India Legal - 3 February 2020

India Legal - 3 February 2020
NDIA EGALL STORIES THAT COUNT I February3, 2020 TheSupremeCourthasrevivedfaithintheconstitutionalideasoffreedomofexpression intheirjudgmentoninternetshutdowninKashmir,saysProfUpendraBaxi Justice Narendra Chapalgaonkar: Ways to fast-track justice
| INDIA LEGAL | February 3, 2020 3 OR the first time in recent memory, there is no feel-good “India Story” from Davos. In 2020, the Swiss mountain re- sort, home to the annual World Econo- mic Forum (WEF), the globe’s most po- werful influential confab of business and political leaders, where India got its “story” as the most promising democratic developing nation with its enviable double-digit growth, did not star the country as in previous years. Driven out of the spotlight, India mostly sulked in the shadows, its representatives and spin doctors searching uncomfortably for answers to tough questions about its rapidly plung- ing economy, growing social unrest, the Citi- zenship Act and Jammu and Kashmir. Davos was happening in the backdrop of In- dia’s projected growth rate plummeting to 4.2 percent and its dropping 10 places to rank 51 out of 167 in the recently released 2019 Demo- cracy Index, formulated and compiled by the prestigious research firm Economist Intelligence Unit (EIU). The country ranked 41 in 2018. India’s overall democracy score also fell from 7.23 out of a possible 10 in 2018 to 6.90 in 2019. “The primary cause of the democratic regression was an erosion of civil liberties in the country,” the EIU report said. It said that along with the revocation of Article 370 in August last year, stripping Jammu and Kashmir of its special status, India “deployed a large number of troops in J&K, imposed various other security measures and placed local leaders under house arrest, including those with pro-India credentials…The government also restricted internet access in the state”, the report said. It also noted that the newly amended citizenship law “has enraged the Muslim population, stoked communal tensions and generated large protests in major cities”. But despite large-scale protests, “the EIU expects the ruling Bharatiya Janata Party (BJP) to maintain its focus on popular Hindu nationalist themes, seeking to re- bound from poor results in recent state elections. Fiscal and monetary policy constraints and an uncertain business environment in some states will keep the economy from reaching its growth potential in the years ahead”. A ctually, India’s slide, which came more sharply into focus this year because of the concomitant social protests and student unrest which have hogged world headlines, was apparent at Davos last year as well. Poor health conditions and low healthy life expectan- cy were listed as the biggest curse for India. The country has slipped 10 rungs to end up at 68th rank on the WEF annual Global Competitive- ness Index. It was ranked 58th in this Index last year but is among the worst performing BRICS nations this year, along with Brazil which has fallen even further to 71st position. The Economist, which is rated as the most widely read journal by political leaders and cap- tains of commerce and industry across the world, had, not too long ago, run a cover story calling India a “caged tiger” which was ready to overtake China in global economic performance and set an example for even the more advanced economies. In last week’s cover story, it was dis- heartening to read this same journal editori- alise: “Alas, what has been electoral nectar for SLIDING INDIA Inderjit Badhwar F In2020,theannual WorldEconomic Forum,whereIndia gotits“story”asthe mostpromising democratic developingnation withitsenviable double-digitgrowth, didnotstarthe countryasin previousyears. Letter from the Editor
4 February 3, 2020 the BJP is political poison for India. By under- mining the secular principles of the constitution, Mr Modi’s latest initiatives threaten to do damage to India’s democracy that could last for decades. They are also likely to lead to bloodshed. “The sad truth is that Mr Modi and the BJP are likely to benefit politically by creating divi- sions over religion and national identity. Such subjects keep the party’s activists and their allies in Hindu-nationalist groups energised—always a boon, given India’s relentless sequence of state elections. They also distract attention from awk- ward topics such as the economy, which has struggled since the BJP’s thumping election victo- ry last year. Most important, Mr Modi seems to calculate that a sizeable minority of Indian voters are sympathetic to his constant insinuation that Muslims are dangerous fifth-columnists, always scheming to do Hindus down and sell out their country to Pakistan. That is enough to keep him in office. Because of India’s first-past-the-post electoral system and a divided opposition, the BJP won its outright majority in parliament with just 37% of the vote.” The article ends: “Happily, many Indians have already had enough, as the recent protests show. The Supreme Court, which this week declined to suspend the citizenship law, should heed this… And rather than stoke hostility between two of the world’s great religions, Mr Modi should look for other paths to voters’ hearts.” I n its most recent judgment on the legal challenges, the Supreme Court refused any stay on the CAA without hearing the government and also barred High Courts—which have been quite liberal in granting bail to citizens arrested and detained by the police under various charges for participating in anti-CAA demonstrations—from hearing petitions challenging the constitutional validity of the Act. It is likely that all these matters will be clubbed before a larger constitutional bench. But academics and political thought leaders like Balveer Arora have asked: “Is there a precedent for gagging the High Courts, preventing them from hearing challenges to central laws? Some High Courts have handed down remarkably pro- gressive judgments….” The answer to this question which also has relevance to the controversy over whether states can refuse to obey central diktats they consider detrimental to constitutional propriety, may lie in this summary—taken from the Supreme Court website—regarding the powers of the apex court. Excerpts: The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to any dispute between the Go- vernment of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends. In addition, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them. The Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court. The Supreme Court, if satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, may withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself. The appellate jurisdiction of the Supreme Court Therecently released2019 DemocracyIndex saidthatalongwith therevocationof Article370inJ&K inAugustlastyear, Indiadeployeda largenumberof troopsinJ&K (aboveright), imposedother securitymeasures andrestricted internetaccess.It alsosaidthatCAA hasenragedthe Muslimpopulation andstokedcommu- naltensionsinIndia andgeneratedlarge protestsin majorcities. Letter from the Editor UNI
| INDIA LEGAL | February 3, 2020 5 can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution. Under Articles 129 and 142 of the Constitution the Supreme Court has been vested with power to punish for contempt of Court including the power to punish for contempt of itself. In case of contempt other than the contempt referred to in Rule 2, Part-I of the Rules to Regulate Procee- dings for Contempt of the Supreme Court, 1975, the Court may take action (a) Suo motu, or (b) on a petition made by Attorney General, or Solicitor General, or (c) on a petition made by any person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General. Although the proceedings in the Supreme Court arise out of the judgments or orders made by the Subordinate Courts including the High Courts, but of late the Supreme Court has started enter- taining matters in which interest of the public at large is involved and the Court can be moved by any individual or group of persons either by filing a Writ Petition at the Filing Counter of the Court or by addressing a letter to Hon'ble the Chief Justice of India highlighting the question of public importance for invoking this jurisdiction. Such concept is popularly known as ‘Public Interest Litigation’ and several matters of public importance have become landmark cases. This concept is unique to the Supreme Court of India only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction. A Writ Petition filed at the Filing Counter is dealt with like any other Writ Petition and processed as such. In case of a letter addressed to Hon'ble the Chief Justice of India the same is dealt with in accordance with the guidelines framed for the purpose. Each High Court has power to issue to any person within its jurisdiction directions, orders, or writs including writs which are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Funda- mental Rights and for any other purpose. This power may also be exercised by any High Court exercising jurisdiction in relation to territories within which the cause of action, wholly or in part, arises for exercise of such power, notwith- standing that the seat of such Government or authority or residence of such person is not within those territories. Each High Court has powers of superinten- dence over all Courts within its jurisdiction. It can call for returns from such Courts, make and issue general rules and prescribe forms to regulate their practice and proceedings and determine the manner and form in which book entries and accounts shall be kept. F rom the above, an argument may well be made that the Supreme Court’s jurisdiction is both appellate as well as original. But does that mean it can circumvent the power of High Courts by pre-empting, in advance, a matter, say, of fundamental rights from even being heard by a High Court? Can the Supreme Court, for example, issue a decree that all matters con- cerning bail for citizens arrested by the police under various charges for participating in public protests be referred only to the Supreme Court and all lower courts be barred from adjudicating these appeals because they arise from the same set of circumstances, ie, challenges to a central law? But the central issue as Balveer Arora posits, is that the apex court should, alternatively, decide constitutional matters on priority. “Can you have constitutional uncertainty for prolonged periods of time, leaving the executive in the dark on whether the laws it continues to apply are consti- tutionally valid or not?” The2019Demo- cracyIndexalsosaid thatIndia’soverall democracyscorefell from7.23outofa possible10in2018 to6.90in2019and theprimarycauseof thedemocraticreg- ressionwasanero- sionofcivilliberties inIndia.Butdespite this,thereportsays, therulingBJPisex- pectedtomaintain itsfocusonpopular Hindunationalist themes,seekingto reboundfrompoor resultsinrecent stateelections. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com UNI
6 February 3, 2020 ContentsVOLUME XIII ISSUE12 FEBRUARY3,2020 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Junior Sub-editor Nupur Dogra Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographer Anil Shakya Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) Never were constitutionalism and judicial duties articulated more accurately than in the J&K internet shutdown case heard by the Supreme Court recently, which reaffirmed constitutional rights and freedom of speech. An analysis of the judgment by Prof Upendra Baxi A Boost for Liberty 14 LEAD The government is yet to allot official accommodation to four new judges appointed to the Supreme Court, forc- ing them to work out of makeshift premises in the capital Houses Full 18 LEGALEYE
| INDIA LEGAL | February 3, 2020 7 Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE REGULARS Ringside............................8 Is That Legal.....................9 Courts.............................10 Law Campus News........12 International Briefs ........26 Media Watch ..................35 Love Jihad Controversy The Kerala Syro-Malabar Church’s assertion that the IS engaged Muslim men to feign love and lure Christian women for terror activities has been denied by the government and questioned by priests FOCUS A country-wide organisation of lawyers has been actively helping anti- CAA protesters who have been detained or face harassment and prosecution, all for free. This is a historic mobilisation. Who are they and what is their motivation? People’s Advocates 28 GLOBALTRENDS 44 This could well be the plea of rabies patients who undergo great pain and want euthanasia. Though the apex court has sought the centre’s response to a PIL seeking this right, the disease is often treatable 40Please Release Me… 22 The centre’s three projects—CAA, NPR and NRC—are unimplementable and extremely costly. When the needed data is already available through Aadhaar, why incur such a massive expenditure? A Bridge too Far In a welcome development, the Rajasthan Public Accountability Bill will make state government officials accountable for giving services to citizens and promises fast redressal of their grievances Under the Scanner 25 Twenty-three years after Goa initiated the process for an international airport at Mopa, about 43 km from Panaji, the Supreme Court gave its nod after laying down rigorous guidelines. But will these be followed? 36 32 Project Takes Off ACTS&BILLS OPINION STATES NCRB data has shown that only 22 percent of cases were disposed of by fast-track courts in less than a year. If this is to be speeded up, there should be proper infrastructure and personnel, says Justice Narendra Chapalgaonkar Iron Out the Glitches COLUMN By keeping key ministries within the family, Sri Lanka’s president, Gotabaya Rajapaksa, may have ensured a tight grip over the administration, but challenges remain on other fronts Hits And Misses 20
8 February 3, 2020 Anthony Lawrence RINGSIDE Investment: $2 bn Jobs: 1 mn Buzz off!! Commerce minister Piyush Goyal
| INDIA LEGAL | February 3, 2020 9 ISTHAT — Compiled by India Legal team A young woman, whose husband died of a heart attack, leaves her in-laws’ house in a huff, though there were no instances of any kind of harassment when the husband was alive. The in-laws are old and want her to return, but she wants the family property to be divided. Can she claim a share in her deceased husband’s property legally? A woman is entitled to the share of her deceased husband in the joint family property after his death and can claim the same by filing a suit for partition of the property. Under the Hindu Succ- ession Act, she is entitled to a share as an heir under Section 8 read with Schedule I. The Act defines ‘widow’ as a female who has been united in marriage re- cognised by law and survives the husband without remarriage... In Muthammal (died) vs V Pavunambal case (2012), it was held that on the death of her husband, the widowed woman can claim a share in the joint family properties along with her father- in-law, mother-in-law and brother- in-law. She becomes one of the sharers along with other heirs and gets her right to a share in the joint family properties. ? Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis An office employee’s email account is hacked by his colleague, who then uses it to send objectionable mails to women in the office. The employee is unable to prove his innocence and loses his job. What legal recourse does he have to get his job back? The employee should file a complaint with the cyber cell of the police under the IT Act, and Section 509 of the IPC. Thereafter, the police will investigate and trace the colleague from the details of the IP address and server address received from the emails of the women in the office. A criminal case will be initiated against the colleague who had hacked and misused the account. Thereafter, the employee should try to resolve the matter by approaching the company’s management and providing them a copy of the FIR and explaining the whole episode. If the company still refuses to reinstate him, the employee can file a case against the employer. Perils of Hacking A healthy youngster becomes partially blind after a brain surgery. He has 40 percent vision. Is he entitled to a government job under the handicap quota? Yes, he is entitled to a government job under the handicap quota, if he can establish that he has visual impairment even after treatment or standard refractive correction, and uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device. He will also come under the category of persons with disability for suffering from not less than 40 percent of any disability as certified by a medical authority. According to The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the government has reserved in every establishment vacancies not less than three percent for persons with disability, of which one percent each is reserved for people suffering from blind- ness or low vision; hearing impairment; and locomotor disability or cerebral palsy. Share in Family Property Jobs for Visually Impaired A doctor, who is working in a government hospital, joins a popular anti-corruption movement against the government. To his dismay, he is suspended for his participation. Is he on sound legal ground if he moves the court? Yes, the doctor can approach the court of law for seeking appropriate compensation for being suspended in an arbitrary manner. In the matter of Delhi Transport Corpo- ration vs DTC Mazdoor Cong- ress (1990), it was held that the management cannot have unrestricted and unqual- ified power of terminating the services of the employees. Although in the interest of efficiency of the public bodies, they should have the authority to terminate the employment of undesirable, inefficient, corrupt, indolent and disobedient employees, the management must ensure that the right is exercised fair- ly. There should be adequate reason for the use of such power and arbitrariness should be avoided. Rules of Suspension
10 February 3, 2020 Courts The apex court refused to stay the Citizenship (Am- endment) Act (CAA) or post- pone the implementation of the National Population Register (NPR). It also indicated that the matter may be referred to a Constitution bench and asked the centre to file its reply to more than 140 petitions challenging the contentious orders. On a petition by the centre, the bench headed by Chief Justice of India (CJI) SA Bobde and comprising Justices S Ab- dul Nazeer and Sanjiv Khanna also restrained all high courts from passing any order on the CAA. The Court said that the petitions, filed by individuals and organisations, would be heard by a Constitution bench. Attorney-general KK Venu- gopal, appearing for the centre, opposed any stay on the CAA or postponement of the NPR, seen as the first step towards implementing the proposed National Register of Citizens (NRC). But senior advocates Kapil Sibal and Abhishek Manu Singhvi, who were among an army of lawyers representing various petitioners, argued that there should be at least a “postponement” of the NPR till the adjudication of the dispute by the Court. When Singhvi said that the UP government had already started the process of identifying “doubtful” citizens, the CJI replied: “The matter is uppermost in every- body’s mind. We will form a five-judge bench and then list the case.” Courts The Tripura High Court held that a government servant could not be deprived of his right to free speech which was a fundamental right enshrined in the Cons- titution. The Court said this while quash- ing a departmental charge sheet against a petitioner who worked as an upper division clerk (UDC) in the state government. On December 31, 2017, she had attended a rally organised by a political party following which she was served a memorandum alleging that while working as a UDC, she had canvassed against a political party by making defamatory and Tripura HC: Govt servants have right to free speech Atwo-judge bench of the SC issued notice to the centre on a PIL challenging the constitutional validity of the establishment of the National Com- mission for Minorities Act, 1972. The petitioners, follow- ers of the Sanatan Vedic Dharam, argued that Parlia- ment could not make any law for the benefit of a particular religion. They also sought direction that the centre had no power to grant benefits in schemes framed in favour of the notified religious minority com- munities from taxpayers’ money. The petitioners stated that the Hindu community was being discriminated against on the grounds of religion as a number of beneficiary schemes, with a budget of `4,700 crore, had been initiated in favour of religious minorities. They said that the government was showing undue favour to waqf and its properties while denying the same to institutions of the Hindu community like trusts, mutts, akha- ras and other religious denomi- nations. “From taxpayers” money, no religion or religious groups can be promoted and therefore, no Minority Commission can be created to achieve the purposes enumer- ated in the Act,” they said. PIL against Minority Commission: SC issues notice SC: No stay on CAA; no delay on NPR implementation UNI
| INDIA LEGAL | February 3, 2020 11 The centre moved the Supreme Court seeking that guidelines be framed to exe- cute the death penalty awarded to convicted prisoners within seven days of rejection of their mercy petitions. The move follows a flurry of petitions that came up in various courts filed on behalf of the four convicts sentenced to death in the Nirbhaya gang rape case. The four have been on death row since 2013 after a trial court ruled they were guilty and in the years since, several curative petitions have been rejected including mercy pleas before the president of India. The Ministry of Home Affairs filed the application in the top court on January 22 seeking “appropriate clarification/modification and directions” that defined procedures pre- scribed for prisoners on death row. It told the Court that if convicts sentenced to death wanted to file mercy petitions, it would be mandatory to do so only within a period of seven days from the date of receipt of death warrants issued by competent courts. Govt seeks cap on death row petitions —Compiled by India Legal team Advocates queue up for student arrested for sedition Despite a diktat from the Mysuru Bar Association asking its members not to represent her, over 170 advocates from across Karnataka have signed vakalatnama for Nalini Balakumar (below), the college student who was arrested for sedition for expressing her opinion by holding a placard that said, “Free Kashmir” during an anti-CAA protest at the Mysore University campus earlier this month. One lawyer had appeared for Nalini when some others wrote to the association that it should pass a resolution against appearing in such a case since it would amount to supporting what was on that placard. Responding to this, a group of Bengaluru lawyers issued a statement condemning the decision. “It is not only against profes- sional ethics and duties of lawyers under the Bar Council of India Rules, but also as being antithetical to the values embedded in the Constitution of India. Every person has the right to be represented in a Court and any attempt to subvert such right is a blatant attack on the Constitution,” they said. indecent comments against political leaders contesting election in the state elections of 2018. She challenged the order issued by the Director of Fisheries which placed her under suspension. The High Court said that mere presence in the audience during a rally does not mean participation in it nor does it establish her political affiliation. On the issue of canvassing against a political party with a Facebook post, the Court held that nothing contained in the said post suggested that she cam- paigned. “As a Government servant, the petitioner is not devoid of her right of free speech, a fundamental right,” Chief Justice Akil Kureshi (pictured) said. The Allahabad High Court refused to quash an order from the Jaunpur district administration which refused permission to two mosques to use loudspeakers for azaan—a call to prayer for Muslims. A sub-divisional magistrate (SDM) had issued the order last year. A division bench of Justice Pankaj Mithal and Justice VC Dixit dismissed the petition filed by one Masroor Ahmad stating: “It becomes quite evident that the petitioners have been refused permission to use sound amplifying system at the mosque not only for the inherent reason of noise pollution but in order to maintain peace and tran- quility in the area.” Ahmad said that the order be qua- shed so that they were able to offer their prayers, “in accordance with their religion”. Citing an SC judgment, the bench said that no one can claim a fundamental right to create noise pollution by amplifying sound. Dismissing the petition, the Court lamented that people do not understand the haz- ardous effects of noise pollution. “No religion pre- scribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums. If there is such a practice, it should not adversely affect rights of others, including that of not being disturbed,” the Court observed. HC upholds SDM order on loudspeakers
12 February 3, 2020 LAW CAMPUSES / UPDATES NLUD releases a report on death penalty Astudy, “Death Penalty in India: Annual Sta- tistics Report, 2019”, has been released by Project 39A of the National Law University, Delhi. According to the report, 2019 saw an increase in the proportion of death sentences given for sexual offences. Around 53 percent of the death sentences imposed in trial courts and 65.38 percent in high courts involved sexual offences along with murder. The report also says that out of the 54 cases of sexual offences for which the death penalty was given in 2019, 40 involved a victim below 12 years. The report further highlights that no death sentence was awarded in 11 states—Andhra Pradesh, Himachal Pradesh, Haryana, Delhi, Jammu and Kashmir, Arunachal Pradesh, Goa, Meghalaya, Mizoram, Nagaland and Sik- kim—in 2019, while Rajasthan topped the list with 13 death sentences. It shows a drop in the number of prisoners being sentenced to death from 426 in 2018 to 378 as on Decem- ber 31, 2019.The report also observed that the Supreme Court, during the tenure of former Chief Justice Ranjan Gogoi, listed and heard the maximum number of capital cases (27) since 2001. The annual report attempts to create comprehensive year-by-year documentation of movement in the death row population in India. The publication tracks important devel- opments in the administration of the death penalty and criminal justice in 2019. No fresh courses: BCI In an attempt to restrict the number of institutions offering undergraduate legal courses, the Bar Council of India rejected 55 applications by colleges seeking permission to start fresh law courses. A majority of the applications were from institutions in Uttar Pradesh. Map courtesy: Death Penalty in India: Annual Statistics Report, 2019 by Project 39A, NLU, Delhi
—Compiled by Nupur Dogra NLUD students protest for worker’s rights The General Council of NLU Odisha in its special meeting held in Jan- uary 2020 approved 25 percent horizontal reseva- tion for students who are domiciled in Odisha across categories for admissi- on to its undergraduate and postgraduate programmes.The Council also laid down the criterion that candidates who have passed class XII or an equivalent examination from Odisha with at least 60 percent marks (or its equivalent grade) are eligi- ble to apply for its undergraduate courses. Candid- ates who have passed the undergraduate law course with at least 50 percent marks (or its equivalent grade) in the said examination from any recogni- sed college/university in Odisha can apply for its postgraduate programme. The BCI’s decision is a part of its sus- tained efforts to regulate and improve the standards of existing colleges. Earlier, the BCI had faced severe critic- ism for approving institutions that failed to meet UGC (University Grants Commission) standards. “We are expecting the colleges to go to the court but we are ready with our counter argument. There is no need for new colleges and the existing ones are sufficient to feed the legal system at present,” said BCI co-chairman Ved Prakash Sharma. In August 2019, the BCI imposed a moratorium on opening of new colleges, except National Law Univer- sities, if proposed by a state. Currently, there are 1,500 law colleges in India. The students of National Law University, Delhi (NLUD) have been protesting daily on its campus after the university, removed 55 of its workers. The students have alleged that the university, without giving any prior notice to these workers, stop- ped them from making any entry in the register since December 2019. “These are outsourced services. We hire a contractor and then they hire the workers. Since the contractor had not been changed in the last 12 years, we were forced to hire a new one,” said Ranbir Singh, vice-chancellor of NLUD. “The students want 100 percent retention of workers in the university, which is not possible. However, I have already assured them that I will ensure that each and every worker finds some sort of employability so- mewhere else.” The students have been protesting for the past 16 days on Campus. Reservations at NLU Odisha | INDIA LEGAL | February 3, 2020 13 Cyber Forensic Lab (Ctrl Z) at NALSAR has announced three short-term courses for law students: Hands On Forensic (HOF) from February 26 to February 28, 2020 Practical hands-on experience will be provided on topics like understanding hard disks and how a hard disk should be viewed for forensics, the process involved in understanding file systems, types of file systems and so on. Application and Email forensic (AEF) from March 6 to March 8, 2020 This course offers practical hands-on experience on topics like Application Log Analysis and why it is important to analyse application logs, where to find the logs, format analysis of logs, how to read and present forensic reports, types of attacks and so on. Cyber Investigation Forensics from March 13 to March 15, 2020 This course offers an introduction to various me- thods and tools used for cyber forensics investigation, e-discovery, collection and preservation of digital evidence and email recovery, tracking & investigation, IP tracking, extraction of deleted digital evidence, and so on. The fee for each course is `10,000 for a three-day course. NALSAR students will get a discount and will pay `6,000. NALSAR University of Law offers short-term courses
Lead/ Column/ Supreme Court/ J&K Internet Shutdown Prof Upendra Baxi 14 February 3, 2020 N the eve of the 70th cen- tenary of the Republic Day, the apex court, speaking through Justices NV Ramana, R Subhash Re- ddy and BR Gavai, has again revived faith in the constitutional ideals of liberty and dignity. In Anu- radha Bhasin (January 10, 2020), the Court describes J&K as a “land of inherent contradiction” torn between violence and “incredible beauty”. But it makes no judgements on “political propriety” of parliamentary law but carefully delin- eates its jural scope. And the tasks of doing justice although no less difficult than the political, is stated as that of balancing “security and liberty concerns so that the right to life is secured and enjoyed in the best possible manner”. The Court did not invalidate the present orders under Section 144 CrPC and internet shutdown but laid down some criteria of validity for these. Critics may be right to express constitutional anxiety because experience shows that the negotiation of judicial labyrinth is very time-consuming in a citizen’s struggle to ensure constitutionality in State action. Even so, one hopes that the very enunciation of norms and standards will have a positive democratising effect. And we all must still await the final decision on the matter of constitutionality of the repeal of Article 370, yet to be heard by the Court. That said, the self-discipline of the Court is worthy of applause. It affirms A Blow for Liberty Neverwereconstitutionalismandjudicialdutiesarticulatedmoreaccuratelythaninthecase dealingwiththeissue.OnehopesthatthejudicialvoiceisheardbyallorgansoftheStateand representativesofthepeople LEGAL POSITION The SC agreed that internet access is a “tool” of the right to freedom of expression O UNI
| INDIA LEGAL | February 3, 2020 15 that constitutional adjudication requires a reasoned elaboration and a justifiable judicial discourse, in the arena of viola- tion of basic human rights. Of course, as I demonstrated long ago (in my book Supreme Court and Politics) constitutional politics—the politics of interpretation—is different from competitive power politics because the latter is self- interested reason while the former is disinterested in the outcomes. Another way is to say that what we have in constitutional adjudicative politics is the conflict of values rather than conflict of rival interests. The presumption of constitutionality of legislative action will remain in place based on the premise that the political class, in making and enforcing the law, respects the basic rights guaranteed in part 111 of the Constitution, including new rights—standards that emerge as necessary emanations from the doctrine of the basic structure and essential fea- tures of the Constitution. While the Court categorically says that it is not our “forte to answer whether it is better to be free than secure or be secure rather than free”, it will always respond to “ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time”. Upon hearing the vigorous conten- tions advanced by the State (through attorney general and the additional solicitor general) and by Vrinda Grover, Kapil Sibal, Dushyant Dave, Sanjay Hegde and other distinguished lawyers for the petitioners and interveners, the Court framed five issues. First, whether the “Government can claim exemption from producing all the orders passed under Section 144, CrPC, and other orders under the Suspension Rules?” Se- cond, whether the freedom of speech and expression and freedom to practise any profession or to carry on any occu- pation, trade or business over the internet is a part of the fundamental rights under Part III of the Constitu- tion. Third, whether the government’s action of prohibiting internet access is valid. Fourth, whether the imposition of restrictions under Section 144, CrPC was valid. And fifth whether freedom of press was “violated due to the restrictions”. I n a far-reaching ruling on the first issue, the Court decided that the State must produce all orders under Section 144 of the CrPC, together with a statement of objective grounds, because a “democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know” and the State “has to act in a responsible manner to uphold Part III of the Constitution” and not “take away these rights in an implied fashion or in casual and cavalier manner”. As if this was not strong enough, the Court goes further to state that this nor- mative constitutional expectation is also “a requirement under natural law, that no law should be passed in a clandestine manner”. These are strong words given the fact that the judicial doctrine of constitutional expectations is in its infan- TheSC,throughJusticesNVRamana (left),RSubhashReddy(belowleft)and BRGavai,hasrevivedfaithintheconstitu- tionalidealsoflibertyanddignity.Whileit saysthatitisnotour“fortetoanswer whetheritisbettertobefreethansecure orbesecureratherthanfree”,itwill alwaysrespondto“ensurethatcitizens areprovidedalltherightsandlibertyto thehighestextentinagivensituation whileensuringsecurityatthesametime”.
Lead/ Column/ Supreme Court/ J&K Internet Shutdown/ Prof Upendra Baxi 16 February 3, 2020 cy. Besides, the recent judicial tendency, on a high growth curve, to rely on natural law should be tempered with the recall that it has acted historically as an agent of emancipation as well as of repression. The difficulties of invoking the principles of natural law are soon manifest in the adroit judicial handling of the second issue. While agreeing with the view that internet access is a “tool” of the right to freedom of expression and the right to freedom of trade and business, the Court clearly rules (in para- graph 28) that as it has not been specifi- cally argued by any counsel that “the right to access the internet” be declared as a“fundamental right…we are not expressing any view on the same”. In other words, internet access is not a fundamental human right, it may be protected merely as an aspect of Article 19 rights. The media and informed public opinion, however, have perpetuated the view that the right to access to internet is a fundamental and natural right! Surely, natural rights may not depend on what counsel chose to argue! Why did the Court stop short of a nor- mative declaration of the right to internet access? T he power of imposing reasonable restriction is well analysed under the newly fangled doctrine of proportionality. Even the relatively un- initiated may well appreciate the facts that the power to “restrict” does not include the power to altogether abro- gate the right and the State should make the showing that out of a range of alternatives, measures least restrictive to the rights declared by the Consti- tution have been adopted. But, of course, the Court chooses to reiterate and refine the “proportionality” test as signi- fying that: “A law interfering with fundamental rights must be in pursuance of a legitimate State aim… The justification for rights-infringing measures that interfere with or limit the exercise of fundamental rights and liberties must be based on the existence of a rational connection between those measures, the situation in fact and the object sought to be ach- ieved.… The measures must be necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim.… Restric- tions must not only serve legitimate purposes; they must also be necessary to protect them” and “the State must provide sufficient safeguards relating to the storing and protection of centrally stored data.” The orders passed under Section 144 of the CrPC fail to meet this test, and rendering the right to constitutional remedies infructuous by non-disclosure of reasonable grounds based on a full “application of mind” and stating objective reasons which citizens may contest. The Court has done a great service in saying that collective security is not best served by rank arbitrariness of blanket orders. Very much the same reasoning extends to the last issue, which is dis- cussed largely in terms of the “chilling effects” on freedom of the press. Import- antly, the Court enunciated the test of “comparative harm”, under which the judiciary is “required to see whether the impugned restrictions, due to their broad-based nature, have had a restrictive effect on similarly placed individuals during the period”. May be, the ins- tant petitioner failed to prove such harm as other newspapers were not disabled and the ban on her newspaper itself was not long-lasting. But subjec- tive dimensions of the experience of the “chilling effect” should not have been so readily dismissed. The judicial discourse in this case has to be read in the light of the wise words uttered in Lt Governor, Delhi (2018) where (speaking through Dipak Misra, CJI), the apex court enunciated a doctrine of “constitutional trust”. The Court said that the “representative form of government should not become a government by elites where the representatives so elected do nothing to give effect to the will of the sovereign. The elected representatives must not have an ulterior motive for representing their constituents and they should not misuse the popular mandate awarded to them by covertly transforming it into ‘own rule’. The inherent value of public accountability can never be brushed aside.” Never were Indian constitutionalism and judicial duties articulated so accurately and acutely and one hopes that the judicial voice is heard by all organs of the State and the representatives of people. —The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer Thejudicialdiscourseinthiscasehasto bereadinthelightofthewordsuttered inLtGovernor,Delhi where(speaking throughDipakMisra,CJI),theSCenunci- atedadoctrineof“constitutionaltrust”.
Legal Eye/ Homes for Judges 18 February 3, 2020 day after President Ram Nath Kovind appointed four new judges to the Supreme Court last Sep- tember, and four days before they were actually sworn in, the Court registry announced that two new courtrooms were being added within the premises. The registry note said: “It is hereby circulated for the information of all concerned that as per the orders of Chief Justice of India, two additional courtrooms have been created near the existing court number 10 which have been numbered as court number 16 and court number 17.” But even as more courtrooms were made for the judges and litigants, at a personal level, the four judges are yet to be given official accommodation more than four months after they were sworn in. The judges are former Punjab and Haryana High Court Chief Justice Krishna Murari, former Rajasthan High Court Chief Justice S Ravindra Bhat, former Himachal Pradesh High Court Chief Justice V Ramasubramanian and former Kerala High Court Chief Justice Hrishikesh Roy. They continue to work out of guest houses of the states where they last served before their elevation to the apex court. This strange situation came about following the government decision to increase the number of judges in the apex court, keeping in mind the huge backlog of cases across the country in all courts. According to official figures, there are over three crore cases pending in district and subordinate courts, 44 lakh cases in the 25 High Courts and nearly 60,000 cases in the apex court. According to the Economic Survey two years ago, an additional 2,279 judges would be needed to clear all the fresh cases that the lower courts receive in a year, while it would take an additional 8,152 judges to clear the backlog of nearly three crore cases. The government in its wisdom decided to tackle the problem from the top. It Houses FullThegovernmentisyettoallotofficialaccommodationtofournewjudgesappointedtothe SupremeCourt,forcingthemtoworkoutofmakeshiftpremisesinthecapital By India Legal Bureau A NO OFFICIAL ROOF Supreme Court judges (from left) Justices Krishna Murari, S Ravindra Bhat, V Ramasubramanian and Hrishikesh Roy
| INDIA LEGAL | February 3, 2020 19 was with a view to clear the backlog in the Supreme Court that the strength of its judges was increased from 31 to 34, including the chief justice of India (CJI). The government took this step after the then CJI, Ranjan Gogoi, wrote to Prime Minister Narendra Modi to increase the number of judges in the top court. The CJI reasoned that due to the paucity of judges, the required number of Consti- tution benches to decide important cases involving questions of law were not being formed. T he Supreme Court (Number of Judges) Act, 1956 originally provided for a maximum of 10 judges (excluding the CJI). This number was increased to 13 by the Supreme Court (Number of Judges) Amendment Act, 1960, and to 17 in 1977. The working strength of the Supreme Court was, however, restricted to 15 judges by the cabinet (excluding the CJI) till the end of 1979. But the restriction was with- drawn at the request of the CJI. Though the strength of the SC has increased by 60 percent in the last three decades, no thought has apparently been given to the accommodation for the judges. In 1988, its strength was increased from 18 to 26 and more than 20 years later, in 2009, it went up to 31. However, provision of accommodation for the judges has not kept pace with the increase in their numbers. Supreme Court and High Court judges are entitled to Type VIII and Type VII bungalows. These have four to five bed- rooms, besides servant quarters, front and rear lawns and garage. These are mostly located in Lutyens’ Zone—Akbar Road, Ashoka Road, Krishna Menon Marg, Moti Lal Nehru Marg, Tughlak Road and the newly-built New Moti Bagh Complex. It is learnt that there are 32 bungalows allotted to Supreme Court judges and 45 set aside for judges of the Delhi High Court. Technically, that means that only two of the four new judges appointed should be without an official roof over their heads. But the reality is that all four are yet to be allotted official accommodation. The problem has cropped up due to many retired judges being appointed as heads of watchdog bodies, tribunals, re- gulatory bodies and such like. Since there is no separate quota for retired judges appointed to head tribunals, they are generally allotted houses from the pool reserved for judges. This has created a housing crunch. Delhi is already home to over 40 tribunals and other bodies presided over by former judges of the Supreme Court. In most cases, they are appointed to the new posts immediately after retirement. Thus they seldom feel the need to pack up and move to new premises. They continue to stay in their old accommodation, leaving officials of the housing ministry in a quandary. In some cases, such situations have even led to stand-offs between various wings of the government. A few years back, there was the celebrated case of a Union minister in the UPA government and a retired judge of the Supreme Court wrangling over prized accommodation on Krishna Menon Marg, just a stone’s throw from North and South Blocks. A telling example is that of a panel headed by a retired Supreme Court judge set up to resolve the water dispute between Punjab and Haryana under the Punjab Accord of 1985. After 24 years, the panel—the Eradi Commission— which cost the exchequer `9 crore, was wound up with the dispute still unre- solved. All the while, Justice V Balakrishna Eradi who had retired from the apex court 22 years earlier, contin- ued to stay in the Lutyens’ Delhi bunga- low that was allotted to him when he became an apex court judge. The Law Commission had two years ago suggested that merely increasing the number of judges without improving the infrastructure in courts would do little to help address delays. Among the steps recommended was the creation of a spe- cialised service to provide critical admi- nistrative support to judges so that they would be able to devote their time and energy to judicial activity. While such plans remain on paper, the four new judges of the apex court continue without an official roof over their heads. NO HURRY TO PACK UP SC judges continue to occupy official accommodation even after retirement as they are often appointed heads of tribunals Thereare32bungalowsallottedtoSC judgesand45forDelhiHCjudges. Technically,thatmeansthatonlytwoof thefournewjudgesappointedshouldbe withoutanofficialroofovertheirheads.
Column/ Fast-Track Courts Justice Narendra Chapalgaonkar 20 February 3, 2020 T has been almost 20 years since the idea of fast-track courts for quick disposal of certain cases was initiated. The proposal was welcomed in judicial quarters as well as by the people at large. The creation of a new set of courts for specified cases was not meant to be a remedy for the huge pendency in different courts in India, which is believed to be three crore cases. Rather, fast-track courts were to deal with criminal cases involving major offences against women or those belong- ing to the underprivileged class such as sexual assault and murder. These offences create anger and insecurity in the general public. When cases arising out of such heinous or ghastly offences take years to reach a final verdict, most of the effectiveness of deterrent punishment is lost. Faith in the State in general and judiciary in particular gets weakened. When an accused guilty of commit- ting a grave offence is punished, it is not only for the satisfaction of the victim or her family. It also reassures society that the law is effectively implemented. A verdict of guilty after the passage of years loses its incisiveness and importance. Delay in investigation, charge sheet filing, hearings and final judgment inflicts irreparable damage on the system. If the case is heard after two/three years and witnesses live in the same town or locality, there is every likelihood of them being pressured by the accused. This leads to witnesses becoming hostile and the accused getting the benefit of it. The only exception, perhaps, is near rel- atives or witnesses having strong inimi- cal relations with the accused. It is vital and necessary for the investigation to be completed within the shortest possible time and for the case to be listed for hearing. But nowadays, such things happen in Perry Mason novels only. In an exceptional departure, I remember a case where a court understood the difficulty of a foreign tourist who was raped in India and directed that the case be Iron Out the Glitches NCRBdatahasshownthatonly22percentofcasesweredisposedofbythesecourtsinless thanayear.Ifthisistobespeededup,thereshouldbeproperinfrastructureandpersonnel I FOR SPEEDY TRIAL A fast-track court was set up in the Saket District Court complex to try the accused in the Nirbhaya case. It took nine months to award the death penalty to the four convicts
| INDIA LEGAL | February 3, 2020 21 disposed of within a short time. It was disposed of in a month. As per the recommendations of the 14th Finance Commission, the centre had proposed setting up 1,800 fast-track courts. However, it is believed that 60 percent of proposed fast-track courts are yet to be set up and many states and Union Territories don’t have even a sin- gle fast-track court. If the scheme of fast-track courts is properly implemented, it will help restore people’s faith in the criminal justice system. However, 2018 data of the Na- tional Crime Records Bureau tells a different story. In 2018, 28,000 cases were disposed of in fast-track courts in India. Out of these, only 22 percent were disposed of in less than a year, 42 percent took more than three years and 17 percent more than five years. This can hard- ly be expected from fast-track courts. A researcher has found that the aggregate time taken by a regular court to dispose of a case was less than that taken by a fast-track court. It is not proper to blame the scheme and permit the government to scrap it. The reasons behind such a state of affairs should be considered. F irstly, there are not enough judges to man fast-track courts. In addition, to act speedily, a judge needs a suitable temperament and proper assistance. In some states, judges who have recently retired were re-employed and appointed in fast-track courts. When this proved to be inadequate, some judges working in the district judiciary were designated as fast-track court judges. Drafting judges from the existing judiciary is no remedy either for speedy disposal of cases or for lessoning pendency. The district judiciary is also short of judges. Even the sanctioned strength is not filled in many states, saving the government more expenditure. Courts also face another practical difficulty in the disposal of cases. Most of the work is concentrated in the hands of a few advocates. It is difficult to com- pel or seek their presence at the conven- ience of the court. Judges too have to accommodate them. Sometimes, even sessions cases cannot be heard on a day- to-day basis as required by law. After the introduction of the scheme in 2000, central and state governments provided finances for these courts, particularly the salaries of the judges. Whe- ther the amount disbursed was sufficient or not is a different question. A judge cannot work in isolation. He needs accommodation to sit, clerical assistance and minimum office equipment. To try and get all these done with the existing amenities cannot be a proper approach. Fast-track courts are treated as a tem- porary measure by governments. Con- sidering that all efforts to clear pendency have not been very successful, we will have to bear with the problem for another 20 years. Why not give a semi-permanent status to the fast-track court scheme and make regular appointments? It is true that such a step would increase the allocated budget for law and judiciary. Unfortunately, this is not a priority for political parties. But they should understand that increasing the number of courts and disposal of long- pending cases will have a salutary effect on society. But it will not fetch immediate political gain. Only those who care for long-term benefits and are courageous to stand by measures in this regard can do it. If we believe that fast disposal of at least criminal cases will help restore confidence in the people about their safety and ensure peace in society, let a law be framed to provide for fast-track courts and make a permanent arrange- ment for their survival. It should be uni- formly applicable to the whole of India and should depend only on central funding. The law may provide a dura- tion of some 20 years for the existence of fast-track courts as it is hoped that this is sufficient to wipe out the arrears and there would be no need for fast- track courts. They should function under the supervision of relevant High Courts. Public prosecutors should be appointed for a certain period and the appointment should be given to lawyers with experience in conducting criminal cases. Let us see where the lacunae lie so that these courts can help society. —The author is former judge, Bombay High Court Fast-trackcourtswereconceivedto dealwithcriminalcasesinvolvingmajor offencesagainstwomenorthose belongingtotheunderprivilegedclass, suchassexualassaultandmurder.
Column/ CAA/ NPR/ NRC MG Devasahayam 22 February 3, 2020 HE nation is on the boil over the Citizenship (Ame- ndment) Act (CAA), Nat- ional Population Register (NPR) and National Register of Citizens (NRC). People see these as communal and unconstitutional. They see these as threatening to turn Muslim citizens into “infiltrators” and non-Muslim citizens into “refugees” which will make them stateless. There is intense resistance throughout the country with students and young women in the vanguard. In many places, the internet has been banned, road and rail traffic restricted, Section 144, CrPC, imposed in BJP- ruled states and students and other protesters brutally thrashed, shot at, blind- ed, maimed, even killed. India has not witnessed such a wide- spread upsurge leading to State oppres- sion and repression in recent history. All in the pursuit of an unnecessary and unimplementable agenda. Both the NPR and NRC exercises flow out of the 2003 amendments to the Citizenship Act, 1955, and the Citizen- ship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, thrust by the then BJP-led NDA-1 government. The NPR has nothing to do with the Census of India, which is con- ducted every 10 years and is due next in 2021. While the Census collects infor- A Bridge Too Far Thecentre’sthreeprojectsareunimplementableandextremelycostly.Whentheneeded dataisalreadyavailablethroughAadhaar,whyincursuchamassiveexpenditure? GROUND ZERO People gather at Shaheen Bagh in New Delhi for an anti-CAA protest T Anil Shakya
| INDIA LEGAL | February 3, 2020 23 mation about all residents of India without listing their names, the NPR is a list of names of all persons usually residing within a specified local area for over six months, regardless of their nationality. The NRC will effectively be a subset of the NPR. The 2003 Rules provide for verification of the details by the local registrar (normally a taluka or town functionary) who will segregate cases of doubtful citizenship and conduct further inquiries. Based on the inquiries he will prepare a draft local register of Indian citizens, which would exclude those not able to establish, through documentary proof, their claim to be citizens of India. This is where the real danger lurks because, as brought out by the experience in Assam, citizens are required to establish their citizenship, irrespective of their religious affiliation. NPR 2020, unlike NPR 2010, asks not only for the names of the parents of the resident, but also their date and place of birth. A person who is unable to furnish these details of his parents or, for that matter, of himself, could well be classified a “doubtful citizen”. The 2003 amendments to the 1955 Act and the consequent introduction of the 2003 Rules reveal an undue obses- sion with illegal migrants, without any factual basis. Nationwide identification of “illegal migrants”, which is what the NRC in effect amounts to, is an unnecessary and futile exercise when Census statistics over the past seven decades do not show any major demographic shifts, except in certain small pockets of north- eastern and eastern India adjoining our neighbouring countries. It is eminently unimplementable and extremely costly. Based on the expenses in Assam (`1,600 crore), a pan-India NRC could cost around `70,000 crore. When the needed data is already available through the Aadhaar system, there is no need to incur such a massive expenditure towards NPR or NRC. T he vast powers vested in the bureaucracy at junior levels to include or exclude a person from the local register have the scope to unleash arbitrariness, discrimination and corruption. Added to this is the provision for objections to the draft local register from any person. The Assam NRC exercise, with a three-crore population, has thrown up the dangers of such a large-scale exercise: millions of citizens have been made to spend their life’s savings running from pillar to post to establish their citizenship credentials. Doing so at the national level with a 130-crore population can be cataclys- mic, particularly so with our highly chaotic and inefficient birth registration systems. Within a day of the BJP forming the NDA-2 government, the home ministry directed governments and district mag- istrates of all states and Union Territories to set up tribunals to identify “foreigners” living in India illegally. This was followed by directions to set up detention centres. The experience with these tribunals in Assam has been trau- matic for those at the receiving end. After running in panic to gather docu- ments to prove their citizenship, “doubtful citizens” had to contend with these tribunals, the composition and functioning of which were highly discretionary and arbitrary. Consequently, several citizens lost their lives or had to suffer the indignity of incarceration in detention TheAssamNRC exercise,witha three-crorepopula- tion,hasthrownup thedangersofsuch alarge-scale exercise:millionsof citizenshavebeen madetospend theirlife’ssavings runningfrompillar toposttoestablish theircitizenship credentials.UNI
Column/ CAA/ NPR/ NRC/ MG Devasahayam 24 February 3, 2020 camps. When there is no need for the NRC, why set up foreigners’ tribunals and detention camps in the manner of Nazi Germany? The stated purpose of the CAA is to allow non-Muslim immigrants from Pakistan, Bangladesh and Afghanistan who have entered India before December 31, 2014, a faster route to become Indian citizens. According to an Intelligence Bureau report in 2016, there were 31,313 of them. As per the Standard Operating Procedure notified in 2011, any refugee could apply for Long Term Visa (LTV). Those who get LTVs can obtain a PAN card, Aadhaar card, driving licence and even buy property. Between 2011 and 2018, LTVs were granted to some 45,000 persons. So, most of the proposed beneficiar- ies of the CAA can and have already got LTVs to stay and earn in India and can get these cards and driving licences, and buy a house. Finance Minister Nirmala Sitharaman has stated that in the last six years, as many as 2,838 Pakistani, 914 Afghan and 172 Bangladeshi refugees, including Muslims, have been given Indian citizenship. I f this is the case, why this autocratic exercise of CAA, NPR and NRC? The “brains” behind this agenda have planned it meticulously. First bull- doze a CAA to implement NRC throughout the country, then introduce a clause to give one’s parent’s place and date of birth in NPR, which many cannot do, and mark them as “doubtful” to be hounded and disenfranchised through NRC. This design came out when a majority of states asked for removal of this clause. Instead of doing so, the home ministry advised that those who do not have this information can skip this column. This is a clear trap to bring the maximum number of people under the “doubtful” category and then deprive them of citizenship. There is another dubious ploy. While people are up in arms and even before the formal commencement of the NPR process, the ever-obliging RBI issued directions to banks to treat the letter issued by NPR as an Officially Valid Document for Know Your Customer purposes. IDBI Bank and Central Bank of India have already complied with this direction. This is obviously meant to force bank customers to enrol in the NPR by making it mandatory later as was done in the case of Aadhaar through blackmailing and intimidation like “freezing of accounts” or “no withdrawal of money until Aadhaar card is linked to the bank account”. Repeating the same to force through an unconstitutional government agenda can aggravate the credibility of the RBI and the banking sector that started with demonetisation and is continuing with mounting Non- Performing-Assets. The real purpose of this farce was revealed when immediately after the enactment of the CAA, BJP’s WhatsApp messages unleashed a “four-step” process for India becoming a Hindu Rashtra—starting with the CAA, followed by the NRC, then a law to control population, ultimately followed by a Uniform Civil Code. The arrogance of the politicians who are leading this questionable venture is revealed from statements of the home minister on the ruthless implementation of the NRC and throwing out of all “ter- mites” from the country. In an interview by Times Now, he was asked whether a passport, Aadhaar or Voter ID consti- tute proof of citizenship. He replied: “Bilkul nahin. Aadhaar jarasa bhi nahin. (Not at all, Aadhaar, absolutely not).” All these incomprehensible happen- ings raise one basic question. Is the BJP copying Hitler’s Citizenship Laws? Just two years after Adolf Hitler came to power in Germany, he introduced laws to redefine its citizenship. The Nurem- berg Laws may have started with the segregation of Jews from non-Jews, but there were further supplementations that included all manner of “undesir- ables”. These finally paved the way for massive disenfranchisement and even murder of not only Jews, but Comm- unists, indigenous people, the disabled and anyone who criticised the Nazi establishment and those the German State saw as Staatsfeind, an enemy of the State. Nazi propaganda had already prepared the ground and saw the construction of ghettoes and concentra- tion camps. The RSS has always ignored India’s Constitution and admired Hitler’s fascist policies. Its Sarsanghchalak and icon, Madhav Sadashiv Golwalkar, described Hitler’s purging of Germany’s Jews as “race pride” and “a good lesson for us in Hindustan to learn and profit by”. In the event, CAA, NPR and NRC are outright Nazi projects and should be rejected. And the massive outrage only proves that the vast majority has already done so. —The writer is a former Army & IAS officer InaninterviewbyTimesNow,Home MinisterAmitShahwasasked whetherapassport,AadhaarorVoterID constituteproofofcitizenship.He replied:“Bilkulnahin (Notatall).”
| INDIA LEGAL | February 3, 2020 25 Acts and Bills/ Rajasthan Public Accountability Bill HE Congress government in Rajasthan is all set to introduce a unique bill— the Rajasthan Public Acco- untability Bill—that will make the state government officials accountable for providing service to citizens. It will bring government officials in 28 departments providing 225 services under the scanner. These services are water supply, irri- gation, civil supplies, law, panchayati raj, local self-government, public works department, transport, agriculture, agriculture marketing, all municipal bodies, social welfare, health, rural development, state roadways and all services under the district collector’s office. The Bill is being brought in to ensure transparency through the free flow of information using modern, electronic and information technology tools, as well as offline modes of dissemination through an effective Janata Information System. The Bill will lay out a comprehensive citizens’ charter by each department, enumerating rights and entitlements, including public goods and services, to be provided to the people and detailed job charts of public functionaries to identify their specific responsibilities in ensuring efficient delivery of people’s rights and entitlements. It will seek accountability of public functionaries for timely delivery of services. The Bill also provides for a decen- tralised grievance redressal mechanism with a facility for filing and tracking grievances and independent appellate structures to ensure fairness and credibility. It will also initiate monitoring of programmes and policies through social audit facilitation units. This will help in the conduct of community score cards, citizens’ report card, expenditure tracking and statutory social audit covering all social sector programmes. The Bill provides for the right to be informed of the obligations and duties of public functionaries, the right to examine records pertaining to the functioning of public authority, including its powers, duties, and norms applicable to monitoring, financial planning, budget- ing, allocation and expenditure through open information dissemination. It also provides for the right to file a complaint specifying a grievance, and obtain a dated acknowledgement receipt, prompt redressal of the grievance and the right to participate in a public hearing within 14 days of filing the complaint. The Gehlot government involved the Mazdoor Kisan Shakti Sangathan (MKSS) to provide inputs for drafting the Bill. The MKSS under Aruna Roy has worked intensely in the areas of Right To Information, Mahatma Gandhi National Rural Employment Guarantee Act, the Lokpal Bill, Right to Food and human rights issues. The MKSS was largely entrusted the job of providing inputs for the Jan Soochna portal. The state government formed a committee to advise it on the Bill. It included former bureaucrat Ram Lubhaya as its chairman, Nikhil De, an activist with MKSS, and Prof Dev Kothari, a population expert. De had submitted the draft Bill which was accepted as the ideal Bill. “The Bill envisions making grass- roots democracy a reality,” said De. After the approval of the cabinet, the Bill will be enacted by the Rajasthan Vidhan Sabha. Under the Scanner Inawelcomedevelopment,theBillwillmakestategovernment officialsaccountableforgivingservicestocitizensand promisesfastredressaloftheirgrievances By Prakash Bhandari in Jaipur MAKING A DIFFERENCE Nikhil De, an activist with the Mazdoor Kisan Shakti Sangathan that provided vital inputs T TheBillisbeingbroughttoensure transparencythroughthefreeflowof informationusingmodern,electronicand informationtechnologytools,aswellas offlinemodesofdissemination.
26 February 3, 2020 Leaders from across the globe gathered in Jeru- salem last week for the World Holocaust Forum on the 75th anniversary of the liberation of the infamous Auschwitz death camp where thousands of Jews were exterminated. They included Russia’s Vladimir Putin, Emmanuel Macron from France, Britain’s Prince Charles, and the presidents of Germany and Italy, among other dignitaries. The visit to the Wailing Wall and the Holocaust Memorial which recalls the genocide of Jews under Hitler’s Germany was obligatory but it comes amid a global spike in anti-Jewish violence around the world, including America and Britain where recent anti-Semitic violence has raised concerns, as it has across Europe. In France, anti-Semitic acts rose by 74 percent in 2018, according to the UN Commi- ssioner for Human Rights. Moreover, one in four Europeans harbour strong negative attitudes to- ward Jews, according to a 2019 poll on anti-Semi- tism by the Anti-Defamation League. The report showed countries in central and eastern Europe registered an increase in anti-Semitic beliefs, with stereotypes about Jews controlling business and finance, and being more loyal to Israel than their home country, still firmly entrenched. Jews across the world are hoping that the gathering of leaders in Jerusalem does not end up as just a photo-op. Wailing Wall International Briefs The global fashion world went into shock when celebrated French designer Jean- Paul Gaultier announced that he was end- ing his 50-year career. Celebrities from all over the world landed in Paris last week for his final show, “Haute Couture Spring/Su- mmer 2020”. They included former French First Lady Carla Bruni, American actress Larsen Thompson, supermodel Eva Her- zigova, French designer Christian Loubou- tin—known for his signature red-soled stiletto shoes—and pop singer Mika. Gaultier, 67, has designed for stars from Nicole Kidman and Cate Blanchett to Lady Gaga, Rihanna and Madonna. Madonna wore his famous “cone bra” corset for her Blonde Ambition world tour. The designer said his final show in Paris would feature his “first upcycling haute couture collection” and urged the audience to recy- cle their clothes. Fashion’s Farewell Twitter Flash 90 2020
| INDIA LEGAL | February 3, 2020 27 There’s one big status symbol you can dis- play when you walk into a room—the keys to your car. Some years ago, they all looked the same so it was no big deal till BMW, Ferrari, Bentley and Mercedes put their logo on their keys. Now, it has gone a step further, with technology allowing them to do more than just open the car door by pressing a button. The latest is the disc-shaped key for the Lexus LF-30 which is still to hit showrooms. It is like a mobile phone with data the owner wants at hand, plus preset directions for how you want the car to drive. It’s also a beautiful piece of jewellery. Aston Martin’s key fob is called the “Emotional Control Unit”. Made of sapphire, it has a glass top that displays the logo underneath and doubles as a start button once entered into the ignition port. Another gorgeous key design is the BMW 7-Series LCD Key (below) which tells the driver how much gas is in the tank at all times. Bugatti’s Veyron supercar which costs $3 million comes with two monogrammed keys, one to start the car and another to push the car to its top speed of over 248 mph. The Top Speed Key can be inserted behind the driver’s seat and is only meant for use in extreme conditions. The ultimate car key is the col- laboration between Aston Martin and watchmaker Jaeger-LeCoultre, producer of some of the world’s most desirable sport watches. The sapphire crystal watch has but- tons on the side to lock or open the car, and perform other functions. Keys to Car Kingdom She is widely considered the richest woman in Africa but now the Inter- national Consortium of Investigative Journalists have accused Isabel dos Santos (above) of using “unscrupulous deals” to build her fortune, estimat- ed at $2 billion. The charges say dos Santos, daughter of the former Angolan president, siphoned off millions of dollars during her time with Angola’s state-run oil company. Now, Angola, the dia- mond - and oil-rich country, has launched a formal investigation into the scandal. Angolan authorities say they are reaching out to other countries for help in tackling corruption that critics say has robbed millions of citizens of basic needs. Last week, Portuguese bank EuroBic said it will stop doing business with companies and people linked to dos Santos, its main shareholder. The allegations are based on more than 715,000 confi- dential financial records provided by the Platform to Protect Whistleblowers in Africa, an advocacy group based in Paris, as well as hundreds of inter- views. The cache of docu- ments is known as Luanda Leaks. Jose Eduardo dos Santos, Isabel’s father, ruled Angola for 38 years until 2017. He too is accused of stealing vast amounts of state money during his rule and before stepping down, he appointed his daughter head of the state oil company, Sonangol. Last December, a Luanda court froze Isabel dos Santos’ major assets, which include banks and a telecom company. Dos Santos, who lives in London, has said the legal action against her is a “witch hunt”. The Luanda Leaks Nuno Coimbra/ wikimedia.org
Focus/ Legal Aid 28 February 3, 2020 ISHIKA Singh, a lawyer, had gone to attend the protests against the December 15 crackdown on Jamia Millia Islamia (JMI) by Delhi police at Jantar Mantar. When police started detaining peaceful protesters she spontaneously made a WhatsApp group called “Lawyers for detainees” which added the contact numbers of lawyers who had volunteered to help the detainees. Soon, what started as a peer-to-peer lawyers’ group in Delhi became a strong network of around 200-plus lawyers across the country almost overnight. Her name and number along with a list of mobile numbers of other lawyers ready to help detainees went viral on Instagram, Facebook and Twitter. What followed was a historic coun- trywide mobilisation of lawyers. During Union Home Minister Amit Shah’s out- reach in an area of Delhi on January 5, to promote the governments’ Citizen- ship (Amendment) Act, two women displayed a banner on their balcony that read, “Shame; CAA and NRC”, while his rally was passing by. Within minutes, they found a 150-plus angry mob, including their landlord, banging at their doors. Surya Rajappan, one of the People’s Advocates Acountry-wideorganisationoflawyershasbeenactivelyhelpinganti-CAAprotesterswhohave beendetainedorfaceharassmentandprosecution,allforfree.Thisisahistoricmobilisation. Whoaretheyandwhatistheirmotivation? By Nupur Dogra M PRESERVING RIGHT TO PROTEST In the wake of the crackdown on anti- CAA protesters, Indian lawyers take charge. Anil Shakya
| INDIA LEGAL | February 3, 2020 29 two women stuck in the apartment and an advocate by profession, immediately put out an SOS message from her phone. Within a few hours a bunch of lawyers gathered outside her house and managed safe passage for the girls. I n Chennai, on January 17, around 250 lawyers including senior advocates R Vaigai and Nalini Chid- ambaram, and advocate NGR Prasad formed a human chain in and around the Madras High Court premises and read aloud from the Constitution of India in protest against the Citizenship (Amendment) Act. Since the protests against the CAA have erupted across the country, SOS messages like “lawyers needed urgently” have become a common sight on social media. Advisories on how to deal with the police in case of detention, messages like; “Don’t be silent. Don’t be violent” and “Educate, Agitate, Organize” have been shared excessively amongst neti- zens, including celebrities and politicians. Detailed and simplified “To do lists” were circulated across the social media prepared by lawyers to guide protesters on how to agitate peacefully and what to do in case of detention by police. Mishika Singh, who is at the forefront of the lawyers' movement, has received calls from lawyers actively working on the ground from across the country to help detainees and protesters. She has been coordinating lawyers across the country for over a month. She told India Legal: “The network of lawyers working on the ground has become so strong that it not only reach- es the protest sites and police stations when needed but is also successful in immediately dispensing any kind of false rumours and fake news being spread about the movement through counter facts being shared through social media.” Another historic instance of lawyer activism in India was witnessed on 20 December. That afternoon, a picture of a young girl offering a rose to police personnel while protesting went viral. However, within a few hours, news of violent clashes between the police and anti-CAA protesters started doing the rounds. Following the clashes, news of detention of injured protesters including minors reached this network of lawyers who gathered outside the Daryaganj police station with a team of doctors. Advocate Mohd. Faris was one of the lawyers who answered the call to gather outside the Daryaganj police station in Delhi. While recalling the harrowing event, he told India Legal that around 8 pm in news of a lathi charge by Delhi Police on protesters who had gathered at Delhi Gate and were trying to march towards Jantar Mantar came in. Protesters who were detained included injured people and minors. The lawyers were barred from entering the police station for hours and none of them was allowed to meet any detainee. This group of lawyers along with a team of doctors persisted and stood outside the police station through the night to help the detainees and their families. “After trying to convince the police for four to five hours, only one lawyer was allowed inside the police station and around 4 am eight to nine minors were released and an FIR was lodged for a few detainees with the help of senior lawyers.” said Faris. These lawyers have been braving the system and trolls for the past month, 24/7. They, especially women lawyers, have faced unpleasant and unnecessary calls since their mobile numbers were made public. They went on with their “Wehavepeopleworkingontheground everywhereincludinglawyersaswellas non-lawyerswhovolunteertocoordinate withprotestersinneedoflegalhelp.” —AdvocateMishikaSingh “Onelawyerwasletinsidethepolicesta- tionafter4-5hours.Later,afew minors werereleasedandFIRs lodgedforsome detaineeswithseniorlawyers’help.” —AdvocateMohd.Faris “Twitter,Instagram,andWhatsApphave becometoolsforspeedymobilisation withcallsforlawyersgoingoutthrough stories,tweets,andvoicenotes.” —SukhnidhKaur,Researcher&Blogger
30 February 3, 2020 job despite all this, guided by their desire to preserve the constitutional right to protest. Lawyer Akshita Manocha told India Legal: “The lawyer community has displayed tremendous unity and strength while helping the common man protesting on the ground in every way possible. Though lawyers working to help detainees are doing a fabulous job, there are also a huge number of lawyers who are working in the background through si- mple legal advisories and extending emotional support to people protesting.” “A lot of protesters were first-timers and were unaware on the legality of detentions and their limits as protesters. When people were detained in buses and dropped off on the outskirts of Delhi, they were caught by surprise. Lawyers provided them with assurances on their rights and continuously kept reminding them to stay calm and not indulge in violence or any activity that might further aggravate the situation,” Manocha adds. Many lawyers use social media to cir- culate easy-to-understand explanations of the CAA and NRC to counter myths and rumours being spread about the Act and its implications. Instagram accounts of bloggers played a significant part in taking the voices of these lawyers to millions of people. “Anti-CAA protests have strengthened the intersection of social media and legal justice. Twitter, Instagram, and WhatsApp have become tools for speedy mobilisation with calls for lawyers going out through stories, tweets, and voice notes. Legal advice regarding detention and arrest is trans- lated to shareable content. Lawyers are organising themselves through resource lists and web portals. India’s legal frater- nity has come together to create a structure of support around the protesters like never before,” says Sukhnidh Kaur, a student and researcher, whose Insta- gram account and blog have been docu- menting every protest taking place across the country and who has been instrumental in connecting lawyers’ to the masses through her huge following. Many such accounts of social media influencers and bloggers have forwarded lawyers advice to millions across India. After the JMI crackdown, a Google document has been circulating which con- tains spreadsheets with contact numbers of lawyers, journalists, psychologists and doctors who have volunteered to help protesters. Lawyers have become the backbone of mass anti-CAA protests. They are coming forward to defend the rights of people to protest peacefully. Many of them are fighting cases and helping in release of detainees for free. J ust because they are lawyers does- n't mean that their struggle is easy. They are constantly at risk of harassment and targeted police action. On January 18, a Rajasthan-based lawyer, Mohammad Faisal, alleged that he was wrongly picked up by the SOG team of the Uttar Pradesh Police from inside Kairana Court. He had gone at the beh- est of the National Confederation of Human Rights (NCHR) to find facts regarding alleged illegal detentions at Shamli. Later, he told reporters that he was in judicial custody for 13 to 14 days and was physically tortured by the UP police, including electric shocks being given. The kind of activism displayed by lawyers in India is unprecedented and shows the depth of feeling against the CAA and its constitutional and legal loopholes and the impending nationwide National Register of Citizens. Many of these lawyers as well as the protesting youth are essentially those who have grown up in a post-independence India and have cultivated the sense of “constitutional morality” which Dr. BR Ambedkar had envisioned when he drafted the Constitution and called for developing social democracy in “temperament rather than just in theory”. He had declared that citizens should “have a natural inclination to liberty, a natural respect for law, good humour, intoleran- ce of foul play, the knowledge of how and when to compromise and distrust…” It is safe to say that Indian lawyers are taking his exhortations to heart. Focus/ Legal Aid AftertheJMIcrackdown,aGoogledocu- mentwithspreadsheetsofnumbersof lawyers,journalists,psychologistsand doctorswhohavevolunteeredtohelp protestorshasbeencirculated. LAWYERS UNITE AGAINST THE CAA Lawyers form a human chain at Madrass High Court to register protest.
Global Trends/ Sri Lanka 32 February 3, 2020 ITH the swearing in of Gotabaya Rajapak- sa, the Eelam war he- ro and controversial former defence secretary, as the president of Sri Lanka, the Rajapaksas are back in power at a critical time in the country. Only five years back, the people of Sri Lanka had thwarted then president Ma- hinda Rajapaksa’s bid for a third term in office. His authoritarian style coupled with allegations of corruption and misuse of office clouded his success in end- ing the Tamil Tigers’ separatist insurgency. However, the last five-year rule of President Maithripala Sirisena and prime minister Ranil Wickremesinghe fell far short of people’s expectations in delivering good governance which they had promised, with their endless squab- bles virtually paralysing government functioning in the island nation. Perhaps the main reason why most of the Sinhalas voted for Gotabaya was the Easter Sunday massacre of 259 people by ISIS-inspired and home-grown Jihadi terrorists last April. It created a huge scare among the people who are yet to fully recover from the after-effects of fighting Tamil separatist insurgency for nearly three decades. The terrorist attack created a ripple effect. It exposed huge gaps in the national security fabric. People were shocked to learn that the government failed to act upon receiving information on the impending terrorist attack, two weeks in advance. Further inquiry into the attack revealed that both Sirisena and Wickremesinghe failed to nip jihadi terrorism in the bud when the first indications of Islamist extremist activity were brought to their attention. Public opinion thus swung in favour of electing Gotabaya as he was seen as a Hits And Misses BykeepingkeyministrieswithinthefamilyPresidentGotabayaRajapaksamayhave ensuredatightgripovertheadministration,butchallengesremainonotherfronts By Col R Hariharan W BURDEN OF EXPECTATIONS Gotabaya Rajapaksa took charge as the president of Sri Lanka last year at a critical time for the country UNI
| INDIA LEGAL | February 3, 2020 33 strong man who will revamp the national security structure to make it more effective. Gotabaya’s winning chances further improved as the terrorist attack became a rallying call for conservative Buddhists to defend the land they consider the last bastion of Theravada Buddhism. In their previous tenure, the Rajapaksas had pampered Sinhala Buddhist nationalism and soft-pedalled on fringe elements spouting anti-Mus- lim hate rhetoric and attacking Mus- lims. Their votes were naturally his. One of the first actions that Gota- baya—who completed two months in office on January 17, 2020—took was to instal his brother, Mahinda, as the inter- im prime minister even as he placed another brother, Chamal, as the minister of agriculture. The three brothers, between them, control the ministries of defence, public security, finance, economy and policy development, Buddha- sasana and cultural and religious affairs, urban development, water supply and residential facilities. President Gotabaya has acknowled- ged that the Sinhala majority vote “allowed me to win the presidency”. He will thus come under pressure from the Sin- hala majority to deliver upon his pre- election promises. For that, he will need his party, the Sri Lanka Podujana Pera- muna (SLPP) to win an absolute majority in the parliamentary polls to be held in March 2020. In an interview, Gotabaya said that the 19th amendment that curbed the powers of the president was “a failure and if we get 2/3 majority in parliament we will drop it from the constitution”. So in the near term, Gotabaya’s actions will be aimed at securing an absolute majority in the parliamentary elections. S oon after Gotabaya came to power, there were disturbing trends reminiscent of the past Rajapaksa authoritarian rule, with some smacking of vindictiveness. A Special Presidential Commission (SPC) was appointed to probe those responsible for falsely im- plicating people in murders or related investigations. State investigative agen- cies like the Criminal Investigation Dep- artment (CID) and the Financial Crimes Investigation Division (FCID) had been investigating a number of cases involving the Rajapaksas. Even before the SPC probe started, Chief Inspector Nishantha de Silva, head of the organised crimes division of the CID, fled with his family to Switzer- land to seek asylum. He was handling high-profile cases involving members of the Rajapaksa family which included important ones like the killing of Lasantha Wickrematunga, the editor of The Sunday Leader. After the police officer fled, there was a nasty backlash when a Sri Lankan woman staffer of the Swiss embassy alleged that she was abducted, questioned and tortured by unknown persons. In the police investigations that followed, the woman was arrested for making false allegations.. The arrest of two former ministers, Dr Ranjitha Senaratne and Champika Ranawaka, of the Sirisena government, who were at the forefront of the cam- paign to defeat Mahinda Rajapaksa in the 2015 presidential elections, appears to be another example of vindictiveness. While Ranawaka was arrested in a case of accident of 2016 vintage, Senaratne was arrested in connection with a news conference he held two days before the presidential elections in which he pro- duced two persons who claimed to be drivers of white vans that carried out abductions during the Rajapaksa rule. Though both leaders have been released on bail, the action sends a strong message to the opposition that the Rajapak- sas will neither forget nor forgive. Administratively, Gotabaya has shown that he is the master of his own actions. He has introduced steep tax cuts in income tax which he had promised during campaigning. He ordered the removal of portraits of all politicians, including the president and ministers, from the walls of ministerial offices. He drastically pruned defence personnel assigned on presidential and ministerial security duties. The number of security vehicles accompanying VIP convoys was also slashed and authorities were directed not to hold up traffic on roads unneces- sarily when VIP convoys moved. Newly inducted ministers were advised to ass- ume their duties immediately after they were sworn in. Ministers have been advised not to take their spouses when they go abroad on official duties. All these have reinforced his popular image as a man of action. Unlike his brother, Mahinda, Gota- baya has appointed qualified and experi- enced persons to head state institutions, instead of political people. Dr PB Jaya- sundara, an economist, was appointed secretary for revamping the country’s sinking economy. The president has OneofthefirstactionsthatGotabayatookafterbecomingpresidentwastoinstalhis brothers,MahindaRajapaksa(right)andChamalRajapaksa,asinterimPMandminister ofagriculture,respectively.Thethreebrothers,betweenthem,holdcrucialportfolios.
Global Trends/ Sri Lanka 34 February 3, 2020 chosen Dr DWD Lakshman, an economist not tainted by the infamous bond scam, as the governor of the Central Bank of Sri Lanka. Similarly, Gotabaya appointed Prince Sarojini Manmatha- rajah Charles, a senior Tamil civil servant with vast experience, as the gover- nor of the Northern Province. During the conflict in 2009, Charles was in charge of the refugee camps in Vavu- niya, housing about 2,90,000 people from the war-torn districts. T he president presented the “Vis- ion for Progress” policy statement when he addressed the parliament for the first time on January 3. Read with his earlier statements, the key elements of the policy include national security concerns, particularly relating to jihadi terrorism, tax cuts and incen- tives for small and medium enterprises, skill-building, reducing inflation and beefing up economy and actions to “curb corruption and prosecuting the corrupt”. He had also proposed other structural changes to revamp the economy and strengthen security apparatus, including the intelligence set-up. There is a sense of déjà vu among civil society and minorities who fear that the country could see the return of authoritarianism. P Sampanthan, leader of the Tamil National Alliance, has said the president’s statement that development would be prioritised in resolving the ethnic conflict, would not fulfil the long-standing desire of the Tamils to develop within a united Sri Lanka on their own terms. They are also dismayed at Gotabaya’s assertion that there was “no problem of missing persons to be resolved” except those who fell on the battlefields. This statement neutralises what little progress was made in 2017, when the government created the Office of the Missing Persons to expeditiously deal with cases of missing persons and enforced disappearance. The Tamils are shocked at the ann- ouncement that the national anthem would be sung only in Sinhala and not in Tamil at the Independence Day cele- brations in the country. The fringe elements among the Buddhist clergy had welcomed the move. After a lot of public outcry over the issue, the prime minister clarified that no decision had been taken on the issue. On the international front, the president’s priority appears to be to improve relations with India and Prime Minister Narendra Modi in particular, perhaps to use India to improve his bargaining position with China. He responded posi- tively to Modi’s invitation to visit New Delhi. The invitation was extended soon after he became president. For India, the visit was strategically significant as the Rajapaksas were seen as close to China. Gotabaya needs India’s support to improve national security, combat Islamist terrorism and enable economic recovery. Though Modi had raised the issue of the full implementation of the 13th Amendment giving limited autono- my to Tamils, Gotabaya later said the 13th Amendment could not be implemented “against the wishes and feelings of the majority community”. China had been watching with con- cern after Gotabaya during his visit to India termed the agreement with China on the Hambantota Port as a “mistake” and called for it to be negotiated. How- ever, Gotabaya felt the fallout of the statement after returning home. He later told foreign correspondents in Colombo that there was no need to re- negotiate the Hambantota agreement but the security aspects needed to be looked into. Though the Chinese reacted quickly with a statement reminding that the agreement could not be renegotiated, the president is expected to take up the issue of redrafting some clauses of the agreement when he visits Beijing shortly. Overall, Gotabaya has, by keeping control of key ministries within the dynasty, ensured a tight grip over the country. —The writer served as the head of intelligence of the IPKF in Sri Lanka. He is associated with the Chennai Centre for China Studies, South Asia Analysis Group and the International Law and Strategic Analysis Gotabayawantstoimproverelationswith IndiaandPMModiinparticular,perhaps tousethebilateraltiestoimprovehis bargainingpositionwithChina.Hevisited Indiashortlyafterbecomingpresident. UNI

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India Legal - 3 February 2020

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