India legal 16 march 2020

India legal 16 march 2020
NDIA EGALL STORIES THAT COUNT I March16, 2020 LawandDisorderCrucialmattersthatcameupintheSupremeCourtandDelhiHighCourtindicateacrisisinIndia’s basicgovernance.TheCrPCandPoliceActsclearlylaydownthatitisthejobofDMsandSDMsto maintainlawandorder,buttheirrolehasbeentakenoverbythepolicewithquestionableresults Fast Track Courts: New scheme
| INDIA LEGAL | March 16, 2020 3 rofessor Arun Kumar is perhaps among 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 circulation 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 functioning 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 demand, consumption, jobs, investment, imports and exports crash? Is the social unrest raging across the country a sign of this economic crisis—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 organised 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 marginalised. 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,consumption,jobs, investment,imports andexportscrash?
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 unorganised 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 slowdown, 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 problem. This is a continuing problem but it is aggravated 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 expenditures 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
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 higher 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 interest 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 estimates, growth assumed 12 percent, actually growing 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, education, 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 benefit 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 March 16, 2020 ContentsVOLUME XIII ISSUE18 MARCH16,2020 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Junior Sub-editor Nupur Dogra Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographer Anil Shakya Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. 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
| 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 March 16, 2020 Anthony Lawrence RINGSIDE BJP MLA says cow dung and cow urine can cure coronavirus
| 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 wallet 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 imprisonment, or fine, or both. Moreover, such a second marriage is void and not recognised 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 understanding 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, continue 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 considered 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 reason 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 punished 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.
Courts 10 March 16, 2020 The Supreme Court said that the rules framed by various High Courts mandating 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—review and curative petitions were filed in the Supreme Court at different times, in what were seen as deliberate attempts 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 dealing 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 challenged by many, including the Internet and Mobile Association of India (IMAI), which ques- tioned the bank’s powers to impose the ban since cryptocurrencies 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 digital 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
In a virtually unprecedented act, the United Nations High Commissioner for Human Rights (UNHCR) filed an intervention 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 approached 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 minister Chinmayanand. A bench comprising Justices Ashok Bhushan and Navin Sinha observed that there was no reason to interfere with the order. The Allahabad High Court had granted bail to Chinmayanand on February 3. The bench also sought a response from the Uttar Pradesh government 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, appearing 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
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 secretary 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.
| 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 competition. 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 several new alterations. The seminar will provide a platform to deliberate and propose sug- gestions on important themes like conceptualisation of marginalisation, historical vision of marginalisation and legislative framework, role of judiciary in protecting the interests of marginalised community, 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 research 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.
Lead/ Column/ Police as Magistrates MG Devasahayam 14 March 16, 2020 Law and Amarjeet Singh
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 governance, 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 during 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 submitted their report within a week, the Court put off taking a call on the block- ade till March 23, saying that the present 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 northeast 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 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 public order. This task is for EMs functioning 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 convenience of other individuals or groups. It is an exercise in managing conflict. The actions of individuals or groups, such as assemblies, likely to cause violence 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 disturbance 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
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 governance 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 administration of the police throughout the local jurisdiction of the Magistrate of the district 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 administration of the district, and the police force is the instrument provided by Govern- ment to enable him to enforce his authority 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 responsible 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 system from where the role of EM/DM is totally eliminated and police officers are vested with magisterial and police powers 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 violence-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
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 college 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 outside 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
| 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 challenging the Hubli Bar Association, the bench observed that passing such resolutions 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 other 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 reconsider the resolution passed by them.” The Court noted that the police had done an excellent job in providing protection to the advocates who wished to file bail applications for the accused persons in the lower court. On February 27, the Court ordered the Hubli Police Commissioner to ensure “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 resolution? 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 filing 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 statement, senior advocates from across the state said that they were ready to represent Balakumar and other students booked in the case, and help them by providing the necessary legal assistance. Offering to appear in court to represent 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 provide her all the necessary legal assistance. 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 people), that is obstruction of justice,” he said. Nothing could be truer. “HowcantheBar Associationpasssucha resolution?Thisis obstructionofcourt work.Aretheycarrying outamini-trialby themselves?” —ChiefJusticeAbhay ShreeniwasOka
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, therefore, 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 similar plea in the Supreme Court but in December last year, the apex court dismissed 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 approached, to define minority and grant the status 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 cannot 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 arbitrarily 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 minorities 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, practice 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
| 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 education 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 ‘liberty of thought, expression, belief, faith and worship’. Articles 25 to 30 guarantee protection of religious, cultural and educational rights to both majority and minority communities. I t appears that keeping in view the constitutional guarantees for protection 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, cultural and educational rights by other communities who happen to be in majority and likely to gain political power in a democratic form of government based on election. In the background of the constitutional scheme, the provisions of the Act therefore, instead of giving a definition of ‘minority’, only provide for notifying certain communities as ‘minorities’ who might require special treatment and protection of their religious, cultural and educational rights. The definition of ‘minority’ given under Section 2(c) is in fact not a definition but only a provision enabling the central government to identify a community as a ‘minority’ which in the considered 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 linguistic and religious minorities would be the state. Upadhyay’s petition has been given a thumbs-down by the minorities 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
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 application for compassionate appointment. The Court was hearing a petition filed by one Mala Devi whose appointment was rejected because she was married. A single-judge bench of Justice Manish Mathur in its judgment mentioned 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 compassionate 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 marital status. The Court while deciding the petition said: “Once exclusion of married daughters from the ambit of expression ‘family’ under the aforesaid rules has already been held to be unconstitutional and the word ‘unmarried’ has already been struck down by two division 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 marital 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 compassionate appointment ignoring her marital 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
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 response 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 husband 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 reality? 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 husband 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 married under the provisions of the Special Marriage Act under Section 22 of the Special Marriage Act, 1954. The next action taken by the protagonist 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
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 protagonist 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 beautiful 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 domestic 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 matrimonial 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 modern 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 conduct 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
Column/ Kejriwal’s New Avatar Shiv Visvananthan 26 March 16, 2020 RITING about politics 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 different 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, especially 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 power. A party which was seen as a national 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 generation 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
| 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 virtually 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 nationalist. 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 times, 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 challenge. 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 currently 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 governance 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 power, 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 protest 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 understanding of Delhi. One wishes he rea- lised that a Shaheen Bagh for citizenship 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 second 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 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 disease. 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 economic 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 children 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
| INDIA LEGAL | March 16, 2020 29 The world’s most famous museum, the Louvre in Paris, is facing major problems because of the coronavirus 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 additional fears that even handling tickets could be dangerous. 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 beverages at a consistent temperature (up to 145 degrees). Its charging base is cleverly shaped just like a saucer. It also has an LCD readout and adjustable temperature setting. It may be a bit pricey, but for genuine coffee lovers who like a consistent temperature and the aroma, the Ember seems like the answer to many a prayer. Coffee Break Thanks to the novel coronavirus, 22 countries in three different continents have announced or implemented school closures. Just two weeks ago, China was the only country mandating closures. Since then, 13 countries have shut schools, impacting 290.5 million children and youth who would normally attend pre- primary to upper-secondary classes. A further nine countries 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 children and youth from attend- ing school. These figures were released by UNESCO which is supporting the implementation of large-scale distance learning programmes and recommending open educational 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—reduction in instructional time and educational perform- ance, inconvenience caused to families and decreased economic productivity. School closures disrupting the education of 290.5 million students globally are unprecedented. The world is learning some hard lessons. Hard Lessons gle to provide food and health care for their families. The country's economic 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 women to have six babies is not just bizarre but an act of cruelty. No Cash for Mona Lisa
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 consultants to address the staff crunch it is facing in implementing its ongoing scheme of setting 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 policy 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
| 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 important as this one, a closer scrutiny is required. The scheme targets to dispose 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 complete the trials. According to the report, out of the total number of trials completed 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 victims. 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 infrastructure for smooth functioning of these FTCs, senior advocate Vikas Pahwa said: “I appreciate the move of the central 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 judicial proceedings, he suggested: “All service 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
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 consultants. 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 awareness 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 problematic 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 duplication 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 infrastructure further delays the cases as the evidence takes longer time to emerge. I n January, the Supreme Court directed all states to appoint exclusive 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 addressing sensitive cases like that of POCSO and crime against women. Another important aspect of the scheme is that the state/UT governments will take requirements from the high courts and draw up an action plan of implementation. Each FTC will exclusively 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 distribution 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 system 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
Environment/ Single-Use Plastic 34 March 16, 2020 HE global furore following 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 dangerous 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 associated with polyethylene terephthalate (PET) and other SUP products form nearly 30 percent of India’s waste pickers’ 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 products which constitute SUP. A recent report, “Single Use Plastics: The Last Straw”, released by a Delhi- based NGO highlights the issues of disposal 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 consumers did not consider mineral water bottles or plastic straws as SUPs. Only 57 percent of the respondents thought plastic carry bags were single-use plastic. 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 primary 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 control it. “India recycles 60 percent of plastic but needs a robust plastic waste collection system,” said Ajai Kumar, associate vice-president, plastic recycling 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 considered and the negatives must be min- imised,” he added. TheLastStraw ThewaragainstplasticwasdeclaredonWorldEnvironment Dayin2018whenIndiahostedthe“BeatPlasticPollution” crusade.However,arecentreporthighlightstheproblemof disposalandcallsforpublicawarenesstostopplasticpollution By Papia Samajdar T UNI
| 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 problem—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 behaviour 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 recycled plastic products. Going from PET to a downcycled plastic fibre is not enough, 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
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 plastic 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 similar 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 government also needs to support the alternative 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 social, 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 companies 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 alternatives,” 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
W hile all the buzz is around PM Modi giving up his social media accounts to deserving females on Wo- men’s Day, a recently released report shows who are the most followed journalists 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 business 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 considering that it coincides with the onset of summer. Summit Weather | INDIA LEGAL | March 16, 2020 37 Media Watch M ajor international 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 restricted all work travel, and limited event cover- age to “absolutely critical” personnel. The New York Times has also put curbs on international 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 employees 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 another—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

India legal 16 march 2020

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