownthatitisthejobofDMsandSDMsto
maintainlawandorder,buttheirrolehasbeentakenoverbythepolicewithquestionableresults
Fast Track Courts:
New scheme

3. | INDIA LEGAL | March 16, 2020 3
rofessor Arun Kumar is perhaps am-
ong the most distinguished econo-
mists of the world whose works on the
black economy are considered the holy
grail of knowledge on the complex
subject. He has written, studied and lectured ex-
tensively on the subject for nearly four decades.
He studied at Delhi University, Jawaharlal Neh-
ru University (JNU) and Princeton University,
USA, and taught economics at JNU for three
decades till 2015. His areas of interest include
public finance, development economics, public
policy and macroeconomics. Kumar has written
widely on these subjects, both in the popular
press and for academic journals. At present, he
is the Malcolm S Adiseshiah Chair Professor at
the Institute of Social Sciences, New Delhi.
When Prime Minister Narendra Modi demo-
netised 86 percent of the Indian currency in cir-
culation in November 2016, he predicted in an
exclusive interview with India Legal how this
hasty drive would adversely impact demand,
employment and investments and plunge the
economy into a dangerous downward tailspin.
He then prognosticated that three shocks in
quick succession—demonetisation, the hasty
and poorly implemented Goods and Service
Tax and the crisis in the non-banking financial
companies could irreparably damage the func-
tioning economy.
The government was in denial. Kumar was
right. The Indian economy has entered a full-
blown recession. The latest Union Budget seems
unable to cope with this economic catastrophe.
Is all lost? Can anything be done to start healing
the self-inflicted economic sores, or will they
continue to fester and bleed the nation into
more unemployment, poverty and misery, as de-
mand, consumption, jobs, investment, imports
and exports crash? Is the social unrest raging
across the country a sign of this economic cri-
sis—citizens venting their fury on fellow citizens
as the government tries to hide its economic
blunders behind emotive and divisive agendas?
That’s another subject. But right now an analysis
of where India is headed economically, whether
the new Union Budget tried to grapple with the
real problems and what curative measures are
necessary need to be discussed. And who better
to lead the discussion than Arun Kumar who
made a brilliant, cogent and pithy point-by-
point presentation at a private seminar organ-
ised by Dr Kulwant Singh, past General Secre-
tary of the National Media Centre, in Gurgaon.
Dr Singh who also serves with the United Na-
tions, and is CEO, 3R WASTE Foundation/Ur-
ban Policy, was kind enough to send me a copy
of Arun Kumar’s presentation which I reproduce
in full below for the benefit of both the general-
ist and the specialist who, I am sure, will be
motivated to plunge into further research after
absorbing the points Kumar makes succinctly
and with such clarity:
BUDGET OBJECTIVES
The Union Budget has two goals. Tackle the
current problems and fulfil the government’s
vision.
Current: The economy has slowed down/it is
in recession.
Vision of doubling farmers’ incomes by 2022
and achieving a GDP of $5 trillion by 2024.
Not feasible with an economy that is slowing
down or in recession.
The two aspects are indeed interlinked; they
become one and same.
So, objective, how to boost the economy in
2020-21.
Much confusion about data on growth.
Something pretty drastic needed to be done in
the Budget.
NOT A SLOWDOWN BUT A RECESSION
Three shocks in the last three years.
Damaged the unorganised sector, employing
94 percent of the workforce and producing 45
percent of the output. It is increasingly margin-
alised.
HE TOLD YOU SO!
Inderjit Badhwar
P
Letter from the Editor
TheIndianeconomy
hasentereda
full-blownreces-
sion.Thelatest
UnionBudget
seemsunableto
copewiththis
economiccatastro-
phe.Isalllost?Can
anythingbedoneto
starthealingthe
self-inflicted
economicsores,or
willtheycontinueto
festerandbleedthe
nationintomore
unemployment,
povertyandmisery,
asdemand,con-
sumption,jobs,
investment,imports
andexportscrash?

4. 4 March 16, 2020
Indian economy growing at less than 1 percent
for the last three years and not at 5 percent or 7
percent as officially claimed. -ve rate now.
Every 1 percent less growth means Rs 2 lakh
crore less income.
Most of it from unorganised sectors.
Income distribution gets more skewed.
WHAT DATA FOR UNORGANISED
SECTOR?
Official GDP data does not account for unor-
ganised sector independently.
Method needed to change after demonetisation.
For 29 of 38 sub-sectors of unorganised sector,
the data used is from the organised sector.
Namely, ASI, IIP, Motor vehicle sales, Sales
Tax, corporate sector growth and service tax
For quarterly data, only some organised sector
data available – corporate announcement by a
few hundred companies.
POINTERS TO RECESSION
Evidence of decline in growth:
IIP, core sector, freight traffic, retail, sectors like
auto in negative growth, FMCG growth slow-
down, tax collections less than BE, investment
rate, real consumption decline in rural areas,
credit off take low, etc.
RBI says capacity utilisation is 70 percent,
consumer confidence and business confidence
have declined.
Investment rate has not risen in spite of stock
market at record levels and reduction in interest
rates due to RBI action.
DEMAND SHORTAGE
Crisis induced by policy shocks in last three
years – not a cyclical issue.
Problems began with unorganised sector after
demonetisation.
GST exempts unorganised sectors, but there is
a structural flaw.
Income and wealth distribution getting more
skewed leading to aggravation of demand prob-
lem.
This is a continuing problem but it is aggravat-
ed by the shocks to the economy and especially
unorganised sectors.
Demand shortage from unorganised sectors to
organised sectors.
BROAD VISION IN THE BUDGET
To spend Rs 30.42 lakh crore, 13.3 percent of
GDP for 2020-21.
Can be used to give to every section and sector
of society.
For senior citizens, SCs and STs, farmers,
women…
Deeper the crisis longer the speech.
It is structured around three themes a) “caring”
society, b) Aspirational India and c) Economic
development for all.
16 action points are listed as the focus of the
government.
FOCUS POINTS LISTED IN THE
BUDGET SPEECH
Rs 103 lakh crore investment on infrastructure
in five years.
Disinvestment accelerated – LIC shares to be
sold via public offer.
Target of Rs 210 lakh crore as against
Rs 65,000 crore last year
Improved governance and respect for wealth
creators
Creation of a Taxpayer’s Charter – Problem of
Tax Terrorism
Lower income tax rates if people do not resort
to concessions and deductions; choice to stay
with the old system or migrate to new one
Dividend distribution tax (DDT) to be done
away with
MACRO ASPECTS OF THE BUDGET
It is first a macro exercise and then a micro one
If revenue short, either cut back in expendi-
tures or deficit rises.
Happened in both 2018-19 and 2019-20
In 2019-20, revenue shortfall of Rs 3 lakh crore.
So, expenditures cut back – aggravated the
ProfArunKumar’s
(above)pithy
presentation
suggeststhatas
fiscaldeficitis
high,thereisneed
forresources
toboost
expendituresand
withthehighlevel
ofdisparity,
wealthtax,estate
dutyandgifttax
canberevivedto
obtainresources
fromthetop
1percent.
Letter from the Editor
Anil Shakya

5. THE ROOT CAUSE
Prof Arun Kumar
notes in his
presentation that
problems began with
the unorganised
sector only after
demonetisation
demand problem.
In 2020-21 too, revenues may be less
and expenditures may be cut.
From Public Sector via IEBR – 40
percent increase in 2019-20
Disinvestment from (RE) Rs 65,000
crore raised to Rs 2.1 lakh crore.
TAX CUT OR INCREASE IN
EXPENDITURES?
How can Budget help increase
demand in the economy?
Will increase capacity utilisation, in
turn spur investment and lead to high-
er rates of growth
Tax cut or increase in expenditures.
Both increase deficit
Corporate tax cut led to boom in stock markets
without causing investment to rise. RBI cut inter-
est rates five times last year but investment rate
has not picked up.
Fiscal deficit raised without demand going up
If spent on unorganised, demand would imme-
diately rise.
POLICY FOCUS REQUIRED
Rather than tax cuts/concessions to organised
sectors, increase investments
Focus on the unorganised sectors and rural
areas first
Farmers’ incomes have to be boosted
Higher allocations are needed for MGNREGS
Need a scheme like MGNREGS for
urban areas
Increase access to credit to micro and small
sectors
Disaggregate MSME between Micro and Small
and Medium sectors
GST has to be structurally altered – make it a
last point tax.
The benefit of computerisation and VAT being
mixed up.
FISCAL DEFICIT OF CENTRE, STATES &
PUBLIC SECTOR
Centre cut taxes, used incorrect revised esti-
mates, growth assumed 12 percent, actually grow-
ing at less than 8 percent
Total revenue shortfall is 1.45 + 1.6 + 0.44 = Rs
3.49 lakh crore
Centre would lose 58 percent, so, about Rs 2.02
lakh crore
States will lose = Rs.1.47 lakh crore
Additional expenditures by centre will be
70+50+20 = 1.4 lakh crore
Centre got additional Rs.60,000 crore
from RBI
Disinvestment target short by Rs.40,000 crore
(conservative estimate)
The total FD would be 4.63+2.4 (PSU) +3.73
(states) = 10.76 percent
WHERE TO RAISE RESOURCES?
Given huge income and wealth disparities,
Use wealth tax, estate duty and gift tax to raise
resources.
Even Soros and western rich suggest this
Raise direct taxes and
Cut indirect taxes on basic and essential goods
and services
Not a zero sum game
Invest additional tax resources in employment
generating rural infrastructure – health, educa-
tion, drinking water, communication, etc.
CONCLUSION
Since fiscal deficit is high, there is need for
resources to boost expenditures
With the high level of disparity, wealth tax,
estate duty and gift tax can be revived to obtain
resources from the top 1 percent
These be spent on the unorganised sector,
employment and incomes
This would be a positive sum game – also bene-
fit businesses
Why is the budget not doing the obvious?
| INDIA LEGAL | March 16, 2020 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
UNI

6. 6 March 16, 2020
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The CrPC and Police Acts have clearly laid down that it is the job of DMs and SDMs to
maintain law and order. But their role has been taken over by the police which is beholden
to its political masters
Law and Disorder
LEAD
14
As the Karnataka High Court and
senior lawyers stand firm, the Hubli
Bar Association withdraws its
resolution calling for denial of legal
aid to three Kashmiri students
booked for sedition
Obstruction of
Justice 18
COURTS

7. | INDIA LEGAL | March 16, 2020 7
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Cover Photo: AMARJEET SINGH
REGULARS
Ringside............................8
Is That Legal.....................9
Courts.............................10
Law Campus News........12
International Briefs ........28
Media Watch ..................37
Privatisation
Pangs 44
Despite the Madhya Pradesh government introducing a bill to punish those perpetrating
violence in the name of cow protection, it has made no headway as the panel formed in
this regard has met just once
Caught in a Quagmire
ENVIRONMENT
The war against plastic was declared on World Environment Day in 2018 when India
hosted the “Beat Plastic Pollution” crusade. However, a recent report highlights the
problem of disposal and calls for public awareness to stop plastic pollution
34The Last Straw
38
20
The path-breaking film,
Thappad, has shown the way
for women to unshackle the
chains of patriarchy. But how
close is it to Indian reality?
Clap for
this Slap
LEGALEYE
24
The law ministry aims to hire lawyers to help implement its plan to
set up 1,023 Fast Track Courts across the country for speedy trial
and disposal of rape and POCSO cases. However, it could be an
uphill challenge
FOCUS
Operation Raid
In a shocking incident, government officials, businessmen and chartered accountants in
Chhattisgarh were raided and properties worth Rs 150 crore unearthed by IT and ED
personnel. Was it meant to destabilise an elected government?
42
In a laudatory move, the Allahabad High Court has said that the
marital status of a daughter alone cannot be the ground for
rejecting her application for compassionate appointment
Marital Woes 22
With AAP permitting the prosecution of Kanhaiya Kumar in a 2016
sedition case, Delhi CM Arvind Kejriwal seems to have transformed
from a crusader to a domesticated man who is more cautious
Change of Strategy
COLUMN
26
Minority Stake
The Delhi High Court has sought a response from the centre on a
plea which claims that despite being outnumbered in several states,
the Hindus are denied rights enjoyed by other minority groups
A New Impetus 30
STATES
The Supreme Court has sent back to the
Kerala HC the Kerala government’s plea
challenging the centre’s proposal to grant
the Trivandrum airport’s management and
operation rights to the Adani group

8. 8 March 16, 2020
Anthony Lawrence
RINGSIDE
BJP MLA says cow dung and
cow urine can cure coronavirus

9. | INDIA LEGAL | March 16, 2020 9
ISTHAT
—By India Legal team
I am usually broke at the end of
the month. Luckily, I found a wal-
let with Rs 2,000 in it. The wallet
also has the office photo ID of the
owner. But I am in dire need of
money. Is it legally tenable to
keep the wallet with me?
Finding a wallet that belongs to
someone else on the road and
keeping it is not theft. However,
the Indian Penal Code labels
such retention of property
belonging to someone else
as a different crime. Mis-
appropriation, defined
under Section 403 of the
IPC, is the conversion of
any property, which arrives
in a person’s possession by
chance, to one’s own use.
Thus, if there is any indicator
within the wallet of the rightful
owner, the finder has a legal duty
to return it to him or her. If he
does not do so and uses the
money himself or herself, that
person shall be guilty of misap-
propriation, which can lead to
imprisonment for up to two
years, or fine, or both.
?
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
Finding-keeping
Adultery no longer a crime
A number of public figures
have multiple wives. Why are
they not in prison for bigamy?
Under Indian law, it is illegal
for anyone who is not a
Muslim (since Muslim person-
al law allows up to four wives)
to contract a second marriage
while their spouse is alive.
Only after the death of the first
spouse or the annulment of
the first marriage can an indi-
vidual marry again. Under
Section 494 of the Indian
Penal Code, marrying again
during the lifetime of one’s
wife or husband is punishable
with up to seven years of im-
prisonment, or fine, or both.
Moreover, such a second mar-
riage is void and not recog-
nised by law.
However, this is a non-
cognisable offence, and a
case can only be registered
when the aggrieved person,
i.e. the first wife, lodges a
report. In case of an under-
standing between the first wife
and the husband, whereby she
agrees not to bring up such a
case, a bigamous husband
cannot be prosecuted. This is
why people, including notable
film stars and politicians, con-
tinue to have bigamous
arrangements. Many convert
to Islam to be able to marry
more than once, without filing
for divorce.
But the Supreme Court of
India has ruled that if a man,
who has adopted Islam and
renounced the Hindu religion,
marries again without getting
a divorce from the first wife,
his marriage will not be con-
sidered legal.
Relationships of convenience
A husband finds his wife in a com-
promising position with her lover
after returning early from office one
day. Can the husband file a case of
adultery against his wife under the
Indian Penal Code?
The Indian Penal Code (IPC) defines
the offence of adultery under Section
497, which states: “Whoever has
sexual intercourse with a person who
is and whom he knows or has rea-
son to believe to be the wife of
another man, without the consent or
connivance of that man, such sexual
intercourse not amounting to the
offence of rape, is guilty of the
offence of adultery, and shall be pun-
ished with imprisonment of either
description for a term which may
extend to five years, or with fine, or
with both. In such case the wife shall
not be punishable as an abettor.”
However, the law became defunct
after a five-judge bench of the Sup-
reme Court ruled in September 2018
that adultery was no longer a crime
because it “treats a husband as the
master”. The top court said that the
existing law was “arbitrary and viola-
tive of Article 14 (right to equality) of
the Constitution” as it only punished
a married man for having consensual
relations while exempting the woman
from punishment.
The 158-year-old law was struck
down by the Court due to its under-
lying patriarchal notion that consid-
ers women as property.

10. Courts
10 March 16, 2020
The Supreme Court said that the rules
framed by various High Courts mandat-
ing a third person to disclose reasons for
seeking a certified copy of court orders are
not inconsistent with the provisions of the
Right to Information Act (RTI).
A bench of Justices R Banumathi, AS
Bopanna and Hrishikesh Roy upheld the
validity of the Gujarat High Court rules stip-
ulating such a condition. The Court said
that the rules merely laid down a different
procedure for obtaining information “lest
such application would reach unmanage-
able proportions apart from the misuse”.
The top court noted that its rules also
stipulated that certified copies of docu-
ments or orders could be supplied to the
third parties only on being satisfied about
the reasonable cause. The third party has
to disclose reasons for having a certified
copy for the satisfaction of the Court that
the information was sought for bona fide
reasons or to effectuate public interest,
it said.
Third party must give
reasons for seeking
copy of judgments: SC
The four death row convicts in the Nir-
bhaya rape-murder case will be hanged
on March 20 at 5.30 am, a Delhi court
ordered. The order came a day after Pre-
sident Ram Nath Kovind rejected the mercy
petition of the last of them, thus exhausting
all options for relief. The authorities of Tihar
jail, where they are lodged, lost no time in
approaching the Patiala House Court which,
in turn, fixed the date for the hanging that
was deferred three times at the proverbial
last minute as the convicts tried, one by
one, to exhaust all legal remedies. In fact,
so incensed was the Delhi High Court with
the lawyers that it even imposed a fine of
Rs 25,000 for resorting to delaying tactics.
On behalf of the four
—Mukesh Singh, Vinay
Sharma, Akshay Thakur,
and Pawan Gupta—re-
view and curative peti-
tions were filed in the
Supreme Court at differ-
ent times, in what were
seen as deliberate att-
empts to delay the
hangings. The mercy
petitions before the president were also filed
at different times. Most of these petitions
were sent after the first death warrant was
issued on January 7. The original date for
hanging was January 22 which was later
shifted to February 1 and finally to March 3.
With all legal remedies now exhausted, the
convicts’ execution seems unescapable.
The top court set aside a ban
imposed by the RBI forbid-
ding lenders to facilitate banking
transactions for cryptocurrency
exchanges and traders, thus
removing a major hurdle for
the development of the
sector. The RBI had in Ap-
ril 2018 given three
months’ time to snap all
banking relationships with
individuals or businesses deal-
ing in virtual currency.
Cryptocurrencies are digital
currencies in which encryption
techniques are used to regulate
the generation of currency units
and verify the transfer of funds,
operating independently of a
central bank. “We have allowed
the writ petitions,” Justice RF
Nariman said while pronouncing
the verdict on behalf of the
three-judge bench that also in-
cluded Justices Aniruddha Bose
and V Ramasubramanian.
The RBI’s decision was chal-
lenged by many, including the
Internet and Mobile Association
of India (IMAI), which ques-
tioned the bank’s powers to
impose the ban since cryptocur-
rencies weren’t a “currency” in
the legal sense of the term.
Instead, the IMAI had insisted
that cryptocurrencies were more
in the nature of a commodity.
The bank argued that it had
treated cryptocurrency as a digi-
tal means of payment which had
to be nipped in the bud so that
the country’s payment system is
not jeopardised.
SC quashes
RBI ban on
cryptocurrencies
It’s final: To be hanged on March 20, 2020
Akshay Thakur Mukesh Singh Vinay Sharma Pawan Gupta

11. In a virtually unprecedented act, the
United Nations High Commissioner for
Human Rights (UNHCR) filed an inter-
vention application in the Supreme Court
against the Citizenship (Amendment) Act
(CAA), prompting the government to
assert that “no foreign party” has any
locus standi on this internal matter
of India.
The legal plea by the UNHCR came
amid continued
protests over the
CAA which was
enacted in Decem-
ber last year.
“Our Permanent
Mission in Geneva
was informed yes-
terday evening by
the United Nations
High Commissioner
for Human Rights
that her office had
filed an Intervention
Application in the Supreme Court of
India in respect to 2019 Citizenship
(Amendment) Act,” said Raveesh
Kumar, spokesperson, ministry of exter-
nal affairs, in a statement.
“The Citizenship (Amendment) Act
is an internal matter of India and con-
cerns the sovereign right of the Indian
Parliament to make laws. We strongly
believe that no foreign party has any
locus standi on issues pertaining to
India’s sovereignty,” he added.
| INDIA LEGAL | March 16, 2020 11
—Compiled by India Legal team
Former Maharashtra Chief Minister Dev-
endra Fadnavis will have to face trial in
a case relating to his election affidavit of
2014. The Supreme Court dismissed his
plea seeking review of its 2019 verdict
allowing the Maharashtra police to prose-
cute him for allegedly failing to furnish in
his election affidavit details of two pending
criminal cases against him.
The three-judge bench of Justices Arun
Mishra, Deepak Gupta and Aniruddha Bose
dismissed the plea. Fadnavis had app-
roached the top court seeking cancellation
of criminal proceedings against him in his
election affidavit of 2014. Fadnavis in his
appeal had claimed that as per the law
only those criminal cases were to be dis-
closed in which either the charges had
been framed or led to conviction.
Fadnavis is facing trial for cheating and
forgery in two cases which were filed
against him in 1996 and 1998, but
charges were not framed in both the
cases. Last year, Nagpur-based lawyer-
activist Satish Uke had approached the
local court seeking criminal proceedings
against Fadnavis.
The Supreme Court dismissed a
plea challenging the Allahabad
High Court’s order granting bail to
rape accused and former Union min-
ister Chinmayanand. A bench com-
prising Justices Ashok Bhushan and
Navin Sinha observed that there was
no reason to interfere with the order.
The Allahabad High Court had grant-
ed bail to Chinmayanand on
February 3.
The bench also sought a respon-
se from the Uttar Pradesh govern-
ment on a separate plea by the same
petitioner seeking transfer of the
case to a Delhi court from Uttar
Pradesh on the grounds that there is
a threat to the victim’s life.
Senior advocate Colin Gonsalves,
appearing for the petitioner, while
countering the observation of the
High Court that it was a quid pro
quo case, said: “The videos of the
student bathing were filmed and
used by Chinmayanand to sexually
exploit the law student.”
Advocate Sidharth Luthra, app-
earing for Chinmayanand, responded
that the videos were mentioned in
the charge sheet and it was the law
student who recorded the videos
with the intention to blackmail
Chinmayanand.
SC dismisses
plea against
Chinmayanand’s bail
UN in SC against CAA
Devendra Fadnavis
must face trial, says SC

12. ture and teaching and non-teaching fac-
ulties. Time is now the essence of the
matter and thus, further delay in making
discussions and throwing the responsi-
bilities on each other’s shoulder will not
be appreciated.”
“We are sorry to say that till date the
National University of Study and
Research in Law, Ranchi is not equipped
with proper infrastructure. Even the
University is not having a good, proper
and workable library. Apart from that,
12 March 16, 2020
LAW
CAMPUSES / UPDATES
Jharkhand
High Court
issues
summons
over lack of
infrastructure
at NUSRL,
Ranchi
University Institute of Legal Studies of
Punjab University is organising a one-
day seminar on “Marginalisation in India:
Socio-economic Aspects and Constitutional
Perspective” on March 21, 2020.
Marginalisation is a global problem that
impacts negatively upon societies across
the world. Marginalisation usually talks of
social inequality in the form of hierarchy
where one is at the top-most level and the
other may be at the lowest ebb.
Seminar on
marginalisation at
Punjab University
The Bar Association of the Jharkhand
High Court filed a plea regarding the
poor infrastructure at National University
of Study and Research in Law (NUSRL),
Ranchi. The bench, comprising Chief
Justice Ravi Ranjan and Justice Sujit
Narayan Prasad, while hearing the plea,
observed, “It is made clear that since so
many years have been lost, by now we
hope and trust that there will be no delay
in coming up with a plan so that the
University may have a good infrastruc-
many infrastructures are also lacking, as
has been pointed out by the learned
counsel for the Law University,” read the
order issued by the court.
Making these critical observations
the court has summoned the chief se-
cretary of the government of Jharkhand,
Ranchi; the state's principal secretary,
Department of Finance, Ranchi and the
state's principal secretary, Department
of Building Construction, for the
next hearing.

13. | INDIA LEGAL | March 16, 2020 13
—Compiled by Nupur Dogra
Astraea 2020—
National Legal and
Cultural Fest
The 37th All-India Inter-University
Moot Court Competition 2020, for
law students, sponsored by the Bar
Council of India (BCI), will be held at
School of Law, Kalinga Institute of
Industrial Technology (KIIT),
Bhubaneswar, Odisha, from April 10 to
12, 2020.
The Bar Council of India will award
National Merit Certificates and other
prizes such as winner and runner up
trophies, best memorial of each round,
best speaker of each round, and gold
medals for best male and female
advocates of final round along with
trophies and certificates.
Scholarships of Rs. 24, 000 for one
year will be provided to the best
speaker in each round of the competi-
tion. Outstanding briefs presented
during the contest may be considered
for publication in the Indian Bar
Review, the Journal of the Bar Council
of India.
Punjab University Regional Centre,
Ludhiana, is organising the Sh. G.K.
Chatrath Memo-rial 4th National Legal and
Cultural Fest —Astraea 2020 on March 24 and
25. The festival will include a number of legal
and cultural events for students to participate
and compete. Legal events will include a law
quiz, celebrity advocacy, experience in media-
tion and negotiation and client counselling.
The cultural events will include talent show,
bollywood quiz, still-life painting, nukkad
nataks (street plays), treasure hunt and
folk dance.
BCI to organise 37th All-India
Inter-University Moot Court Competition
Renowned historian and author
Ramachandra Guha will be deliver-
ing the 13th KC Basu Memorial
Lecture at West Bengal National
University of Juridical Sciences
(WBNUJS). He will speak on the topic:
"The Republic at Seventy: A Historian's
Report Card".
The lecture is scheduled for March
24, 2020 in the University auditorium
at 3 pm.
Suranjan Das, the vice chancellor
of Jadavpur University, will preside
over the lecture while Dr Kaushik Basu
is the guest of honour for the day.
Ramachandra
Guha to deliver
lecture at WBNUJS
Marginalisation has been conven-
tionally conceived in a specific soci-
etal context with distinctive conno-
tation to delineate social groups liv-
ing in peripheral, adverse situations,
at times with alleged negative attrib-
utes. However, in the present-day
changing scenario, the concept of
marginalisation has undergone sev-
eral new alterations.
The seminar will provide a plat-
form to deliberate and propose sug-
gestions on important themes
like conceptualisation of marginali-
sation, historical vision of marginali-
sation and legislative framework,
role of judiciary in protecting the
interests of marginalised commu-
nity, role of state in formulating
and Implicating policies regarding
marginalisation and role of NGOs
and financial institutions in uplift-
ing marginal communities and so
on. The University has invited re-
search papers from academicians,
practitioners, research scholars
and students on issues related to
the theme.
Authors of the selected abs-
tracts will be given an opportunity
to present their papers during
the seminar.

14. Lead/ Column/ Police as Magistrates MG Devasahayam
14 March 16, 2020
Law and
Amarjeet Singh

15. deploying all resources at its command.
This was an interim order, and this
intervention remained incomplete
because by February 26 evening,
Justice Muralidhar was transferred to
the Punjab & Haryana High Court by
a presidential order signed in vulgar
hurry.
These are excellent gestures by the
justices of the higher judiciary and show
that their hearts are at the right place.
Their directions were timely and did
help in preventing a sensitive situation
from turning ugly. But these kinds of
interventions should not become a
precedent lest the entire administration
of law and order, the core of basic gover-
nance, becomes event-oriented. And the
role of executive magistrates (EMs),
whose duty and responsibility it is to
prevent violence and maintain peace
and public order, is rendered redundant.
Chief Justice of India (CJI) SA Bobde
seems to have understood the issue dur-
ing the hearing of cases of non-registra-
tion of FIRs against those indulging in
“hate speech” and seeking direction to
the centre to call in the army if the law
and order situation further deteriorated.
He was quite candid when he said:
“We are not saying people should die.
But this kind of pressure we are not
equipped to handle. We cannot stop
things (violence) from happening. We
cannot prevent anything… We feel a
kind of pressure on us... We cannot
handle that….it is as if the courts are
| INDIA LEGAL | March 16, 2020 15
ERTAIN unique matters
that took place in the
Supreme Court and Delhi
High Court during the past
few weeks indicate a crisis
in India’s basic governance.
On February 17, the Supreme Court,
while upholding the right of Shaheen
Bagh mothers, children and ordinary
people to protest against the CAA,
expressed its concern over their blocking
public areas such as roads, and so on.
The Court appointed interlocutors to
find a way to continue with the protests
without causing inconvenience to free
movement. After the interlocutors sub-
mitted their report within a week, the
Court put off taking a call on the block-
ade till March 23, saying that the pres-
ent environment wasn’t conducive to
pass orders.
Then on the night of February 25,
a petition was filed in the Delhi High
Court registry by a young lawyer, Suroor
Mander, saying that grievously injured
riot victims were not able to reach Al
Hind Hospital in Mustafabad in north-
east Delhi. This case went to Justice S
Muralidhar. He along with Justice Anup
Bhambhani held the hearing at his
home in the wee hours of February 26
and ordered the Delhi Police to ensure
safe passage of the injured victims by
TheCrPCandPoliceActshaveclearlylaiddownthat
itisthejobofDMsandSDMstomaintainlawandorder.
Buttheirrolehasbeentakenoverbythepolice
whichisbeholdentoitspoliticalmasters
C
Disorder
DELHI’S DARK BLOT
Security deployed following riots over the
CAA at Maujpur area in east Delhi

16. 16 March 16, 2020
responsible…”
The CJI is to the point. It is not for
the Supreme Court and high courts to
prevent violence and order deployment
of the army to maintain peace and pub-
lic order. This task is for EMs function-
ing as district magistrates (DMs) and
sub-divisional magistrates (SDMs) and
that is what the Criminal Procedure
Code (CrPC) and Police Acts lay down.
Violence is prevented and peace and
public order are maintained by ensuring
that the actions of a group of individuals
do not impinge on the rights and con-
venience of other individuals or groups.
It is an exercise in managing conflict.
The actions of individuals or groups,
such as assemblies, likely to cause vio-
lence and disturbance of public peace
can be prohibited. Actions of an individ-
ual or individuals that cause harm or
pose danger to the public can be regu-
lated or prohibited as public nuisance.
C
hapter X (Sections 129-148) of
the CrPC dealing with
“Maintenance of Public Order
and Tranquility” provides for the use of
police force or in serious cases, the use
of armed forces, under the direction of a
DM or SDM, to disperse an assembly of
persons likely to cause violence or dis-
turbance of public peace. This chapter
also has provisions for inquiry by an EM
into public nuisance or obstruction of a
way or a river used by the public, and
the magistrate can order its removal or
issue an injunction pending an inquiry.
The magistrate’s order cannot be called
into question in any civil court (Section
Anil Shakya
EPICENTRE OF RESISTANCE
Anti-CAA protesters at Shaheen Bagh
in New Delhi
Lead/ Column/ Police as Magistrates/ MG Devasahayam
“...thiskindofpressurewearenot
equippedtohandle.Wecannotstop
things(violence)fromhappening.We
cannotpreventanything...itisasifthe
courtsareresponsible…”
—ChiefJusticeofIndiaSABobde

17. mandarins, serving and retired, who
seem to be happy about it.
In the event, the police force, instead
of being the protector of people, has
been reduced to a puppet in the hands
of ruling politicians. We have seen this
happening right in front of our eyes in
Delhi. It’s been nearly two months since
masked persons armed with sticks, rods
and acid attacked students in JNU.
Almost everyone knows who the attack-
ers are, as does the Delhi Police, but so
far, not a single person has been arrest-
ed. And then there is the Jamia Millia
Islamia attack where students, some in a
library, were set upon and assaulted by
the police. Earlier last month, the police
stood by when a mob entered Gargi
College, a women’s varsity, and sexually
harassed and assaulted students there.
And more recently, the police have been
either an accessory or a mute witness to
what happened in northeast Delhi, vari-
ously described as a massacre, a geno-
cide and even a pogrom. Even FIRs have
not been registered against the abettors
and instigators of these heinous crimes.
Equally brutal things are happening in
the neighbouring state of UP.
Coming full circle, people have
rushed to the Supreme Court and high
courts for relief and succour. They
expect constitutional institutions of the
higher judiciary to fill the vacuum and
perform the tasks assigned by law to
DMs and SDMs, but now abandoned in
favour of the political mob. But the CJI
says it is not within their capacity and
they cannot take this kind of pressure. A
Catch-22 situation.
Cops with unchecked police and
magisterial powers, doing what their
political masters want, is a sure recipe
for state autocracy in its rawest form. In
the event, democracy and basic gover-
nance are in deep distress.
This is what the Supreme Court
should address with utmost urgency,
preferably suo motu.
— The writer is a former Army & IAS
officer. He has served as SDM and DM
in Haryana and Chandigarh
| INDIA LEGAL | March 16, 2020 17
133). Under Section 138, the magistrate
has to record evidence in a judicial
proceeding before reaching a decision
based on evidence. In urgent cases of
nuisance or apprehended danger which
cannot be handled under Section 133,
the SDM/DM can issue a prohibitory
order under Section144 to direct any
person or persons to abstain from any
act. This can be a serious infringement
of the fundamental rights of a citizen,
without even an opportunity to defend,
and without an order from a court.
These are blanket powers given to
SDMs/DMs that have to be exercised
with extreme caution and care.
In accordance with this magisterial
architecture, Section 4 of the Indian
Police Act lays down: “The administra-
tion of the police throughout the local
jurisdiction of the Magistrate of the dis-
trict shall, under the general control and
direction of such Magistrate, be vested
in a District Superintendent of Police
(SP) and such Assistant District Super-
intendents as the State Government
shall consider necessary.”
P
unjab Police Rules (1.15) make it
crystal clear: “The DM is the
head of the criminal administra-
tion of the district, and the police force
is the instrument provided by Govern-
ment to enable him to enforce his auth-
ority and fulfil his responsibility for the
maintenance of law and order. The
police force in a district is, therefore,
placed by law under the general control
and direction of the DM who is respon-
sible that it carries out its duties in such
a manner that effective protection is
afforded to the public against lawless-
ness and disorder.”
The Rules have specific provisions as
to the relationship between the
DM/SDM and the police to implement
the law in letter and spirit.
That the post of DM is held by the
IAS cadre and that of SP by the IPS
cadre is an administrative/legal arrange-
ment under the law of the land. Yet,
over a period of time, strong vested
interests have succeeded in making it
into an IAS-IPS binary, questioning the
“superiority” of the former over the lat-
ter. In the event, magisterial control/
oversight over the police is being rapidly
weakened and now it is a mere shadow
of the past. Several cities and towns all
over the country have been brought
under the police commissionerate sys-
tem from where the role of EM/DM is
totally eliminated and police officers are
vested with magisterial and police pow-
ers for criminal and law and order
administration. A huge vacuum has thus
been created between the police and the
people. Since “nature abhors a vacuum”,
this has been filled up by politicians,
many of whom are criminals and vio-
lence-mongers themselves.
The fallout of this is succinctly stated
by Julio Ribeiro, a retired IPS officer:
“Today, the police does exactly what its
political masters want. For instance,
Amit Shah decides everything in Delhi.
The Delhi Police works according to his
whims and fancies, and not according to
the law on the subject. Similarly, the
police are under Mamata Banerjee’s
thumb in West Bengal.” The same is
mutatis mutandis true of other states as
well. Strangely, there are enough police
“Today,thepolicedoeswhatitspolitical
masterswant.Forinstance,AmitShah
decideseverythinginDelhi.Policeworks
accordingtohiswhimsandfancies.”
—JulioRibeiro,aretired IPSofficer

18. Courts/ Legal Aid to Accused
18 March 16, 2020
ASIT Ashiq Sofi, Talib
Majeed and Aamir
Mohiuddin Wani, all from
Kashmir and students of
civil engineering at a col-
lege in Hubli, were taken
into custody on February 17 for allegedly
chanting pro-Pakistan slogans in their
campus hostel on the occasion of the
first anniversary of the Pulwama suicide
bomb attack three days earlier.
According to the prosecution, they were
booked on the basis of a video clip that
showed them chanting “Pakistan zind-
abad” while a Pakistani patriotic song is
heard in the background.
The same evening, the Hubli Bar
Association passed a resolution to the
effect that not only would no local
lawyer take up their cases, they would
not allow anyone from outside to legally
represent the three Kashmiri students.
As if to prove they were true to their
word, lawyers in the city, dressed in
black coats and black pants, stood out-
side the Hubli court to stop any legal
support reaching the students. The bar
association and lawyers from the district
Obstruction of Justice
AstheKarnatakaHighCourtandseniorlawyersactfirm,theHubliBarAssociationwithdraws
itsresolutioncallingfordenialoflegalaidtothreeKashmiristudentsbookedforsedition
By Abhilash Singh
FACING THE HEAT
Police escorting
the three Kashmiri
students accused in a
sedition case in Hubli
B
Twitter.com

19. | INDIA LEGAL | March 16, 2020 19
court continued to block representation
for the students despite a petition filed
before the Karnataka High Court.
On February 26, the Karnataka High
Court’s division bench of Chief Justice
Abhay Shreeniwas Oka and Justice
Hemant Chandangoudar called the bar
association’s behaviour “sheer militancy”.
Acting on a petition filed by two dozen
advocates from all over the state chal-
lenging the Hubli Bar Association, the
bench observed that passing such reso-
lutions would affect the image of the
entire judiciary.
It said: “What will be the image of
the institution of judiciary? We say we
don’t hold kangaroo courts. Even Ajmal
Kasab was given a full trial. The
Supreme Court had appointed senior
advocates to represent him in his case.”
The Court stated: “Let the advocates
file the bail applications under police
protection and then we may transfer the
case to Bengaluru. Today it is about
these three accused, tomorrow the Bar
will pass similar resolution in some oth-
er case. You (Advocate General) impress
upon them (Hubli Bar Association). We
will ensure that cases are transferred out
of their jurisdiction.”
On this, Advocate General Prabh-
uling Navadgi submitted: “I have spoken
to the President of the Hubli Bar Asso-
ciation and they are willing to reconsid-
er the resolution passed by them.”
The Court noted that the police had
done an excellent job in providing pro-
tection to the advocates who wished to
file bail applications for the accused per-
sons in the lower court.
On February 27, the Court ordered
the Hubli Police Commissioner to ens-
ure “complete police protection” for
those advocates who wished to represent
the three Kashmiri students. Chief
Justice Oka had remarked: “How can
the Bar Association pass such a resolu-
tion? This is obstruction of court work.
Are they carrying out a mini-trial by
themselves?”
Three days earlier, when advocate
Maitreyi Krishnan and others visited the
district court in Dharwad to file the bail
applications, they had to face stiff oppo-
sition from the members of the Hubli
Bar. They were disrupted by the local
advocates and had to return without fil-
ing the bail applications.
B
ut the harsh words from the
High Court bench and the tough
stance taken by the senior
lawyers from around the state saw the
Hubli Bar Association on February 27
withdrawing its earlier resolution.
“Advocates who wish to appear for
the accused can approach Dharwad
District Court to file bail plea for them,”
said the Association.
On February 28, after almost four
days of struggle, a team of advocates
from Bengaluru was finally able to file
the bail applications before the Principal
District and Sessions Court in Dharwad
for the three Kashmiri students charged
with sedition, amid police protection.
Police took precautionary steps to see
the advocates were not hindered in their
efforts in filing the applications.
Subsequently, at the bail hearing on
March 2, the judicial custody of the
accused was extended till March 7 by a
Hubli court.
This case in Hubli isn’t an isolated
event. In January, the Mysuru Bar
Association announced that that none of
its members would appear for Nalini
Balakumar, a student who was booked
on sedition charges for holding a “Free
Kashmir” placard during a protest at the
University of Mysore.
Soon, support began pouring in for
her from several quarters. In a state-
ment, senior advocates from across the
state said that they were ready to repre-
sent Balakumar and other students
booked in the case, and help them by
providing the necessary legal assistance.
Offering to appear in court to repre-
sent Balakumar and the others who
were booked under IPC sections 34 and
124A (sedition), the advocates stated:
“Every person has the fundamental and
constitutional right to be represented in
a court of law.”
“As senior advocates, we are ready to
represent the accused in court and pro-
vide her all the necessary legal assis-
tance. So, students are requested not to
worry and concentrate on their academ-
ics,” the statement said.
A group of advocates from Bengaluru
issued a statement calling the Mysuru
Bar Association’s decision a blatant
attack on the ideals of the Constitution.
It is the increasing incidence of such
events that prompted Supreme Court
judge Justice Deepak Gupta to recently
criticise the trend of Bar Associations
passing such resolutions.
Speaking at a function in New Delhi,
Justice Gupta said: “I see many bar
association resolutions that they will not
appear for such and such cases, saying
the act is anti-national. It is wrong.
When bar associations say something
like that (won't appear for certain peo-
ple), that is obstruction of justice,”
he said.
Nothing could be truer.
“HowcantheBar
Associationpasssucha
resolution?Thisis
obstructionofcourt
work.Aretheycarrying
outamini-trialby
themselves?”
—ChiefJusticeAbhay
ShreeniwasOka

20. Courts/ Minority Rights
20 March 16, 2020
CCORDING to the 2011
census, there were fewer
Hindus than followers of
other faiths in the states
of Punjab, Nagaland,
Mizoram, Meghalaya,
Manipur, Arunachal Pradesh,
Lakshadweep and the Union Territory
of Jammu and Kashmir. Hindus, there-
fore, should be regarded as the minority
in these states and granted the advan-
tages enjoyed by minorities. This was
the plea filed by BJP leader Ashwini
Kumar Upadhyay in the Delhi High
Court seeking minority status for
Hindus in these states.
Upadhyay had earlier moved a simi-
lar plea in the Supreme Court but in
December last year, the apex court dis-
missed the petition while giving him the
liberty to approach any other court or
appropriate forum. According to
Upadhyay, his petition was prompted by
the refusal of the National Commission
for Minorities, which he had approach-
ed, to define minority and grant the sta-
tus to Hindus in these states. A division
bench of Chief Justice DN Patel and
Justice C Hari Shankar has sought a
response from the ministries of home
affairs, law and justice and minority
affairs on the plea.
According to Upadhyay’s petition,
“Hindus are merely 1% in Ladakh,
2.75% in Mizoram, 2.77% in
Lakshadweep, 4% in Kashmir, 8.74% in
Nagaland, 11.52% in Meghalaya, 29% in
Arunachal Pradesh, 38.49% in Punjab
and 41.29% in Manipur. But they can-
not establish and administer
educational institutions of
their choice in spirit of Article
30(1) of the Constitution. On
the other hand, Muslims are 46% in
Ladakh, 95% in Kashmir, 96.58% in
Lakshadweep; Christians are 87.16% in
Mizoram, 88.10% in Nagaland, 74.59%
in Meghalaya; Buddhists are 50% in
Ladakh and Sikhs are 57.69% in Punjab.
But they can establish and administer.”
His main grouse is that even though
Hindus are the minority in these states,
the rights that ought to have been theirs
are being siphoned off illegally and arbi-
trarily to the majority population as the
centre and governments in these states
have not notified them as ‘minority’
under Section 2(c) of the National
Commission for Minorities Act, 1992.
Says Upadhyay: “By not notifying them
as minority in these states, they have
been deprived of basic rights under Part
III of the Indian Constitution. The
denial of minority rights to real minori-
ties and arbitrary and unreasonable dis-
bursement of minority benefits to
majority, infringes upon fundamental
right to prohibition of discrimination on
the grounds of religion, race, caste, sex
or place of birth [Article 15(1)]; impairs
the right to equality of opportunity in
matters related to public employment
[Article 16(1)]; and freedom of con-
science and right to freely profess, prac-
tice and propagate religion [Article
25(1)]. It also erodes the obligation of
the State ‘to endeavour to eliminate
inequalities in status, facilities and
opportunities’ [Article 38 (2)]”.
The petition said “by using the power
under section 2(c) of the Act, Central
Government declared Muslims (14.2 %
as per 2011 census), Christians (2.3 %),
Sikhs (1.7 %), Buddhists (0.7 %), Jains
(0.4 %) and Zoroastrians (0.2 %) as
‘minority’ community for the purpose of
the Act, but not declared followers of
Judaism (0.2%) and Bahaism (0.1%) as
a religious minority, which is unjustified
and abdication of statutory powers of
the Central Government”.
The petitioner also stated that even
though Christians are in majority in
Mizoram, Nagaland, Meghalaya and
they form a significant chunk of the
population in Kerala, Goa and some
TheDelhiHighCourthassoughtaresponsefromthe
centreonapleawhichclaimsthatdespitebeingout-
numberedinseveralstates,theHindusaredenied
rightsenjoyedbyotherminoritygroups
By Ananthu Suresh
HismaingrouseisthateventhoughHin-
dusaretheminorityinthesestates,their
rightsarebeingsiphonedofftothema-
jorityasthecentreandstategovernmen-
tshavenotnotifiedthemas‘minority’.
MAJORITY OR MINORITY?
BJP leader Ashwini Kumar Upadhy-
ay seeks minority status for Hindus
in eight states and UTs.
A
Minority Stake
indialegallive.com

21. | INDIA LEGAL | March 16, 2020 21
states, but they are treated as a minority.
Similarly, Sikhs are a majority in Punjab
and their numbers are significant in
Delhi, Haryana and Chandigarh, yet
they are treated as minorities nationally.
He thus sought quashing of the
Notification on Minority Community
dated October 23, 1993, as invalid and
ultravirus of the Constitution.
Upadhyay further contended that the
“Prime Minister’s 15 Points Programme
meant for religious and linguistic
minorities is not being appropriately
used, particularly in Arunachal Pradesh,
Assam, Goa, Jammu & Kashmir, Kerala,
Lakshadweep, Manipur, Meghalaya,
Mizoram, Nagaland, Punjab, Tamil
Nadu, Uttar Pradesh and West Bengal.
Hindus’ legitimate share is being
siphoned off arbitrarily to unqualified
sections of the population, because of
non-identification and non-notification
of minorities at State level. Although, it
is duty of the Government to identify
and notify religious and linguistic
minorities at State level so as to safe-
guard the rights of minorities guaran-
teed under Articles 25-30”. According
to Upadhyay, it was unjust that the
“Union Government offered 20000
scholarships in field of technical educa-
tion for minority students.
“In J&K, Muslims are 68.30% and
government allotted 717 out of 753
scholarships to Muslim students but
none to Hindu students”.
Yet another point raised by
Upadhyay was that the expression
‘minority’ has been used in Articles 29
and 30 of the Constitution but it has
nowhere been defined.
The Preamble of the Constitution
proclaims to guarantee every citizen ‘lib-
erty of thought, expression, belief, faith
and worship’. Articles 25 to 30 guaran-
tee protection of religious, cultural and
educational rights to both majority and
minority communities.
I
t appears that keeping in view the
constitutional guarantees for pro-
tection of cultural, educational and
religious rights of all citizens, it was not
felt necessary to define minority. As
understood from the constitutional
scheme, minority signifies an identifi-
able group of people or community who
were seen as deserving protection from
likely deprivation of their religious, cul-
tural and educational rights by other
communities who happen to be in
majority and likely to gain political
power in a democratic form of govern-
ment based on election. In the back-
ground of the constitutional scheme,
the provisions of the Act therefore,
instead of giving a definition of ‘min-
ority’, only provide for notifying certain
communities as ‘minorities’ who might
require special treatment and protection
of their religious, cultural and educa-
tional rights.
The definition of ‘minority’ given
under Section 2(c) is in fact not a defini-
tion but only a provision enabling the
central government to identify a com-
munity as a ‘minority’ which in the con-
sidered opinion of the government
deserves to be notified for the purpose
of protecting and monitoring its pro-
gress and development. The petitioner
also cited several landmark cases where
it was held by the apex court that the
unit for determining status of both lin-
guistic and religious minorities would
be the state. Upadhyay’s petition has
been given a thumbs-down by the min-
orities commission and the apex court.
His latest before the Delhi High Court
shows he is not one to give up.
ChristiansareinmajorityinMizoram,
Nagaland,Meghalayaandtheyforma
significantchunkofthepopulationin
Kerala,Goaandsomestates,buttheyare
treatedasminority,thepetitionsaid.
StatesandUTswhereHindus
arenotinmajority
The 2011 census found that there were
fewer Hindus than followers of other
faiths in the states and UTs depicted on
the map in orange.
Ladakh
1Kashmir
4
Punjab
38.49
Mizoram
2.75
Meghalaya
11.52
Manipur
41.29
Nagaland
8.74
Arunachal
Pradesh
29
Lakshadweep
2.77
Figures in percentage

22. NO DISCRIMINATION
Then Chief Justice of
Allahabad HC Justice DY
Chandrachud set a precedent
Courts/ Compassionate Appointments
22 March 16, 2020
N a laudatory move, the Lucknow
bench of the Allahabad High
Court has said that the marital
status of a daughter alone cannot
be ground for rejecting her appli-
cation for compassionate appoint-
ment. The Court was hearing a petition
filed by one Mala Devi whose appoint-
ment was rejected because she was
married.
A single-judge bench of Justice
Manish Mathur in its judgment men-
tioned Smt.Vimla
Srivastava vs. State of U.P.
and Others where the
exclusion of a married
daughter from the ambit
of the term “family” was
held unconstitutional and
the word “unmarried”
struck down.
In this case, the bench
headed by then Chief
Justice of Allahabad High
Court Justice DY
Chandrachud had
observed that “...while a
son continues to be a
member of the family and
that upon marriage, he
does not cease to be a
part of the family of his
father, a daughter upon
marriage ceases to be a
part of the family of her
father. It is discriminato-
ry and constitutionally
impermissible for the State to make
that assumption and to use marriage as
a rationale for practicing an act of hos-
tile discrimination by denying benefits
to a daughter when equivalent benefits
are granted to a son in terms of com-
passionate appointment....”
In the present case, Mala Devi’s
father, who was a sweeper in the
District Police Line Hospital, Bijnor,
died in harness. Afterwards, an
application was filed by his married
daughter requesting appointment to
his post on compassionate grounds
under the U.P. Recruitment of
Dependants of Government Servants
Dying in Harness Rules, 1974. This
was rejected on the ground of her mar-
ital status.
The Court while deciding the peti-
tion said: “Once exclusion of married
daughters from the ambit of expression
‘family’ under the aforesaid rules has
already been held to be unconstitution-
al and the word ‘unmarried’ has
already been struck down by two divi-
sion benches of this Court as upheld by
Hon’ble the Supreme Court, there is no
further dispute required to be adjudi-
cated upon due to which present writ
petition is being decided at the admis-
sion stage itself.”
The Court said: “In view of the fact
that petitioner’s candidature has been
rejected only on the ground of her mar-
ital status, a writ in the nature of cer-
tiorari is issued quashing the order
dated 9th October, 2019/10th October,
2018. A further writ in the nature of
mandamus is issued commanding
the opposite parties to reconsider
petitioner’s candidature for compas-
sionate appointment ignoring her mar-
ital status.”
The Court then ordered the con-
cerned authority to pass a reasoned
order within four weeks.
Givinghopetomarrieddaughters,theAllahabadHighCourtsaidthattheirmaritalstatusalone
cannotbereasonforrejectingtheirjobapplicationoncompassionategrounds
By Gautam Mishra
MalaDevi’sfather,asweeperinthe
DistrictPoliceLineHospital,Bijnor,died
inharness.Later,anapplication
wasfiledbyhismarrieddaughter
requestingappointmenttohispost.
I
Marital Woes
Anil Shakya

24. Legal Eye/ Thappad & Legal Reality
24 March 16, 2020
“Husband is not the master of woman”
—Former CJI Dipak Misra
HE film Thappad has
given hope to women in a
country where patriarchy
is deeply embedded. Even
violence against women
doesn’t evoke much resp-
onse as it is easily accepted in India. The
movie attacks these and other stereo-
types in Indian society.
Bollywood movies have earlier too
shown women being hit, but their
response, unlike in Thappad, was very
different. While the female protagonist
in Thappad, played by Tapsee Pannu,
refuses to take the slap from her hus-
band lying down, in Awaara, when Raj
Kapoor slapped Nargis thrice, she
responded by confessing her love for
him. In Kabir Singh, the woman is
slapped while trying to calm her man
down. These characters don’t question
their male counterparts or seek legal
remedies. In that sense, Thappad is rev-
olutionary and sends out the message
that even a single instance of abuse or
harassment should not be tolerated.
While the protagonist pursues
divorce, how close is this to ground real-
ity? What legal processes do women
have to go through to get a divorce? And
what is the future of such cases in
India? It’s true that trying to get a
divorce in retaliation for a single slap
can be difficult. This is due to the long
legal process involved and the possibility
of false accusations against the woman.
The first legal action taken, as shown
in the movie, is a notice sent by the hus-
band for restitution of conjugal rights to
the protagonist. Restitution of conjugal
rights is a remedy available to a person
when their spouse has withdrawn from
them without a reasonable excuse. In
this situation, the court, once satisfied,
can ask the parties to live together. This
remedy is available to Hindus under
Section 9 of the Hindu Marriage Act,
1955; to Muslims under general law; to
Christians under Sections 32 and 33 of
the Indian Divorce Act, 1869; to Parsis
under Section 36 of the Parsi Marriage
and Divorce Act, 1936 and to those mar-
ried under the provisions of the Special
Marriage Act under Section 22 of the
Special Marriage Act, 1954.
The next action taken by the protag-
onist is a petition for divorce by mutual
ClapforthisSlap
Thepath-breakingfilmhasshownthewayforwomentounshacklethechainsofpatriarchy.
ButhowcloseisittoIndianreality?
By Srishti Ojha
T
NOT JUST A SLAP
Tapsee Pannu in the
movie, Thappad

25. There is a possibility of a generation gap
between the parties and the judges. The
cruelty alleged may depend largely on
type of life the parties are accustomed
to, their social and economic conditions,
and their cultural and human values.
Thappad lays bare this proposition as
it portrays different attitudes and reac-
tions to the same situation. The protago-
nist did not think it was correct for her
husband to slap her even once, while her
family and in-laws thought it was just a
slap and a family matter. While the film
shows the protagonist refusing to stay
with her husband after being slapped
just once, her maid who is beaten by her
husband daily, continues to stay with him
and can even joke about it until a day
arrives when she doesn’t take it anymore.
Lord Alfred Denning, an English
judge, had stated that when it comes to
cruelty, each case may be different
because the conduct of people cannot be
similar and there is no limit to conduct.
“New type of cruelty may crop up in any
case depending upon human behaviour,
capacity or incapability to tolerate the
conduct complained of. Such is the beau-
tiful realm of cruelty,” he said.
The last remedy resorted to by the
protagonist against the husband is the
charge of domestic violence.
The Protection of Women from
Domestic Violence Act, 2005, is the first
law that specifically protects a woman’s
right to be protected against violence.
The Act defines “physical abuse” as
any conduct which can cause bodily
pain, harm or danger to life, limb,
health or development of the aggrieved
person and includes assault.
It’s true that what constitutes domes-
tic violence or cruelty will vary from case
to case and will depend on the interpre-
tation taken by courts. It’s also true that
divorce in India is still considered taboo.
While legal remedies can take a long
time to be executed and are not easy,
the fact remains that they are available
and may be accessed.
And Thappad has shown that women
should raise their voices when their self-
respect is attacked.
| INDIA LEGAL | March 16, 2020 25
consent. When a party files for divorce,
they have to make out the grounds for
divorce. In the movie, the ground is
cruelty as set out in Section 13(1)(i-a)
of the Hindu Marriage Act, 1955.
One of the grounds under which
divorce can be sought under the Hindu
Marriage Act is cruelty. Considering the
broad scope of this term, can a slap fall
under this definition? Cruelty has not
been defined in the Hindu Marriage
Act. However, under the Indian Penal
Code, cruelty is recognised under
Section 498A as harassment of the wife
to meet any unlawful demand for
money. Indian courts have laid down a
precedence which conforms to recent
trends and developments in matrimoni-
al law. This has brought hope to hun-
dreds of women who can take a stand
when their dignity is under assault.
In Kanna v Krishna Swamy, the
Madras High Court upheld that in mod-
ern times, a woman should be entitled
to insist on being treated with dignity
and self-respect by her husband and to
have a peaceful and happy life. The
Karnataka High Court in Srikanth vs
Anuradha had also upheld that any con-
duct of the spouse which causes disgrace
to the other and subjects them to annoy-
ance or indignity would amount to legal
cruelty. The Kerala High Court in
Rajani vs Subramaniam had said that
judging by the standards of modern
civilisation, wives are not expected to
endure harassment, mental or physical,
in domestic life. Their ambitions and
aspirations should be taken into account
and sentiments respected.
T
he apex court had also examined
the concept of cruelty in Shobha
Rani vs Madhukar Reddi (1988)
and explained that the word is used in
the context of human conduct in rela-
tion to matrimonial duties. It is a course
of conduct which can adversely affect
the other. If the cruelty is physical, it’s a
question of fact and degree, and if it’s
mental, then its impact on the mind of
the spouse has to be examined. So slap-
ping one’s spouse falls not only under
physical cruelty but mental one too
because its impact on different people
can vary.
The Court had also said that judges
should not import their own notions of
life into a case as they may not be in
consonance with the people involved.
LordAlfred
Denning,an
Englishjudge,had
statedthatwhenit
comestocruelty,
eachcasemaybe
differentbecause
theconductof
peoplecannotbe
similarandthere
isnolimitto
conduct.“New
typeofcrueltymay
cropupinanycase
dependingupon
humanbehaviour.”
prabook.com

26. Column/ Kejriwal’s New Avatar Shiv Visvananthan
26 March 16, 2020
RITING about poli-
tics in India is not an
easy task. What looks
managed and rational
at one level sounds
like Alice in
Wonderland at another. Worse, Alice
can change to Kafka as the tale of a
word like sedition changes in a different
context. Secondly, our politicians too are
idiosyncratic characters projecting con-
tradictory visions of themselves in dif-
ferent contexts.
Delhi Chief Minister Arvind Kejriwal
has grown curiouser over the years.
When he entered the political stage, he
was a crusader against corruption.
When he captured the political stage, he
was a champion of migrant welfare, es-
pecially medicare and education. As he
survived a term, he seemed to switch
strategy. He was not a politician dream-
ing alternatives but a vernacular variant
of the Hindu majority. He claimed he
was as Hindu as Modi, and in fact,
backed the BJP in their policy on Kash-
mir. It was almost as if Kejriwal was
buying peace at a certain level by saying
his was a local stage, a Delhi stage, and
he had no pretensions to national po-
wer. A party which was seen as a nation-
al possibility now acted as if it was a
local cobbler sticking to its limited last.
One has to also comment on the jux-
taposition of Kejriwal and Kanhaiya
Kumar, former JNU Students’ Union
president. They represent a new genera-
tion of politicians, but Kanhaiya still
carries the fire of the original Kejriwal.
Kejriwal looks domesticated, even rou-
tine next to Kanhaiya. Kejriwal is clear
he threatens no one, at least beyond
Delhi. Kanhaiya is an aspiring star,
whose very rise has put Lalu Prasad Ya-
dav and clan in anxiety. Lalu’s brood,
even Tejaswi, is hardly a match for the
charismatic Kanhaiya. Tejaswi appears
like a backstage organiser, Kanhaiya a
man for the masses. A politician like
Kanhaiya would be a tinder box in the
current dynamics of Delhi. When Kan-
haiya emerged out of JNU politics, one
saw him as a variant of AAP. But the
two styles of politics have diverged.
Change of Strategy
WithAAPpermittingtheprosecutionofKanhaiyaKumarina2016seditioncase,theDelhiCM
seemstohavetransformedfromacrusadertoadomesticatedmanwhoismorecautious
AAP’S CURRENT GAME PLAN
Delhi CM Arvind Kejriwal (left) should have been sympathetic to the rise
of Kanhaiya, but now sounds nationalist
W

27. | INDIA LEGAL | March 16, 2020 27
Kejriwal appears a different man,
more cautious, more limited in his
range. He realises that his low-key,
familial politics is winning him the
migrant vote. His persistence has virtu-
ally reduced all his critics to silence. A
man who should have been sympathetic
to the rise of Kanhaiya now plays cor-
rectress to the core. He sounds national-
ist. The language is interesting. Raghav
Chadda, his colleague, calls the sedition
case “a procedural matter, a ritual to be
followed and closed”. Kejriwal, radical is
his critique of corruption, is more than
politically correct on sedition.
Sedition, a key charge in colonial ti-
mes, is still a potent word in India,
while former colonies like Ireland and
Australia have cauterised it. Our current
regime even uses sedition to harass
schoolchildren uttering words in a play.
Sedition has become a blanket word for
curbing dissent. The polarity between
patriotism and sedition virtually marks
the range of the current regime, though.
It is a key word of policy and needs to
be exorcised because it challenges the
basic differences that make a decent
society. The words sedition, urban Naxal
and internal security are key Dovalesque
words which civil society has to chal-
lenge. One always imagined Kejriwal
and AAP as a force close to civil society.
The AAP struggle, in the initial years,
was a merging of civil society and a new
party. Yet, AAP is a party, which with
success, seems to forget its past. It cur-
rently sanitises words like “procedural”,
which it would have challenged in
the past.
T
he response to the Kanhaiya trial
is indicative of AAP’s current
strategy. In a utilitarian way, AAP
realises that it bumbles or gets its fin-
gers burnt every time it strays out of
Delhi. Its visions of being a national
party and its forays into Punjab were
disappointing. It also senses that when
it amplifies scale, it becomes assorted
and archaic as a party. Kejriwal in his
style is a bit of a schoolmaster and
thinks small is beautiful because small is
controllable. He prefers policy and gov-
ernance vocabularies around health and
education to political terms, which
might be seen as inflammable. This atti-
tude of let-me-dub-it the Kanhaiya syn-
drome has wider consequences.
Firstly, AAP, when it emerged, was a
metaphor, a shorthand for an alternative
politics, a politics that went beyond elec-
toral democracy and State power. It
sought a new style and vocabulary of
politics. The AAP message was liberat-
ing. Yet, AAP as it fought to stay in po-
wer, transformed its style drastically. It
was like trimming a political garden,
eliminating weeds, creating a more sta-
ble style. This change in tactics has dis-
appointed a wider constituency, a wider
appeal that AAP now ignores.
AAP has been hospitable to Shaheen
Bagh, suggesting that civil life and pro-
test belong to one weave. Yet, when the
riots took place, Kejriwal suggested a
closing of Delhi’s borders. This is a sign
of panic without an everyday under-
standing of Delhi. One wishes he rea-
lised that a Shaheen Bagh for citizen-
ship eventually needs a Shaheen Bagh
for sedition.
The poignancy of the sedition cases
and their macabre surrealistic character
can be seen if we juxtapose three of
them. First is the Elgar Parishad case
where a group of activists has been
harassed for months. It is almost as if
concern for tribals or social work among
the poor is also anti-national. The sec-
ond case is of the young girl who faces a
sedition case for mouthing lines in a
school play. The third is Kanhaiya—
here, in taming Kanhaiya, you tame free
thought in a university. Each shows why
sedition as it is used today threatens
democracy rather than protecting the
nation-state. The Delhi government will
proceed with the cases and Kanhaiya
has been stoic about it. Yet, these are
not just cases. These become challenges
to democracy and civil society to exor-
cise such words and create a linguisti-
cally enabled democracy. It will be won-
derful to see Kanhaiya play a creative
role in politics in the years to come.
—The writer is a member of the
Compost Heap, a commons of ideas
exploring alternative imaginations
Kanhaiyastillcarriesthefireoftheorigi-
nalKejriwalandisanaspiringstar,whose
risehasputLaluYadavandclaninanxi-
ety.Apoliticianlikehimwouldbeatinder
boxinthecurrentdynamicsofDelhi.
CONFUSED ABOUT DELHI
AAP was hospitable to Shaheen Bagh but
during riots, the CM wanted closing of borders

28. 28 March 16, 2020
In 2011, Contagion, a medical action thriller
movie directed by Steven Soderbergh, released
to critical acclaim and thanks to its ensemble
cast—Matt Damon, Lawrence Fishburne, Jude
Law, Gwyneth Paltrow and Kate Winslet—
became what Bollywood calls a “superhit.” Now,
nine years later, the movie has reached the top 10
on iTunes rentals and is already Warner Bros’
second most watched film of 2020. The reason is
that the plot bears an uncanny resemblance to
the outbreak of the novel coronavirus, and
attempts to contain its spread.
In Contagion, the spread of a virus leads to a
frantic race by medical researchers and public
health officials to identify and contain the dis-
ease. It also details the loss of social order during
a pandemic. It is possible that the sudden rush to
revisit the movie is to see how a cure is found,
and how soon. As producer Michael Shamberg
told Buzzfeed, following the film’s resurgence: “It
was very deliberately designed to be a cautionary
film. We got the science right.”
International Briefs
Reel Life
Venezuela’s eco-
nomic crisis has
resulted in some 4.5
million fleeing the
country since 2015.
According to the Uni-
ted Nations, its social-
ist president, Nicolás
Maduro (left), wants
Venezuelan women to
have at least six chil-
dren each to fill the
gap. In a bizarre
exhortation, he said:
“To give birth, then, to
give birth, all women
to have six children,
all. Let the homeland
grow!” His comments
drew criticism from
human rights activists
and local Venezuelans
who face a daily strug-
Baby Boom
in Bust
UNI

29. | INDIA LEGAL | March 16, 2020 29
The world’s most famous
museum, the Louvre in
Paris, is facing major prob-
lems because of the coron-
avirus outbreak. First, the
museum shut down after its
workers refused to work
because of fears of the virus
spreading from visitors from
around the world, and now,
the world's most-visited
museum is shifting to card-
only payments as part of new
measures to help protect
employees including those
who guard Leonardo da
Vinci's “Mona Lisa” and
other masterpieces. The
Louvre's move, however,
could be challenged under a
Bank of France ruling which
decrees that refusing cash is
illegal. The workers fear that
banknotes might be vectors
of disease and there are addi-
tional fears that even han-
dling tickets could be dan-
gerous. The museum attracts
thousands of visitors each
day and refusing to accept
cash will be a huge setback.
“There is no proof that the
coronavirus has been spread
by euro banknotes,” the bank
said in a statement to the
Associated Press.
There’s one thing coffee
drinkers hate about that
coffee break: once the level
drops, the hot beverage turns
lukewarm, and, by the time
it reaches the bottom, it’s
almost cold. There are insu-
lated travel mugs or flasks
but for coffee drinkers using
a normal cup or mug while
in office or at home, the
change in temperature can
be hugely irritating. Now,
there’s hope thanks to the
Ember, a self-heating, bat-
tery-powered, app-controlled
mug designed to keep bever-
ages at a consistent tempera-
ture (up to 145 degrees). Its
charging base is cleverly
shaped just like a saucer. It
also has an LCD readout and
adjustable temperature set-
ting. It may be a bit pricey,
but for genuine coffee lovers
who like a consistent tem-
perature and the aroma, the
Ember seems like the answer
to many a prayer.
Coffee Break
Thanks to the novel coro-
navirus, 22 countries in
three different continents
have announced or imple-
mented school closures. Just
two weeks ago, China was
the only country mandating
closures. Since then, 13 co-
untries have shut schools,
impacting 290.5 million
children and youth who
would normally attend pre-
primary to upper-secondary
classes. A further nine coun-
tries have implemented lo-
calised school closures to
prevent or contain COVID-
19. Should these countries
also order nationwide school
closures, it would prevent an
additional 180 million chil-
dren and youth from attend-
ing school.
These figures were relea-
sed by UNESCO which is
supporting the implementa-
tion of large-scale distance
learning programmes and
recommending open educa-
tional applications and plat-
forms that schools and tea-
chers can use to reach learn-
ers remotely.
School closures, even if
temporary, are problematic
for several reasons—reduc-
tion in instructional time
and educational perform-
ance, inconvenience caused
to families and decreased
economic productivity.
School closures disrupting
the education of 290.5 mil-
lion students globally are un-
precedented. The world is
learning some hard lessons.
Hard Lessons
gle to provide food and
health care for their fami-
lies. The country's eco-
nomic collapse means
that 9.3 million people—
nearly one-third of
Venezuela's population—
are unable to meet their
basic dietary needs. A
report by Human Rights
Watch in collaboration
with the Johns Hopkins
Bloomberg School of
Public Health concluded
last year that the health
system in Venezuela has
“totally collapsed”.
Among other problems, it
cited rising levels of
maternal and child mor-
tality. In the face of all
that, for the country’s
president to exhort wo-
men to have six babies is
not just bizarre but an act
of cruelty.
No Cash for Mona Lisa

30. Focus/ Fast Track Courts
30 March 16, 2020
HE Union law ministry
has decided to hire lawyers
with up to eight years of
practice to work as con-
sultants to address the
staff crunch it is facing in
implementing its ongoing scheme of set-
ting up Fast Track Court (FTCs). The
law ministry through this scheme aims
to set up 1,023 FTCs across the country
for speedy trial and disposal of rape and
Protection of Children from Sexual
Offences (POCSO) cases. These officers
will be appointed on contractual basis to
scale up project planning and bring pol-
icy changes that encourage more
accountability and efficient disposal of
these cases. They will coordinate regu-
larly with the registrar generals of high
courts to ensure that the 100 days’ time-
A New Impetus
Thelawministryaimstohirelawyerstohelpimplementitsplantosetup1,023FastTrack
CourtsacrossthecountryforspeedytrialanddisposalofrapeandPOCSOcases.However,the
groundrealityandlackofinfrastructuresuggestitcouldbeanuphillchallenge
By Nupur Dogra
QUEST FOR JUSTICE
Children sitting on dharna in
Lucknow, protesting against the
rape of girls in Badaun and other
places in Uttar Pradesh
T
UNI

31. | INDIA LEGAL | March 16, 2020 31
line of completing the trial of such cases
is followed.
On the face of it, the move to appoint
consultants in the ministry is a welcome
step on the part of the government to
address the staff crunch, but there is
also the ground reality concerning FTCs
in the country. For a scheme as impor-
tant as this one, a closer scrutiny
is required. The scheme targets to dis-
pose of 1,66,882 cases of rape and those
under the POCSO Act that are pending
in various courts through these 1,023
FTCs. Out of 1,023 FTCs, 389 will
exclusively handle POCSO cases as
directed by the Supreme Court. The re-
maining 634 FTCs will deal with either
rape cases or both rape and POCSO
cases depending on the pendency
and requirement.
While any scheme that ensures
speedy trials in cases of heinous crimes
against women and children is welcome,
the reality is sobering. Recently, the
National Crime Records Bureau’s
(NCRB) annual “Crime in India” report
pointed out that FTCs in several states
take longer than regular courts to com-
plete the trials. According to the report,
out of the total number of trials com-
pleted in FTCs in 2018, only 22 percent
were completed within a year which is
the lowest percentage among all kinds
of courts, the report said. Also, around
42 percent of these cases took more
than three years to complete and around
17 percent of them took more than five
years to complete (see graph).
F
TCs are set up for one year initial-
ly and are not permanent courts.
Consequently, this scheme does
not intend to create any permanent
infrastructure. The courts will be made
functional in suitable premises taken on
lease or as decided by the states/UTs
and respective high courts. The lack of
focus on infrastructure related to these
courts has raised serious concern over
their future. Further, Delhi’s National
Law University survey on FTCs revealed
that these courts lacked the required
infrastructure for conducting speedy
trials. Many of them lacked appropriate
technological resources to facilitate
audio and video recordings of the vic-
tims. Staff crunch in courts as well as
forensic lab and lack of physical and IT
infrastructure plague these courts even
in the age of Artificial Intelligence.
Speaking to India Legal on the
importance of appropriate infrastruc-
ture for smooth functioning of these
FTCs, senior advocate Vikas Pahwa
said: “I appreciate the move of the cen-
tral government in constituting FTCs
for trying POCSO and rape cases. These
FTCs should be eCourts. The evidence
should be digitally recorded.”
He added: “In foreign courts, 15-20
witnesses are examined in a day, where-
as courts in India would take six to nine
months for the same.” Emphasising the
need for absorbing technology in judi-
cial proceedings, he suggested: “All serv-
ice of summons should be effected via
digital technology. The identity of pros-
ecutrix and the witnesses should be kept
secret and they should be kept away
from the visible distance of the accused.”
According to the scheme, each FTC
will have one judicial officer and seven
staff members. Additional charge of the
FTCs will not be given to any existing
judicial officer or court staff. States/UTs
may engage judicial officers and court
staff on contractual basis where suffi-
cient manpower is not available.
Services of retired judicial officers with
relevant experience may also be engaged
to dispose of cases and the responsibility
of setting up of FTCs lies with the state
and UT governments.
However, the plan of the scheme
might look promising on the surface,
but as one digs deeper, serious problems
and challenges appear which have either
been glossed over or remain unaddres-
sed. Advocate Nimisha Menon, who is a
Legal Fellow at Councel to Secure
Justice and is currently handling about
70 POCSO-related cases, told India
Thelackoffocusoninfrastructureof
FTCshasraisedseriousconcernovertheir
future.Staffcrunchincourtsaswellas
forensiclabsandlackofphysicalandIT
infrastructureplaguethesecourts.
0
FTCsslowerthanregularcourts
Fast Track Courts
SC/ST Courts
Additional Sessions Judge
District/Sessions Judge
POCSO Court
Sub-Judge
Special Courts
Special Judicial Magistrate
Other courts
Judicial Magistrate (I)
20 40 60 80 100
Source: Crime in India Report (2018), National Crime Records Bureau Figures in percentages
Durationoftrialsfinishedin2018 Lessthanoneyear 1to3years Morethanthreeyears

32. Focus/ New Scheme for Fast Track Courts
32 March 16, 2020
Legal: “Addressing the issue of lack of
number of judges and courts is more
important than appointing lawyer con-
sultants. There are already special
POCSO courts that are going on in the
country that are not FTCs. POCSO
courts have judges who are specifically
appointed for dealing with such cases.
With increasing sensitivity and aware-
ness around these cases the judges try to
resolve them as soon as possible.
Despite this, cases go pending beyond
four to five years due to lack of judges
and inappropriate infrastructure. The
judges are extremely over-burdened as
their rosters are full. Hearing around
250 POCSO cases in a span of two or
two-and-a-half months can be problem-
atic for the judges and can take a serious
toll on them as well. The focus should
be on appointing more judges and sensi-
tising and training them in self-care
while dealing with such cases.”
Menon further added: “At the
moment, POCSO courts function under
additional sessions judges and every
POCSO court has a public prosecutor
assigned and a Delhi Commission for
Women lawyer appointed to it. NGOs
also play an active role in helping
POCSO cases. Constituting fast track
courts separately and appointment of
consultant lawyers may lead to duplica-
tion of services. According to the
Supreme Court’s directive, FTCs are
constituted if the pending cases are
more than 100 in a court. Currently, I
am working with seven to eight POCSO
courts and most of them have over 200
to 250 pending cases.”
Speaking on the need to provide
appropriate infrastructure, she pointed
out that currently Delhi has only one
forensic lab. This lack of forensic infra-
structure further delays the cases as the
evidence takes longer time to emerge.
I
n January, the Supreme Court
directed all states to appoint exclu-
sive public prosecutors in all the
courts set up exclusively for POCSO
cases. A bench of Justices Deepak Gupta
and Aniruddha Bose remarked: “They
need to know how to bring out the truth
from children who are victims of sexual
abuse and have to undergo the trauma
again while recounting the traumatic
experience... Not only is there a need to
have exclusive public prosecutors but
there is also a need to develop a training
programme where these special public
prosecutors should be trained to deal
with issues which will arise in their
courts. These issues may not be confined
to legal issues which otherwise public
prosecutors may be trained to deal with.
The issues may be psychological, health
and other related issues.”
This observation by the apex court
highlights that there are many dimen-
sions to be taken care of while address-
ing sensitive cases like that of POCSO
and crime against women.
Another important aspect of the
scheme is that the state/UT govern-
ments will take requirements from the
high courts and draw up an action plan
of implementation. Each FTC will exclu-
sively handle pending cases of rape and
POCSO. No other cases of crime against
women and children will be transferred
to these courts and these courts will
function full-time.
These provisions too, like the whole
scheme, seem well intentioned and
promising but the lack of judges in the
subordinate judiciary is already alarm-
ing. The recruitment system of judges in
states lacks uniformity, leading to piling
up of vacancies. The high courts are
already over-burdened and now with
the planning and implementing being
left to states, the FTCs might as well
lack uniformity across the country thus
further amplifying inequitable distribu-
tion of justice across the country.
With the increasing cases of crime
against women and children in India it
has become extremely important that
we strengthen our current judicial sys-
tem for swift disposal of such cases.
According to the latest NCRB data,
there were 1.33 lakh rape cases and
90,205 POCSO cases pending trial at
the end of 2016.
If the government is serious about
fast tracking such cases, it will not only
have to bring in proper infrastructure
with new courts and more judges, but
will also have to ensure that this scheme
does not lead to further delays due to
duplication of services.
“ConstitutingFTCsfortryingPOCSOandrapecasesisagoodmove;
however,theseshouldbeeCourts fordigitallyrecordingevidence.In
foreigncourts,15-20witnessesareexaminedinaday,whereasin
Indiacourtstakesixtoninemonthsforthesame.”
—SenioradvocateVikasPahwa
facebook.com

34. Environment/ Single-Use Plastic
34 March 16, 2020
HE global furore follow-
ing the release of an icon-
ic video of marine biolo-
gists removing a plastic
straw from the nose of an
endangered turtle gave
the much-needed impetus to the issue of
plastic pollution. Not only is plastic bio-
logically indestructible, when broken
down mechanically it results in micro-
plastics which enter our food chain,
water and even the air we breathe.
Burning of plastic gives rise to danger-
ous fumes which have a negative impact
on people exposed to them.
In India, over 28 states and UTs have
banned plastic carry bags. Some have
further banned styrofoam and one-time
disposable cutlery. However, this hasn’t
worked because the ban is yet to be
completely enforced by the authorities
as there is laxity. The proposed ban
against six identified plastic products
had to be called off in the wake of the
economic slowdown.
India’s Single Use Plastic (SUP)
industry has an estimated turnover of
about Rs 53,000 crore and provides 13
lakh jobs across 10,000 firms in the
country (according to 2018 estimates).
It is estimated to grow at a rate of 20
percent. As the plastic recycling industry
is mostly unorganised, pickers associat-
ed with polyethylene terephthalate
(PET) and other SUP products form
nearly 30 percent of India’s waste pick-
ers’ population. SUP has not yet been
defined by the government even after a
committee was constituted for the job.
And though states have banned plastic
carry bags, there is a long list of prod-
ucts which constitute SUP.
A recent report, “Single Use Plastics:
The Last Straw”, released by a Delhi-
based NGO highlights the issues of dis-
posal and downcycling of SUP. It tries to
identify the SUP products being used by
urban residents in Delhi-NCR in large
volumes, and looks into consumer
awareness and behaviour around SUP
use. According to the survey, almost 50
percent of the respondents were regular-
ly taking plastic bags from vendors.
Only 17 percent of the respondents said
they never took plastic bags. Of those
surveyed, women seemed more eco-
friendly as only nine percent, compared
to 19 percent men, took plastic bags
every time they shopped. Forty-six
percent chose cloth bags as the best
alternative, followed by jute and bio-
plastic bags.
The survey further showed the clear
ambiguity in the understanding of SUP
products amongst people. Most con-
sumers did not consider mineral water
bottles or plastic straws as SUPs. Only
57 percent of the respondents thought
plastic carry bags were single-use plas-
tic. An overwhelming 65 percent of the
total respondents did not categorise
plastic balloon sticks and non-refillable
pens as SUPs.
The plastic industry feels that the
disposal habits of people are the pri-
mary reason for the state of affairs.
Industry experts vouch that irrespon-
sible dumping has led to widespread
pollution and proper collection and
recycling is the need of the hour to con-
trol it. “India recycles 60 percent of
plastic but needs a robust plastic waste
collection system,” said Ajai Kumar,
associate vice-president, plastic recy-
cling and water initiatives, Hindustan
Coca-Cola Beverages Pvt Ltd. “There
must be a pragmatic approach rather
than an idealistic approach. A substitute
for plastic is not possible for the next 50
years. The positives need to be consid-
ered and the negatives must be min-
imised,” he added.
TheLastStraw
ThewaragainstplasticwasdeclaredonWorldEnvironment
Dayin2018whenIndiahostedthe“BeatPlasticPollution”
crusade.However,arecentreporthighlightstheproblemof
disposalandcallsforpublicawarenesstostopplasticpollution
By Papia Samajdar
T
UNI

35. | INDIA LEGAL | March 16, 2020 35
Recyclers Asrar Mohammad Munshi,
the chief functionary of Esree Foun-
dation, and Rahul Poddar, the owner of
Shakti Plastics Industries, agreed with
this viewpoint. “Plastic is not a prob-
lem—it can be reused and recycled. It is
the consumers’ lack of knowledge about
its responsible usage, storage and pre-
servation which is the main issue,” they
said. Although stating that awareness
does not automatically translate into a
new practice, Munshi still stressed the
need for a change in consumer beha-
viour to contain plastic pollution. “The
biggest issue is that of mixed waste.
Contaminated plastic cannot be recycled
and ends up being littered,” said Poddar.
T
his industry claim, however, is
refuted by environmentalists and
experts. “The plastic industry
does not want to change. It is time they
looked for options; even using recycled
plastic for packaging will be a big leap.
But to do so, we need standards for re-
cycled plastic products. Going from PET
to a downcycled plastic fibre is not en-
ough, it should be from PET to recycled
PET. We need that upgradation,” said
Swati Singh Sambyal, a municipal solid
waste expert. “Plastic downcycling only
increases the life span of the plastic, but
ultimately all of it is waste,” added Priti
Mahesh, chief programme coordinator
at Toxics Link.
According to a report published by
the Central Pollution Control Board,
there are limits to recycling SUPs.
GENERATING AWARENESS
Sand artist Sudarshan Pattnaik highlighted the
need to combat plastic pollution in oceans

36. Environment/ Single-Use Plastic
36 March 16, 2020
They can be recycled only two to three
times, after which it all ends up in a
landfill. And with each recycling phase,
the product quality also deteriorates.
Additionally, the process of melting plas-
tic to recycle it requires high tempera-
tures which contribute to global warm-
ing. Toxic fumes are also released during
the process. Currently, storage, trans-
portation or packaging of food items
using recycled plastic is not allowed.
“Ideally, we need a specific definition
of SUP countrywide, considering that
our SUP waste composition changes
drastically across regions and is not sim-
ilar to that of the West,” said Sambyal.
Mahesh echoes this: “There is an urgent
need to identify SUPs which can be
phased out and restricted. The govern-
ment also needs to support the alterna-
tive industry,” she added.
E
xperts feel that the plastic waste
management guidelines should
look into a phase-wise ban with
items that already have alternatives. The
guidelines should also look into the so-
cial, environmental and economic via-
bility of the alternatives suggested. Ex-
tended Producer Responsibility (EPR)
should also be addressed and states
should look into different EPR models.
Globally, there is a strong movement
for making consumers aware of the
harmful impact of SUP so that they not
only avoid its use but demand compa-
nies and governments move towards
alternative and sustainable materials.
However, with the lack of definition of
SUP, any drastic behavioural change
among consumers is difficult to achieve.
“Consumer awareness can play a key
role here. However, I don’t think that is
happening or even if it is happening, it
is not for an extended period,” said
Sambyal. “Consumers directly affect the
demand-supply chain, and if we push
for sustainable products, if we say no to
common SUPs, it will definitely push
bigger FMCG giants, retailers and man-
ufacturers of SUPs to look out for alter-
natives,” she added.
However, any such initiative can only
work with proper regulatory compliance
and policy-backing.
“WeneedacleardefinitionofSUPcoun-
trywide,consideringthatourSUPwaste
compositionchangesacrossregionsand
isnotsimilartothatoftheWest.”
—SwatiSinghSambyal,municipal
solidwasteexpert
CONFUSED ABOUT SINGLE-USE PLASTIC
A recent survey showed that people are still
accepting plastic carry bags from vendors

37. W
hile all the buzz is
around PM Modi
giving up his so-
cial media accounts to de-
serving females on Wo-
men’s Day, a recently re-
leased report shows who
are the most followed jour-
nalists on Twitter.
The report, compiled by
researchers at the Univer-
sity of Michigan, listed three
senior journalists with the
maximum Twitter following.
They are Shekhar Gupta,
the founder of the online
news platform Print (far left),
Rajdeep Sardesai, the con-
sulting editor at India Today
and host of Nine O’ Clock
prime time news show on
the group’s English channel
(above left), and his former
colleague at NDTV, Barkha
Dutt (below left).
The study “plotted” the
friends and followers of
journalists in India to under-
stand who they most “lis-
tened to” on the micro-
blogging site.
Among the politicians
most followed by Indian
journalists, Modi heads the
list while historian Rama-
chandra Guha is the most
followed public intellectual.
T
his is the season for media out-
lets to host their summits/con-
claves while the weather is still
bearable. We have just had CNBC-
TV18’s India Business Leader Awards
in Mumbai on the theme, “Leaders of
Change”, with the chief guest being
the prime minister along with busi-
ness leaders, and naturally, Union
Finance Minister Nirmala Sitharaman.
This will be followed by The Eco-
nomic Times annual Global Business
Summit this week, which coincides
with another Global Summit hosted
by Zee TV’s WION in Dubai which
looks at the way forward for the South
Asian region.
Delhi will also play host to another
annual media event, the India Today
Conclave, which, again, will have the
prime minister as the chief guest later
this week. The theme of the event,
“Mercury Rising”, is apt enough con-
sidering that it coincides with the
onset of summer.
Summit Weather
| INDIA LEGAL | March 16, 2020 37
Media Watch
M
ajor interna-
tional news
organisa-
tions have been bad-
ly affected by the
novel coronavirus,
asking reporters to
stay home and
severely limiting over-
seas travel. CNN’s
memo to staff restrict-
ed all work travel, and
limited event cover-
age to “absolutely
critical” personnel.
The New York Times
has also put curbs on inter-
national travel which can
now only be cleared by the
top boss at the newspaper,
and not section editors as
was the case earlier. Staff
has been told that travel to
Asia and Italy is banned till
further notice.
Meanwhile, Wall Street
Journal staff has been told
that the company will be
“pulling back on travel to
conferences and other dis-
cretionary trips”. Publishing
giant Condé Nast, which
has a large number of em-
ployees posted abroad,
has asked employees who
had visited an affected
country to work from home
for two weeks. This came
after a group of Condé
Nast staffers recently trav-
elled to virus-affected Milan
in Italy for fashion week.
Newsroom
Virus
Twitter Titans
V
eteran journalist Vir Sanghvi
has donned many hats in the
media world, from print to tele-
vision, but now he’s donning anoth-
er—a chef’s hat. He has joined
India’s equivalent of the Michelin
Guide as part of a new venture called
Culinary Culture.
It is a platform, modelled on the
Michelin Guide, which is looking to
become India’s most definitive voice in
the food space. The platform was
launched by Sameer Sain, founder of
EverstoneGroup, and Sanghvi will
serve as its chairman.
The platform will rate restaurants,
recognise achievers in the industry
and organise knowledge exchange
sessions with globally acclaimed
chefs. Bangkok’s famous Michelin sta-
rred chef Gaggan Anand will serve as
mentor while Vir’s son, Raaj Sanghvi,
will be the CEO.
Switching from copy tasting to food
tasting takes a strong stomach.
Changing Rolls