India Legal - 2 March 2020

NDIA EGALL STORIES THAT COUNT
I
March2, 2020
TheIronFistIncreasingly,Section144isbeenusedbypoliticiansandbureaucratsto
deprivecitizensoftheirfundamentalrights.Nowthecourtshavesteppedin
tostemthemisuse,butisitenough?
Justice Chandrachud:
“Dissent not anti-national”

| INDIA LEGAL | March 2, 2020 3
he judicial postponements, mercy peti-
tions and reviews in the Supreme
Court and High Courts, which have
delayed the hanging of the convicted
rapist-murderers of Nirbhaya, have
once again ignited a national controversy over
the ethics, efficacy and utility of capital punish-
ment as a tool of deterrence. Even as 107 coun-
tries—including Russia—have done away with
executions, the age-old debate about the death
penalty—justice versus revenge versus deter-
rence—rages on.
In this context I recall a courtesy call I made
in 2014 on then Chief Justice of India P Sathasi-
vam who was due to retire in a week. Without
referring to any specific case before him, the
judge seemed highly agitated by judicial delays,
particularly in the case of death row prisoners
who suffer interminable mental torture or even
go stark raving mad while awaiting decisions on
mercy petitions. “This has to be remedied,” he
said. Little did I know that a day later, a bench
headed by him and comprising Justices RM
Lodha, HL Dattu and SJ Mukhopadhaya would
commute the death sentence of Devenderpal
Singh Bhullar whose mercy petition had been
pending for eight years following a 1993 Delhi
bomb blast which killed nine people.
The judges cited Shatrughan Chauhan vs
Union of India where “unexplained and inordi-
nate delays” in deciding a mercy petition as well
as mental and physical illness were found valid
grounds for commutation of a death sentence to
life imprisonment. Sathasivam’s last judgment
as CJI once again catalysed the judicial and aca-
demic community to re-examine the whole
death penalty issue. India Legal has tackled this
subject in cover stories in the magazine as well
as on its TV channel in which we featured gu-
ests, including academicians from the National
Law University (NLU).
In 2017, an important social story that got
lost in the political din of the Gujarat elections
was a wide-ranging and thought-provoking
report on capital punishment in India, titled
“Matters of Judgment”. It is a landmark attitude
study on the criminal justice system and the
death penalty featuring 60 former judges of the
Supreme Court of India. They include Justices
AK Ganguly, Santosh Hegde, Ruma Pal, BN
Srikrishna and RC Lahoti, who have adjudicated
208 death penalty cases among them between
1975 and 2016.
Dr GS Bajpai, registrar and professor of cri-
minology and criminal justice, a frequent guest
on India Legal TV shows, said at the seminar at
which the report was released: “This report is
not as simplistic as we think based on its face
value and has to be decoded further with respect
to the observations made by the judges. It is said
that criminal law is deficient. I would say that it
is not that criminal law is deficient but we have
failed criminal law. It is the institutions that
have failed criminal law in India. Fresh insights
are not being imported into the criminal law of
this country. It is as if we only like to debate.
This study is not the conclusion but like a
hypothesis which should be taken forward by
law researchers.”
India Legal carried a comprehensive
editorial on that report which probably has as
much relevance in the context of today’s contro-
versies as it did at the time when it first
appeared. I reproduce below its major findings
in the hope that it will create the atmosphere for
a debate based on empirical data rather than
pure emotion.
Of the 60 former judges interviewed, 47 had
adjudicated death penalty cases and confirmed
92 death sentences in 63 cases. Considering that
the death penalty represents the most severe
punishment permitted in law, “we sought the
views of former judges on critical aspects of the
criminal justice system like torture, integrity of
the evidence collection process, access to legal
representation and wrongful convictions,” the
study’s authors said in an introduction. The
interviews also examined the meaning of the
EXECUTIONER’S SONG
Inderjit Badhwar
T
Letter from the Editor
IndiaLegal carried
acomprehensive
editorialonthe
wide-rangingand
thought-provoking
reportoncapital
punishmentinIndia,
titled,“Mattersof
Judgment”.The
report,probably,
hasasmuch
relevanceinthe
contextoftoday’s
controversies
relatedtodeath
penaltyasitdidat
thetimewhenit
firstappeared.

4 March 2, 2020
“rarest of rare” standard laid down by the apex
court for awarding the extreme punishment in
Bachan Singh vs State of Punjab, the appropriate
role for aggravating and mitigating factors and
the nature of judicial discretion during death
penalty sentencing.
The final stage of the report examines the atti-
tudes of former judges to abolition or retention of
the death sentence “while exploring their thou-
ghts on recent developments that seek to move
away from the death penalty”.
T
his is not the first time this troubling legal
subject of life vs death has been explored
in India. In the Constituent Assembly of
1947-49, it was intensely debated, with Dr BR
Ambedkar staunchly opposing the death penalty.
In 2015, the Law Commission headed by Justice
AP Shah proposed that the country should aim at
complete abolition “but as a first step that it be
done away with for all crimes except terrorism.
Further, the Commission sincerely hopes that the
movement towards absolute abolition will be
swift and irreversible”.
Nonetheless, the NLU study is startling be-
cause it reveals an overpowering recognition and
widespread anxiety among former Supreme Court
judges about India’s criminal justice system be-
cause of extensive pervasiveness of torture, fabri-
cation of evidence, the appalling inferiority of
legal aid and unjust convictions.
For example, as Dr Anup Surendranath, direc-
tor of the Centre on the Death Penalty, puts it:
“Judges acknowledge the misuse of Section 27 of
the Evidence Act as also planting of evidence.
They acknowledged that torture was a reality.
Only one of them said that it does not exist. Some
said that it is expected that something like that
will happen. They also acknowledged wrongful
convictions. But wrongful convictions were
eventually pitted against wrongful acquittals
by some judges and were not viewed as independ-
ent problems.”
Here are excerpts of the key findings and rec-
ommendations of this exclusive survey:
There was explicit acknowledgment and wide-
spread concern about the crisis in the criminal
justice system due to the use of torture to gener-
ate evidence, fabrication through recovery evi-
dence, a broken legal aid system and wrongful
convictions. Though some former judges did offer
justifications/explanations for this state of affairs,
there was an overwhelming sense of concern
about the integrity of the criminal justice system
from multiple viewpoints.
However, the grave concerns about the crimi-
nal justice system did not sit quite well with the
support for the death penalty. In conversations on
the death penalty, the above mentioned realities
of administering criminal justice in India hardly
found mention. This disconnect was best demon-
strated when 43 former judges acknowledged
wrongful convictions as a worrying reality in In-
dia’s criminal justice system generally but when it
came to the death penalty, only five judges ack-
nowledged the “possibility of error” as a possible
reason for abolition in India.
All former judges, irrespective of their position
on the death penalty, were asked the reasons they
saw for abolition or retention of the death penalty
in India. In response, 29 former judges identified
abolitionist justifications and 39 identified reten-
tionist justifications. Fourteen retentionist judges
took the position that there was no reason what-
soever to consider abolition in India and three
abolitionist judges felt there was no reason to
keep the death penalty.
Deterrence emerged as the strongest penologi-
cal justification for retaining the death penalty,
with 23 former judges seeing merit in that argu-
ment. However, most of them believed that the
deterrent value of the death penalty flows from
a general fear of punishment rather than any
particular deterrent value specific to the death
penalty.
The notion of a bifurcated trial, being a divi-
sion between the guilt-determination phase and
the sentencing phase, did not seem to hold much
attraction for the former judges. Despite the sen-
tencing process in death penalty cases having very
specific requirements as per the judgment in
Bachan Singh, the understanding of “rarest of
rare” among former judges was determined/ do-
minated by considerations of the brutality of
the crime.
For a significant number of judges, the “rarest
of the rare” was based on categories or descrip-
tion of offences alone and had little to do with the
judicial test requiring that the alternative of life
imprisonment be “unquestionably foreclosed”.
This meant that for certain crimes, this widely-
hailed formulation falls apart, rendering the sen-
tencing exercise nugatory.
Despite the law setting out an indicative list of
both aggravating and mitigating circumstances to
be taken into account before determining the sen-
Thisisnotthefirst
timethistroubling
legalsubjectoflife
vsdeathhasbeen
exploredinIndia.In
theConstituent
Assemblyof
1947-49,itwas
intenselydebated,
with DrBR
Ambedkarstaunchly
opposingthe
deathpenalty.In
2015,theLaw
Commissionheaded
byJusticeAPShah
proposedthatthe
countryshouldaim
atcomplete
abolition“butasa
firststepthatitbe
doneawaywith
forallcrimes
exceptterrorism”.
Letter from the Editor

tence, there was considerable confusion about the
weight and scope of mitigating circumstances.
Opinions varied considerably on whether factors
such as poverty, young age and post-conviction
mental illness and jail conduct could be consid-
ered mitigating circumstances at all, despite them
being judicially recognised. A minority, in fact,
did not believe in considering any mitigating cir-
cumstances at all while others believed that
some categories of offences were simply beyond
mitigation.
A striking feature, in stark contrast to the lack
of confidence in the investigative process, was the
confidence that judges had in discretionary pow-
ers in sentencing. This was despite the fact that
more than half the judges believed that the
background of a judge, including their religion
and personal beliefs, were factors that influenced
the choice between the death penalty and life
imprisonment. There appeared to be no “bright
line” which distinguished judicial sentencing dis-
cretion swiftly slipping into individual judge-cen-
tric decisions.
The law since Bachan Singh has evolved con-
siderably on the issue of the scope of a sentence of
life imprisonment. In December 2015, a Constitu-
tion bench of the Supreme Court affirmed that it
had the power to impose a sentence for a fixed
duration or for the natural life of the prisoner
which was beyond the scope of remission. While
25 judges believed that this sentencing formula-
tion was a legally valid punishment, seven found
it violative of constitutional mandate and separa-
tion of powers.
CONCLUSION
“It is interesting that a significant number of
retentionist judges identified abolitionist reason-
ing. It demonstrates the inescapable force of cer-
tain abolitionist arguments, but stark in its com-
plete absence was any acknowledgment of the
disparate impact of the death penalty on the poor
and marginalised sections of Indian society. In a
criminal justice system that is corrupt and violent
at multiple levels, the burden on vulnerable sec-
tions of society is immense, and it is only accentu-
ated within the death penalty context. As such, it
is peculiar as to why this aspect of the death pe-
nalty in India did not find any real favour am-
ongst former judges, especially those that
were abolitionist.
“The disproportionate representation of the
poor, illiterate, and socially marginalised within
the death penalty context is abundantly clear in
India and other retentionist countries across the
globe. The contrast between the discussions on
the criminal justice system and the confidence
that seems to exist in administering the death
penalty in the very same system is striking. The
role of harsh punishments within a crisis-ridden
criminal justice system is a complex one.
“The challenge really is to comprehend the
considerations which drive the death penalty in a
system that is plagued with torture, fabricated
evidence, and wrongful convictions. As the harsh-
est punishment in our legal system, the discus-
sions and positions on the death penalty must feel
the utmost impact of these worrying realities. It is
the extreme ends of our criminal justice system,
that need to be tempered by the grim reality that
the former judges brought out so powerfully (in
the first part of the report).
“Ultimately, the fact that their concerns about
the criminal justice system has not migrated to
their discussion on the death penalty is indicative
of the terms on which multiple competing inter-
ests get balanced.”
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
A LANDMARK STUDY
The report on capital
punishment featured 60
former judges of the SC.
They include (from above
left) Justices RC Lahoti,
Santosh Hegde, Ruma
Pal, BN Srikrishna and
AK Ganguly. Between
them, they adjudicated
208 death penalty cases
between 1975 and 2016

6 March 2, 2020
ContentsVOLUME XIII ISSUE16
MARCH2,2020
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In numerous cases, Section 144, CrPC, has been used in a draconian way by politicians and
bureaucrats without holding an inquiry and deprived citizens of their fundamental rights till the
courts have stepped in
The Iron Fist
LEAD
14
Should there be multiplicity of jurisdictional auspices in any case which can be seen
as creating a conflict? An analysis by PProf Upendra Baxi
A Paradigm of Labour Injustice 18
Dissent is the “safety valve” of democracy and to label it anti-national or anti-democratic strikes at
the “heart” of India’s commitment to protect Constitutional values and promote deliberative
democracy, Justice DY Chandrachud of the SC said recently in a speech delivered in Gujarat
Dissent Not Anti-National
EXCERPTS
20
MYSPACE

Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Illustration & Design:
ANTHONY LAWRENCE
REGULARS
Ringside............................8
Is That Legal.....................9
Courts.............................10
Law Campus News........12
Media Watch ..................29
International Briefs ........42
Time to be
Accountable
Gods Beyond
Borders
IT Intermediaries Guidelines (Amendment)
Rules, 2018, will push for “traceability” of con-
tent. But intermediaries are averse to this due
to privacy and freedom of expression issues
A Supreme Court bench has
suggested that a former woman
district judge of Madhya Pra-
desh who had resigned after
alleging sexual harassment by
an MP High Court judge be
reinstated and complimented
her for her attitude
44
A proposed bill to bring in the two-child norm
is in conjunction with the Constitution which
says that it is the duty of the State to raise the
standard of living and improve public health
Too Many for Too Little
GLOBALTRENDS
40
The Imran Khan government in Pakistan is
expected to respond favourably to demands from
Hindus for the import of idols of gods
A PIL asks the top court to
direct the government to
release data on clinical trials
of Rotovacs conducted at
three test centres, for
combating deaths in infants
due to diarrhoea
Veil of
Secrecy 26
Three judges belonging to the Karnataka, Delhi and Bombay High
Courts are likely to be posted to Uttarakhand, Punjab & Haryana and
Meghalaya High Courts, respectively
SC Collegium Recommends
Transfer of Judges 28
COLUMN
Despite courts consistently meting out stringent punishment to sex offenders,
a lot needs to be done. A nationwide sex offender registry is one step
34The Silence of the Lambs
38
OPINION
Thousands have disappeared
due to repressive regimes and
despite this being against
international conventions, there
has been little interest by
governments to track them,
leaving families grieving
Cry, the Beloved
Country 30
The Court imposed heavy fines on states and UTs which
hadn’t replied to a plea to set up community kitchens to
combat malnutrition
Just Desserts
SUPREMECOURT
Grit Wins
Kudos 27
24

8 March 2, 2020
Anthony Lawrence
RINGSIDE
“Donald,
I told you I’d
guarantee you wall
to wall coverage”

ISTHAT
—Compiled by Ishita Purkaystha
Can a convicted rapist be refused
free legal aid for exhausting his
legal remedies?
Article 39A in Part IV of the
Constitution guarantees free legal
aid to all citizens of the country,
irrespective of economic or other
barriers. The twin aims of the
Directive Principles of State Policy
enshrined in our Constitution are
to secure welfare and justice to
all, through social and economic
democracy. Thus, despite the
most heinous of offences commit-
ted, every Indian citizen is entitled
to representation in a court of law
through legal aid. Although Part IV
does not beget enforceable rights,
free legal aid has been upheld by
the Supreme Court as a funda-
mental right under Article 21 of
the Constitution.
?
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
Is there a legal remedy for
an employee if his employer
does not pay his salary?
In such cases, the employee
can (i) approach the labour
commissioner to reconcile
the matter, or (ii) file a suit
under Section 33(c) of the
Industrial Disputes Act,
1947, for recovery of money
due from an employer, or
(iii) file a case with the com-
petent authority under the
Payment of Wages Act,
1936. For executives and
managers earning above Rs
18,000, a summary suit
under order 37 of the Code
of Civil Procedure can be
pursued, preferably following
a legal notice to the compa-
ny to clear unpaid salaries.
A company may also be
booked for fraud under Sec-
tion 447 of the Companies
Act, 2013, or under the IPC.
Legal Aid for
Rapists
Fighting for Salary
Can a Non-lawyer Argue a Case in Court?
Will the electricity supply to a
lawyer’s chamber within his
residential premises fall under
domestic consumption? Or
will it be charged as per com-
mercial rates?
The Calcutta High Court re-
cently held that electricity
used by a lawyer for his
chamber within his residence,
though falling under the non-
domestic category, yet can’t
be charged under commercial
(urban) rates. The Court
agreed with the petitioner’s
contention that the legal pro-
fession, which requires a cer-
tain amount of skill, cannot be
called a commercial activity. It
observed that a lawyer’s
chamber is unlike a law firm,
operating out of commercial
space and dealing with both
litigation and non-litigation
work. Relying on an apex
court precedent, the High
Court asked the concerned
department to supply electric-
ity to the chamber at domes-
tic (urban) rates.
Electricity Tariffs for Lawyers
Can a person who is not a lawyer appear in
court on behalf of a litigant?
Yes, but only subject to the prior approval of
the court hearing the case. This can happen
after the litigant moves a motion requesting
that a non-lawyer be allowed to appear in
court to argue his case. It is the court’s pre-
rogative to either grant or refuse permission
to a non-lawyer to appear.
The apex court in a 1978 judgment held
that even though a non-lawyer does not have
a right to argue, he may be permitted based
on his antecedents, the relationship with the
litigant, cogent reasons for requisitioning the
services of a private person and a variety of
other circumstances as may be determined
on a case to case basis.
Movie Screenshot

Courts
10 March 2, 2020
The centre told the Supreme Court that the
responsibility for the delay in appointing jud-
ges to High Courts doesn’t lie with the govern-
ment alone and that the Supreme Court Coll-
egium was equally responsible. It said that while
the government took, on an average, 127 days to
clear a recommendation, the apex court col-
legium took 119 days.
Attorney General KK Venugopal (left) told a
bench of Justices SK Kaul and KM Joseph that
out of the 396 vacancies in the various High
Courts, no recommendations had been made
with respect to 199 vacancies. Taking note of
Venugopal’s submissions, the top court asked
the registrar generals of all High Courts to explain
the vacancy position as on February 17, the day
the matter was heard, and also the vacancies
which would arise in the future.
The bench said that registrar generals of the
High Courts should also explain within four
weeks the time required by them for making rec-
ommendations for the vacancy of judges.
Collegium too at fault for delay in appointments: Centre
In a significant ruling, the Supreme Court
ordered granting of permanent commis-
sion to women officers in the Indian Army
in all the 10 non-combat wings. “An
absolute bar on women seeking criteria or
command appointments would not com-
port with the guarantee of equality under
Article 14,” the Court said. While stating
that “the absolute exclusion of women”
from all command assignments, except
staff assignments, is “indefensible”, the
bench of Justices DY Chandrachud and
Ajay Rastogi rejected the arguments
against giving a greater role to women offi-
cers and said that their eligibility for com-
mand posts will be considered on a case-
to-case basis. The bench said that “neces-
sary steps for compliance with this judg-
ment shall be taken within three months”. It
struck down a part of the centre's February
2019 circular that had proposed permanent
commission for women officers if they had
not completed 14 years in service.
The Court cited Captain Tania Shergill,
who was the face of the Indian Army at the
Republic Day parade this year, and several
other women officers decorated with Seva
Medals and Vishisht Seva Medals to stress
that women officers brought many laurels
to the nation.
“To cast aspersions on women based
on gender is, in fact, an affront to the entire
army where men and women serve as
equals,” it said.
ADelhi court issued fresh
death warrants against four
convicts in the December 2012
Nirbhaya gang rape-cum-mur-
der case, saying that deferring
the death warrants would be
“sacrilegious to the rights of
the victim for expeditious jus-
tice”. It set the date of execu-
tion of the convicts—Mukesh
Kumar Singh, Pawan Gupta,
Vinay Kumar Sharma and
Akshay Kumar—as March 3 at
6 am. The date for the hanging
was rescheduled twice this
year—fixed first for January 22
and then for February 1—but
was rescheduled as the death
row convicts had not exhaust-
ed all their legal remedies.
On February 5, the Delhi
High Court gave the killers one
week to exhaust all their legal
options, after which a fresh
date for hanging was to be
decided. The Court also made
it clear that the killers could not
be hanged separately, as they
were convicted of the same
crime. Pawan is yet to file cur-
ative and mercy petitions while
Akshay wants to file a fresh
mercy petition.
Delhi Court orders four Nirbhaya
convicts to be hanged on March 3
Give permanent
commission to
women in army: SC

—Compiled by India Legal team
In custody battle, child
is the loser: SC
Children are “always the losers” and pay the
“heaviest price” in a custody battle, the
Supreme Court said while asserting that the
rights of the child need to be respected as he or
she is entitled to the love of both parents.
A bench of Justices AM Khanwilkar and Ajay
Rastogi said in a judgment on a matrimonial dis-
pute in which the couple was embroiled for long
that the breakdown of marriage does not signify
the end of “parental responsibility”. “The children
are deprived of love and affection of their parents
without any fault on their part,” the Court said
while stating that while deciding the issue of cus-
tody, the best interest of the child should be kept
in mind. If efforts to settle a matrimonial dispute
through the process of mediation do not fructify,
then courts should make an endeavour to resolve
it as expeditiously as possible because with every
passing day the child pays a heavy price, the
Court observed.
The Supreme Court dismissed a curative
petition filed by families of victims of the
1997 Uphaar cinema fire tragedy against
brothers Sushil and Gopal Ansal, thus spar-
ing the Ansal brothers a further jail term.
A three-judge bench comprising Chief
Justice of India SA Bobde and Justices NV
Ramana and Arun Mishra considered the
curative plea by the Association for Victims
of Uphaar Tragedy (AVUT) in-chamber and
dismissed it. “We have gone through the
curative petitions and the rele-
vant documents. In our opinion,
no case is made out....Hence,
the curative petition is dis-
missed,” the bench said in its
order.
On February 9, 2017, the
apex court had by a 2:1 majority
verdict given relief to 78-year-
old Sushil Ansal considering his
“advanced age-related compli-
cations” by awarding him the jail
term which he had already
served. It had, however, asked his younger
sibling, Gopal Ansal, to serve the remaining
one-year jail term in the case. Fifty-nine
people died on June 13, 1997, when a fire
broke out in the Ansal family-owned Uphaar
theatre in south Delhi during a screening of
the film Border.
Judicial officers cannot be
appointed district judges through
direct recruitment which is reserved
exclusively for practising advocates.
A three-judge bench comprising
Justices Arun Mishra, Vineet Saran
and S Ravindra Bhat gave its verdict
on the matter and held that civil
judges cannot appear for the exami-
nation of the higher judicial services
conducted by High Courts to select
Additional District Judges (ADJ).
Civil judges can be appointed to the
post of ADJs by promotion and not
by participating in competitive
examinations, Justice Mishra, who
read out excerpts of the judgment,
said. The higher judicial services
exams can be taken by practising
advocates with a minimum of seven
years of experience at the bar, the
court said.
According to Article 233 (2) of
the Constitution, a person not al-
ready in the service of the Union or
of a state becomes eligible for app-
ointment as a district judge only if
he has been an advocate or a
pleader for at least seven years.
No direct entry for
civil judges in posts
reserved for Bar
SC dismisses curative
plea on Uphaar fire
tragedy case
The Supreme Court stressed the
importance of the green cover
and said greenery might vanish if
people don’t take seriously the
issue of rapid deforestation. The
Court was hearing a plea on the
cutting of trees in connection with
the construction of a foot over-
bridge on the India-Bangladesh bor-
der by the West Bengal govern-
ment. The Court observed that the
green cover must be preserved but
people were not willing to explore
alternatives. "There could be a way
to create a path without cutting
trees,” it added.
The petition was filed by the
Association for Protection of Demo-
cratic Rights on the felling of over
350 trees for the construction of
railway overbridges and widening
of NH 112.
Green cover is
important, says SC

of both demographics
of students at NUJS
and their perform-
ance in academic and
extra-curricular activi-
ties. In addition,
information on peer
behaviour and sup-
port systems would
also enable better
evaluation.”
The report is di-
vided into three
parts—
1) Demographics,
which includes data
on family, financial,
linguistic background
and admission
category.
2) Performance of
students at NUJS ac-
ross academics, re-
search publications
and paper confer-
ences; moots, de-
bates, internships, pl-
acements and so on.
3) Life at NUJS
studying peer to peer
interactions, behav-
iour, support system and discrimination.
Writing the foreword for the report,
Kalpana Kannibiran, professor and direc-
tor at the Council for Social Develop-
ment, Hyderabad, cites the importance
of such a study and writes, “Events
between Rohith Vemula’s protest in 2015
and the movement following his death in
2016 through the death of Payal Tadvi in
2019 till the continuing present in 2020,
point to the urgency of addressing ques-
tions of pluralism and equality on cam-
puses as the only way of building sus-
tainable cultures of deliberative dem-
ocracy in our contexts. It is against this
backdrop that this study is extremely
12 March 2, 2020
LAW
CAMPUSES / UPDATES
NUJS releases
Diversity Report
National Law University Delhi
(NLUD) in collaboration with
National Human Rights Commission
(NHRC) is organising a National
Conference on Sexual Harassment
at Workplace (Prevention, Prohibition
and Redressal) Act, 2013: Issues
National
Conference
at NLUD
The West Bengal National University of
Judicial Science (NUJS) has released
the Diversity Report 2019. The report is
a result of a year-long process conduct-
ed in NUJS across five batches of stu-
dents. Rohit Sharma, a student from the
batch of 2020 at NUJS, conceptualised
the NUJS, Diversity Report. He writes in
the report that “the report is an attempt
at presenting the census data collected
from the students of NUJS in a proper
perspective which enables both institu-
tional changes in the future and individ-
ual introspection in the immediate. The
idea behind conducting the diversity cen-
sus was to conduct a serious evaluation
valuable and deeply instructive.”
Presenting an interesting perspective
on diversity in the campus, the report
presents some interesting data like,
“26.7 percent of respondents identify as
Brahmin—not just general category but
this caste in the general category which
is the largest chunk, because ‘Other
Upper Castes’ together constitute close
to 32 percent. Dalits and Adivasis to-
gether account for about 15.6 percent.
However, the fact that within this,
Adivasis are only around 5 percent is
also a matter of concern especially when
one correlates that with their low pres-
ence in extra-curricular work, the inac-
cessibility of effective peer support and
ineffective mentorship to this cohort.
Respondents identifying themselves as
Atheists add up to 10.6 percent, not a
small number, but it would be interesting
to see how this cuts through caste iden-
tification: Is this number drawn from the
15.2 percent who have not reported
caste membership, or are they distrib-
uted across caste categories?
Clearly from the data on parental
income, those reporting lack of knowl-
edge of caste (as distinct from unwilling-
ness to identify self in caste terms)
belong to the most affluent families.”

—Compiled by Nupur Dogra
Law fest at College
of Law, Mumbai
Rajiv Gandhi National University of
Law, Patiala (RGNUL) is organising
the third edition of its flagship sports
fest, Zelus III. Students can participate
in a range of sports including tennis,
badminton, basketball, athletics, table
tennis, pool, snooker, chess, cricket,
volleyball, and football.
The sports fest will be held over
March 5-8, 2020.
Participants can win cash prizes
up to Rs. 20,000.
Thakur Ramnarayan College of Law,
Mumbai hosted a two-day law
fest—Lex Communique. The fest
provided a platform to the student
community to communicate, deliber-
ate and intermingle to nurture and
showcase skills. The event included
moot competitions for students, a
mock parliament and an experience
in client counselling.
The law fest is organised annual-
ly to train students to analyse a
problem, research the relevant law,
prepare written submissions and
present oral arguments thus further
enhancing their reasoning ability.
Sports fest at
RGNUL
Hidayatullah National
Law University
(HNLU) is hosting the
fourth edition of its flag-
ship event, the Inter-
national Model Unit-
ed Nations Confere-
nce (IMUNC).
The event will be
held from February
28 to March 1, 2020.
Through this event
the university aims to
inculcate debating
skills and diplomacy
in students.
The IMUNC will have
four committees mod-
elled after the United
Nations General Assemb-
ly, the United Nations Se-
curity Council, the United
Nations Human Rights
Council and the Lok
Sabha. The students will
discuss agenda like pro-
tection of global climate
for present and future
generations of human-
kind, the emerging con-
flict between the US &
Iran and its Global After-
math, the human rights
and fundamental free-
doms of the people in
Kashmir and so on.
The students winning
best delegate, high com-
mendation and special
mention awards will win
cash prizes worth,
Rs 10,000, Rs 8,000 and
Rs 6,000, respectively.
3rd IMUNC at
HNLU, Raipur
and Challenges.
The conference will
have discussion on the lat-
est developments around
the Act.
The event is scheduled
on February 29, 2020 from
10 am to 4 pm.
To attend the confer-
ence, interested students
must fill the form on
the website.

14 March 2, 2020
N February 13, the Princi-
pal Bench of the Karnataka
High Court struck down an
order of the Bengaluru po-
lice commissioner (vested
with the powers of district
magistrate) imposing Section 144 of the
Criminal Procedure Code (CrPC) across
the city during the anti-Citizenship
(Amendment) Act (CAA) protests from
December 19 to 21, 2019. Under this
Section, a District Magistrate (DM) may
“by a written order stating the material
facts of the case direct any person to
abstain from a certain act to prevent
obstruction, annoyance or injury to any
person lawfully employed, or danger to
human life, health or safety, or a distur-
bance of the public tranquility, or a riot,
or an affray”.
The High Court held that the impug-
ned order was illegal and did not stand
the test for exercising such an extraordi-
nary power as laid down by the Sup-
reme Court in Anuradha Bhasin vs.
Union of India. These tests are:
The danger contemplated for impos-
ing Section 144, CrPC should be in the
nature of an “emergency”.
This power cannot be used to sup-
press legitimate expression of opinion
or grievance or exercise of any demo-
cratic rights.
An order passed under this Section
should state the material facts to enable
a judicial review of the same. The power
should be exercised in a bona fide and
reasonable manner, and the same
should be passed by relying on the ma-
terial facts, indicative of application
of mind.
While exercising the power under this
Section, the magistrate is duty-bound to
balance the rights and restrictions based
on the principles of proportionality and
thereafter apply the least intrusive
The Iron Fist
Inmanycases,ithasbeenusedinadraconianwaybypoliticiansandbureaucratswithout
holdinganinquiryanddeprivedcitizensoftheirfundamentalrightstillthecourtssteppedin
Lead/ Section 144, CrPC MG Devasahayam
O
SUPPRESSING RIGHTS
Historian Ramachandra Guha was detained
by the Bengaluru City Police for violating
Section 144
Photos: UNI

measure.
Repetitive orders under this Section
would be abuse of power.
The High Court acknowledged the
necessity of these conditionalities be-
cause a prohibitory order under Section
144 has a chilling and terrifying effect
on the citizens by depriving them of
their fundamental rights, particularly
Article 19 (assembling peacefully and
without arms and practising or carrying
on any occupation, trade or business)
and Article 21 (life or personal liberty).
Such a promulgation lets loose a chain
of criminal liabilities on those partici-
pating in any assembly which has been
declared unlawful even if peaceful. They
commit cognisable offence and under
Section 151 of the CrPC, a police officer
has powers to arrest without a warrant
any person who has a design to partici-
pate in unlawful assembly. Such partici-
pation attracts several Sections, 143,
145, 146, 147, 149, 150 and 151, of the
Indian Penal Code (IPC), some of which
are punishable with two years’ rigorous
imprisonment, even for innocent,
unarmed men, women and children.
In view of the enormity of an order
under Section 144, the DM should be
extremely careful and fully satisfied that
there is sufficient ground for proceeding
under this Section. An order passed
when there is no “emergency” is without
jurisdiction. And before proceeding
under this Section, the magistrate
should hold an inquiry and record the
urgency of the matter. For the purposes
of Section 144, it is only the magistrate
issuing the order who should believe
that apprehension of nuisance or danger
exists. This is a subjective satisfaction
based on the information, intelligence
reports and other material that have
been brought to his notice. No order can
be passed under this Section on the
complaint/representation of any party.
Neither can anybody—High Court, gov-
ernment or police—goad the magistrate
into it.
B
ut of late, such essential require-
ments are more observed in the
breach than compliance. A typi-
cal example is the Section 144 order
promulgated at Tuticorin in Tamil Nadu
on May 21, 2018, which led to an ex-
treme form of police repression that
claimed the lives of 13 people and the
limbs of many more. For years, people of
this small port town have been waging a
struggle against Vedanta Limited’s Co-
pper Smelter Plant (Sterlite, which is a
subsidiary of Sterlite Industries, a com-
pany owned by Vedanta) which has been
poisoning the water they drink and the
air they breathe. In their arrogance, this
private entity demanded the DM impose
Section 144 to protect their personnel,
plant and machinery. When the DM did
not oblige, they moved the Madurai
Bench of the Madras High Court for a
writ of mandamus to direct the DM to
do so. Surprisingly, without jurisdiction,
a High Court judge determined, based
on a pamphlet supplied by the offending
party, that there would be a serious
law and order situation and therefore
Section 144 should be imposed in Tuti-
corin or the DM would be guilty of “de-
reliction of duty” and the “Court would
be justified in invoking its powers under
Article 226 of the Constitution”. On re-
ceipt of this order, the superintendent of
police of the district wrote a letter to the
DM on May 21 virtually dictating the
Section 144 order as it was pronounced
later. This is just not permissible.
In the meantime, Tuticorin was con-
verted into a fortress with a formidable
police force comprising an additional
director general of police, four inspector
generals, two deputy inspector generals,
15 SPs and scores of additional SPs,
deputy SPs and about 3,000 police per-
sonnel along with squads of comman-
dos. Sure enough, the “prohibitory
order” issued by the DM abiding by the
High Court diktat and the SP’s recom-
mendation brought ruthless “Police Raj”
repercussions seen in the “massacre of
innocents” the next day, ie, on May 22,
2018. On that day, one saw terrifying
visuals of trained sharp-shooters per-
ched on a police van and public building
shooting unarmed “protesters” with self-
loading, semi-automatic rifles with the
pronounced intention (heard over
audio) to kill.
All this was done to pander to the
wishes of an MNC. This was acknowl-
edged by the Sterlite Copper CEO, P
Ramnath, on the day of the massacre: “I
totally regret what happened today. It
was totally uncalled for and is really
unfortunate. We had, in fact, taken all
the precautionary steps by getting the
court order for Section 144.... Although
TheSection144orderpromulgatedat
TuticorininTamilNaduonMay21,2018,
ledtoanextremeformofpolicerepres-
sionthatclaimedthelivesof13people
andthelimbsofmanymore.

Lead/ Section 144, CrPC/ MG Devasahayam
16 March 2, 2020
we expected it to be peaceful given
Section 144 and considering the efforts
made by the police and the collectorate.”
Thus Section 144 was used as a phys-
ical weapon against democratic voices.
Now, the Moradabad district adminis-
tration in UP is using this Section as a
financial weapon by slapping Imran
Pratapgarhi, a poet-politician, with a
fine of Rs 1.04 crore “for violating
Section 144” by participating in an anti-
CAA protest. A notice issued by the
additional DM-City asking him to pay
said: “One company of Rapid Action
Force and a half section of Provincial
Armed Constabulary have been dep-
loyed at the protest site. It amounts to a
total expenditure of Rs 13.42 lakh per
day...the total sum spent on security
amounts to Rs 1,04,08,693.” What a
way to protect the fundamental right of
freedom of speech and assembly!
I
n the police commissionerate sys-
tem, things are worse. Take the
example of Chennai metropolis. In
an autocratic manner, the Chennai po-
lice insist that citizens should get “per-
mission” to perform even basic demo-
cratic rights and duties. The mere men-
tion of a mild protest sends them into
a tailspin, and a posse of police person-
nel much larger than the “protesters” is
deployed to intimidate them. More
often, their attitude is menacing and
arrest/detention without any charge has
become routine. Even women are not
spared and ladies drawing kolam in
front of their homes are detained.
The Chennai City Police is doing all
this by grossly abusing/misusing Section
41 of the Madras City Police (MCP) Act,
1888, an anachronistic and archaic colo-
nial legislation meant to ruthlessly crush
any protest or dissent against British
rule. By no stretch of imagination can
this be relevant in free India. Sub-Sec-
tion 41(1) of the MCP Act does not obli-
gate citizens to seek “permission” from
the police for conducting any assembly
or meeting in a public place. And cer-
tainly not in a private place or hall. The
Section only authorises the police com-
missioner to regulate. It does not give
him any powers to “prohibit” or “pre-
vent” any assembly. Such power is found
only under Sub-Section 41(2): “…
Commissioner may, by order in writing,
prohibit any assembly, meeting or pro-
cession if he considers such prohibition
to be necessary for the preservation of
public peace or safety.”
This sub-section is redundant and
should have been scrapped as soon as
the Code of Criminal Procedure was
enacted by Parliament in 1973 incorpo-
rating Section 144 which gives this po-
wer and authority to DMs. As we have
seen, the prohibitory order is draconian.
But it has built-in checks and balances
and clear Supreme Court guidelines. But
Sub-Section 41(2) of the MCP Act has
none and by applying this on a non-stop
basis, the police become dictatorial. As
the Chennai police chief is vested with
police and magisterial powers under the
MCP Act and CrPC, respectively, this is
a “double jeopardy” for citizens, with the
commissioner acting as super-cop and
magistrate.
Democracy and fundamental rights
are being routinely jeopardised by abus-
ing legal provisions meant only for em-
ergency situations. Politicians wanting
to hold on to power and carpetbaggers
amassing wealth may want it. Should
civil servants who have sworn to uphold
democracy and fundamental rights be
party to this? The jury is out on this.
—The writer is a former Army
& IAS officer
TheMoradabaddistrictadministrationis
usingSection144asafinancialweapon
byslappingImranPratapgarhiwithafine
ofRs1.04crore“forviolatingSection
144”byattendingananti-CAAprotest.
Twitter.com
NO RULE OF LAW
A protest being quelled by the Chennai
police who often arrest or detain people
without any charge

My Space/ Contract Labour Prof Upendra Baxi
18 March 2, 2020
HE practice by a two
judge-bench in referring
issues to a larger bench
has been institutionalised
to perfection by the apex
court. Surely, when deci-
sions of a two-judge bench conflict inter
se, it is often thought prudent to refer
the matter to the chief justice of India
(CJI) to constitute a larger bench which
should decide the binding law under
Article 141. Legal certainty is here con-
sidered integral to doing of justice. It is
on this understanding that justices and
legal professionals have achieved trans-
actions of certainty in law. Future courts
may tell us whether or not this produces
legal certainty; the referring benches
seem certainly to hope that this will be
the case.
Not all decisions, even when seem-
ingly at conflict, are referred to a lager
bench. In the case referred to—Krishna
Gopal (February 9, 2020) which
referred the entire matter to the CJI to
convene a larger bench—the referring
bench cites a decision of Justice AK
Sikri that seeks to apply the doctrine of
harmonious construction in situations
of conflicting opinion (Para 21).
However, the justice effects of refer-
ence to a larger bench provide some
normative standards by which this is
warranted. Such standards are scarcely
exhausted by mere reference to conflict-
ing decisions of two-judge benches but
by reference to the contexts of different
decisions in the same domain. Different
statutory auspices render unjust any
one-size-fits-all reference to a larger
bench. Much would here depend
though on how Article 32 guarantees
enforcement of constitutional rights—
seen as lying only within the power of
the Court or accompanied with the duty
to provide constitutional justice.
Justices Dr Dhananjaya Y Chand-
rachud and Ajay Rastogi in Krishna
Gopal (in the dispute between tempo-
rary workmen and ONGC) requested
the learned chief justice to constitute an
appropriate bench to reconsider the
decision in PCLU (2015). That decision
needed reconsideration about the inter-
pretation “placed on the provisions of
clause 2(ii) of the Certified Standing
Orders”; “the meaning and content of an
unfair labour practice” under the Fifth
Schedule of the Industrial Disputes Act
and “the limitations, if any, on the power
of the Labour and Industrial Courts to
order regularisation in the absence of
sanctioned posts”.
Prima facie, the reference seems jus-
tified but one ought to ascertain from
the referring order whether the conflict
among the two-judge benches justly
warrants it. It is triggered primarily by
the PCLU (Oil and Natural Gas Corp-
oration Limited v Petroleum Coal
Labour Union, 2015), which is a quar-
Shouldtherebeamultiplicity
ofjurisdictionalauspices
whichcanbeseenascreating
aconflictinanycase?
A Paradigm of
Labour Injustice?
T
LABOUR RIGHTS
Coal Workers’ Federation protests in Asansol

ter-century-old saga of the battle of legal
wits between the management and the
workmen! All the courts before the apex
court had already ordered the regulari-
sation of the temporary employees.
Justice V Gopala Gowda (speaking also
for Justice C Nagappan) upheld the
validity of the Industrial Employment
(Standing Orders) Act, 1994. This order
cannot be overcome by any company
policy, for to do so would be to abandon
the “sunny” days belief that the “eco-
nomic law of demand and supply in the
labour market would settle a beneficial
bargain”—at law “they venerated as nat-
ural law” (Para 33). One hopes that the
indictment of per incuriam does not
extend so far as to invalidate this
noble belief!
The referring bench states that the
PCLU decision is not “prima facie cor-
rect”. Why so? Because it feels that the
decision goes too far in ruling that “the
workmen upon completion of 240 days
service in a period of 12 calendar mon-
ths … are entitled for regularisation of
their services into permanent posts of
the corporation” or that they have
acquired a “valid statutory right” (Para
17). But the referring bench does not
consider fully the argument that acting
otherwise is unconstitutional and illegal
because “the corporation
which is an instrumen-
tality of the State under
Article 12 cannot act
arbitrarily or unreason-
ably”. On the facts of the
case here, that action of
the corporation cannot
but be considered (in
the later phrase—regime
of Justices Rohinton
Nariman and Dhana-
njaya Chandrachud
(Kantaru Rajeevaru,
2019) as “manifestly
arbitrary”.
Similarly, it is not
quite clear why the
referring bench should
not agree with decisions
of coordinate benches
which upheld the powers of industrial
and labour courts in passing appropriate
orders. In Uma Devi (2006), it has
rightly been held by the apex court as
applying only to High Courts and the
Supreme Court; it does not oust the per-
tinent provisions in either the standing
orders or of the Industrial Disputes Act.
Nor do the other decisions concerning
reemployment on retrenchment or cre-
ation of new posts (which is rightly held
as lying within the competence of the
executive) seem relevant to warrant
a reference.
M
ore startling is the observa-
tion regarding what may con-
stitute an unfair labour prac-
tice. No doubt, “under Section 2(ra)
read with Item 10 of the Vth Schedule of
the ID Act, the employer should be
engaging workmen as badlis, tempo-
raries or casuals, and continuing them
for years, with the object of depriving
them of the benefits payable to perma-
nent workmen”.
The opinion written by Justice
Chandrachud virtually underscores the
last 13 words. But surely these words
are capable of an alternate interpreta-
tion which would suggest that the
“object of depriving” the workers of the
“benefits payable of permanent work-
men” may be gathered implicitly or
explicitly. That is, discrimination
against such employees may be writ
large or it may also be gathered from a
course of conduct.
Moreover, Durgapur Casual Workers
(2014) could have thrown adequate light
on the scope of Umadevi. Justices Sudh-
ashu Jyoti Mukhopadhyaya (with Jus-
tice Prafulla C Pant) maintain that it is
an authoritative pronouncement for the
proposition that the Supreme Court
(Article 32) and High Courts (Article
226) should not issue “directions of
absorption, regularisation or permanent
continuance of temporary, contractual,
casual, daily wage or ad hoc employees
unless the recruitment itself was made
regularly in terms of the constitutional
scheme”. But it does not “denude the
Industrial and Labour Courts of their
statutory power” to “order permanency
of the workers who have been victims of
unfair labour practice on the part of the
employer”, when the “posts on which
they have been working exist”.
The referring bench sees a conflict in
this holding; but is it illegitimate to ask
why multiplicity of jurisdictional aus-
pices by itself be seen as creating a con-
flict? Should Article 32 and 226 furnish
the sole jurisdiction for all disputes on
regularisation, regardless of other statu-
tory auspices?
We must finally note that in almost
all the situations, detailed in this refer-
ence, the workmen involved were con-
tract labourers asking for regularisation
from state-owned statutory corporations
who had continued their employment
for very long periods of time.
This practice has grown rampant,
despite clear statutory intention to the
contrary. Doing of justice required that
the Court respected this intention of
creating an implied statutory right
rather than refer the matter to a larger
bench.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
JusticesDrDhananjayaYChandrachudandAjay
Rastogi(right)inKrishnaGopal (inthedispute
betweentemporaryworkmenandONGC)requested
thechiefjusticetoconstituteanappropriatebench
toreconsiderthedecisioninPCLU(2015).

Excerpts/ Justice PD Desai Memorial Lecture 2020
20 March 2, 2020
N occasions such as this
when a lecture series co-
mmemorates the memory
of a distinguished person-
ality, it is conventional to
begin with words of trib-
ute. But for me personally, the opportu-
nity to speak on this occasion has a deep
personal connect. For me, this is a hom-
age to the Master.
Justice Prabodh Dinkarrao Desai
had the unique distinction of being ap-
pointed as a Judge of the High Court of
Gujarat when he was barely thirty-nine.
Over a distinguished career, he func-
tioned as the Chief Justice of three High
Courts in succession, those of Himachal
Pradesh, Calcutta and Bombay between
December 1983 and December 1992.
That a person who was appointed as a
Judge of the High Court so young and
yet was overlooked by destiny or the
powers that be (whichever way one
looks at it), must remain in contempo-
rary times as another aberration in the
process of judicial appointments. When
the call for higher judicial office came,
Chief Justice PD Desai preferred to
retire from the Bombay High Court: so
fiercely was he protective of his own
independence and integrity....
India as a whole, boasts of significant
diversity—heterogeneous along a num-
ber of intersecting dimensions, includ-
ing race, class, religion, and culture.
This diversity is further defined across
several axes: cultural, social, and epis-
temic and outlays diverse values, opin-
ions, and perspectives.…In the plural
mansion that is independent India, lies
a population of over 1.3 billion people
comprising several thousand communi-
ties. At the framing of the Indian Co-
nstitution, questions arose on how ind-
ependent India was to account for its
heterogeneous polity. Uday Mehta elo-
quently elucidates the immense range of
social realities that the founding mem-
bers were called upon to address and
how the document they gave birth to
sought to unify a divergent India by
accommodating all people who called
India their home. For the founders, the
Dissent Not
Anti-national
Dissentisthe“safetyvalve”ofdemocracyandtolabelitanti-
nationaloranti-democraticstrikesatthe“heart”ofIndia’s
commitmenttoprotectConstitutionalvaluesandpromote
deliberativedemocracy,JusticeDYChandrachudofthe
SupremeCourtsaidrecently.Excerptsfromhisspeech:
O

Constitution was premised on both a
deep trust in the tolerant nature of its
citizens and an unshakeable belief that
our diversity would be a source of
strength. As Mehta observes, where the
population was largely illiterate, the
Constitution conferred universal adult
franchise. Where the population was
diverse and assorted, the Constitution
conferred citizenship without regard to
race, caste, religion or creed. Where
the people were deeply religious, the
Constitution adopted the principle of
secularism. Where the Indian State
stood united, the Constitution created a
federal democracy with all the political
instruments necessary for local self-gov-
ernance. Diversity within the strands of
the Constitution is a reflection of the
diversity of her people. One cannot exist
without the other….
T
he Constitution enacted a com-
plete ban on untouchability and
its practice in any form. The
Constitution also stipulates that no citi-
zen is to be subject to any disability or
condition with regard to access to public
spaces and the use of public resources
on the grounds of religion, race, caste,
sex, or place of birth and that the state is
empowered to legislate special provi-
sions for the advancement of any social-
ly and educationally backward class of
citizens…. In elevating groups as distinct
rights holders as well as empowering
state intervention to address historical
injustice and inequality perpetrated by
group membership, the framers located
liberalism within the pluralist reality of
India and conceptualised every individ-
ual as located at an intersection between
liberal individualism and plural
belonging….
The true test of a democracy is its
ability to ensure the creation and pro-
tection of spaces where every individual
can voice their opinion without the fear
of retribution. Inherent in the liberal
promise of the Constitution is a commit-
ment to plurality of opinions. However,
the litmus test of any claim of commit-
ment to deliberation is assessed by the
response of two key actors—the state
and other individuals. If you wish to
deliberate you must be willing to hear
all sides to the story. A legitimate gov-
ernment committed to deliberate dia-
logue does not seek to restrict political
contestation but welcomes it.
As early as the 19th century, Raja
Ram Mohan Roy protested against the
curtailing of the press and argued that a
state must be responsive to individuals
and make available to them the means
by which they may safely communicate
their views. This claim is of equal rele-
vance today. The commitment to civil
liberty flows directly from the manner in
which the State treats dissent. A state
committed to the rule of law ensures
that the state apparatus is not employed
to curb legitimate and peaceful protest
but to create spaces conducive for delib-
eration. Within the bounds of law, liber-
al democracies ensure that their citizens
enjoy the right to express their views in
every conceivable manner, including the
right to protest and express dissent
against prevailing laws. The blanket
India,committedtopluralism,isnotone
language,onereligion,onecultureorone
assimilatedrace.TheConstitutionpro-
tectstheideaofIndiaasarefugetopeo-
pleofvariousfaiths,racesandbeliefs.
UNI

22 March 2, 2020
Excerpts/ Justice PD Desai Memorial Lecture 2020
labelling of such dissent as anti-national
or anti-democratic strikes at the heart of
our commitment to the protection of co-
nstitutional values and the promotion of
a deliberative democracy. Protecting dis-
sent is but a reminder that while demo-
cratically elected governments offer us a
legitimate tool for development and so-
cial coordination, they can never claim a
monopoly over the values and identities
that define our plural society.
The employment of state machinery
to curb dissent instills fear and creates
a chilling atmosphere for free speech
which violates the rule of law and de-
tracts from the constitutional vision of
a pluralist society.
T
he destruction of spaces for ques-
tions and dissent destroys the ba-
sis of all growth—political, eco-
nomic, cultural and social. In this sense,
dissent is the safety valve of democracy.
The silencing of dissent and the genera-
tion of fear in the minds of people go
beyond the violation of personal liberty
and a commitment to constitutional val-
ues—it strikes at the heart of a dialogue-
based democratic society which accords
to every individual equal respect and
consideration. A commitment to plural-
ism requires positive action in the form
of social arrangements where the goal
is—to incorporate difference, coexist
with it, allow it a share of social space.
There is thus a positive obligation on
the state to ensure the deployment of its
machinery to protect the freedom of ex-
pression within the bounds of law and
dismantle any attempt by individuals
or other actors to instil fear or chill free
speech. This includes not just protecting
free speech, but actively welcoming
and encouraging it.
An equal obligation to thwart at-
tempts to curtail diverse opinions rests
on every individual who may not agree
with opposing views. Mutual respect
and the protection of a space for diver-
gent opinions is the process of viewing
every individual as an equal member of
a shared political community where
membership is not premised on sharing
a unanimous opinion…. Taking democ-
racy seriously requires us to respond
respectfully to the intelligence of others
and participate vigorously—but as an
equal—in determining how we should
live together. Democracy
then is judged not just
by the institutions that
formally exist but by the
extent to which different
voices from diverse sec-
tions of the people can
actually be heard, re-
spected and accounted
for. The great threat of
pluralism is the suppres-
sion of difference and
the silencing of popular
and unpopular voices
offering alternate or
opposing views.
Suppression of intellect
is the suppression of the
conscience of the nation.
This brings me to the second threat
to pluralism—the belief that homogeni-
sation presupposes the unity of the na-
tion…. As I have stated before, the fra-
mers demonstrated a commitment for
the protection of India’s pluralist str-
ands. For this reason, amendments to
delete the right to propagate religion
and to include a ban on dressing that
identified with a religion were negatived
in the Constituent Assembly.
By negating these amendments, the
Constituent Assembly asserted the place
of plural expression in the public sphere
and signalled a clear departure from the
singular unification model. Similarly,
even though it was unanimously agreed
that the freedom to propagate religion
was included within the freedom of
speech, the assembly found it necessary
to include a specific provision in Article
25 also stating that a heavy responsibili-
ty would be cast on the majority to see
that minorities feel secure.
A united India is not one charac-
terised by a single identity devoid of its
rich plurality, both of cultures and of
values. National unity denotes a shared
culture of values and a commitment to
RIGHT TO DISSENT
Lawyers (left) protesting
against the CAA, the NRC
and the police repression
Anil Shakya

the fundamental ideals of the Constitu-
tion in which all individuals are guaran-
teed not just the fundamental rights
but also conditions for their free and
safe exercise. Pluralism depicts not
merely a commitment to the preserva-
tion of diversity, but a commitment to
the fundamental postulates of individual
and equal dignity.
In the creation of the imagined polit-
ical community‘ that is India, it must be
remembered that the very concept of a
nation state changed from hierarchical
communities to networks consisting of
free and equal individuals.
India, as a nation committed to plu-
ralism, is not one language, one religion,
one culture or one assimilated race. The
defence for pluralism traverses beyond a
commitment to the text and vision of
the Constitution‘s immediate beneficiar-
ies, the citizens. It underlines a commit-
ment to protect the very idea of India as
a refuge to people of various faiths,
races, languages, and beliefs.
India finds itself in its defence of plu-
ral views and its multitude of cultures.
In providing safe spaces for a multitude
of cultures and the free expression of
diversity and dissent, we reaffirm our
commitment to the idea that the making
of our nation is a continuous process of
deliberation and belongs to every indi-
vidual. No single individual or institu-
tion can claim a monopoly over the
idea of India….
Finally, the commitment to pluralism
lies in the constitutional trust expressed
by the framers on every individual.… An
example of this constitutional trust and
obligation is evident in the divergent
view of the relations between majorities
and minorities upon India gaining her
independence.
During the colonial rule, the Morley-
Minto reforms recommended separate
electorates for minorities. This recom-
mendation for the first time introduced
identity politics into the Indian regime
by classifying groups as majority and
minority.… When the Constituent
Assembly was called to decide the fate
of separate electorates in independent
India, they decided that its inclusion
was not essential to and even contrary
to the requirements of a pluralistic soci-
ety. They rejected separate electorates
and dismissed the relevance of numeri-
cal disadvantage in a polity….
The framers of the Constitution
rejected the notion of a Hindu India and
a Muslim India. They recognised only
the Republic of India. As one member
of the Constituent Assembly said—we
should proceed towards a compact
nation, not divided into different com-
partments but one where every sign of
separatism should go. As another mem-
ber said—there will be no divisions
amongst Indians. United we stand;
divided we fall....
What is of utmost relevance today, is
our ability and commitment to preserve,
conserve and build on the rich pluralist
history we have inherited. Homogeneity
is not the defining feature of Indians.
MA Kalam, a celebrated anthropologist
wrote in a piece that: “a visible, dis-
cernible, lively and successful engage-
ment with diversity, is pluralism indeed.
This definition calls upon us to look at
each other and recognise that our differ-
ences are not our weakness.”
Our ability to transcend these differ-
ences in recognition of our shared hu-
manity is the source of our strength.
Pluralism should thrive not only because
it inheres in the vision of the
Constitution, but also because of its
inherent value in nation building.
T
oday I have attempted to share
with you the vision and spirit of
pluralism that I believe has
always defined India. India is a sub-con-
tinent of diversity unto itself. The mere
mention of India evokes in every person
a different idea which they associate
with the nation.
Anybody truly conversant with
Indian history will tell you that the sin-
gle defining hallmark of ancient India
was its divergent, scattered and frag-
mented nature. It has been for centuries
a land of vibrant diversity of religion,
language and culture. Pluralism has
already achieved its greatest
triumph—the existence of India.
The creation of a single nation out
of these divergent and fragmented str-
ands of culture in the face of colonial
tyranny is a testament to the shared
humanity that every Indian sees in every
other Indian.
The nation’s continued survival
shows us that our desire for a shared
pursuit of happiness outweighs the dif-
ferences in the colour of our skin, the
languages we speak or the name we give
the Almighty.
These are but the hues that make
India and taking a step back we see
how altogether they form a kaleidoscope
of human compassion and love surpass-
ing any singular, static vision of India.
Pluralism is not the toleration of diversi-
ty; it is its celebration.
TheConstitutionwaspremisedonanun-
shakablebeliefthatourdiversitywould
beasourceofstrength.Diversitywithin
thestrandsoftheIndianConstitutionisa
reflectionofthediversityofherpeople.

Supreme Court/ Community Kitchens
24 March 2, 2020
Supreme Court bench on
February 17 slapped an
additional fine of Rs five
lakh on Maharashtra,
Delhi, Manipur, Odisha
and Goa for not filing
counter-affidavits to a plea seeking the
setting up of pan-India community
kitchens. This makes the overall fine
payable by each state Rs ten lakh.
The bench, headed by Justice NV
Ramana, also refused to waive the fine,
as requested by several states. The attor-
ney general, representing the centre,
said an affidavit had already been filed
and another would be filed soon with
respect to the scheme.
On February 10, a bench headed by
Justice Ramana observed that only
seven states and Union Territories (UTs)
had filed affidavits. These are: Andaman
and Nicobar Islands, Punjab, Karna-
taka, Uttarakhand, Jharkhand, Naga-
land and Jammu and Kashmir. The
bench ordered that Rs one lakh be
imposed on states which had failed to
submit their replies but were filing it
within 24 hours and Rs five lakh on
those which had failed to submit their
replies even after 24 hours.
The fines were imposed for non-
compliance with a September 2, 2019,
order which had directed them to file
their replies.
Petitioners Anun Dhawan, Ishann
Dhawan and Kunjan Singh told the
apex court that the “Right to Food” was
a fundamental right which was well-
recognised under national and interna-
tional laws as it protects the right of
people to access food and feed them-
selves. They said that the right to food is
interlinked with the right to life and dig-
nity as envisaged in Article 21 of the
Constitution and therefore, it requires
that food be available, accessible and
adequate for everyone without discrimi-
nation or inequality. The lack of accessi-
bility of food with adequate amount of
nutrition would be a gross violation of
Articles 14, 21, 38, 39, 47 and 51(c) of
the Constitution. They contended that
the Supreme Court from time to time
had held that the right to life includes
the right to live with dignity and all
those basic rights which go along with
it, including the right to food.
The petitioners also cited several
important cases including Francis
Coralie v. Union Territory of Delhi and
Paramanda Katara v. Union of India.
Strong reliance was also placed on the
judgment delivered by Justice PN
Bhagwati in Kishen Pattayanak and Ors.
v. State of Orissa, wherein it was held:
“No one in this Country can be allowed
to suffer deprivation and exploitation
particularly when social justice is the
watchword of our constitution.”
The petitioners also mentioned Peo-
ple’s Union for Civil Liberties v. Union
of India & Ors, 2013, wherein the apex
court had directed all states and UTs
to implement various food-related
schemes.
Reference was also made to state-
Just Desserts
TheCourtimposedheavyfinesonstatesandUTs
whichhadn’trepliedtoapleatosetupcommunity
kitchenstocombatmalnutrition
By Ananthu Suresh
A
ThebenchheadedbyJusticeNVRamana
refusedtowaivethefine,asrequestedby
severalstates.Thebenchobservedthat
onlysevenstatesandUnionTerritories
hadfiledaffidavits.

funded community kitchens being run
in Tamil Nadu (Amma Unavagam),
Rajasthan (Annapurna Rasoi), Andhra
Pradesh (Anna Canteen), Karnataka
(Indira Canteen), Odisha (Ahaar
Centre), Jharkhand (Mukhyamantri Dal
Bhat) and Delhi (Aam Aadmi Canteen)
which serve meals at subsidised rates
under hygienic conditions.
They contended that all these com-
munity kitchens were established with
the object of combating hunger and
malnutrition in India. They said that
“the rationale behind Amma Unavagam
scheme is akin to soup kitchen of the US
and Europe to feed the poor by serving a
limited menu of nutritious cooked food
at below the market price”. These soup
kitchens are staffed by voluntary organi-
sations from churches or community
groups. They further said that these
state-funded community kitchens would
not only combat chronic hunger and
malnutrition problems in India but
would be a great tool to provide employ-
ment as well.
One of the suggestions of the peti-
tioners was that such community
kitchens could be managed either with
state funding or public-private partner-
ship with funding a part of corporate
social responsibility.
T
he petitioners also relied on sev-
eral reports to show that malnu-
trition and hunger were soaring
at an alarming rate in the country. The
petition stated that “it has been reported
in 2017, by the National Health Survey
(NHS) that approximately 19 crore peo-
ple in the country are compelled to sleep
on empty stomach, every night.
Moreover, the most alarming figure
revealed is that approximately 4,500
children die every day under the age of 5
years in our country resulting from
hunger and malnutrition, amounting to
over 3 lakh deaths every year owing to
hunger of children alone. Additionally, it
has been reported that 7,000 persons
(including children) die of hunger every
day and over 25 lakh persons (including
children) die of hunger annually”.
The Global Hunger Index 2018
report prepared by Concern Worldwide
and Welthungerhilfe ranked India at
103 out of 119 countries. India scored
31.1, indicating that it suffers from a
level of hunger that is critical and seri-
ous. In addition, the Food and
Agriculture Report, 2018 stated that
India houses 195.9 million of the 821
million undernourished people in the
world, accounting for approximately 24
percent of the world’s hungry.
They said that in spite of having a
plethora of schemes and programmes to
eradicate the issues pertaining to hun-
ger, malnutrition and food security, the
desired result was a distant reality. This
is because these schemes were ridden
with problems and the country was still
grappling with them on a large scale.
Their plea to the Supreme Court
was:
To direct the chief secretaries of all
states and UTs to formulate a scheme
for the implementation of community
kitchens and to further ensure that no
person sleeps on an empty stomach.
To direct the National Legal Services
Authority to formulate a scheme to fur-
ther the provisions of Article 51A of the
Constitution in order to mitigate deaths
resulting from hunger, malnutrition and
starvation.
To direct the central government to
create a national food grid for those
beyond the scope of the public distribu-
tion scheme.
The matter is listed for further hear-
ing on April 8.
FOOD FOR ALL
A community kitchen in Patna

Supreme Court/ Rotovac Clinical Trial
26 March 2, 2020
Y withholding data on clini-
cal trials of a vaccine con-
ducted on infants to combat
death caused by diarrhoea,
the government is infring-
ing upon the fundamental
rights of people under Articles 14 and 21
of the Constitution.
This was the gist of a petition filed in
the Supreme Court to bring into the
public domain the data related to clinical
trials conducted on 6,799 infants of
Rotavirus vaccine which was launched
by the health ministry. Last week, when
the matter came before a bench of
Justice Arun Mishra, the Court asked the
government to submit documents about
guidelines framed by the Indian Council
of Medical Research (ICMR) in Novem-
ber last year relating to the research on
the vaccine.
The vaccine, Rotavirus, developed by
Hyderabad-based Bharat Biotech, was
launched in March 2015 after getting
government approval following clinical
trials to gauge its efficacy and safety. The
trials were conducted at three centres—
Delhi, Pune and Vellore—to measure the
safety and effectiveness of the vaccine.
The duration of the trial was two years
within which the infants were adminis-
tered the vaccine and its safety was me-
asured according to the number of intus-
susceptions. Intussusceptions are intes-
tinal obstructions that may need an ur-
gent surgery to prevent death among in-
fants and can be diagnosed by ultraso-
und examination.
After studying the aggregate data of
all three centres, an expert member of
the National Technical Advisory Group
on Immunization—the apex advisory
body of the government on immunisa-
tion, deduced that the number of cases
of intussusceptions in the infants from
the Vellore centre was the highest and
there was a huge difference in the num-
ber of cases of intussusceptions in Delhi
and Vellore. The issue was also raised by
a UK medical journal which, after a
study of the aggregated results of these
clinical trials, raised certain questions
about the efficiency of the vaccine and
various risks associated with it.
Consequently, it was decided that de-
tails regarding centre-wise data be ob-
tained in order to gauge the efficacy and
also to ascertain whether a certain sec-
tion of the population is more suscepti-
ble to adverse effects of the vaccine than
others and whether it is safe in all areas
or if people of some specific areas are
more likely to be harmed by it. In fact,
the rationale behind conducting multi-
centre trials was precisely this.
But despite several RTI requests, the
government has thrown a veil of secrecy
over the relevant data. Letters were dis-
patched to the Prime Minister’s Office
which in turn is said to have asked the
Subject Experts’ Committee to look into
the data from Vellore. Even that order
has not been complied with, despite
being aware that not providing complete
results of clinical trials involving human
beings is a violation of the ethics of med-
ical research and global norms which
govern clinical trials. Also, such conceal-
ment will cause injustice to the thou-
sands of infants who participated in this
study, to the researchers and to the med-
ical/scientific community.
In fact, it is all the more crucial to
study the segregated data because the
government has now launched the vac-
cine in four different states. A large
number of infants might be adminis-
tered the vaccine in these states. It would
thus be highly unethical to proceed with
immunisation without informing the
public of the risks and adverse effects
associated with the vaccine.
The PIL filed in 2016 in the Delhi
High Court will come up for hearing in
the apex court next week.
Veil of Secrecy
APILaskstheSupremeCourttodirectthegovernmentto
releasedataonclinicaltrialsofRotovac,conductedatthree
testcentres,forcombatingdeathsininfantsduetodiarrhoea
By Simran Singh
B
FIGHTING INFANT MORTALITY
The oral Rotavirus vaccine being adminis-
tered to an infant to reduce risk of diarrhoea
uib.no

Supreme Court/ MP Woman Judge
Supreme Court bench of
Chief Justice SA Bobde and
Justices BR Gavai and Surya
Kant appreciated a woman
judge for her application for
reinstatement after she had resigned
levying sexual harassment allegations
against a Madhya Pradesh High Court
judge. Soon after levying the allegation,
she was transferred to Sidhi, 424 km
away from Gwalior where she was earli-
er posted. The bench said that the con-
flict could find a satisfactory end as
there was a new chief justice in the
Madhya Pradesh High Court.
Chief Justice Bobde said: “We must
compliment if she wants to be a career
judge.” However, Ravindra Srivastava,
appearing for the MP High Court,
argued that her re-establishment could
have consequences. The bench asked
senior advocate Indira Jaising whether
her client (the woman judge) would
accept reinstatement, if given in some
other state. Jaising said she would pre-
fer any state in the northern part and
nation was cleared after a full-court
meeting of the High Court. However,
the matter was reconsidered and the
panel refused to take back the resigna-
tion. But Jaising contended that in the
inquiry into the sexual harassment
charges it was found that she had been
transferred in violation of the High
Court’s transfer policy. Jaising added
that there was a total lack of “human
face” in ordering the transfer.
The apex court bench then said that
even if she was transferred validly, she
would have completed her tenure of
three years at the new place and would
have been due for a fresh transfer. It
said it wanted the issue to be brought to
a decent conclusion and asked Srivas-
tava to talk to the High Court to rein-
state her.
Srivastava said that if she was rein-
stated, it would look as if the High
Court was wrong in transferring her in
the first place. CJI Bobde said that it
would appear worse if the bench passed
an order directing her reinstatement,
since the issue involves a judicial officer
and a High Court.
Addressing the retirement issue of
the MP HC judge, the Court said that
the situation had drastically changed
and no one would be affected by the
woman judge’s reinstatement. Jaising
said that the former judge wanted rein-
statement and could leave the remuner-
ation of the intervening years, but she
expected to retain her seniority. CJI
Bobde appreciated her attitude and
asked Srivastava to consider her request
without monetary benefits.
Justice Kant told Srivastava that it
was a simple issue. She could submit an
application seeking withdrawal of her
resignation and the High Court would
allow it. The bench directed the counsel
for the MP High Court to report this
to the Court. The bench also observed
that once the High Court had reinstated
her as additional district judge, the apex
court could order her transfer to anoth-
er state.
The Court will hear the matter in
March.
GritWinsKudos
Abenchhassuggestedthataformerdistrictjudgewhohad
resignedafterallegingsexualharassmentbyanMPHighCourt
judgebereinstated,andcomplimentedherforherattitude
By Gautam Mishra
complimented the woman judge by say-
ing that her work was impeccable. She
further said that she was appointed on
the district Vishakha Committee and
her Annual Confidential Report was
excellent as well.
Srivastava said that the woman judge
had resigned on her own and her resig-
A
TheSCbenchsuggestedthattheHigh
Courtreinstatetheladyjudge.
ChiefJusticeBobde(above)asked
thecourttoconsiderherrequest
withoutmonetarybenefits.

Supreme Court/ HC Judges’ Transfers
28 March 2, 2020
HE Supreme Court Collegi-
um has recommended the
transfer of three High
Court judges—Justice Ravi
V Malimath from Karnataka
to Uttarakhand, Justice S Muralidhar
from Delhi to Punjab & Haryana and
Justice Ranjit More from Bombay to
Meghalaya.
Justice Malimath, who is likely to
take over as a judge of the Uttarakhand
High Court, is also president of the Kar-
nataka Judicial Academy and executive
chairman of the Karnataka State Legal
Services Authority.
Born on May 25, 1962, Justice Mali-
math is the son of the late VS Malimath
who was the chief justice of the Kerala
and Karnataka High Courts. Justice
Malimath first enrolled as an advocate
on January 28, 1987, in Bangalore. He
practised constitutional, civil, criminal,
labour and service law, mainly in
Karnataka High Court. He was appoin-
ted additional judge in the same court
on February 18, 2008, and permanent
judge on February 17, 2010. After
Chief Justice AS Oka, he was the next
most senior judge of the Karnataka
High Court.
On January 11, 2020, as president of
the Karnataka Judicial Academy, Justice
Malimath took pride in stating that it
had trained as many as 4,000 judicial
officers and was striving for excellence.
He was speaking at the inauguration
ceremony of Phase-1 of the Academy’s
new building at Crescent Road, Benga-
luru. Chief Justice of India SA Bobde,
Chief Minister BS Yeddyurappa and
Chief Justice Oka were among the dig-
nitaries at the event.
In his long career, Justice Malimath
has handed out some noteworthy judg-
ments. On January 21, a division bench
ruled that the transfer of officers at the
instance of the chief minister and minis-
ters’ recommendation was illegal. It
observed: “The elected representatives
shall not interfere in the transfer of offi-
cials working at autonomous institu-
tions. The previous ruling by the single
bench that all such transfers are illegal
is justified.”
Justice Malimath also sat on the divi-
sion bench that issued guidelines for
lower courts and public prosecutors
across Karnataka to provide victim-ori-
ented justice by awarding appropriate
compensation to victims or their depen-
dants suffering loss or injury due to
crime. “While imposing punishment,
courts should not only keep in view the
rights of criminals, but also rights of vic-
tims and society at large,” the bench,
comprising Justices Malimath and HP
Sandesh, said.
The Supreme Court Collegium’s rec-
ommendations will have to be approved
by the law ministry. If the government
sends it back, the Collegium has the
option to reiterate its decision. The
judges have the option of requesting the
Collegium to reconsider its decision.
Besides Chief Justice Bobde, the other
members of the Collegium are Justices
NV Ramana, Arun Mishra, RF Nariman
and R Banumathi.
CollegiumRecommends
TransferofJudges
ThreejudgesbelongingtotheKarnataka,DelhiandBombayHighCourtsarelikelytobe
postedtoUttarakhand,Punjab&HaryanaandMeghalayaHighCourts,respectively
By India Legal Bureau
T
NEW ROLES
The Supreme Court Collegium
recommended the transfer of three High
Court judges—(from far left) Justice Ravi V
Malimath; Justice S Muralidhar and Justice
Ranjit More

F
ootage of the events earlier this
month when Delhi police stormed
the Jamia Millia University library
have gone viral again, but some miscon-
ceptions and biased or wrong reporting
have also come to light. On that night,
India Today television aired footage under
a huge “Exclusive” banner which showed
the police raid. The footage,
from a CCTV video, was
handed over to the channel
by the Special Investigation
Team of Delhi police and was
used to claim that students
entered the library with
stones in their hands. Other
news organisations carried
the same clip which showed
a student with flat objects in
each hand.
The fact-checking website
Alt News has now shown the
same clip in a higher resolution using spe-
cial slow motion technology. It shows that
the student was holding a wallet in one
hand and a mobile phone in the other.
Viewed at normal speed and in the ver-
sion given to channels by the SIT, it was
easy to buy the Delhi police line that the
student was armed with stones. Techno-
logy can hide the truth and show it too.
T
he latest Indian Readership Sur-
vey (IRS) figures show Punjab’s
dominance in the north Indian
market in terms of newspaper growth
and, consequently, advertising. The
difference is that the advertising in the
Punjab press ranges from low-end
products to high-end fashion and luxu-
ry products. Moreover, what continues
to drive growth is that the readership
covers English, Hindi and Punjabi. The
Tribune is for English readers, Punjab
Kesari or Dainik Bhaskar for Hindi rea-
ders and Ajit and Jagwani for Punjabi
readers. Here’s what makes it so
attractive for advertisers—according to
the National Family Health Survey, resi-
dents of Delhi and Punjab are the rich-
est in India. While Punjab-based man-
ufacturers—from bicycles to tractors,
sports goods, agricultural machinery
and yarn—advertise regularly in local
newspapers, thanks to the large num-
ber of high net worth individuals in
cities like Ludhiana and Chandigarh
and general affluence and rising aspi-
rations, they are equally matched by
makers of luxury products from cars,
jewellery and branded apparel.
No wonder, the press in Punjab
elicits such envy from their bigger
national counterparts.
The Punjab
Phenomena
Media Watch
I
ndian television news
channels are going glo-
bal, but not in a good
way. An American journal-
ist put up a video on Twit-
ter of a guest being ha-
rangued by a finger-wag-
ging television anchor,
Deepak Chaurasia (above
right) of News Nation, with
the comment: “Getting
quite addicted to Indian
television news, Fox News
is so tame in comparison.”
Fox News is the popular
US broadcaster accused
of bias in favour of the Re-
publican Party and ultra-
conservative causes, while
using toxic propaganda to
trash the Democratic Party.
While many Indian cha-
nnels, including News Na-
tion, adopt the same edito-
rial approach regarding
Narendra Modi, the Twitter
exchange on the Chaura-
sia video clip was hilarious
and embarrassing. The
BBC’s Stephen Sackur
(above left), known for his
aggressive style of inter-
views on his programme
Hard Talk, tweeted: “I
watched this and realised
I’d been doing BBC Hard
Talk all wrong.” Chaurasia,
incidentally, had been cha-
sed away from Shaheen
Bagh when he went there
to cover the protests.
The Noose
Today
Stone the Student

Opinion/ Forced Disappearances Col R Hariharan
30 March 2, 2020
HEN the world was
celebrating Valentine’s
Day on February 14,
in Sri Lanka, hundre-
ds of families of those
who were forcibly dis-
appeared observed it as “Missing Lovers
Day”. They converged in Colombo and
marched to the offices of Prime Minister
Mahinda Rajapaksa and President Got-
abaya Rajapaksa demanding justice,
truth and reparation for the loss of their
loved ones.
They dispersed only after the PM pr-
omised to look into their complaints ab-
out those missing during the operations
against Janatha Vimukthi Peramuna
Marxist extremists during 1988-89. An
official statement issued stated that the
additional secretary to the PM had been
tasked with taking follow-up action.
This is not the first time these fami-
lies have agitated, nor the first time pro-
mises have been made to them by suc-
cessive presidents. In addition to the la-
rgely Sinhala mothers and wives who
observed it as “Missing Lovers Day”, for
the last three years in the Northern Pro-
vince, Tamil families have been agitating
for government accountability for over
20,000 of their kin who “disappeared”
during and after the Eelam war that
ended a decade ago. Gotabaya Rajapak-
sa, who was defence secretary during
the last phase of the Eelam war, ackno-
wledged that more than 20,000 who
disappeared during the civil war were
dead. However, after a furore over these
remarks, the presidential media division
clarified that he also said that after “nec-
essary investigations”, steps would be ta-
ken to issue death certificates and prov-
ide support for the families.
Sri Lanka has one of the world’s hig-
hest numbers of enforced disappearan-
ces, with a huge backlog from the late
1980s. In 2016, former President Chan-
drika Kumaratunga, while heading the
Office for National Unity and Reconcili-
ation, told reporters that various
Cry,theBelovedCountry
Thousandshaveforciblydisappearedduetorepressiveregimesanddespitethisbeingagainst
internationalconventions,therehasbeenlittleinterestbygovernmentstotrackthem
A LONG, LONG WAIT
Women holding placards on “Missing
Lovers Day” in Colombo
W
lankainformation.lk

commissions since 1994 had document-
ed that 65,000 people were missing or
“not found to be dead”. According to the
Office on Missing Persons, set up by the
government in 2018, up to 20,000 peo-
ple could be missing since 1983.
Over the years, enforced disappeara-
nces have been documented in 34 coun-
tries, including the US, Russia, China
and in South Asia (India, Bangladesh,
Nepal, Pakistan and Lanka). The most
notorious of them all was Spain. Enfor-
ced disappearances here took place bet-
ween the period of the Spanish civil war
and General Franco’s dictatorship (1939
and 1975) when about 1,14,226 people
“disappeared,” according to a UN report.
Cold War priorities of the US in sup-
port of military rulers too resulted in en-
forced disappearances in Latin America.
During the “Dirty War” of Argentina,
between 9,000 and 30,000 people “dis-
appeared”. Disappearances in Colombia
(around 20,000), Chile (2,279) and Gu-
atemala (40,000-50,000 in civil war)
are part of the dark history of Latin
America.
The US global war on jihadi terror,
unleashed after Al Qaeda’s terrorist atta-
cks on September 11, 2001, led to the
coining of a new term—“extraordinary
rendition”. This is the illegal transfer of
a detainee to the custody of a foreign
government for detention and interro-
gation. The CIA launched a secret extr-
aordinary rendition and detention pro-
gramme worldwide with the coopera-
tion of over a dozen governments.
According to Open Society Found-
ations’ Justice Initiative report, by 2013,
at least 136 persons were “extraordinari-
ly rendered” by the CIA. At least 54 gov-
ernments were reported to have partici-
pated in the programme, giving it unof-
ficial international legitimacy. The US
Justice Department authorised the CIA
to use what President George W Bush
called “enhanced interrogation techni-
ques”, a euphemism for the use of tor-
ture during interrogation.
According to Amnesty International’s
June 2007 report, at least 39 detainees,
who were believed to have been held in
secret sites over-
seas by the US,
were missing.
The US
Department of
Defense kept the
identity of the
detainees held in
Guantanamo Bay
detention camp
secret for four
years, releasing
an official list of
558 detainees on April 20, 2006, after a
court order. Another list published a
month later listed 759 individuals who
had been held in Guantanamo.
T
he UN General Assembly had be-
en concerned about enforced dis-
appearances from 1973 onwards.
It culminated in the framing of the UN
General Assembly resolution 47/133 on
December 18, 1992, proclaiming the Int-
ernational Convention for the Protection
of All Persons from Enforced Disappea-
rances (ICPED). The Convention expl-
ains the responsibility of member states
regarding enforced disappearance, not
only by defining it but also their obliga-
tions and procedure. Article 1 of the
ICPED states that “no exceptional cir-
cumstances whatsoever, whether a state
of war or a threat of war, internal politi-
cal instability or any other public emer-
gency, may be invoked as a justification
for enforced disappearance”.
Article 2 defines enforced disappear-
ance “to be the arrest, detention, abduc-
tion or any other form of deprivation of
liberty by agents of the State or by per-
sons or groups of persons acting with
the authorisation, support or acquies-
cence of the State, followed by a refusal
to acknowledge the deprivation of liber-
ty or by concealment of the fate or wher-
eabouts of the disappeared person, whi-
ch place such a person outside the pro-
tection of the law”.
It is significant that Article 5 states
“the widespread or systematic practice
of enforced disappearance constitutes a
crime against humanity as defined in
applicable international law and shall
attract the consequences provided for
under such applicable international law.”
Enforced disappearance is also
recognised as part of the general defini-
tion of the 1998 Rome Statute establish-
ing the International Criminal Court.
Equally significant is Article 7 enjoining
each State which is a party to the Conv-
ention to “make the offence of enforced
disappearance punishable by appropri-
ate penalties which take into account
its extreme seriousness”. This underlines
the need for states to specifically recog-
nise it as a criminal act.
Internationally, the right of families
TheUS
Departmentof
Defensekeptthe
identityof
thoseheldin
GuantanamoBay
detentioncamp
secretfor
fouryears.
commons.wikimedia.org

Opinion/ Forced Disappearances/ Col R Hariharan
32 March 2, 2020
to know the truth relating to enforced
disappearances or missing persons is
recognised in a number of instruments.
Article 32 of Protocol I to the Geneva
Conventions establishes “the right of
families to know the fate of their [disap-
peared] relative”. Article 24 of the
ICPED states: “Each victim has the rig-
ht to know the truth regarding the circ-
umstances of the enforced disappeara-
nce, the progress and results of the inv-
estigation and the fate of the disapp-
eared person. Each State Party shall take
appropriate measures in this regard.”
South Asia has a poor record with
regard to enforced disappearances. The
International Commission of Jurists’
August 2017 report—”No More Missing
Persons’ Criminalisation of Enforced
Disappearance in South Asia”—provides
an analysis of how not only in Sri Lanka,
but in India, Bangladesh, Nepal and
Pakistan, “enforced disappearance has
been used against nationalist or sepa-
ratist groups or in the name of counter-
ing terrorism or insurgency”. The report,
analysing the criminalisation of the
practice under national laws, says the
five South Asian states failed in fulfilling
their obligations “to ensure acts of
enforced disappearance constitute a dis-
tinct offence under national law” in their
domestic legislation.
However, ever since the report was
published, Sri Lanka has made enforced
disappearance a criminal act by enact-
ing ICPED Act No 5 of 2018. The moot
point is whether the new enactment
would be applied to clear the huge back-
log of 20,000-plus cases. While India
and Pakistan have signed the ICPED,
they have not ratified it, nor have they
initiated special legislations to recognise
enforced disappearance as a distinct
criminal offence. Bangladesh and Nepal
have neither signed the protocol nor rat-
ified it.
A
ccording to the Association of
Parents of Disappeared Persons
(APDP) in J&K, there have been
over 8,000 cases of enforced and invol-
untary disappearances between 1989
and 2009. The state and central govern-
ments say around 4,000 are missing,
most of whom are believed to have
crossed over to PoK. In January 2017,
Chief Minister Mehbooba Mufti told the
state assembly that 4,008 persons who
were missing from the state were in PoK
for arms training.
The Office of the United Nations
High Commissioner for Human Rights
(OHCHR) released its first report on the
human rights situation in J&K and PoK
on June 14, 2018. It focused on allega-
tions of serious human rights violations,
notably excessive use of force by Indian
security forces that led to numerous
civilian casualties, arbitrary detention
and impunity for human rights viola-
tions and human rights abuses by armed
groups allegedly supported by Pakistan.
The report found that human rights vio-
lations in PoK were more structural in
nature; these included restrictions on
freedom of expression and freedom of
association, institutional discrimination
of minority groups and misuse of anti-
terror laws to target political opponents
and activists. The report made a wide
range of recommendations to India and
Pakistan and also urged the Human
Rights Council to consider its findings,
including the possible establishment of
an international commission of inquiry
to conduct a comprehensive independ-
ent investigation into allegations of
human rights violations in Kashmir.
On September 10, 2018, the High
Commissioner for Human Rights
informed the Human Rights Council
during its 39th session that the OHCHR
report’s findings and recommendations
had “not been followed up with mean-
ingful improvements, or even open and
serious discussions on how the grave
issues raised could be addressed”. The
report said neither India nor Pakistan
had taken concrete steps towards pro-
viding the OHCHR with unconditional
access to their respective sides of the
Line of Control.
It is obvious that the issue of enfor-
ced disappearance is linked to compul-
sions of realpolitik of a nation, as much
as national security. It is directly related
to the overall standards of rule of law,
political governance and observance of
human rights. When states are combat-
ing transnational terrorism, it becomes
imperative that instruments of power of
the State are used in a calibrated fashion
to ensure that innocent populations are
not affected. There is a need to maintain
free flow of information to the public to
clear their complaints. This will improve
the credibility of the State.
—The writer is a military intelligence
specialist on South Asia, associated with
the Chennai Centre for China Studies
and the International Law and Strategic
Studies Institute
OF PAIN AND LOSS
Protesters in Kashmir spotlight their plight
apdpkashmir.com

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