India Legal - 17 February 2020

1. NDIA EGALL STORIES THAT COUNT I February17, 2020 AQuestion ofBailAfive-judgeConstitutionbenchtakesafreshlookatpre-convictionbail.Byinsistingon avoidanceofreflexivereasonsfordenyingbail,theapexcourthasactedprogressively, saysProfUpendraBaxi Chhattisgarh: The Scam of all Scams

4. 4 February 17, 2020 T is popular, even fashionable to judge the competence and independence of the Indian judiciary by examining the performance and pronouncements of the Supreme Court. This is a myopic way of assessing the real strength or weakness of the nation’s juridical architecture entrusted by the Constitution to uphold, without fear or favour, the rule of law on which rests the foundation of the nation’s Republican democracy. It is but natural that the Delhi-based apex court should receive media and political spotlight. It is the central body entrusted with determining the constitutional propriety of the behaviour of the powerful executive and legislative arms of governance. It has the power to checkmate any institution bent upon infringing on the basic structure of the Constitution, primarily in the inviolability of the right to life, liberty, equality and the pursuit of happiness. The Supreme Court may be the only central body. But it is not the only body. Even as the Supreme Court is mulling over petitions filed in connection with police and state excesses against protesters and students opposed to the Citizenship (Amendment) Act and related schemes, the High Courts have not been sitting silent. All across the country, these courts as well as magistrates have been ordering the release on bail of jailed protesters, often scoffing at the serious charges made against them by the police as spurious and concocted. The release of jailed demonstrators in Bijnor, UP, as well as of Bhim Army chief Chandrashekhar Azad in Delhi are prime examples of the delivery of justice outside the portals of the Supreme Court. In the most recent example of no-nonsense action, a Delhi court directed the Delhi Police to submit a report for not filing FIRs against Union Minister Anurag Thakur and Member of Parliament Parvesh Sahib Singh Verma, star cam- paigner of the ruling Bharatiya Janata Party. The plea was filed by the Politburo member of the CPI(M), Brinda Karat, and the Secretary of the CPI(M) Delhi unit, KM Tewari. The Additional Chief Metropolitan Magistrate of Rouse Avenue Court, Vishal Pahuja, directed the Deputy Commissioner of Police (DCP), New Delhi, to submit the report. The Court has asked the DCP to file his reply by February 11. The co- unting of votes is scheduled to happen on Feb- ruary 11. Brinda Karat had approached the Court after her written complaints to the Commissioner of Police and the Station Head Officer, Parliament Street Police Station, weren’t acted upon. Prior to the filing of the plea, Karat and Tewari had written to the Commissioner on January 29 and 31. NOT BY THE SUPREME COURT ALONE Inderjit Badhwar I Letter from the Editor ENSURING DUE PROCESS (Above) High Courts and magistrates have ordered the release of jailed anti-CAA protesters, often scoffing at the charges made against them by the police; the release of Bhim Army chief Chandrashekhar Azad is an example of justice delivered outside the SC UNI UNI

5. | INDIA LEGAL | February 17, 2020 5 The CPI(M) leaders’ complaint against Thakur and Verma had sought filing of FIRs under Sections 153A, 153B, 295A, 298, 504, 505, 506 of the IPC. A few more historical points should suffice to prove that the lower courts have often shown tremendous integrity and guts in standing up for constitutional morality against the ruling political dispensation. After the demo- lition of the Babri mosque at Ayodhya in 1992, President’s Rule was imposed in the states of Uttar Pradesh, Rajasthan, Madhya Pradesh and Himachal Pradesh where the ruling party was the Bharatiya Janata Party. Imposition of President’s Rule in Madhya Pradesh, Rajasthan and Him- achal Pradesh was assailed in the High Courts. The High Court of Madhya Pradesh held that imposition of President's Rule in the state was unconstitutional and there was no relevant material to justify the action in Sunderlal Patwa vs Union of India. In this context, I would like to quote directly from a chapter on the judiciary from Pitfalls of Indian Democracy, a marvellous book by author- editor Hari Jaisingh which has contemporary rel- evance. He wrote: On August 1975 {during Mrs Gandhi’s Emer- gency] Parliament passed the 39th Amendment. One of its provisions was to place 27 enactments in the Ninth Schedule of the Constitution… immune from any challenge that it violated one of more fundamental rights guaranteed by the Constitution…All these devices, however, failed to deter the detenus from challenging the lawless laws under which they had been jailed, or the High Courts from striving to defend the fundamental rights of citizens within the four corners of the new limitations imposed by the government under the guise of the Emergency. The Delhi High Court’s judgment on Kuldeep Nayar’s habeas corpus petition declared the jour- nalists’ detention invalid on the ground that the government had failed to give any reasons for the action. The judge commented that the right to life and liberty had not sprung from the Constitution, but were basic natural rights, given due protection by the Constitution, and that suspension of rights did not remove them entirely. After the proclamation of the Emergency a large number of detenus filed petitions in the Supreme Court…Behind their back and without hearing them, a bench of the Supreme Court presided over by the chief justice ordered that all such petitions be ordered as withdrawn en bloc… A large number of habeas corpus petitions were pending in various High Courts…In view of the suspension of the right to enforce Article 21 of the Constitution, no person was entitled to approach any court on the ground that his detention was mala fide... One after another, seven High Courts, however, held that the suspension of the right to enforce Article 21 could not have the effect of suspending the rule of law and it was therefore open to a detenu to file a habeas corpus petition… It needs to be noted with gratification that during the worst political crisis that Independent India ever faced, the country’s High Courts rose to the occasion and proved true and courageous champions of citizens’ democratic rights. Ironically, it was the Supreme Court that seemed to be hamstrung by the Emergency and sided with a retrograde regime that was bent upon taking the Indian people away from the democratic life they had chosen for themselves. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Duringtheworstpolitical crisis(Emergency)that IndependentIndiaever faced,thecountry’sHigh Courtsrosetotheoccasion andprovedtrueand courageouschampionsof citizens’democraticrights. travelandculture.expertscolumn.com

6. 6 February 17, 2020 ContentsVOLUME XIII ISSUE14 FEBRUARY17,2020 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. Senior Content Writer Punit Mishra (Web) A five-judge Constitution bench has said that anticipatory bail should be a rule emanating from the mandate of Article 21 and custodial confinement should be a rare departure from the norm. An analysis by Prof Upendra Baxi Inching Towards Article 21? An Allahabad High Court judgment which released former Union minister and BJP leader Swami Chinmayanand on bail has brought into question the rules to be considered while deciding bail applications Power Play 14 18 LEAD Overlooking of seniority and merit by the Delhi High Court Collegium regarding elevation of district court judges has reportedly led to simmering discontent in bar associations Injustice to the Justices 20 FOCUS

7. | INDIA LEGAL | February 17, 2020 7 Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE REGULARS Ringside............................8 Is That Legal.....................9 Courts.............................10 Law Campus News........12 International Briefs ........32 Media Watch ..................37 Satire ..............................46 Nip it in the Bud The Promised Land The Kerala High Court upholds a government order to shut down a school that admitted only Muslim students and imparted exclusive religious instruction COLUMN Even as CJI Bobde said that excessive tax collection would create social injustice, budget proposals are likely to mobilise some indirect tax revenue. But these are inadequate for the projects outlined Too Ambitious a Target 26 43 While the Mumbai police are taking punitive action against honkers, scientific measures and appeals to the civility and psychology of road users would work better in the long run 38 On the Horns of a Dilemma A committee to look for alternative land for the metro rail car shed at Aarey Milk Colony, in Mumbai, seems to have flawed constitution and its report that it is pointless to look at other sites lacks merit What an Eyewash! 24 Following a PIL, the Chhattisgarh High Court has handed over the `1,000-crore disability fund scam case, involving top bureaucrats, to the CBI despite stiff pressure from the IAS lobby 34 30 A Scam to Beat All Scams STATES The Citizenship (Amendment) Act has widened the chasm between the centre and states. But it is vital that they respect and consult each other in the spirit of cooperative federalism, writes Justice Narendra Chapalgaonkar Lend ’em Your Ears OPINION China supplies 70 percent of bulk drugs and raw materials for medicines in India. With the coronavirus epidemic now hit- ting the antibiotic and vitamin industry, India should think of manufacturing these Let’s Be Self-reliant 22 MYSPACE CONTROVERSY 40 In order to create a tiger corridor in Madhav National Park, tribals in nine villages of Madhya Pradesh were displaced. While some were compensated, others are still waiting for the two hectares they were promised

8. 8 February 17, 2020 Anthony Lawrence RINGSIDE ‘’Visionary" "Forward-looking" ‘’Fantastic’’ ‘’Big Bang Budget’’ ‘’Breakthrough’’

9. | INDIA LEGAL | February 17, 2020 9 ISTHAT —Compiled by Ishita Purkaystha ? Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis Why can’t death row co-convicts be hanged on different dates? A 2014 Supreme Court judgment in Shatrughan Chauhan vs Union of India has set a mandatory gap of 14 days from the date of rejection of mercy petition to the date for the execution of the death sentence. Moreover, the law doesn’t compel all the convicts to file mercy petitions in one go. In 1982, the top court ruled in another case that death row convicts sentenced for the same crime must be hanged together, because the sentence, or the death warrant, is common for all the co-convicts and it cannot be executed in parts. If the mercy plea of a convict is accepted by the president, all the other co-convicts can also file mercy petitions again if these had been earlier rejected. The Hanging Connundrum Can airlines ban a traveller for unruly behaviour? The national “no-fly list” is maintained by the Direc- torate General of Civil Avi- ation to check unruly and disruptive behaviour of passengers on an aircraft. Any such behaviour, from verbal harassment to life- threatening acts, is supposed to be reported by the pilot in command of the aircraft, following which an internal committee of the concerned air- line takes a call within 30 days on the gravity of the reported act and the appropriate duration of the ban. Level I offences att- ract up to three months on the “no-fly list”, for level II offences, it is up to six months and for Level III at least two years. Other airlines may follow suit. Grounded for Bad Behaviour Can legislative councils be legally abol- ished by state governments? An assembly in a state is equivalent to the Lok Sabha at the centre while a legislative council enjoys the same status as the Rajya Sabha. However, all states do not have legislative councils as the Constitution has not made it mandatory. As of now, only seven states have legislative councils. Recently, the Andhra Pradesh Ass- embly passed a resolution dissolving the Legislative Council. Under Article 169 of the Constitution, a resolution passed by the state assembly has to be approved by the Union Cabinet. Thereafter, the Union law ministry prepares a draft Bill, which has to be passed by Parliament. The council is supposed to stay active until the president of India issues a noti- fication. While Andhra Pradesh wants the Council gone, the Assam, Rajasthan and Odisha assemblies have sent reso- lutions to Parliament to create legislative councils in their states. No Need for an Upper House There have been changes proposed in the Medical Termi- nation of Pregnancy laws. Are these justified? Medical Termination of Preg- nancy (Amendment) Bill, 2020, allows a woman to terminate her pregnancy at upto 24 weeks from the existing limit of 20 weeks. The idea behind the relaxation is to expand access to women for abortion from various categories like survivors of rape, victims of incest, differently-abled women, minors and so on. How- ever, the abortion has to be approved by two doctors. The Bill also proposes that the new upper limit will not bind mothers carrying a foetus with substantial abnormalities, but the same is to be deter- mined by a medical board. Failure of contraception is another ground which is admitted for safe and legal abortion, for all women, especially to prevent unmarried women from opting for illegal and secret procedures by quacks. Upper Limit of Abortion

10. Courts 10 February 17, 2020 The Bengaluru police was slammed by the Karnataka High Court for helping in evicting people from a private property on the city’s outskirts without any probe and believing they were illegal immigrants from Bangladesh. The Court asked the state government to come up with a rehabilitation plan and directed it to respond by February 10. The evicted people were staying in tenements on a private property in Bellandur. These were demolished by the authorities based on the police notice that illegal Bangladeshi immigrants were staying there. The petitioner, People’s Union for Civil Liberties, for the evicted migrants said they were not from Bangladesh but from several districts of North Karnataka and other states. The police said the notice was issued following complaints by resi- dents of the property after an alert from the Home Ministry that illegal Bangladeshi migrants may be staying in the area. The Court asked the police why it did not veri- fy the facts at ground zero before issuing the notice and demanded action against the police inspector who issued the notice. Eviction of migrants not justified, says HC —Compiled by India Legal team ASupreme Court bench headed by Jus- tice Arun Mishra did not accede to a plea from senior advocate Indira Jaising to ask the Court’s administrative side to frame rules and implement its September 2018 verdict to live-stream Court proceedings, especially in cases having national ramifica- tuions and those that are sensitive. Justice Mishra clarified that the bench can’t pass any judicial order for its administrative side and any “decision has to come from the administrative side”. While referring to the earlier verdict, he said that live-streaming was only envisaged as a pilot project and rejected the contentions of Jaising and Attorney General KK Venugopal that the bench could indeed issue orders in this regard. Venugopal wanted the Court to refer the matter to a full court. Justice Mishra reiterated that any decision in this regard needs to be taken only by the Chief Justice of India SA Bobde as he is the administrative head of the apex court. The application was referred to him as part of the administrative roster. In September 2018, the top court had supported the plea for live-streaming of its proceedings. Justice AM Khanwilkar, who wrote the verdict for the three-judge bench, however, said that it should begin as a pilot project for significant cases. The order said the project “must be implemented in a progressive, structured and phased manner, with certain safeguards to ensure that the purpose of live-streaming of proceedings is achieved holistically and that it does not interfere with the administration of justice or the dignity and majesty of the court hearing the matter and/or impinge upon any rights of the litigants or witnesses”. The Supreme Court will hear the centre’s plea challenging the Delhi High Court order that did not permit the centre to carry out the executions of the death row convicts separately on February 11. The Delhi High Court had on February 5 set a deadline of seven days for all of them—Mukesh Singh, Pawan Gupta, Vinay Sharma and Akshay Thakur—to exhaust all remaining legal remedies. A three-judge bench of the Supreme Court said that it would hear the centre’ pleas after the one-week period given by the High Court was over. The Delhi High Court had in its order said: “So long as life lasts, it be the duty and endeavour of the court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation. Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interreg- num between the imposition of that sentence and its execution… all procedure, no matter what the stage, must be fair, just and reasonable.” Justifying the decision that the convicts be hanged together, the Court said that the four needed to be hanged together as the death penalty was handed down to them in a single judgment. Pawan Gupta, one of the death row convicts, is the only one left who is yet to file a curative petition in the top court or a mercy petition with the president. SC to hear Nirbhaya hangings matter on Feb 11 SC bench refers live streaming matter to Chief Justice Bobde

12. 12 February 17, 2020 LAW CAMPUSES / UPDATES NLU, Odisha reaches out to villagers The Unnat Bharat Abhiyan (UBA) cell at the National Law Univer- sity, Odisha(NLUO), has constituted a fact-finding team and inter- acted with the inhabitants of Amarendrapur village to enquire about their daily struggles to meet basic necessities like access to electricity and water. On talking to villagers the students discovered problems like open defecation due to lack of public washrooms. The Unnat Bharat Abhiyan aims to help these villagers in facing these challenges. National Law Fest at Maharaja Sayajirao University of Baroda The faculty of law at the Maharaja Sayajirao Uni- versity of Baroda is organising Lux et Verritas, Na- tional Law Fest from Feb- ruary 28 to March 1. The fest will include various inter-college competi- tions like Moot court competition, client counselling competition, legal drafting competition, and judgment writing competition. Awards upto `12,0000 will be given to the winner, runner- up and second runner up. Aone-day national seminar on the changing paradigm of the Right to Information (RTI) law is being organised by the Centre for Advanced Studies in Labour Welfare (CASLW) at the Rajiv Gandhi National University of Law, Punjab, in collaboration with the Punjab State Information Commission on April 1, 2020. Supreme Court judgments on RTI, Right to Information Amendment Bill, 2019, RTI Act and citizenship, exclusion of authorities under RTI, study of the successes of RTI, rethink- ing Right to Information in the neo-liberal era are some of the themes that will be discussed Seminar on RTI Act at RGNUL

13. | INDIA LEGAL | February 17, 2020 13 —Compiled by Nupur Dogra Asian credit risk colloquium at GNLU NLU, Jodhpur has been coopted by the Competition Commission of India (CCI), into a panel of reputed institutions having expertise in law, econom- ics, finance and management, to carry out competition assessment of economic legislation, bills and policies. The university has been empanelled because of its competitive evaluation abilities demonstrated through competition assessment of “The Rajasthan Transparency in Public Procurement Act, 2012” and “The Rajasthan Transparency in Public Procurement Rules, 2013” undertaken by NLU, Jodhpur in response to the public adver- tisement of the CCI. The sample assessment highlighted numerous concerns and inconsistencies that can distort competition in the market. The exercise was spearheaded by Anand Kumar Singh, assistant professor at the university, with the help of Manav Gupta (fifth year student) and members of the Centre for Competition Law and Policy. The Gujarat National Law University, Gandhinagar (GNLU), Bangladesh International Arbitration Centre (BIAC), and Bridge Policy Think Tank, in collaboration with the embassy of the Czech Republic in India is organising the Asian Credit Risk Colloquium over February 8- 10, 2020, at GNLU. NLU, Jodhpur empanelled by CCI The law department of Punjab University, Chandigarh, is hosting the Shaheed Bhagat Singh (SBS) Youth Par- liament, 2020, from February 8 to 9. Initia- tors of Change, an NGO based in Ludhiana, Punjab, is organising the Youth Parliament and aims to provide a platform to students to bring about a change in society and has invited applications for the same. The parliament will have three committees modelled after the Lok Sabha, the Punjab Vidhan Sabha and the Indian press. Partici- pants can win cash prizes upto `50,000. SBS Youth Parliament at Punjab University at the seminar. The university has invited seminar papers from academicians, practi- tioners, researchers, scholars and students on the issues related to these themes. February 24, 2020 is the last date to submit registration forms and abstract papers.

14. Lead/ Column/ Anticipatory Bail Prof Upendra Baxi 14 February 17, 2020 RITING in India Legal (November 11, 2019), I described “snakes and ladders type of adjudicatory approaches” that render “the Supreme Court itself…a house hermeneutically divided”. For the most part, the Court regards grant or refusal of bail as an ongoing discretionary aspect of the administration of criminal justice policy. On the other side is the judicially robust assertion (maintained ever since and memorably enunciated by Justice Krishna Iyer in Moti Ram, 1978) that regards bail as a matter of Article 21 rights to life and liberty under the right to constitutional remedies (Article 32) which the apex court has both the power and the duty to preserve, protect and promote. As late as 2011, in Mhetre, Dr Justice Dalveer Bhandari (and Justice KSP Radhakrishnan) wrote extensively (paragraphs 36-84) on the virtue and value of both the constitutional and “natural” right to life and liberty in the particular context of bail. It even noted the sadly well-known fact that a “great ignominy, humiliation, and disgrace is attached to arrest…not only for accused but for whole family and at times for the entire community”, because “most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage”. This itself strengthens the view that Afive-judgeConstitutionbenchhassaidthat pre-convictionbailshouldbearuleemanatingfrom themandateofArticle21andcustodialconfinement shouldbeararedeparturefromthenorm W BAIL AS PART OF FUNDAMENTAL RIGHT A five-judge Constitution bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S Ravindra Bhat examined issues concerning bail Inching Towards Article 21?

15. | INDIA LEGAL | February 17, 2020 15 pre-conviction bail should be a rule emanating from the mandate of Article 21 and custodial confinement a rare departure from the norm. I also urged the convening of a larger bench “to decide, once and for all, the two views in the Supreme Court”; an explicit reference to this “domain will, of course, underscore the speedy advent whether of human rights in the administration of criminal justice as well as promote more efficient and equitable investigation of the crimes of the powerful”. Now at least we had a five-judge bench which considered two questions: whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period or whether “the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court”. The second question concerned the imposition of conditions in anticipatory bail orders. It is noteworthy that the Court (Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S Ravindra Bhat) while not directly deciding the issue of whether bail is a fundamental rights issue, considered at least these two questions. It was valuably clarified that it is not “essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest”. Further, while it “would be justified to impose other restrictive conditions”, these would have to be judged on a case by case basis. Such conditions may not be imposed in “a routine manner, in all cases” and “limiting conditions may not be invariably imposed”. Nor should decisions about anticipatory bail be made by “blanket” orders. C learly this ruling does not “in any manner limit or restrict the rights or duties of the police or investigating agency” to probe the charges against the pre-arrest bail. But it insists on avoidance of a habit or a blanket rule, detracting from reflexive reasons for denying bail. And while evidence, under Section 27 of the Indian Evidence Act, can be taken for discovery of any material evidence, “there is no question (or necessity) of asking the Clearlythisrulingdoesnot“in anymannerlimitorrestricttherights ordutiesofthepoliceorinvestigating agency”toprobethecharges againstthepre-arrestbail.

16. 16 February 17, 2020 accused to separately surrender and seek regular bail”. The contrary view, articulated in Salauddin Abdulsamad Shaikh (1996) constitutes an “absolute misreading” of the prior precedent of Gurbaksh Singh Sibbia (1980) and now stands overruled. Any action under Section 27 of the Evidence Act would be regarded as temporarily eclipsing or “implied” or “deemed” eclipse. But such an order does not affect the proposition that “the normal rule should be not to limit the order” to “a period of time”. Anticipatory bail given to a person can continue till “end of the trial”. The concurring opinion of Justice Ravindra Bhat preserves the spirit of Sibbia (while overruling the ultimate order) when it avers that the “urge for freedom is natural to each human being”. Section 438 CrPC is “a procedur- al provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presump- tion of innocence”. As “denial of bail amounts to deprivation of personal liberty”, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature. T his is, indeed, a most welcome move because it negates that anticipatory bail “does not encapsulate Article 21”; in fact, it is labelled as “erroneous”. But does this opinion go so far as to “encapsulate” the Code provisions into Article 21? Here the learned Justice opines that “the issue is not whether Section 438 is an intrinsic ele- ment of Article 21: it is rather whether that provision is part of fair procedure”. That “provision for anticipatory bail is pro-liberty” and enables “a facility of approaching the court for a direction that he or she not be arrested” and it “was specifically enacted as a measure of protection against arbitrary arrests and humiliation by the police, which Parliament itself recognized as a wide- spread malaise on the part of the police”. This does not quite tell us that the absence (or repeal) of anticipatory bail would be plainly unconstitutional. However, one must be grateful for small judicial mercies which would eventually pave a way towards recognis- ing bail as a fundamental human right, and not merely find a compass for ascer- tainment of liberties that Parliament may not have intended to curtail. The learned Justice also observes that “it would be useful to remind one- self that the rights which the citizens cherish deeply, are fundamental—it is not the restrictions that are fundamental”. He recalls Joseph Story, the great jurist and US Supreme Court judge, who remarked that “personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice”. While that is certainly true, is the judicial duty of a summit court compro- mised in saying that “it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power”? Justice Bhat says that “the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years”. It can be well-argued that Article 32 power coupled with a duty to affirm the constitutional right to bail, should make such “danger” welcome as a complete means to the end of securing the very integrity of the structure of civil and political rights. —The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer Lead/ Column/ Anticipatory Bail/ Prof Upendra Baxi Aslateas2011,inMhetre,DrJusticeDalveerBhandari(left)andJusticeKSP Radhakrishnanwroteextensively(paragraphs36-84)onthevirtueandvalueofboth theconstitutionaland“natural”righttolifeandlibertyintheparticularcontextofbail.

18. Lead/ Swami Chinmayanand’s Bail Order 18 February 17, 2020 HE Allahabad High Court recently granted bail to former Union minister and BJP leader Swami Chin- mayanand who was accused of sexually exploiting a 23-year-old LLM student of SS Law College, Shahjahanpur, where he was a director. The order by Justice Rahul Chaturvedi came after dismissal of his bail application by the district and sessions judge of Shahjahanpur. Justice Chaturvedi in his order said “both had used each other” and the case was the result of conspiracy hatched with greed for extracting more. The order grabbed eyeballs not only because the person accused was powerful but due to the unusual nature of the bail order, especially in a case of serious allegations of rape and sexual exploitation. In a country where so many accused spend decades in prison for minor misdemeanour, granting bail to a person accused of a serious offence is bound to be criticised. The nature of the bail order can be questioned on various grounds. The Power Play AnAllahabadHighCourtjudgmentwhichreleasedthepowerfulpoliticianaccusedofrapehas broughtintoquestiontherulestobeconsideredwhiledecidingbailapplications By Srishti Ojha TQUID PRO QUO While granting bail to Chinmayanand, the court not only said that “both had used each other” but also called the case a conspiracy to extract more

19. | INDIA LEGAL | February 17, 2020 19 Court acknowledged the “word of caution” provided by the Supreme Court in its recent judgment, Shri P. Chidam- baram v. Central Bureau of Investiga- tion, where disapproval was expressed about the practice of giving any finding on the merits while deciding bail applications. This, however, has not been applied in this case because the order focuses mainly on the merits of the case, placing doubt on the victim and her story. The Court acknowledged the judgment of the apex court in State of UP through CBI vs Amarmani Tripathi (2005), laying down factors to be considered in a bail application such as “character, behaviour, means, position and standing of the accused” but failed to apply it in the current order. The Co- urt not only ignored the superior position held by the accused, but analysed the character of the complainant. T he Court was also supposed to consider the likelihood or reasonable apprehension of evidence being tampered with. Even after ac- knowledging that the accused was an important personality and in a position to tamper with the evidence, the Court decided to release him on bail. In India, cases of rape, sexual harassment and exploitation are common, and have often taken uncommon and unex- pected turns. Besides the reluctance of the police to register such cases, society is judgemental about the victim and often shames her. The current bail order is yet another example of what a rape or sexual harassment case can turn into. The same day that the bail order was passed, a 16-year-old rape survivor suf- fered an acid attack, allegedly by the family members of the accused in Uttar Pradesh’s Hapur after she refused to withdraw her rape complaint against the accused. In August last year, a JNU student had accused the police of refusing to register an FIR when she went to report rape and seek help. In 2017, the Punjab and Haryana High Court passed an order granting bail to three law students from Jindal Global Law School who were accused of rape. This order was heavily criticised not just for granting bail to those with serious rape allegations against them, but because it was peppered with statements seen as some of the worst examples of victim shaming. The victim was reprimanded for drinking, smoking and not confiding in her parents that she was being abused. People had taken to social media to express their anger and dissatisfaction at this order and filed online petitions condemning it. Some high courts have also assumed that the absence of in- juries on the body of the survivors implies consent and is a ground to release the accused. In the current bail order, the Court relied on a common rape myth—of the survivor not speaking up or complaining when she was sexually exploited. They also called the relationship a matter of complete quid pro quo and said: “A girl, whose virginity is at stake, not uttering a single word to her own parent or before the Court regarding the alleged incident, is an astonishing conduct which speaks volumes about the ingeniousness of the prosecution story.” The Court assumed that the girl was a willing party because she did not speak up, completely ignoring the possibility of mental or psycho- logical trauma that she may have under- gone when the accused was in a position of power. This was acknowledged by the Court in the bail order. It’s true that not every rape allegation is true and not every accused in such cases is guilty. While looking at a case, the courts need to form a balance between the concerns of the survivors, demands of society, rights of the accused, and reformatory and rehabilitative justice. Orders based on stereotypes and assumptions take away the hard-won victories of women’s rights and legal equality and harm rape survivors. In a society where patriarchy is deep-rooted, and rape and sexual harassment stigma- tised, even talking about them is taboo. Until 2003, Section 155(4) of the Indian Evidence Law allowed victim shaming in a way by letting the accused go scot-free by proving that the victim was of immoral character. It states that if a man is prosecuted for rape or attempt to ravish, “it may be shown that the prosecuterix was of generally immoral character”. This could be used to infer that her testimony was false. This was deleted on the recommenda- tion of the Law Commission which said it was detrimental to a survivor’s reputation and self-respect. Even though sensitivity in dealing with allegations of rape and sexual assault has often been demanded, it is not being adhered to. In the current order, the accused was not charged with rape even after the survivor stated that she had been raped numerous times. The order has not only ignored the rules to be considered while deciding bail applications, but stuck to stereotypes and gender prejudices. A gender-equal and progressive society is still a long way off. TheCourtreliedonacommonrape myth—ofthevictimnotspeakingup whensexuallyexploited.Itcompletely ignoredthetraumashemighthavefaced duetoaccused’spositionofpower. DEBATABLE ORDER Justice Rahul Chaturvedi (above), made some unusual statements while granting bail to Swami Chinmayanand in Allahabad HC

20. Focus/ Elevation of Judges 20 February 17, 2020 HE recent recommendations of the Delhi High Court Collegium have raised legal eyebrows and caused much unhappiness in the bar associations of the capital. Their discontent stems from the fact that the recommendations include names of some district judges for elevation to the High Court while rejecting the claims of five judicial officers senior to them, and all with 17 years of unblemished service. The Collegium system of recomm- ending judges for transfer, appointment and elevation, they say, is anything but transparent. Seniority is often violated, merit is not considered as a crite- rion and there is complete lack of transparency. The officers, in order of seniority, are: Girish Katharina, Surat Kohl, Pomona A Bambi, Deegan Jakarta, Naturam Katusha, Yashmak Kumar, RP Pander, Neela B Krishna, Dharmas K Sharma, Dinesh K Sharma and AK Mendicant. In the recommended list, Katharina, Kohl, Jakarta, Katusha and Pander have been ignored by the High Court Collegium. According to some legal experts, this is nothing new. Before this, four senior district judges of Delhi, Rakes Tewari, AS Jayachandra, OP Saini and RPS Teji, were not recommended for elevation to the High Court despite fulfilling all the criteria. The fact that this was done when there were so many vacancies in the High Court gave the impression that the process was objectionable. Some members of the Bar even allege that this is done to accommodate certain “blue-eyed boys” of the High Court. The general feeling in the Bar is that the High Court Collegium, in order to justi- Injustice to the Justices OverlookingofseniorityandmeritbytheDelhiHighCourtCollegiumregardingelevation ofdistrictcourtjudgeshasreportedlyledtosimmeringdiscontentinbarassociations By India Legal Bureau T

21. | INDIA LEGAL | February 17, 2020 21 fy its preferential treatment at the cost of deserving senior district judges, ad- vance flimsy arguments, saying the senior judges left out were over the stipulat- ed age limit of 58-and-a-half years on the date of the vacancy. However, the Bombay High Court Collegium made recommendations of senior district judges who were over that age. To add salt to the wound, the Supreme Court Collegium approved the recommendations, but this was not followed in the case of Tewari, Jayachandra, Saini and even Teji, who was below the prescribed age limit. Another strange argument put up is that there would be an imbalance in the High Court if judges were directly elevated from the Bar. T he result of all this is that members of the Bar feel let down and the judicial fraternity is com- pelled to believe that direct recruits from the Bar who join the higher judicial service after rigorous screening will not be considered and their collective experience will be ignored, rather pur- posefully, it would seem. The rule of thumb has been that seniority can only be ignored for elevation to the higher judiciary on specific grounds, such as poor ACR grading, negative report of the Judgment Review Commi- ttee, lack of integrity, unsatisfactory judicial work and if candidates under consideration have crossed the age limit. But these criteria in recent cases of elevation are actually in favour of the judges who have been ignored. For example: ACR Grading: Usually the grading of “B+” i.e. “Good” is considered sufficient for being elevated to the High Court. From all High Courts, except Delhi, district judges with a grading of “B+” are recommended. However, the High Co- urt of Delhi has adopted a policy which insists on the last five years’ ACR being graded as “A” for district judges. There- fore, all 11 judges under consideration are equally placed regarding this yard- stick. Some of them have secured the “A” grade for almost 17 years while others have secured it for periods varying between five and 17 years. Judgment Review Committee: This Committee is constituted by the senior judges of the High Court, other than members of the Collegium. It reviews or assesses the quality of judgments auth- ored by the judges under consideration. According to reliable sources, the names recommended by the High Court Colle- gium are not in sync with the views of the Committee. Moreover, the last four from the list of six recommended have remained on the judicial side for insignificant periods in the last five or 10 years. They have primarily been active in administrative duties and have not written many judgments. Therefore, ignoring those who are working on the judicial side and preferring those who have been more active on the administrative side seems inexplicable and per- plexing, especially when there is huge pendency in Delhi High Court. Integrity: None of the ignored five judges have any blemishes on their record of integrity. Age: Out of the ignored five, two are due to retire in the next year. Therefore, they ought to have been considered for elevation if they met other criteria. The last four who have been recommended still have age on their side and can wait for their turn. There are 11 existing vacancies and all could have been recommended to avoid any controversy. Moreover, it would have sent a positive message to the concerned judges and the judicial circle of Delhi. The unrest in the Madras High Court over the supersession of senior district judges, particularly in the wake of the Supreme Court issuing notices on petitions filed by the superceded judges, has again been conveniently ignored by the Delhi High Court Collegium. All this directly affects the goal of speedy justice in the justice delivery system. The problem lies not only in alleged violation of existing rules of seniority but also the feeling among judicial circles that even the existing norms might have been reframed. According to sources, the officers of the Delhi Judicial Service have sent rep- resentations to the Delhi High Court on supersession of senior district judges, pleading that it must follow the Sup- reme Court judgment on fixation of seniority. The Court, according to sources, is likely to discuss the issue with the judicial officers and hear the grievances of those who have not been elevated. Till then, the injustice to justices will continue to be a talking point. Gettingarawdeal Deepak Jagotra is a district and sessions judge, Karkardooma Courts, Delhi Girish Kathpalia is a district and sessions judge (Hq), Tis Hazari Courts, Delhi Narottam Kaushal is a district and sessions judge, south west district, Delhi Sujata Kohli is district and sessions judge-cum- special judge (PC Act/CBI), Rouse Avenue Courts, Delhi RP Pandey is a district and sessions judge north west district, Delhi

22. Opinion/ Federalism Justice Narendra Chapalgaonkar 22 February 17, 2020 LL essential characteristics of a federal State are there in our Constitution—distrib- ution of power between central and provincial governments, an independent judiciary with powers to review administrative actions and parts of the statute which cannot be easily amended. Why then is there a feeling that the federal spirit is dampening? It is true that the ethical values in political structure would stand only when they find place in actual statutory provisions, but a constitutional or statutory provision would be faithfully implemented only if all concerned are charged with the spirit behind the letter of the law. The central government, through Parliament, has enacted the Citizenship (Amendment) Act (CAA) which has been opposed by many states. The controversy raises questions of wider importance than the merit of the statute, which is under examination of the Sup- reme Court. The central government has pleaded that it has the power to regulate citizenship under Article 11 of the Cons- titution read with List 1 of the Seventh Schedule. The validity of this contention is now before the Court. There are other issues which need consideration. Assuming that a law passed by Par- liament is well within the legislative competence of the central government, do the opinions expressed against it by a number of citizens and political and statutory institutions not warrant consideration? The dual polity, as Dr BR Ambedkar described it, is bound to stay. The centre and states will have to live together. They are fully justified in exercising their jurisdiction as they please. But while doing so, they can certainly show respect to differing viewpoints aired by other constitutional institutions. As the case may be, members of state legislatures are also citizens affected by central legislation. Their view- point also deserves respect and consideration, though that cannot overrule the will of Parliament. What is the way out then? Ramakrishna Hegde, former chief minister of Karnataka, gave a piece of advice during a seminar organised by his state government. He said: “Ulti- mate object being the same, Union and states must function on mutually com- plementary and cooperative basis and they should feel that they are equal part- ners in the great adventure of national reconstruction and development.” I t has been more than a month since the CAA received the president’s assent. Yet, demonstrations against it are continuing. Some state legislatures have taken the uncommon step of pass- ing a resolution opposing this law. In some cases, governors are facing awk- ward positions reading texts prepared for them by the state government. The makers of the Constitution did contemplate a scenario where central and state governments may be of different political parties. However, they must have assumed that they would respect each other and their jurisdictions. To facilitate such a cordial atmosphere, consultation with differing units would certainly be useful. There is no mandate of the Constitution that the centre should consult states while legislating, but nothing prevents it from opting for such a step. If the debate is cool and allegations imputing motives and use of unnecessary harsh language are avoided, consultation would be possible and may even be useful. When the federal provisions were being discussed by the Constituent Ass- embly and its sub-committees, a view was expressed that though India is called a federal State, the provisions being approved tilt towards a unitary State. Political conditions at the time of the making of the Constitution were such that most of the members wanted the centre to be strong. The very exis- tence of a state is at the mercy of the parliament which can create, abolish and alter its boundaries under Article 3. If we have to work out such a Consti- tution, it is necessary that our federalism should be a cooperative one. Power need not be harped on every now and then. It can be used delicately and even after convincing the opponents. About 50 years back, Granville Aus- tin, an American historian of the Indian Constitution, had opined: “Cooperative federalism produces a strong central, or general, government, yet it does not nec- essarily result in weak provincial governments that are largely administrative agencies for central policies. Indian federalism has demonstrated this.” In recent times, states are speaking in a louder voice. It is not merely because of political differences, but an assertion of their rights. Their voice will have to be considered, if not accepted. —The writer is a former judge of the Bombay High Court Lend ’em Your Ears TheCitizenship(Amendment)Acthaswidenedthechasm betweenthecentreandstates.Butitisvitalthattheyrespect andconsulteachotherinthespiritofcooperativefederalism A ThereisnomandateoftheConstitution thatthecentreshouldconsultstates whilelegislating,butnothingpreventsit fromoptingforsuchastep.Ifthedebate iscoolandallegationsareavoided,con- sultationcouldbepossible,evenuseful.

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24. Opinion/ Aarey Milk Colony Panel Debi Goenka 24 February 17, 2020 HE setting up of the Met- ro rail car shed at Aarey Milk Colony, Mumbai has been a contentious issue. On the one hand, the project proponents and their former political masters were hell-bent on building a very expensive under- ground Metro rail project—Metro 3—on the ground that this was a public infrastructure project and would result in thousands of cars going off the roads in highly congested Mumbai. According to this group, the only place available for the car shed was the land at Aarey Milk Colony. On the other hand, environmen- talists said they were not opposing the Metro 3 project, only the use of the land in the Colony for the Metro car shed. They repeatedly said that there were other options available and it, therefore, made no sense to destroy thousands of trees, reclaim part of the catchment for the Mithi river (which is prone to flood- ing) and build a car shed and a Metro Bhavan in what was one of the important green lungs of the city. The Aarey Milk Colony was set up by the government in 1949 with the aim of relocating all the stables in Bombay to the then distant suburb of Goregaon. It now comprises about 1,300 hectares of land. In 1969, about 2,076 hectares was handed over to the forest department for expansion of the Sanjay Gandhi Na- tional Park (SGNP). In 1977, another 200 hectares was carved out for setting up Film City. Land was also given to various central government organisations such as the Central Poultry Farm, Modern Bakery, NDDB and RBI and to state government institutions such as the Mumbai Veterinary College, Mu- nicipal Corporation of Greater Mumbai, Fishery Department and so on. Land was also leased out to Bollywood biggies for setting up film studios and “acade- mies”. About 190 acres was also transferred to the forest department in 2017 for setting up a research breeding centre and zoo and for rehabilitating tribals from inside SGNP. In addition, there is a sub-station What an Eyewash! AcommitteetolookforalternativelandfortheMetrorailcarshedseemstohaveflawed constitutionanditsreportthatitispointlesstolookatothersiteslacksmerit T A CASE OF FAIT ACCOMPLI The committee probing the issue is likely to suggest accepting the car shed at Arey

25. | INDIA LEGAL | February 17, 2020 25 and office block belonging to Adani Power and a huge chunk of 90 hectares occupied by Royal Palms. These include a 223-room five-star hotel, an 18-hole golf course inaugurated by the late Shiv Sena supremo Balasaheb Thackeray, a country club, four IT-based and other office buildings, bungalows and so on. More residential buildings, hotels, villas and a mall are in the pipeline. There has also been encroachment by slums. The transport department is also seeking land for a vehicle test track. The current controversy erupted over the proposed use of about 33 hectares for construct- ing a car shed for the Metro project. The site chosen involves the cutting of about 3,000 trees. There are also apprehen- sions that further plots will be allotted for construction of Metro Bhavan and other commercial buildings. The use of transfer of development rights entitle- ments cannot be ruled out. In October 2019, the cutting of 2,300 trees in the dead of night by the project proponents caused an uproar. There were spontaneous protests and Aaditya Thackeray (now state environment minister) made a public commitment to stop the car shed from coming up at Aarey. Unusually for a politician, he persuaded his father, Chief Minister Uddhav Thackeray, to stay the construction of the shed. A committee comprising only government officers was set up to examine alternative sites, as also the viability of the Aarey site. It is now evident that the bureaucrats have taken full advantage of the lack of experience of the young minister. The first mistake was not to include NGOs in this committee. The second was to allow it to function in top secrecy and not have public consultations. The third mistake is to keep the report of the committee a secret. Attempts by India Legal to get it failed. R eading between the lines and from leaks to the press, the committee seems to have concluded that as the trees have already been cut and some reclamation work has already been carried out, it is pointless to look at alternatives. The committee seems to suggest that it is better to accept the Aarey car shed as a fait accompli. In addition, it has come to the conclusion that setting up this car shed at any other location would lead to an increase in cost and would further delay this vital infrastructure project. However, it found merit in the argument that increased construction activity inside the Colony was impacting the rich flora and fauna in the region. It recommended that the state government notify the unbuilt green areas inside the Colony as a no- construction belt. This is ironical. The area proposed to be used for the car shed is part of the very same eco-system. If the committee was of the view that increased construction is adversely impacting the flora and fauna, it should never have concluded that the car shed was the only viable option. In fact, environmental groups spearheaded by the Save Aarey Movement had been crying themselves hoarse saying exactly the same thing for the past several years. There was no logical reason why the Aarey Milk Colony land, which is still covered with greenery, should not have been identified as “deemed forests” pursuant to the order dated December 12, 1996, in the TN Godavarman case. There is no logical reason why the car shed and Metro Bh- avan plot were excluded from the Eco Sensitive Zone around the SGNP. There is also no logical reason why the Metro 3 and Metro 6 projects have a common car shed. Just because both these projects are being implemented by different agencies does not mean that they cannot pool their resources, particularly as land within the city is at such great premium. At the end of the day, it seems that, given the flawed constitution of this committee, and even though the director of the SGNP was a member of it, the conclusions that they have arrived at seem devoid of merit. The fact that an eco-system cannot be valued in mone- tary terms is something I have written about in my earlier columns. Also, the health of millions of citizens cannot be measured, in the same way. It is not just the value of the carbon sequestration that is important—it is the oxygen provided, the pollutants absorbed and the habitat provided to other fauna that are also important. From what we can gauge, these aspects seem to have been completely ignored. —The writer is Executive Trustee, Conservation Action Trust AN IMPERMANENT STAY During mass protests against the proposed car shed at Arey, Aaditya Thackeray (left), promised a stay on construction and later secured it from CM Uddhav Thackeray

26. Column/ Tax Collection Sumit Dutt Majumder 26 February 17, 2020 ECENTLY, while address- ing the Income Tax App- ellate Tribunal, Chief Justice Sharad Bobde said a few words of wisdom relating to tax evasion and excessive taxation. He said that while tax evasion by citizens is a social injustice, excessive and arbitrary tax collection can also be seen as a tool for creat- ing social injustice by the government. Finance Minister Nirmala Sitharaman’s Budget proposals with a modest increase in indirect taxes seem to be in tune with what the chief justice had said. The proposals are likely to mobilise indirect tax revenue to some extent. But they are not enough to help the government implement highly ambitious projects outlined in the Budget. Even the part about disinvestment in LIC would be too little. As for direct taxes, the proposals are mostly for reduction of tax rates like those in corporate tax and different slabs of income tax. While presenting the Budget, Sitharaman sought to weave three prominent themes—Aspirational India, Economic Development and Caring Society. The theme of Aspirational India seeks better living standards with access to health, education and better jobs; Too Ambitious a Target EvenasCJIBobdesaidthatexcessivetaxhaulwouldcreatesocialinjustice,budgetproposals arelikelytomobiliseindirecttaxrevenue.Buttheseareinadequatefortheprojectsoutlined R SHOWING THE PATH Finance Minister Nirmala Sitharaman with her team before presenting the Budget for 2020 Anil Shakya

27. | INDIA LEGAL | February 17, 2020 27 Economic Development seeks development of all sections and Caring Society seeks a society that is humane and com- passionate. Sitharaman identified three components of Aspirational India—agriculture, irrigation and rural development; well- ness, water and sanitation; education and skills development. The total budget allocation for all three would be around `4,54,000 crore. On Economic Development, the first component is development and promotion of industry and commerce for which `27,300 crore has been allocated. The second component is infrastructure, for which the National Infrastructure Pipeline worth `103 lakh crore, to be invested over five years, has already been launched in December 2019. She informed the House that around `22,000 crore had already been provided for the pipeline. Regarding New Economy, the minister explained that a policy to enable the private sector to build data centre parks will be brought out soon. BharatNet will link one lakh gram panchayats, and for that purpose, `6,000 crore has been allocated. This will benefit hundreds of start-ups. Further, an outlay of `8,000 crore will be provided over five years for the National Mission on Quantum Technologies and Applications. C oming to Caring Society, `35,600 crore has been allocated for nut- rition-related programmes, `85,000 crore for the welfare of Sched- uled Castes and OBCs, `53,700 crore for the welfare of Scheduled Tribes and `9,500 crore for senior citizens and Div- yang. Allocations have also been made for activities related to culture and tou- rism, environment and climate and reforms in governance. Coming to the financial sector, the minister informed that in the past few years, the government had infused about `3,50,000 crore by way of capital into public sector banks. There will also be a scheme of handholding support to select sectors like pharmaceuticals, auto components, etc., for which `1,000 crore will be allocated. On financial markets, with specific reference to some areas of concern like deepening of the bond market, retail investors’ access to government securities, liquidity con- straints and such, the minister assured that different proposals to address the issues were getting finalised. She also announced transfer to the GST Compensation Fund balances which were due out of the collection from 2016-17 and 2017-18. It was also clarified that transfers to the Fund would be limited only to the collection by way of GST Compensation Cess. This is a significant decision and aims to reduce the stress on the centre in com- pensating states even when GST collec- tions are below par. States may not like this decision. Based on the estimated nominal growth of GDP at 10 percent, the receipts for 2020-21 have been estimated at `22.46 lakh crore. Given the current economic slowdown, this estimate seems overambitious. On the other hand, going by the commitment of the government in respect of various schemes, there is an urgent need to revise the expenditure estimate—it has been pegged at `30.42 lakh crore. The minister hoped that the measures proposed by her would spur growth. Resource mobilisation to meet the huge expenditure for implementing these ambitious plans was also touched upon. This can be done through two sources—tax revenues and non-tax revenues. Tax revenues are of two types— direct taxes like income tax, capital gains tax, and so on, which are collected directly from individual taxpayers whose income is above a particular threshold and indirect taxes like GST, customs duty, etc., which are collected from sup- pliers of goods and services, and importers and exporters. They, in turn, pass on the tax amount to consumers by adding it to the cost of the goods. Thus, any increase or decre- ase of taxes has a direct bearing on the cost or price of goods and services. The biggest source of indirect taxes IndirecttaxeslikeGSTandcustomsduty arecollectedfromsuppliersofgoodsand importersandexporters.They,inturn, passonthetaxtoconsumersby addingittothecostofthegoods.

28. Column/ Tax Collection/ Sumit Dutt Majumder 28 February 17, 2020 is GST which subsumed 17 indirect taxes of the centre and states in the pre- GST era such as central excise, service tax, state VAT, octroi, and so on. However, the minister had little scope to tinker with GST rates through the budget; these are decided through the GST Council that comprises finance ministers of all 30 states, the minister of state for finance at the centre and the Union finance minister. Mention was made of simplified return formats together with electronic invoicing and improved input tax credit flow to be implemented as a pilot run from April 1, 2020. C igarettes and other tobacco products, except bidis, are the only GST items on which the minister has proposed to raise excise duty under the cover of National Calamity Cont- ingent Duty. This is a rare instance where a levy has been proposed by the centre on the goods covered by the GST, apparently unilaterally. Until now, all decisions relating to an item covered by GST were taken jointly by the centre and states. It is hoped that this decision does not become a precedent and open the floodgates of individual states levy- ing a separate tax on certain GST items under the cover of some other levy. This will distort the structure of GST. The constitutional validity of such a decision is also in question. While laying down the proposal on customs, Sitharaman said that India had taken a quantum leap in the “Trading Across Border” parameter of Ease of Doing Business rankings by the World Bank and that its rank has improved from 146 to 68. Stating that imports under the Free Trade Agreements (FTA) are on the rise and with it, undue claims of FTA bene- fits based on fraudulently obtained country of origin certificates, she stated that this had posed a threat to the domestic industry, besides leakage of customs revenue. Keeping this in mind, it has been announced that the Rules of Origin requirements will be reviewed, particularly for certain sensitive items. This will ensure that FTAs are aligned to the conscious direction of the government’s policy. This will immensely help customs officers in detecting FTA fraud. She also proposed certain actions on revising customs duty rates in case of certain items of import. This was to give protection and encourage domestic manufacturers, including those in the Middle Small Micro Enterprises (MSME) sector. Given that labour-extensive sectors in the MSME are critical for employ- ment generation and that cheap and low quality imports are an impediment to their growth, the minister raised customs duty on certain imported items. For example, customs duty has been raised on footwear from 25 percent to 35 percent and specified furniture from 20 percent to 25 percent. Customs duty has also been revised on electric vehicles, parts of mobile phones, auto parts and chemicals which are also being manufactured indigenously. Further, to give impetus to domestic industry for medical equipment and devices and to generate resources for health services, she proposed to impose a “Health Cess” of 5 percent on imports of specified medical equipment. On legislative measures, the minister also announced that provisions relating to “Safeguard” duties to protect certain industries against large imports and those relating to anti-dumping duties are being strengthened. However, it will be a daunting task for the government to implement its ambitious projects with the limited resources at hand. Perhaps a little more infusion of liquidity, thus providing more money in the hands of the common man, would have helped in faster recovery of the economy. —The writer is former Chairman, CBEC and author of the book “GST Explained for Common Man” Agricultureisidentifiedaspartof thecomponentsofAspirationalIndia. BharatNetwilllinkonelakhgram panchayats,andforthatpurpose, `6,000crorehasbeenallocated. UNI

29. 2019192019 January 6, 2020 `100 NDIA January 6,y , 2020 `100y , EGAL JJ EEEL www.indialegallive.com NI YEAR-END SPECIAL NO HOLDS BARRED Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends For advertising & subscription queries editor@indialegalonline.com SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS ` ` ` ` ` GGAL NDIA EGALEEL STORIES THAT COUNT NI January13, 2020 ParallelPowerCentres?TheKeralagovernor’ssupportoftheCAAandsimilarstatementsbyBJP-appointed governorsisaworryingsign.HasthetimecometoimplementtheSarkaria Commission’srecommendations? Lawless in UP Book Extract: The Cases India Forgot Arif Mohammed Khan, Kerala Bhagat Singh Koshyari, Maharashtra Jagdeep Dhankhar, West Bengal GAL eme em NDIA EGALEEL STORIES THAT COUNT NI January20, 2020 BLOODONTHECAMPUSJNUsymbolisedcitizenship,democracyandfreedom,writesnotedcolumnistShivVisvanathan, whoanalysesthereasonswhytheUniversityhasbecomeapoliticalandideologicalbattleground Capital Punishment: What judges think Iran Crisis: India’s options JNU students being taken into police custody Alol GAL an ud NDIA EGALEEL STORIES THAT COUNT NI January27, 2020 TheLegalChallengeFollowingKerala’slead,PunjabandChhattisgarhhavejoinednon-BJPstatesthathave challengedtheconstitutionalvalidityoftheCAAandtheNationalInvestigationAct2008in theSupremeCourt.Howstrongisthelegalargument? Internet Curbs: Analysing the apex court’s ruling GAL eon- Inv um NDIA EGALEEL STORIES THAT COUNT NI February3, 2020 TheSupremeCourthasrevivedfaithintheconstitutionalideasoffreedomofexpression intheirjudgmentoninternetshutdowninKashmir,saysProfUpendraBaxi Justice Narendra Chapalgaonkar: Ways to fast-track justice GAL ffoff Prr NDIA EGALEEL STORIES THAT COUNT NI February10, 2020 HANGING FIREThetrendamongdeathrow convictstogettheirexecution delayedthroughappealsand curativepetitionsisamajor talkingpointinlegalcircles witheventheCJIsayingitis extremelyimportantinsuch casestohavesomefinality Shiv Visvanathan Profiles Pranab Mukherjee Inderjit Badhwar: Nationalism versus patriotism

30. Column/ Coronavirus & Pharma Industry Dr KK Aggarwal 30 HE recent coronavirus outbreak and the result- ant lockdown in China could affect Indian industry, especially pharma. There are two reasons for this. One is the fear of transmission through goods. A few days back, I got a call from a Bengaluru-based friend, a businessman, that his workers were not ready to deal with garments imported from China. However, the fear of transmission is not real as this virus can transmit primarily from one person to another person. Hospital guidelines for influenza define exposure as being within six feet of an infected person for 10 minutes or longer. Secondly, respiratory illnesses can also be spread through sur- faces where droplets from an infected person land during sneezing and cough- ing such as airplane seats and tray ta- bles. But the coronavirus lasts only for three to 12 hours. So the virus is unlikely to reach India through these means. It is true that this virus, originating from Wuhan in China, has spread to 27 countries with 14,551 confirmed cases and 304 deaths as of February 2, 2020. Wuhan is the largest city in central China with a population of over 11 million people. The city, on January 23, shut down transport links. Following this lockdown, the city of Huanggang was also placed in quarantine and the city of Ezhou closed its train stations. This means than 18 million people have been placed in isolation. WHO has said that cutting off a city as large as Wuhan is "unprecedented in public health history" and praised China for its incredible commitment to isolate the virus and minimise its spread to other countries. As per WHO, we are likely to have focal outbreaks in other countries. However, these are always temporary phenomena. Every year, an estimated up to 6,50,000 people die annually due to complications from seasonal influenza (flu) viruses. This figure corresponds to up to 1,781 deaths per day due to the seasonal flu. Severe Acute Respiratory Syndrome (SARS), which was prevalent in the world from November 2002 to July 2003, was a virus that originated from Beijing and spread to 29 countries. Let’s Be Self-reliant Chinasupplies70percentofbulkdrugsandraw materialsformedicinesinIndia.Withtheepidem- icnowhittingtheantibioticandvitaminindustry, Indiashouldthinkofmanufacturingthese T UNI

31. | INDIA LEGAL | February 17, 2020 31 Some 8,096 people were infected with it and there were 774 deaths (with a fatality rate of 9.6 percent). SARS infected 5,237 people in mainland China. The coronavirus surpassed SARS on January 29, 2020, when Chinese officials confirmed 5,974 cases. A day later, coronavirus cases surpassed even the 8,096 cases of total SARS ones in 2003. Then there was the Middle East Respiratory Syndrome in 2012 which killed 858 people out of the 2,494 infected (a fatality rate of 34.4 percent). The coronavirus epidemic will also end sooner or later. Scientists in Australia have reportedly recreated a lab-grown version of this virus. The breakthrough will help researchers around the world as they race to develop a vaccine and detection tests. Also, after one percentage of society gets infected, the disease takes control of itself. The origin of the virus was from Wuhan’s live animal market and this should be closed forever. The source of such focal outbreaks cannot be and should not be allowed in any country. During the SARS outbreak also, China closed many of its live animal markets but over time, they were allowed to be opened. Other countries which have such markets should also close them forever. Coming back to the Indian pharma industry, drugs used to manu- facture medicines were among the top 10 imports from China between 2015 and 2019. In the 2018-19 fiscal, the government informed the Lok Sabha that the country’s drug-makers imported bulk drugs and intermediates worth $2.4 billion from China. Today, several cities in China are locked. Shipments are being delayed and the latest orders will not be dispatched on time. There could be a shortage of bulk drugs till normalcy is restored in China. In antici- pation of Chinese New Year that fell on January 25, Indian firms kept themselves adequately stocked. But this is likely to last through February only. In case the outbreak continues beyond February, it may cause concern. Apart from the shortage of raw materials, the pharma industry also expects an increase in the prices of medicines by 15-20 percent. Most of the production units for bulk drugs are situated in Zhejiang province in China, 600 km from Wu- han. Despite this, Zhejiang recently reported a 46-year-old man infected with the virus. He was later cured Consider- ing the spread of the disease, China may also shut Zhejiang. In America, roughly 80 percent of bulk drugs used by commercial sources to produce finished medicines come from China. It will be a global problem if China starts shutting down its borders. In India, China supplies nearly 70 percent of bulk drugs and raw materials to make medicines. Some 354 drugs and drug ingredients were imported from China in 2017. Supplies of fermentation-based ingredients used to make most antibiotics and vitamins would be the most impacted. I ncidentally, respiratory viruses can be transmitted through the air in tiny, dry particles known as aero- sols. But it’s not the major mechanism of transmission. Viruses prefer moist places and many stop being infectious if left dry for too long. So the fear of viruses getting through drugs is unreal. Anti- biotics such as penicillin G (and other products based on it such as amoxicillin and ampicillin) and tetracycline and Vi- tamins C and D are based on drug ingredients made using the fermentation- based process, an area where China has achieved global dominance. As every adversity is an opportunity, it is time India becomes self-reliant in making penicillin G and other critical ingredients for which it is totally dependent on China. We need to create a manufacturing base that has the backing of the government through policy enablers that incentivise Indian companies to invest in these areas. India is today completely dependent on China for penicillin G and this is not just for me- eting the Indian market needs but also for supplies to the US. The Indian government should have made a provision for this in the Budget. We have the kn- ow-how as seen in Ri-fampicin which Mumbai-based multinational pharma- ceutical company Lupin makes to treat TB. Incidentally, while fermentation-based ingredients are an important component of imports, China has also taken a lead in other chemical-based ingredients, including statins. India should le- arn a lesson from this crisis and ensure that its drug manufacturing does not get too dependent on China. —The writer is President, Confederation of Medical Associations of Asia and Oceania, and Heart Care Foundation of India OPPORTUNITY IN ADVERSITY The coronavirus (above) breakout in China (left) can adversely affect the availability of bulk drugs (top) in India. It is time India focuses on becoming self-reliant pixabay.com

32. 32 T hey represent some of the biggest brands in the world but their profit margins are likely to shrink in 2020 thanks to the coronavirus effect. Al- most all big airlines have suspended fli- ghts to one of the world’s most lucrative markets, China, and some to Hong Kong. They include British Airways, KLM Air- lines, Cathay Pacific, Air France, Delta, American Airlines, United, Air Canada and Lufthansa which have reduced or totally cut services to China. The virus has also caused major up- heavals for tech giants. Apple has closed all its offices and stores in China. A quar- ter of Apple’s operating income comes from China. Other tech giants like Micro- soft, Amazon and Google have also shut offices and restricted employee travel. German sportswear giant Adidas is the latest to announce it is shutting “a consid- erable number” of its stores in China due to the coronavirus outbreak. Adidas has around 12,000 outlets in China and joins brands like Nike and Hugo Boss, which have followed a similar path. Disney has closed both its Shanghai resort and its park in Hong Kong, while cruiseliner companies have suspended their scheduled cruises. Automakers are also badly hit. Tesla’s new factory in Shanghai has closed, while Fiat Chrysler, General Motors, Ford, Toyo- ta have all been impacted in one way or the other. French group PSA, which owns the brands Peugeot and Citroen, and Japan’s Honda and Nissan have also announced plans to evacuate staff from China. MacDonald’s has closed “several hun- dred” restaurants in the Hubei province, Starbucks has closed nearly half of its China retail locations while Coca-Cola has closed its China offices. With streets des- erted in cities like Shanghai and Beijing, every major global retail brand is affected by the no-sale virus. Shutting Shop in China International Briefs M ost democratic governments have an adversarial relationship with the media but now it could affect the operational plans of one of the world’s most respected news organisations, the BBC, or Aunty Beeb, as it is popularly known. UK Prime Minister Boris Johnson’s Conservative government is no fan of the media and it has announced that it will hold a “public consultation” on whether to stop charging people if they don’t pay the annual levy that funds the BBC. The broadcaster sur- vives mainly on a licence fee paid by every television-own- ing household in the country, which came to around £3.7 billion last year. Bad News for the Beeb bdnews24.com

33. 33 The annual numbers are in, and it can now be confirmed that Dubai In- ternational Airport (DXB) is the busiest gateway in the world for international travel. It handled 86.4 million passengers in 2019 to retain its number one status for the sixth successive year, once again beating long-time record holder London’s Heathrow airport, which handled 76 million passengers in 2019. Hartsfield-Jackson Atlan- ta, however, remains the world’s busiest airport, handling over 107 million passengers per year, which includes domestic passengers, followed by Beijing Capital, which had 100 million passengers. The numbers for DXB in 2019 were, in fact, slightly lower than those for 2018. This was attrib- uted to “a series of challenges throughout the year” which included the impact of a 45-day closure of the runway, the bank- ruptcy of Jet Airways, as well as the grounding of Boeing’s 737 Max. It is still to hit stores worldwide but Motorola’s new foldable phone, Razr, looks set to revolutionise the mobile market. The 2020 version of the original flip phone is one of the most exciting products in recent years, and what makes it even more special is the box it comes in. Unlike the coffin-like boxes by Apple or Samsung, the Razr comes standing upright in a transparent lid that lets you see the phone before you open it. The top half lifts up to reveal the phone nestled in an angled base which can be used as a stand for the phone. Even the accessories come in a case that resembles the ones that you get when you buy expensive sunglasses. The Razr, when folded, fits into the case, giving you extra protection. Motorola invented the cellphone and the company is hop- ing the retro clamshell design with Google’s Android software and an innovative foldable touchscreen display will put it back in the major league. It will launch later this year. The World’s Busiest Airport Folding Wonder Cancer is the most dreaded disease in the world, mainly because there is no cure and very little knowledge about its origins and treatment. Now, a team of over 1,000 scientists from 37 countries have come out with the most compre- hensive study on cancer ever done. The results, reproduced in a slew of medical journals, provide an almost complete picture of all kinds of cancers and could allow treatment to be tailored to each patient’s unique tumour, and also develop ways of detecting cancer earlier than was considered possible. The new study, a collaborative effort of cancer research institutes across the globe, provides a complete picture of all kinds of cancers. The study, called the Pan-Cancer Analysis of Whole Genomes Consortium, analysed the genetic code of 2,658 cancers. Till now, doctors were handicapped when treating cancer patients, as it was impossible to tell why the cells had become cancerous. The new study, which took over a decade, shows that cancer is massively complex, with thousands of different combinations of mutations able to cause cancer. The project found potential weak spots that can be exploited with treat- ments that attack these “driver mutations” and ultimately, tailor them to each individual patient. Scientists also devel- oped a way of “carbon dating” mutations. They showed that more than a fifth of them occurred years or even decades before a cancer is found. Unlocking these patterns means it could be possible to develop new diagnostic tests that pick up signs of cancer much earlier than believed possible. Decoding the Disease The government’s plan to remove sanctions for non- payment would cost the broadcaster about £200 million a year. The BBC is already under financial pressure, and last week announced it was cutting 450 newsroom jobs, out of a workforce of about 6,000. The BBC is Britain’s largest media organisation but its public funding is opposed by private sector rivals, who argue the broadcaster has an unfair advantage. Many in the Conservative Party also believe that the BBC’s funding model is no longer appropriate in a digital media world. They say the broadcasting landscape has changed dramat- ically with the rise of Netflix and other streaming services triggering a decline in traditional television viewing. | INDIA LEGAL | February 17, 2020

34. Controversy/ Chhattisgarh/ Disability Fund Scam 34 February 17, 2020 uite like the fodder scam in Bihar, Chhattisgarh has its Disability Fund Scam estimated at `1,000 crore. The difference is that ruthless bureaucrats in Chhattisgarh swindled money meant for the disabled by form- ing a society on paper and drawing out cash through false billing and fraudulent schemes over 15 years. However, the Chhattisgarh High Court sensed something amiss and turned a criminal petition into a PIL and handed over the case to the CBI. It did not back down even after intense pressure was applied by two ex-chief secretaries and a host of officers to not hand over the case to the CBI. The petitioner, Kundan Singh Thakur, a Class III employee of the state social welfare department, named two ex-chief secretaries, an additional chief secretary, two secretary-level IAS officers and seven officers of the social justice department. The CBI has now registered an FIR in this scam under Sections 120(b), 409, 420, 467, 468, 471 of the IPC and Sec- tions 13(1)(d) and 13(2) of The Preven- tion of Corruption Act. The Court has named these officers but has not directed the CBI to file individual cases against them. The officers are accused of siphoning off funds to the tune of `1,000 crore from the State Resource Centre (SRC) and the Physical Referral Rehabilitation Centre (PRRC) of the state government. The High Court found that these centres exist only on paper and salaries and ex- penses were drawn in the name of non- existent employees every month with UNDER THE SCANNER (From left) MK Raut, Vivek Dhand and Sunil Kujur are among the seven IAS officers accused in the scam. Dhand and Kujur are former chief secretaries Q AScamtoBeat AllScams FollowingaPIL,theChhattisgarhHighCourthashandedoverthe`1,000-crorecase involvingtopbureaucratstotheCBIdespitestiffpressurefromtheIASlobby By Neeraj Mishra in Raipur

35. | | 35 the complicity of these officials. The sur- prising thing is that two former chief secretaries—Vivek Dhand and Sunil Kujur—were named among seven IAS officers. Amounts of `35-40 lakh were withdrawn every month in the name of the SRC and the money vanished into a few hands in the social welfare department. Incidentally, the fodder scam used a similar device—money was withdrawn from the treasury for fodder for non- existent cattle. The High Court order was passed by a division bench of Justices Prashant Kumar Mishra and Parth Prateem Sahu on the petition filed by Thakur in 2018. Thakur alleged that several persons, including himself, were shown as employees of SRC and PRRC and salaries were drawn in their names without their knowledge. There are several facets to the High Court order. The Court seems to be convinced that there was consis- tent looting of the state treasury over several years presided over by Dhand and his ilk. This is crystal clear in the order, which says: “The CBI shall register FIR within one week from today (January 30).” The CBI shall seize the relevant original records from the concerned department, organization and offices within 15 days from the date of registration of FIR. And it has named all 12 officers. The Court is also fully apprised of the fact that respondent officers are “high- ranked” and “there is apprehension that the investigation may be influenced”. It, therefore, directed the CBI to approach it if it encounters any difficulty or lack of cooperation. I nterestingly, at least two of the IAS officers are serial offenders. BL Ag- arwal’s services were terminated by the Department of Personnel & Training over allegations of a massive scam of `250 crore in 2017. Alok Shukla, who was recently reinstated as education secretary after five years of suspension in the Nagrik Apurti Nigam scam, is still under investigation. Other IAS officers include MK Raut and MK Shroti. Raut is under ED investigation for trav- elling to London without permission for a holiday and for his properties in various locations. The irony is that most of these officials served under the Raman Singh government when the scam was alleged to have taken place and have been reha- bilitated by Chief Minister Bhupesh Ba- ghel. Dhand is now chairman of RERA, Raut is the Chief Information Commi- ssioner and Kujur, who was Baghel’s first chief secretary, is now chairman of an election tribunal for cooperatives. Immediately after the order, the powerful lobby of officers got together and marched to Bilaspur High Court and entered Justice Mishra’s court with an application to delete their names from the order. Justice Mishra told them to keep cool till the same two-judge bench sat again in case they wanted a review of the order. The officers, however, refused to give up as the aim of the whole exercise of review was to keep the CBI out of the state and not let it inves- tigate the matter. This is not the first time that the IAS lobby led by Dhand, Kujur, Raut and Agarwal, amongst others, has tried to scuttle an investigation by the CBI. After the registration of the case by a single bench in 2018, it was transferred to a double bench as a PIL. During the progress of the case, the then CBI SP in Raipur, Prashant Kumar Pandey, gave an affidavit on March 11, 2018, as respondent number 5 that he “was over- burdened with work and therefore the honourable court may not entrust the enquiry to CBI”. Strangely, in para 2 of the reply, Pandey claims that “the con- tents of the present petition are denied for want of knowledge”. Then in his affidavit he claimed that he is “well versed with the facts and circumstances of the case”. The CBI will have to answer to the Court why and under what circumstances such a patently misleading and false reply was filed since the Court itself wants the CBI to do a complete investigation. After the CBI reply, another respondent, then chief secretary Ajay Singh, filed his reply in September 2018 where he claimed there were heavy financial irregularities as alleged by the petitioner to the tune of `200 crore. In an internal investigation ordered by another secretary, it was found that there were 31 ins- tances of severe financial irregularities in which crores were withdrawn without ItisstrangethattheBhupeshBaghel governmentisalsobackingtheclaims ofthetaintedofficers.Thisfliesinthe faceofhisstandagainstcorruption whenhewasintheopposition. UNI

36. Controversy/ Chhattisgarh/ Disability Fund Scam 36 February 17, 2020 proper approval or procedure. He, however, sought to keep the investigation internal and even filed two pages of un- wanted reply on how they were hence- forth going to manage the finances of the Department of Social Welfare. This seems to be an indication that the Ra- man Singh government, guided by the IAS lobby, wanted to keep the CBI out. It is strange that the Baghel government is also backing the claims of the tainted officers. This flies in the face of his stand against corruption when he was in the opposition. A major reason could be that Baghel had issued an order withdrawing permission to the CBI to enter and register cases in the state. Now the CBI is entering through a court order. T he same set of officers used their clout to browbeat the local media. It threatened local jour- nalists through their minions to keep the news from the front pages of newspapers. The media succumbed but the High Court was clear in its approach and thinking. Justice Mishra, who was elevated from the local Bar, is well aware of the reputation of all the officers involved so it was not difficult for him to make up his mind. Nevertheless, another review petition was filed by Agarwal on February 2 on the same lines—that he was an honest and upright officer and had no relation with the current case. The petition came up for hearing on February 4 and 5. But the additional solicitor general informed the Court that the CBI had filed the FIR so the review petition had become infructuous, but not before the state embarrassed itself by petitioning the Court for a review on behalf of the officers. It claimed that the officers were honest and blameless and the petitioner was a fraud who had been dismissed from service and had filed the case on the basis of fraudulent papers. Ama- zingly, it then went on to claim that it could do its own investigation and no independent agency like the CBI was required. Justice Mishra closed the arguments with a remark that the particular file in which the state had been advised to go in for a review be put up for his perusal. He wanted to ascertain who the officers were who had signed the file and for what reasons they wanted to defend a case of prima facie corruption. The counsel for the original petitioner, Devershi Thakur, expressed satisfac- tion at the outcome but also expressed fears that he and his client may face immediate state suppression. “I have been threatened by certain officials that FIRs will be filed against me on some pretext or the other,” he told India Legal. The right thing for the officers would be to resign from their constitutional positions and submit to the CBI inquiry and wait for their names to be cleared. But that seldom happens in India. TheChhattisgarhHighCourtorderwaspassedbyadivisionbenchofJustices PrashantKumarMishra(left)andParthPrateemSahuonthepetitionfiledbyKundan SinghThakur,aClassIIIemployeeofthestatesocialwelfaredepartment,in2018. FOLLOWING COURT’S ORDER The CBI has filed an FIR under sections of the IPC and the Prevention of Corruption Act Anil Shakya

37. C lick on the AAPFlix app and you get access to a screen that looks suspi- ciously like the Netflix landing page. The colours are the same and so is the logo, except that an A replaces the N. This was just one of the many digital initiatives launched by the Aam Aadmi Party to use social media like never before in the cam- paigning for the Delhi elections held last week. The focus was clearly on wooing millennials and the younger, tech-savvy, first- time voter. AAP also started a video series titled Kejriwal vs Kaun and used films like The Avengers and Black Panther to produce memes, hashtags and other digital innovations. Social media was dominated by the BJP but it seemed that AAP had beaten them at its own game with huge spends. On Twitter alone, AAP and Kejriwal together have 21.5 million followers and over 81 million on Facebook. Social media, of course, has been the gainer with AAP spend- ing close to `1 crore on campaign-related advertise- ments alone, apart from its own social media innovations and outreach. T he spread of fake news is now almost as dangerous as the coronavirus. The main cause of its unchecked and rampant spread is social media where anyone can say anything, no matter how divisive and de- famatory it may be. The Delhi election campaign alone has seen its negative effects with false accusations and claims being bandied about. For some in the media, it is actually a boon. Leading national newspapers do not suffer from such biased pro- paganda, falsehoods and expressions of hate, because of the nature of the medium and traditional checks and balances. What better way to plug the medium? That is exactly what The Times of India and the Dainik Bhaskar group are doing. They have launched a joint initiative titled Kaun Banega, Kaun Banayega, which is a series of films to highlight the fake news malaise and, incidentally, educate readers on the importance of reading the newspaper. The Times of India is the country’s leading English language newspaper while the Bhopal-based Dainik Bhaskar occupies the equivalent position in the Hindi-language daily newspaper category. The joint effort by the two leading newspaper groups carries its own clout while also sharing costs. Combatting Fake News 37 Media Watch M ost independent reactions to the Budget were largely negative but one sector of the Indian media where the champagne glasses were over- flowing were those dealing in print publica- tions. Of late, newspaper and magazine owners, who have been hurt badly, thanks to the increasing competition for the advertising pie from digital platforms, were hit by a double whammy in July 2019 when a 10 per cent customs duty on imported newsprint was introduced by the government. A dele- gation of newspaper owners had petitioned the finance minister and she seems to have reacted positively. Nirmala Sitharaman’s Budget has reduced the duty to five percent. Industry insid- ers estimate it could mean a saving of anywhere between `1,500 and `1,700 per tonne of newsprint. The current imported newsprint prices are around `50,000 per tonne and the annual demand is 2.5 million tonnes. The sudden introduction of customs duty was intended to promote domestic paper manufacturers but almost all newspaper/magazine owners use imported newsprint as the local production is only about one million tonne annually and of poor quality. Budget Bonanza Wooing Digital Voters Anil Shakya | |

38. My Space/ Honking Rajbir Deswal 38 February 17, 2020 HERE are different types of drivers in the world— the impatient queue-cut- ter, the road hog, the bully, the go-by-the-book one and the compulsive hon- ker. The last category is not appreciated anywhere in the world. Disciplined drivers in many countries rarely honk, except in disgust as a repri- mand or to sound an alarm. Nearer home, the honk is a signature tune and can be amended to suit every occasion. A honk ruins all serenity and civility on the roads. All over the sub-continent, be it for a wedding or a funeral, honking takes different decibel levels. If the light turns green, honk. To announce that you have arrived, honk. To overtake, honk hard. To call a friend from his flat, honk harder. To match a beat on the stereo system, keep honking. To caution a blind man crossing the road, honk again. The list can go on and on. The Mumbai police has now devised a plan to nip this cacophony in the bud. A pilot programme launched last year is now being expanded. Under it, decibel meters will be installed at five traffic signals around the city to curb the menace of excessive honking. To spread awareness, the police tweeted a video explain- ing that if honking exceeds a certain decibel limit, motorists will end up spend- ing more time waiting for the traffic light to turn green. The Joint Police Commissioner (Tra- ffic), Mumbai, Madhukar Pandey, explained that the decibel monitors were connected to traffic signals around the Island City, and when the cacophony exceeded the dangerous 85-decibel mark due to needless honking, the signal ti- mer would reset, entailing double waiting time for vehicles. The police had twice earlier conduct- ed trials of this initiative and received a mixed response from the public which was confused as to why the signals were taking longer to change colour. Officials released the video ahead of the expansion in the hope of spreading awareness among motorists. The question is, can this work in other cities of India? Taking a cue from their counterparts in Mumbai, the Karnataka police will also be implementing a similar project. Bengaluru Police Commissioner Bhas- kar Rao reportedly said: “Though honking is not as serious a problem in Beng- aluru as in Mumbai, we are planning to implement the system at major traffic junctions to inculcate road discipline.” Rao has reportedly tasked the joint commissioner of traffic police with identi- fying major junctions in the city for re- plicating the Mumbai model. Even oth- erwise, Bengaluru is known for devising new methods of traffic control and regu- lations. The city’s traffic problems have led many industries to shift elsewhere. Chandigarh too has its own way of dealing with the menace of honking. The innovative superintendent of traffic of Chandigarh, Shashank Anand, has On the Horns of a Dilemma WhiletheMumbaipolicearetakingpunitiveactionagainsthonkers,scientificmeasuresand appealstothecivilityandpsychologyofroaduserswouldworkbetterinthelongrun T PUNISHING SIGNAL (Left) Honking in traffic jams is a menace in Mumbai. The city police has installed decibel meters at vital intersections to detect horn noise. It has also put up signs, “Honk More Wait More” (above)

India Legal - 17 February 2020

India Legal - 17 February 2020

India Legal - 17 February 2020

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