India Legal - 30 December 2019

India Legal - 30 December 2019
NDIA EGALL STORIES THAT COUNT I December30, 2019 PEOPLEPOWERFromarestrictedstudentmovement,theanti-CAAprotestshavesnowballedintoanation-wide agitationandmetwithjackbootedresponse.WiththeSupremeCourtdenyingastayontheAct, thisisatippingpointinIndia’sdemocratichistory Invoking Fundamental Duties by Prof Upendra Baxi
4 December 30, 2019 ERHAPS the kindest words in the volley of the slings and arrows of vitriolic abuse flung by political and social opponents of the millions who thronged the streets across this nation starting December 19 was: “Lord, forgive them for they don’t know what they do.” These critics of the swelling coun- trywide anti-CAA protests underestimate the powers of comprehension and analytical abil- ities of Indians. Those Indians who were demonstrating, fully and comprehensively understand the intent, logistics, dog whistles and nuances of this crafty piece of legislation. JUST LISTEN TO THEM! They are voluble, coherent, and, unlike their detractors, not shrill. They have closely followed and understood the parliamentary debates and absorbed the complex technical, humanitarian constitutional issues. This is a broad-based protest by diverse age groups, religions and communities ex- pressing latent, pent-up resentment against the steady fanning of communalism, bigotry, intolerance of dissent, scoffing at accountability, police brutality, disdain for constitutional morality and rule of law and economic distress. These issues appear to have con- verged into a mainline stream of visible conflict and confrontation. It is for this reason that so far, all attempts to engineer and provoke violent com- munal polarisation have failed before the power of compassion and brotherly love pub- licly displayed by so many of those who have descended on the streets. The deaf must listen. The blind must see. Maybe straws in the wind...but then who knows what India is all about…Resilient? Passive? Revolutionary? Full of in-your-face surprises? Unsparingly cruel? Or transient and evanescent, intoxi- cated by fly-by-night protests? Perhaps one of the most cogent, meaningful and significant reactions came from Najeeb Jung. Remember him? He is the vet- eran IAS officer who went on to become the vice-chancellor of Jamia Millia University and then lieutenant-governor of Delhi who turned into elected Chief Minister Arvind Kejriwal’s bête noire as he attempted to thwart and frustrate Kejriwal’s administrative initiatives at the behest of the Modi government. Wrote Jung in The Indian Express: “The implementation of the NRC will put India in a state of conflict. It is up to the Union government to quickly step in, initiate dialogue with a range of people that should include political parties, Muslims, students, and civil society, and come up with some understanding to restore the people’s confi- dence urgently.” And now hold your breath. The Old Lady of Bori Bunder, as the staid and never-rock- the-boat The Times of India is called, has editorialised: “The cycle of protest and rep- ression can be broken if the government were to revoke the NRC-CAA combo, which would be met with relief by all sections. But part of the problem may be the government wanting to be seen as ‘decisive’, which often leads it into actions which betray lack of forethought and adequate preparation—be it radical moves such as demonetization or even reasonable ones such as GST. If that is the case and in light of the grave constitutional issues raised by CAA, then the best hope for peace to return is for the Supreme Court to step in without delay and quash the Citizenship amendments.” Phew! I asked earlier in this essay: “…but then who knows what India is all about…?” I believe one person certainly did. His name was Vivekananda. I reproduce a portion of SISTERSAND BROTHERSOFINDIA Inderjit Badhwar P ThoseIndianswho weredemonstrating, fullyandcomprehen- sivelyunderstandthe intent,logistics,dog whistlesandnuances ofCAA.JUSTLISTEN TOTHEM!Theyare voluble,coherent,and, unliketheirdetractors, notshrill.Theyhave closelyfollowedand understoodthe parliamentarydebates andabsorbedthe complextechnical, humanitarianconstitu- tionalissues. Letter from the Editor
the speech he made at the World Parliament of Religions in Chicago in 1893 which should serve as a ready reckoner for our judges, politicians and other decision-makers when in need of spir- itual or temporal guidance while deciding this nation’s manifest destiny: “Sisters and Brothers of America, “It fills my heart with joy unspeakable to rise in response to the warm and cordial welcome which you have given us. I thank you in the name of the most ancient order of monks in the world; I thank you in the name of the mother of religions, and I thank you in the name of millions and millions of Hindu people of all classes and sects. “My thanks, also, to some of the speakers on this platform who, referring to the delegates from the Orient, have told you that these men from far-off nations may well claim the honour of bearing to different lands the idea of toleration. I am proud to belong to a religion which has taught the world both tolerance and universal acceptance. We believe not only in universal toleration, but we accept all religions as true. I am proud to belong to a nation which has sheltered the persecuted and the refugees of all religions and all nations of the earth. I am proud to tell you that we have gathered in our bosom the purest remnant of the Israelites, who came to Southern India and took refuge with us in the very year in which their holy temple was shat- tered to pieces by Roman tyranny. I am proud to belong to the religion which has sheltered and is still fostering the remnant of the grand Zoroas- trian nation. I will quote to you, brethren, a few lines from a hymn which I remember to have repeated from my earliest boyhood, which is every day repeated by millions of human beings: ‘As the different streams having their sources in different paths which men take through different tendencies, various though they appear, crooked or straight, all lead to Thee.’ “The present convention, which is one of the most august assemblies ever held, is in itself a vindication, a declaration to the world of the wonderful doctrine preached in the Gita: ‘Who- soever comes to Me, through whatsoever form, I reach him; all men are struggling through paths which in the end lead to me.’ Sectarianism, bigotry, and its horrible descendant, fanaticism, have long possessed this beautiful earth. They have filled the earth with violence, drenched it often and often with human blood, destroyed civilization and sent whole nations to despair. Had it not been for these horrible demons, human society would be far more advanced than it is now. But their time is come; and I fervently hope that the bell that tolled this morning in honour of this convention may be the death- knell of all fanaticism, of all persecutions with the sword or with the pen, and of all uncharita- ble feelings between persons wending their way to the same goal.” Amen. | INDIA LEGAL | December 30, 2019 5 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com PENT-UP RESENTMENT IIM Ahmedabad students show placards during their protest against the CAA in Ahmedabad mediaindia.eu InhisspeechattheWorldParliamentofReligionsinChicagoin1893, Vivekanandasaid:“...Iamproudtobelongtoanationwhichhasshel- tered...refugeesofallreligionsandallnationsoftheearth....Sectarianism, bigotry...fanaticismhave...sentwholenationstodespair...” UNI
ContentsVOLUME XIII ISSUE7 DECEMBER30,2019 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 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) 6 December 30, 2019 The apex court lashes out at lawyer-activist Prashant Bhushan, says he is among those responsible for misuse of RTI now as a tool for intimidation and blackmail “RTI Abuse” SUPREMECOURT Even as the apex court rejected a stay on the Citizenship (Amendment) Act, civil society along with students has hit the streets to defend the Constitution and clashed repeatedly with the police. Has the centre bitten off more than it can chew? People Power 12 18 LEAD As the new chief of NALSA, Supreme Court judge Justice NV Ramana has lost no time in releasing a Vision 2020 document and conferring with State Legal Services Authorities to fulfil his mission of “Justice to All” Legal Help for the Needy FOCUS 19
Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE Cover Photo: UNI | INDIA LEGAL | December 30, 2019 7 REGULARS Ringside............................8 Courts ...............................9 Is That Legal...................10 Media Watch ..................33 International Briefs..........40 Satire ..............................50 The Last Straw After being transferred yet again, the plucky IAS officer, Ashok Khemka, writes an ang- uished letter to the Haryana CM asking for permission to approach the prime minister 47 COLUMNS SPOTLIGHT After tinkering with the IAS, the Modi government is eyeing the IPS with plans to drastically reduce the central deputation quota by over 50 percent, a move that could lead to serious stagnation in the ranks Melting The Steel Frame Ministers delinking pollution from ill-health need to look at studies done by the ICMR and The Lancet which show that high particulate matter leads to cardiovascular diseases Ignorance is Not Bliss 36 The centre’s move to scrap the Anglo-Indian quota in the Lok Sabha and assemblies has led to unease among a community that has contributed to India’s development An Unjust Act? MYSPACE 20 In a strongly worded judgment, the Jammu and Kashmir High Court pulled up lawyers who had been on strike for 43 days and said their conduct was a blatant violation of the mandate of law A Rap on the Knuckles COURTS Eight district judges of Tamil Nadu have protested against a Madras High Court collegium’s decision to promote junior officers and knocked on the doors of the Supreme Court An Unprecedented Move 22 The centre is dusting off an Emergency-era provision introduced in the Constitution by invoking “Fundamental Duties” and has asked ministries to spread awareness. An analysis by Prof UUpendra Baxi Executive Revival? 24 Will a national registry of rapists and paedophiles lead to faster sentencing, quicker prosecution and a more aware police force? A Long-Overdue Step 28 There are concerns that the Personal Data Protection Bill, 2019 is dangerous as it will give the government access to citizens’ data. But is privacy as important as protecting a nation’s security? An Orwellian State? 30 34 42 Armed with a carte blanche from CM Kamal Nath, authorities in MP are coming down heavily on several syndicates Crime Crackdown STATES 44
8 December 30, 2019 Anthony Lawrence RINGSIDE Gandhi's lathi for support, Delhi Police lathi for bloodsport
The Supreme Court called for a revamp of the criminal justice system in cases of sexual violence against women. Taking suo motu notice of the sharp rise in the number of rape cases in the country, the top court sought responses from the centre, states and all High Courts on the status of such cases. It also asked for details like collection of evidence, forensic and med- ical reports, recording of statements of victims and time-frame for trials. A bench headed by the Chief Justice of India, SA Bobde, and comprising Justices BR Gavai and Surya Kant said that the nation’s conscience is in shock after the Nir- bhaya rape and murder case and ordered that status reports be submitted by Feb- ruary 7, 2020. The order read: “The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people. The Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.” To suggest measures for making the criminal justice system more efficient and responsive towards such offences, the Court requested senior advocate Sidharth Luthra to become the amicus curiae in the matter. Courts | INDIA LEGAL | December 30, 2019 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal team NCLAT Puts Cyrus Back At Tata Sons’ helm Three years after he was uncere- moniously sacked, the National Company Law Appellate Tribunal (NCLAT) recently ordered that Cyrus Mistry (below left) be rein- stated as the executive chairman of Tata Sons. In its order, NCLAT upheld Mistry’s contention that he was ousted without due process and said that the actions taken by Ratan Tata and others against him were oppressive and illegal. While restoring Mistry as executive chairman of Tata Sons, NCLAT has given the Tata Group four weeks’ time to go for appeal. The restoration order would only be op- erational after the end of four weeks. Mistry was appointed chairman of Tata Sons in 2012 after Ratan Tata’s retirement. The NCLAT verdict said Mistry was suddenly and hastily removed without any reason and in the absence of any discussion at the board meeting. It also held that the appointment of N Chandrasekaran, the current chairman of Tata Sons, as executive chairman was “illegal”. He was appointed chairman of Tata Sons in February 2017. Last week’s shootout in a court in Bijnore, Uttar Pradesh, in which a murder accused was killed and four seriously injured came just days after the Supreme Court had issued notices to the centre and state governments to file their responses on a PIL that sought a spe- cialised force to provide “foolproof security” to all courts in the country, including trial and district courts. A division bench, comprising Justices AM Khan- wilkar and Dinesh Mahesh- wari, issued the notices on a PIL filed by advocate Durga Dutt who said that many anti-social elements were entering court premises with arms, thereby creating an extremely “insecure atmos- phere”. The petitioner point- ed to the killing earlier this year of an advocate, Dar- vesh Yadav, the first chair- woman of the Uttar Pradesh Bar Council, within the court premises in Agra and suggested incorporating security measures in district courts to put them on a par with those provided in the High Courts. PIL in SC seeks special security in courts SC for faster criminal justice system
ISTHAT What is a zero FIR? A zero FIR can be filed in any police station by the complainant for a cognisable offence, irrespective of the complainant’s residence or the place where the alleged offence was committed. A police station is bound to register the FIR under Section 154 of the CrPC without con- sidering its territorial jurisdiction. The complaint can later be transferred to the police station having jurisdiction over the site of the alleged offence. The idea behind a zero FIR is to spur the police into action with urgency instead of wast- ing crucial hours. Evidence gathered immediately after the offence sometimes proves crucial in solving a case. However, the practice of zero FIR is yet to become popular among the police. — Compiled by Ishita Purkaystha FIR Anywhere, Anytime What is an in-camera proceeding? Why is it essential? In-camera hearings are conducted privately and the general public and the media cannot be a part of such proceedings. The aim of in-camera proceedings is to protect the privacy of the victims or the accused in sen- sitive cases and they are conducted through video-conferencing. It is an exception to the rule of hearing cases in an open court under Section 327 of the Code of Criminal Procedure, 1973, wherein anyone can appear in court proceedings and report. Proceedings in cases of rape, gang rape, matrimonial discord, impotency, divorce, domestic violence, rape against public servants and other specific cases are generally conducted in-camera, depending on the decision of the concerned court. ? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis Can a court give an interim order relying only on information in a sealed envelope? No. However, the prosecution counsel often submit information in sealed envelopes in courts to substantiate their allegations or reveal critical information in the case to the judges. The idea behind providing information in a sealed envelope is to ensure that the on-going investigation ordered by the court in a case is not derailed and the information presented is not fit for disclo- sure either to the concerned party or to the public at large to avoid any discussion or reporting by the media. However, the principles of natural justice in our judicial system suggest that no order should be passed relying on a one-sided version of any story and opportunity must be given to the other party to contradict every piece of evidence that is produced before the court. The Supreme Court has used information provided in sealed covers in several cases of public importance. Secret Information for Courts 10 December 30, 2019 What is the basis on which courts can grant bail? Bail is the norm for all arrests and its refusal is the exception. In order to prevent a court from ordering bail, the prosecution must establish the “triple test” (flight risk, tampering with evidence and influencing witnesses). If the court is satisfied that the accused after getting the bail may abscond or not appear when summoned for investigation/trial, has the potential to tamper with evidence (yet to be identified by the investigating agency), may influence potential witnesses which may come in the way of a fair trial, it will not grant bail. Private Hearings in Court Action on Bail Plea
ASSIVE protests over the Citizenship (Amen- dment) Act, 2019, have rocked many cities across India with thousands of citizens taking to the streets. Clashes with the police led to one person being killed in Lucknow and two in Mangalore. What started as a student agitation spread like wildfire as opposition leaders, intellectuals, activists, Bollywood personalities and ordinary citizens fought fearlessly for the restoration of India as a secular nation that abides by constitutional norms. The reaction from the government was draconian. For the first time, Lead/ Unrest Over Citizenship (Amendment) Act Evenastheapexcourt rejectedastayonCAA,civil societyalongwithstudents hashitthestreetstodefend theConstitutionandclashed repeatedlywiththepolice. Hasthecentrebittenoffmore thanitcanchew? By Neeraj Mishra 12 December 30, 2019 M SIMMERING RAGE Protesters’ rally in Kolkata against the CAA People Power Photos: UNI
| INDIA LEGAL | December 30, 2019 13
mobile, internet and SMS services were suspended in many cities. In Delhi, 20 Metro stations were shut on December 19 as a precautionary measure. Among those detained temporarily were Left leaders Sitaram Yechury, D Raja, Brinda Karat, Congress’s Ajay Maken and Sandeep Dikshit and activists like Yogendra Yadav. In Bengaluru, historian and author Ramachandra Guha was detained and this was captured on TV much to the chagrin of civil society. Congress’ Abhishek Singhvi even went to the extent of calling this an “unde- clared Emergency”. M eanwhile, the Supreme Court rejected a stay on the Act and instead decided to hear 59 petitions filed against it in January after the courts reopen. A bench of Chief Justice of India SA Bobde and Justices BR Gavai and Surya Kant instructed Attorney General KK Venugopal to ask the government to publicise the provisions of the Act through the media to remove any confusion. CJI Bobde said: “We will have to see about the stay.” The Court also declined to set up a committee of a retired SC judge to probe the violence in different parts of the country against the CAA and told all the petitioners to approach high courts in respective states where the incidents had occurred. It also refused to probe the violence at Jamia Millia Islamia, where over 100 students were admitted to various hospitals, and Aligarh Muslim University (AMU). These student protests remind us of earlier such agitations. Two years before Emergency was imposed by Indira Gandhi in 1975, a youth agitation began in Ahmedabad University against the upward revision of canteen charges. It spiralled into nationwide protests which spread from Patna to Allahabad to Jabalpur. A similar agitation broke out in JNU a couple of months ago against hostel fees. That too fanned out to other universities. The Jamia violence too has united students and youth across Mumbai, Chennai, Bengaluru, Lead/ Unrest Over Citizenship (Amendment) Act Thiruvananthapuram Kochi Thrissur KERALA TN AP WB ODISHA HYDERABAD TRIPURA Agartala MIZORAM Aizawl MANIPUR Imphal MEGHALAYA Shillong Guwahati ASSAM KARNATAKA Kasaragod Mangaluru Hubballi Gadag Kalaburagi Ratnagiri Pune Osmanabad Mumbai Nashik Aurangabad Latur MAHARASHTRA Nagpur Hassan Mysuru Chennai Vijayawada Ballari Sambalpur Bhubaneswar Kolkata Howrah Ara Muzzafarpur Prayagraj Varanasi LucknowAgra Sambhal Jaipur Delhi Meerut Shimla Jammu Ahmedabad Indore Bhopal Patna Coimbatore Dhemaji Dibrugarh TinsukiaSIKKIM Gangtok BIHAR UP RAJASTHAN J&K HP UTTARAKHANDPUNJAB GUJARAT Patiala Chandigarh Dehradun Haridwar MP Anti-CAAProtests The student agitation (uptil December 19) had spread across the country as ordinary citizens joined in and took to the streets. 14 December 30, 2019 Rajender Kumar
Hyderabad and Delhi besides AMU. A total of 33 universities have been singed over this contentious issue. It is obvious that the fire of rebellion among the youth has been stoked. A relaxed, candle-marching generation of touch screen devotees has been awak- ened from their comfort zone and forced to take to the streets. And on- the-spot videos of the violence unleashed on them by the police have crowded out propaganda videos on social media and challenged the “truth” propounded by authorities. The Supreme Court refused to see these videos when senior lawyers Indira Jaising and Colin Gonsalves approached it but as they have gone viral, people know what is happening in the heart of the capital and elsewhere. W hile it was the CAA issue that sparked the flames, the power of a resurgent youth was there for all to see. A youth that has risen in defence of democratic principles and the Constitution when all else has failed. Soon, in a massive show of support, civil society also joined the students. One is reminded of the far-reaching transformation of the youth in movements such as the JP one in 1975, the Mandal one in 1989 and the Praful Mahanta-led AASU agitation of the 1980s. The first two movements surged on the back of unemployment and a bleak economy. It’s a cocktail more explosive than the Molotov one that the students of Jamia are accused of throw- ing by the Delhi Police. It’s unfortunate that at a critical moment like this, the students lack a far-sighted leader they can look up to. While the Congress is fractured and various opposition parties did come together to meet President Ram Nath Kovind, we are still to see a JP of the movement emerging. This government has moved to implement its agendas—abrogation of Article 370, construction of the Ram Mandir and the CAA—so swiftly that even the Shiv Sena has reminded the BJP of its acche din promise and I t started with Punjab Chief Minister Captain Amarinder Singh flatly refus- ing to implement the Citizenship (Amendment) Act, 2019 in his state to West Bengal Chief Minister Mamata Banerjee saying that it would be implemented “over my dead body”. Chief ministers of non-BJP ruled states have openly defied the centre’s position on the Act, but are they really in a position to do so? In a federal structure like India, Part XI of the Constitution is titled “Legislative Relations”. Powers to make laws on specific subjects have been clearly divided between states and the centre and enumerated in Schedule 7. There are 97 items in the Union List, including foreign relations, defence, currency and citizenship. The Union List is the exclusive domain of Parliament and states have no option but to follow whatever is laid out by any Act passed by Parliament. Further elucidation on the subject can be found in Articles 248, 251 and 254. What does Article 248 say? It lays down the residuary powers of Parliament effectively. This means that even if citizenship was not covered under the Union List, it was authorised to legislate it. Article 251 makes it further clear that if any laws made by the state were repugnant to any law made by the centre, then the central law will prevail. So no state will be in a position to nullify CAA on its own by passing counter legislation. Similarly, Article 254 further asserts that parliamentary laws are supreme and take precedence over state legislation. Article 257 then puts a ceiling on the power of states. It says: “The executive power of every state shall be so exercised as not to impede or prejudice the exercise of the executive power of the union, and the executive power of the union shall extend to the giving of such directions to a state as may appear to the GOI to be necessary for that purpose.” However, the NRC is the main concern of some opposition states and so far, seven ruling parties—the Congress, Trinamool Congress, BJD, JD(U), CPI(M), AAP and TRS— have opposed it. Together, they are in power in 11 states— Punjab, Rajasthan, Chhattisgarh, Madhya Pradesh, Puducherry, West Bengal, Odisha, Bihar, Kerala, Delhi and Telangana— and account for 42.8 percent of India’s population. Going by the 2011 census data, the cumulative population of these states is 42.8 percent of India’s total population. —By Neeraj Mishra CanstatesdefytheCAA? | INDIA LEGAL | December 30, 2019 15
asked it to desist from digressing from the real issues of employment and the economy. Experts say the courts cannot but read the issue in its entirety. A lot of discussion on the constitutionality of the CAA has already taken place. The issue has been internationalised by students in Cambridge and Harvard. Several international bodies, including those in the US and UN, have already expressed concern. Even minorities in the three countries (Pakistan, Afghanistan and Bangladesh) who will be welcomed into India, according to the CAA, have disas- sociated themselves from it. T he CAA has a cut-off date of December 31, 2014, and this too has led to many questions which the courts will have to decide on. Does it mean that those already here before 2014 are eligible only? Does it mean that Muslim refugees who have been here before 2014 will automatically be transported back or into camps? Does it mean any pre-2014 non-Muslim will automatically be considered a “persecuted minority”? The cut-off date effectively means that if one is a persecuted minority and wants to come to India after 2014, he is welcome. All those who came before that will have the benefit of proclaiming themselves “persecuted”, except Muslims. The apex court will have a lot on its hands when it takes up the issue in January. Even if all arguments in favour of the CAA are accepted, it remains to be seen as to who will be considered “persecuted”. It has not been defined in the Act and from the speeches of Home Minister Amit Shah in both the Houses of Parliament, it would appear that all minorities in these countries are considered “persecuted”. What this will mean to international relations is something External Affairs Minister S Jaishankar Lead/ Unrest Over Citizenship (Amendment) Act OPPOSITION PROTESTS (From top) Congress chief Sonia Gandhi with opposition leaders in Delhi; West Bengal CM Mamata Banerjee leads a march in Kolkata; Congres’s Priyanka Gandhi at a dharna in Delhi 16 December 30, 2019
Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com CAA. Indigenous Assamese don’t want any refugees and for them the CAA flies in the face of the NRC already conducted there. Some regional parties such as Nave- en Patnaik’s BJD and Nitish Kumar’s JD(U) have tried to disassociate the CAA from the NRC to explain their support for it in Parliament. But Amit Shah himself lucidly explained it to the public in West Bengal three months ago: “Theek se samajh len. Pehle CAB ayega phir NRC. (Understand this carefully; first comes CAB, then NRC).” Now all those stating that the CAA has nothing to do with Indian Muslims like the Shahi Imam and Law Minister Ravi Shankar Prasad will have to understand that while the CAA itself may be for incoming refugees, once it is injected with the NRC, everyone will have to prove they are Indian citizens and show their ancestry. While Hindus will have a CAA pass, Muslims will be stuck. It’s exactly like the Ahnenpass (ancestor pass) which documented the Aryan line- age of citizens of Nazi Germany. The decade-long NRC exercise in Assam has also done the same. Each individual has had to prove his ancestry in an exercise that has already cost `1,600 crore. Multiply that by 29 states and there is a gargantuan problem staring you in the face. The Supreme Court will also have to look at it from a historical perspec- tive. Will Articles 14 and 15 of the Constitution and secular and non-secular arguments suffice here? After the Bangladesh War of 1971, Prime Minister Indira Gandhi had explained that all those who had come into the country after March 25, 1971 would have to go back “irrespective of their religion”. Now the BJP says only Muslims will have to go back. Even as debates and protests are gathering momentum over the constitutionality of the CAA and the NRC, the centre has issued an 11-page guideline to all states to construct “modern detention camps”. Called the “2019 Detention Manual”, it gives state governments construction guidelines. Thousands who are expected to get deported in Assam are actually helping build these detention camps. In the years to come, will the detainees be kept in the camps forever or be “pushed back” into their “home” countries? How will these countries react and what will it lead to? The bur- den of expectations on the Supreme Court has never been heavier. will have to look into. Other nations can also turn around and ask the same question about India’s treatment of its own minorities, especially those affected by the 1984 and 2002 riots. S ome of the sanest questions are being asked by student leaders like Kanhaiya Kumar, who has been drawing huge crowds. He asked the students to not disassociate the CAA from the impending National Register of Citizens (NRC) and the National Refugee Policy (NRP). Much of the agitation in Assam has been caused by the CAA because of which the “benefits” of the NRC are lost for the Assamese as nearly 15 lakh Hindu Bangladeshis will not have to prove anything. They will get absorbed automatically through the DISSENT IN PERIL Historian Ramachandra Guha being arrested in Bengaluru; (below) Prime Minister Narendra Modi and Union Home Minister Amit Shah at a rally in Ahmedabad Evenasprotestsaregathering momentumovertheconstitutionalityof theCAAandtheNRC,thecentrehas issuedan11-pageguidelinetoallstates toconstruct“moderndetentioncamps”. Twitter | INDIA LEGAL | December 30, 2019 17
Supreme Court/ RTI 18 December 30, 2019 HERE is paralysis and fear about this Act (RTI), people are not taking decisions,” said Chief Justice of India SA Bobde recently. What prompted him to utter these words was a petition filed by RTI activist Anjali Bharadwaj and retired Commodore Lokesh Batra about the lack of transparency in the appointment process of information commis- sioners despite a judgment from the Supreme Court on February 15. The CJI said that the unbridled use of the Right to Information (RTI) Act had created a sense of “paralysis and fear” in the government, and officials were too scared to take decisions. When Prashant Bhushan, the counsel for the petitioners, said that “only those who are corrupt have reason to fear”, the CJI countered: “Not everybody is doing something illegal. We want to find a way to stop the abuse of RTI Act. Don’t say as if there is no abuse,” adding that the time had come to lay down guidelines for the use of the RTI. Justice Bobde made it clear that the court was not against the exercise of RTI. Turning to the activist-lawyer, he said RTI cannot be an unrestricted right with anyone asking anything from anyone. “Applicants are being put up against each other by rivals. It is as if there is an axe to grind behind every RTI application,” he said while suggesting that some guidelines or filters have to be employed. At this point, Bhushan argued that the RTI law was an inconvenience for the government, which therefore wanted to render it ineffective. This enraged the CJI who accused Bhushan of being among those responsible for the misuse of RTI. “People file RTIs after consulting you. We want to help avert any abuse of the law. And you are behaving like there is no abuse. You are talking of a bona fide scenario, but there are also so many incidents of blackmail and extortion us- ing RTI. People are set up by rivals to file RTI requests with mala fide inten- tions. If we can have guidelines for filing PILs, why not for RTIs,” the CJI asked. The CJI said that RTI activism had reached a stage where it stood in the way of government functioning. To illus- trate his point, he narrated his experience on a recent visit to Mumbai. “When I was in Mumbai, a government official said that the Mantralaya is almost paralysed because of the kind of RTI requests made... Have you seen the kind of people seeking information. Anybody can ask. People describe themselves as RTI activists. Is that an occu- pation?” Justice Bobde asked. He said that the Court was willing to hear arguments on the locus of people who filed RTIs and also about setting up a “filter which can be rightfully employed”. About the matter on hand—the appointment of information commis- sioners that the Court had ordered in February, the CJI asked Bhushan to file a contempt petition if the Court orders had not been complied with. “We will issue a notice if a Supreme Court judgment is not adhered to,” the CJI said. RTI Misuse? Theapexcourtlashesoutatlawyer-activistPrashantBhushan,saysheisamongthose responsibleforthemisuseofRTInowasatoolforintimidationandblackmail By India Legal Bureau T RAP ON THE KNUCKLES CJI Bobde rubbished Bhushan’s (right) contention that RTI was creating problems for the government and there was no abuse Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
| INDIA LEGAL | December 30, 2019 19 Focus/ New Chief of NALSA ITHIN a fortnight of taking over as executive chairman of the National Legal Ser- vices Authority (NALSA), Justice NV Ramana of the Supreme Court has once again shown that his heart lies in providing legal aid for the poor and the needy. Justice Ramana, who is the most senior judge of the Court and will take over as the next chief justice in April 2021, video-conferenced with executive chairpersons and member-secretaries of all State Legal Services Authorities. Am- ong other things, he discussed strength- ening of legal aid services for the needy, conducting training programmes for lawyers and setting up of committees at the district level to effectively implement NALSA guidelines. NALSA was constituted under the Legal Services Authorities Act, 1987, to provide free services to the weaker sections of society and organise Lok Ada- lats for amicable settlement of disputes. Separately, the State Legal Services Authority was constituted in all states to give effect to the policies and directions of NALSA. Since his appointment as executive chairman of NALSA, Justice Ramana has left no stone unturned to ensure that it treads a new path in providing legal aid to the underprivileged and the marginalised. After taking over on Dec- ember 6, he released a “Vision 2020” document with its theme, “Absolute Justice for All”. Later, he did a video conference to spread the word about the need to focus on providing legal assis- tance at the pre-arrest, arrest and remand stages. He also said there was a need to provide effective legal aid from the stage when a person is called to the police station. He laid equal emphasis on training lawyers in laws relating to pre-arrest, arrest and remand so that they effectively represent clients. The conference also highlighted the need to regularly identify convicts who require legal aid for filing appeals. The video conference also saw Jus- tice Ramana discuss the implementation of the legal aid defence counsel system. Seventeen districts have been sel- ected on a pilot basis. NALSA has envis- aged the system for providing legal aid in criminal matters on the lines of the public defender system existing in some western countries. In fact, as chairman of the Supreme Court Legal Services Committee, Justice Ramana focused on this at the all-India NALSA conference held in August in Nagpur. He said that one of the biggest problems hindering the success of legal aid was the lack of continuity, focus and accountability. A new system is thus being put in place and is aimed at assign- ing cases from the beginning to advocates whose sole focus will be on legal aid cases and whose performance will be more effectively reviewed. Justice Ramana’s enthusiasm is infectious and those involved with him in this critical task are confident that with him at the helm, the weak and the marginalised will never feel disadvan- taged in their search for justice. Legal Help for the Needy JusticeNVRamanahaslostnotimeinreleasingaVision2020documentandconferringwith StateLegalServicesAuthoritiestofulfilhismissionof“JusticetoAll” By India Legal Bureau W TREADING A NEW PATH Justice Ramana (extreme right) at a video conference with State Legal Services Authorities Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
Courts/ Lawyers’ Strike 20 December 30, 2019 N an unprecedented move, the Jammu and Kashmir High Court cracked the whip on lawyers in general and the powerful Jammu- based J&K High Court Bar Asso- ciation (JKHCBA) in particular and declared their 43-day-old strike ille- ga for inconveniencing litigants, staff and the general public. A division bench of Chief Justice Gita Mittal and Justice Rajesh Bindal quoted extensively from pronouncements of the Supreme Court to observe: “The mere call for meeting, or the very decision to proceed on strike; remaining absent from court and boycott of judicial proceedings; locking the courts, preventing entry to those wanting to enter are completely illegal rendering all persons responsible for the same for appropriate action as mandated by the Supr- eme Court of India. This conduct tanta- mounts to criminal contempt of court in terms of the law laid down by the Supr- eme Court of India.” The bench added: “This conduct also calls for action in accordance with the Jammu and Kashmir Advocates (Regul- ation of Practice in the High Court and Subordinate Courts) Rules, 2003. We have no manner of doubt that such conduct is in blatant violation of the mandate of law, in the clear pronouncements of the Supreme Court of India cannot be countenanced or condoned. As observed by the Supreme Court, we would become party to such violations if we continue to ignore such actions which have been held by the Supreme Court to be clearly contumacious and falling under the serious category of criminal contempt of court, professional miscon- duct and even criminal offences.” The court suo motu initiated two PILs concerning the strike and the need for “discipline and congenial atmos- phere” by litigants, public, the judiciary, its staff and members of the Bar “to ensure effective and fair judicial dispensation to the people”. It quoted extensively from the apex court’s rulings in cases such as Ex-Capt. Harish Uppal vs. Union of India & Anr (delivered on December 17, 2002); Hussain & Anr. vs. Union of India (March 9, 2017) and Krishnakant Tamrakar vs. State of Madhya Pradesh (March 28, 2018). Based on an on-the-spot report of the principal district and sessions judge, Jammu, the Court named four advocates for “spearheading the protestors”, “enforcing the closure along with their associates”, displaying “arrogance to the extent that they actually put a lock on the main gate” and removed “its key which was kept in their custody”. The Court ordered show-cause A Rap on the Knuckles Inastronglywordedjudgment,theJammuandKashmirHighCourtpulleduplawyerswhohad beenonstrikefor43daysandsaidtheirconductwasablatantviolationofthemandateoflaw By Pushp Saraf I STALLING WORK File photo of a lawyers’ protest outside the Jammu and Kashmir High Court in Srinagar UNI
| INDIA LEGAL | December 30, 2019 21 notices to be issued, asking them to explain why they should not be proceed- ed against for criminal contempt of court under relevant rules of the Jammu and Kashmir Advocates (Regulation of Practice in the High Court and Subordinate Courts) Rules, 2003, as well as for the acts which are penal under the provisions of the Indian Penal Code. Taking a serious view of “the conduct of those who have indulged in provoking the contumacious conduct as also the obstruction of access to the District Cou- rts”, the bench stated that it is “unpardo- nable and must invite stringent action in accordance with law”. The bench expressed “greatest pain and dismay” that the assurance given by the JKHCBA, after the Supreme Court took suo motu cogni- sance of the attempt by some lawyers to obstruct their colleague from represent- ing the family of the victim in the Kath- ua rape case, was belied by “several recent events”. It recalled an affidavit filed by the Bar Association in the apex court on April 24, 2018, which, the bench noted, was an “admission” that “it was co- nscious of the law as well as the methods of agitation which could be adopted by it” while exhibiting “its awareness that no obstruction or threat could be extended to counsels appearing in a case”. This was after the Supreme Court had on April 13, 2018, issued a notice to the JKHCBA, among others, and recorded: “It is settled in law that a lawyer who appears for a victim or accused cannot be prevented by any Bar Association or group of lawyers, for it is the duty of a lawyer to appear in support of his client, once he accepts the brief. If a lawyer who is engaged, is obstructed from appearing in the court or if his client is deprived of being represented in the court when he is entitled to do so in a lawful manner, that affects the dispensation of justice and interference with the administration of justice. In fact, this Court has held that a Bar Association cannot pass a res- olution that they would not defend an accused in any particular case. It is the duty of the Bar Association as a collective body and they cannot obstruct the process of law.” I n the two rulings that both the justices dealt with, apart from the conduct of lawyers and the JKHCBA, they also referred to the security scenario within court premises, the role of designated senior advocates and the seriousness of cases pending before the judiciary. They ordered deployment of a central armed police force in the High Court and all district courts in the UT of J&K as the “local police is unable to manage the situation”. In this regard, they said that posters by militants had appeared in the Court complex in Sri- nagar after August 5. “On September 7, posters threatening suicide attacks on the judiciary were pasted with impunity in the Srinagar court complex.” They found it “unique” that even senior advocates had been exposed to the charges of provocative actions and utterances on social media and elsewhere. “This information shall be verified and action shall be taken,” they unambiguously stated. The JKHCBA had declared an indefi- nite strike from November 1 in protest against the transfer of power of land registration from the judiciary to the revenue department and the move to shift the HC premises to a forest area. It later narrowed down its struggle only to the first issue as it got an assurance that there was no move to relocate the High Court. On December 10, the ice was broken at a meeting between KK Sharma, adviser to Lt Governor GC Murmu, and representatives of the JKHCBA. The former assured the lawyers that their concerns would be addressed. The adviser, however, did not accede to the main demand, asserting that the registration authority has been vested in revenue officers in line with the practice in the rest of the country and it was “a step towards having a Uniform Registration System”. After the High Court spoke up on December 11, the JKHCBA called off its strike saying that it “will resume work in all courts including the High Court from December 18”. It also announced its decision to “unitedly” contest the show- cause notices to the protesting lawyers. Clearly, the High Court’s intervention had become unavoidable. An unintend- ed beneficiary is the government as the first prolonged protest in the region has come to an abrupt end against its policy to ensure parity between laws in the rest of the country and the UT of J&K after Article 370 was rendered toothless. The lawyers’ strike that began with a bang has ended with a whimper. TheCourtdeclaredthe43-day-oldlawyers’strikeillegal.Adivisionbenchof ChiefJusticeGitaMittal(left)andJusticeRajeshBindalquoted extensivelyfrompronouncementsoftheSupremeCourt. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
Courts/ Judges’ Angst 22 December 30, 2019 N a surprising move, eight judicial officers have moved the Supreme Court, charging that since 2017, the Madras High Court collegium has continued to reject their names and those of six others from their batch as High Court judges and instead recommended juniors. This was a joint petition and among the eight petitioners, three were district judge-rank officers. They are: R Poorn- ima, Madras High Court Registrar (Vig- ilance); K Rajasekar, Member-Secretary, Tamil Nadu State Legal Services Auth- ority (TNSLSA) and AKA Rahman, Principal Judge, Family Courts, Chen- nai. The other five are R Sakthivel, A Kanthakumar, A Nazeema Banu, MD Sumathi and M Suresh Vishwanath, all of whom are district judges of Coimba- tore, Dharmapuri, Madurai, Ariyalur and Thoothukudi districts, respectively. All eight petitioners were directly appointed in February 2011. A bench of the Supreme Court headed by Chief Justice SA Bobde and con- sisting of Justices BR Gavai and Surya Kanth issued notices to the centre and state government, secretary general of the Supreme Court, Madras High Court and 18 district judges who were termed juniors by these eight petitioners. Interestingly, the Supreme Court also ordered notices to be issued to the six batchmates of the petitioners who did not file the same case but were made as respondents in the joint petition filed by the other eight. The petitioners said that they had completed 10 years of service as lawyers and were appointed as district judges on February 18, 2011. They said they had completed six years of service in the district judiciary in 2017, but when it came to appointment as High Court judges, the Madras High Court collegium did not consider them. Rather, it recommended the names of judicial officers who were far junior to them. Insiders say that it is unprecedented An Unprecedented Move EightdistrictjudgeshaveprotestedagainstaMadrasHighCourtcollegiumdecisiontopromote juniorofficersandknockedonthedoorsoftheSupremeCourt By R Ramasubramanian in Chennai I ON THE WARPATH A file photo of protesting lawyers in Chennai UNI
| INDIA LEGAL | December 30, 2019 23 in the annals of Madras High Court that a bunch of district judges had knocked on the doors of the Supreme Court and complained against their parent High Court collegium. “In my 20 years of practice in the Madras High Court, I have not seen this sort of development. Caste consideration seems to be the main issue here. The numerical strength of Brahmin judges has been increasing in the Madras High Court since 2014, especially after the Narendra Modi government came to power at the centre. The sanctioned strength of judges in the Madras High Court is 75 and there are at least 10 vacancies. The present strength of Brahmin judges is over 20 percent; numerically, this comes to around 12. Previously, there were only two or three Brahmin judges in the High Court,” said a senior lawyer who requested anonymity. Another issue seems to be the profile of district judges in the state. A Rajendraa, an advocate in the Madras High Court, told India Legal: “For over seven years, the prevailing notion among influential people in the political class and in the collegium was that directly appointed district judges have their own preferences towards either the DMK or the AIADMK as they were appointed during the tenure of either of these regimes. So those responsible for the selection of High Court judges are now giving more preference to those judicial officers who have risen from the lowest level of the judiciary, ie., as mun- siffs or magistrates rather than from district judges.” P rotests against the recommenda- tions of the Madras High Court collegium for appointment of High Court judges are not new. In Jan- uary 2014, massive protests erupted over a list of 12 names which was sent to the Supreme Court for appointment as judges. Over 15,000 advocates carried out protests inside the High Court. Interestingly, the protests erupted even though there was no official word either from the Supreme Court or from the Union government on the 12-member list. The protesting advocates laid siege to the chamber of the then chief justice of the Madras High Court, Justice RK Agarwal. The protesters specifically mentioned three names on the list, all of whom were Brahmins, and openly spoke about the growing number of Brahmin judges. They demanded that all three names be dropped from the list. Later, that list was withdrawn. But a section of jurists argues that the core issue is lack of transparency in the selection process. VV Latha, an advocate, told India Legal: “There is a big difference between lawyers protesting and serving district judges protesting for a cause. Though the district judges have not hit the streets like lawyers, the very fact that they approached the Supreme Court speaks volumes about the issue.” She said the collegium should discuss with the Bar the short-listed names in order to avoid complications and eliminate heart-burning among all the stakeholders. Many say the functioning of the collegium system should change. In a country where entrance tests are conducted even for office assistant jobs, why should just three persons decide the choices for High Court judges, ask insiders. “High Court judges’ appointments must be transparent and on merit. All parameters recommended by the Justice K Venkatachaliah committee must be followed strictly. This is the only way out,” said Balendran, a retired government lawyer from Madurai. A former Madras High Court judge also said that he had never seen serving district judges filing writ petitions in the Supreme Court against their parent High Court. “I won’t be surprised if it is proved that a powerful section of the political class in New Delhi and even in the higher echelons of the judiciary is working behind this joint writ petition. A district judge knows very well how the system works in India and still he approaches the Supreme Court? There is more to this than meets the eye,” he said. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com “Inmy20yearsofpracticeintheMadrasHighCourt,I havenotseenthissortofdevelopment.Caste considerationseemstobethemainissuehere,” saidaseniorlawyerwhorequestedanonymity. upload.wikimedia.org
Column/ Fundamental Duties Prof Upendra Baxi 24 December 30, 2019 MONG the Fundamental Duties of all citizens, Article 51-A (e) casts an obligation to “renounce practices derogatory to dignity of women”. Rape and killing of women, as well as other forms of violation of their dignity, certainly constitute a practice to be renounced by institutions of the State and civil society. And yet, such practices have been endorsed, if not en- couraged, by eminent political leaders even after the 42nd Amendment which inserted these duties. An unfortunate robust rape culture has grown apace ever since. Some normative criminal law reforms and institutional changes have followed the Mathura Open Letter (when four law teachers wrote to the chief justice of India in 1979, protesting the concept of consent in the Mathura rape case judgment) and the Nirbhaya struggle (2013). A progressive judiciary has also greatly contributed to discur- sive legal transformation. Yet, sex-based violence against women and young children remains a never ending story, a recurrently gruesome and abiding phenomenon. The gap between law in books and law in action is not just on a high gro- wth curve but is also dreadfully deepening the loss of belief in due process of law. A tacit civil and political society and explicit “justifications” for recourse to unbridled violence was displayed by the recent burning of a rape survivor in Un- nao and that of the Telangana vet who was raped, murdered and burnt to death. Even when the Telangana government decided that trials in such cases should be completed within 24 days, the specific horror of these episodes will be decoded eventually, and this hurrying- slowly-type-approach will linger and continue to convert scars into wounds, deepening the accentuated alienation from law’s famed due process. May I again reiterate that neither the State nor civil society, including the media (the news, views and campaign mar- kets) has fully remembered their fundamental duties. It is a commonly noticed tendency that masses also forget what the elite and the media choose not to remember. The problem deepens when we realise that we in India choose pri- marily the law as a major instrument of social control and change, indeed so TheNDAgovernmentisdustingoffan Emergency-eraprovisionintroducedinthe Constitutionbyinvoking“Fundamental Duties”andhasaskedministriesto spreadawarenessaboutthem A Executive Revival?
| INDIA LEGAL | December 30, 2019 25 much so that we would be the most de- veloped society in world history where the GLP (gross legislative product) is the gold standard of development. We have resolutely turned our backs to the wisdom of the founders of western theory who recognised three agencies of social control and change: region, law, and education. It is in this context that reports about what the Union council of ministers mandated by way of official and citizens’ recall becomes worth remembering. According to media reports, a detailed allocation of tasks was made to various ministries, probably for the first time since Fundamental Duties were consti- tutionally enunciated. This move should be welcomed. T he ministry of law and justice, in a missive to all authorities in federal and state governments and public sector units, recently mandated a reading of the constitutional preamble on every Law Day. Two ministries are pre-eminent for the Duties: the home ministry is to be associated with six clusters of Fundamental Duties and the ministry of human resource development with four clusters. In particular, the ministries of home, women and child development and culture have been entrusted with the task of promot- ing Article 51-A(e) duties. This latter ministry may propose a number of measures. The first is the wider propagation of this duty among all sections of civil society and the State. Second, this propagation should include specific refer- ences to legislations that normatively outlaw certain practices derogatory to the dignity of women, such as dowry murders, rape, sexual harassment, inde- cent representation, glorification of the practices of sati, stripping and parading of lower caste women, witchcraft laws and the Atrocities Act. Third, as concerns children, public education concerning Articles 23 and 24 of the Cons- titution, the POCSO and Juvenile Jus- tice Acts, for example, should be highlighted. Fourth, it has been held by the apex court that in the absence of an appropriate legislation, the social practice of discrimination can be remedied by judicial directions and guidelines under Articles 32 and 141 read with 142. International conventions such as the Convention on the Elimination of all Forms of Discrimination against Wo- men and the treaties establishing the International Criminal Court, particu- larly crimes of aggression and crimes against humanity, should be specifically recognized. Further, international treaties concerning women’s rights as human rights prevail, but should be incorporated in a suitable domestic law. And, as is the case with the Genocide Convention, specific obligations of pre- vention and punishment of human rights violation should be recognized. Fifth, the Ministry should make recom- mendations to other departments of the government. For example, there is no reason why the police may not file an FIR at any Strivingfortherealisationofdutiescan’t berealisedbytheStateinisolationfrom civilsocietyandviceversa.Article51-A shouldnotbeconstruedasamechanism ofsurveillanceorunwarrantedintrusion. Anthony Lawrence
26 December 30, 2019 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com relevant police station, according to Lalita Kumari case (2014) where the apex court observed: “Burking of crime leads to dilution of the rule of law in the short run; and also has a very negative impact on the rule of law in the long run since people stop having respect for rule of law. Thus, non-registration of such a large number of FIRs leads to a definite lawlessness in the society.” Reiteration of this legal requirement is still unfortu- nately necessary. Sixth, adequate knowledge about specific women, child, LGBTQIS, citizens’ rights and legal aid agencies should be provided. T he message for progressive sections of civil society, including the economy and the market, is clear: they also ought to join the endeavour to fulfil constitutional duties because the Constitution is best understood as a congregation of all citizens. Striving for the realization of duties cannot be realized by the State in isola- tion from civil society and vice versa. Neither should this be even tried by the State alone nor is the bureaucratization of fundamental duties or accelerated coercive regulation laws a worthwhile response. Excessive governmentaliza- tion of Fundamental Duties is not envis- aged by the Constitution. And Article 51-A is never to be construed as a mechanism of surveillance or unwarranted intrusion on the right to privacy, now declared by the Supreme Court as an essential feature of the basic structure of the Constitution. The State, market, and non-state actors must act together to produce a new constitutional culture which respects the basic human rights of all persons and citizens and thus also escalates the salience of Fundamen- tal Duties of all citizens. This might seem a tall order but the Cons- titution is never a “hob- goblin of small minds”. Rather, it is a republic of many minds which pursue large visions for a plural and diverse social order, marked by Article 51-A (j) which lays down that it is the duty of every citi- zen to “strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of achievement and endeavour”. Mediocrity is the constitutional enemy of excellence and must be fought at every level and in every sphere. The words of Pandit Jawaharlal Neh- ru to the Constituent Assembly may have sounded a trifle impatient but they ring loud and clear and are equally compelling today: “We dare not be little” because otherwise we “will do an ill-service to this country of ours, and to those hopes and aspirations which surround us from other countries”. —The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer Column/ Fundamental Duties/Prof Upendra Baxi EMERGENCY-ERA LAW The Fundamental Duties (below) were incorporated in the Constitution by then PM Indira Gandhi
Column/ Sexual Offenders’ Registry Dr Rajat Mitra 28 December 30, 2019 S a psychologist who has worked with sexual offenders for two decades, I have often been asked about the psychological profiles of the criminals I came across. The profile of someone committing homicide is often sought with the curiosity of a teenager who has read a murder mystery. This is unlike that of a terrorist’s profile. It is assumed that somehow he has learnt to hate his country because he was indoctrinated by some ideologue or faced some terri- ble injustice. Often, there is empathy for his condition. When it comes to rapists or paedophiles, this changes. The universal emotion against them is disgust mixed with hatred. This is not surprising. How can someone sexually assault a child or a defenceless person? In many prisons around the world, rapists and paedophiles are often segre- gated and kept away from other prisoners to stop them from getting lynched, so strong is the hatred towards them. In the hierarchy in prisons, they are at the lowest rung. In Tihar Jail, rapists and paedophiles are often made to sleep next to the toilet at night after everyone has gone to sleep. On getting up in the morning, they have to clean the Indian toilet by hand with a piece of red brick till it rubs itself off. The argument is that they are the scum of the earth and need to be treated brutally. Any attempt to research or understand them always meets with considerable resistance. A former Delhi police commissioner, who was also the head of prisons, once asked me why I was researching on rapists and paedophiles whose face no one wants to see. “Is there anything to even understand about them?” he asked mockingly. “Is that even a topic for research? Ladki dekhi, uthake rape kar Willanational registryof rapistsand paedophiles leadtofaster andbetter sentencing, quicker prosecutionand amoreaware policeforce? A A Long Overdue Step
| INDIA LEGAL | December 30, 2019 29 diya (He saw a girl and raped her). There is nothing more to rape than that.” This was the common attitude of most people towards those committing this heinous crime. This brings us to the question of whether sexual offenders can be reha- bilitated or reformed. Research till date shows no conclusive evidence that there is a programme that has been success- ful in changing their mindset about the crime they committed or changing their views about women or sexual approaches. They continue to hold fantasies and this is their guidepost about relationships almost their entire life. Several studies have shown that they find human relationships, especially with women, too complex to handle. They do not believe that one can have an equal relationship with a woman or one based on social parameters acceptable to society. Their idea of a relationship with a woman is based on dominance, violence and control and only that can lead to physical intimacy. During my research in Tihar Jail, I would often be asked by these offenders about marriage, social norms and con- trols related to sexual activity. For them, sexual activity and enjoyment was meaningful only when linked to violence and control. So does shaming rapists help or reform them to be free of their patholo- gy? On the contrary, it does the opposite. It may excite them further as they feel they have regained control and affected the victim. Not too long ago, there was a function in Tihar Jail where schoolchildren came and sang songs on patriotism. It was a moving ceremony and they even tied rakhis on some of the prisoners. Almost all the undertrials and convicts were moved to tears except one group—the sexual offenders. I saw them get excited, seeing so many children together, and they behaved like teenagers watching a sensual woman. Some of them even seemed to be fanta- sising. No one apart from me and a few others noticed this. When the function was over, the children walked past these men. When I brought this to the notice of the head of the prisons, he was gen- uinely surprised and wondered how one could be so incapable of feeling emotion in a function like this. I n the light of these findings, one has to examine if having a national registry of rapists and paedophiles would help. It is believed that Andhra Pradesh will establish, operate and maintain such a registry and it will be called the “Women and Children Offenders Registry”. Besides societal reactions and legal attitudes, one has to see which direction such a registry will take. In whose interest will it be and will it be able to control this crime? Today, the most important determi- nant of controlling crime is conducting research, both qualitative and quantita- tive, on the psyche of criminals, their modus operandi and signature styles. This is why many police forces across the world have set up behavioural science units and detailed registrars from where they can access data, join the dots and analyse the relationships that emerge in order to understand the vari- ables that are causative factors in crime. Some years ago, my team and I were called by the police in Mehrauli, Delhi, to interview a suspect and to find out if he was responsible for the rape and murder of a six-year-old girl. After a gruelling three days, he told us about the murder and added that this was not his first crime regarding children. A group of policemen did go in search of clues but in the absence of any recorded information, they came back empty handed. If there had been a register, they would have been able to link all the serial crimes he had committed. Most often, sexual offenders are serial offenders and even when police officers stumble upon their past crimes, they are unable to proceed because of this drawback. A registry can have mul- tiple benefits. It will bring awareness and control of the criminal justice system in an area shrouded in myths and misinformation. It will help to analyse data and aid law enforcement authorities in an area they know little about. Will it bring fear in the minds of the rapist or paedophile? It is doubtful if such a step will help reduce or prevent sexual assaults. It may lead to faster and better sentencing, faster prosecution and a more aware police force. Establishing a sexual offenders’ registry is long due and in conjunction with a professional police force it may be the first step in controlling and reducing this heinous crime. —The writer has worked with the perpetrators of sexual violence in Tihar Prisons. He was in charge of a prgramme that offered trauma counselling to survivors of sexual violence Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Aregistrycanhavemultiple benefits.Itwillbringawareness andcontrolofthecriminaljustice systeminanareashroudedin mythsandmisinformation.Itwill helptoanalysedata. Anthony Lawrence
Column/ Personal Data Protection Bill, 2019 Na Vijayashankar 30 December 30, 2019 RIVACY has its boundaries. The Right to Privacy is fundamental but not absolute. But often, even wise men get carried away as is indicated by the copious criticism being heaped on the Personal Data Pro- tection Bill, 2019 (PDPB-2019). “Pri- vacy” as a concept is a “state of mind” and a “feeling of being left alone”. Nei- ther the Supreme Court nor experts have been able to define it precisely and it remains an enigma of its own. Trying to protect an enigmatic concept through regulation of the “information” that influences the “mental state” is not easy. Further, ensuring that the regula- tions satisfy every person who has a different “state of mind” does pose an impossible challenge. The conflict between the “privacy” of one person and the “security” of another is eternal. A government needs to have its hands free for “intelligence gathering”. This includes surveillance, without which the country and its people are unsafe. “Security” is, therefore, as much a fundamental right as “privacy” and legislation such as PDPB-2019 cannot be seen myopically as if “privacy” is an absolute right. But rejecting the right of the government to maintain national security through regulated invasion of privacy will disturb the mental peace of millions of citizens who wouldn’t know if the person standing next to them is a terrorist. It is only faith in security scree- ning that emboldens us to travel by air without a care that the plane could get hijacked or bombed. This feeling of “safety” is as important for most citizens as “privacy”. However, there has been quite a bit of criticism of the Bill even from Jus- tice BN Srikrishna who headed the committee that drafted it. Parts of the Bill which exempt government agencies from some or all provisions are “dangerous” and can turn India into an “Orwellian State”, he said. “They have removed the safeguards. That is most dangerous. The government can at any time access private data or government agency data on grounds of sovereignty or public order. This has dangerous implications,” Justice Srikrishna reportedly said. But it is necessary to examine the draft Bill, recog- nising the presence of mul- tiple stakeholders such as the individual, corporates, the government and law enforcement, all of whom have different perceptions of how the data protection legislation should be conceived. In the past, there have been several failed attempts to pass a similar law and each time, the conflict between privacy rights and national security has caused the proposals to be aborted. Addition- ally, in recent days, the industry has de- veloped huge stakes in processing data and harnessing value from it. Privacy legislation presents a huge hurdle to such business interests. If the legislation ignores the needs of An Orwellian State? ThereareconcernsthattheBillisdangerousasitwillgive thegovernmentaccesstocitizens’data.Butisprivacyas importantasprotectinganation’ssecurity? P
| INDIA LEGAL | December 30, 2019 31 all stakeholders and takes into consideration only the views of “privacy activists”, the country may not become an “Orwellian State” but is sure to become a “chaotic state” where terrorism will race ahead and business development may significantly suffer. B ut is the government becoming a Big Brother? According to Sec- tion 35 of the draft PDPB-2019, the central government has retained some powers to exempt itself from all or any of the provisions of this Act. Section 35 deals with the “Power of Central Gov- ernment to exempt any agency of Gov- ernment from application of Act”. It says: “Where the Central Government is satisfied that it is necessary or expedient,— (i) in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order; or (ii) for preventing incitement to the commission of any cognizable offence relating to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, “It may, by order, for reasons to be recorded in writing, direct that all or any of the provisions of this Act shall not apply to any agency of the Govern- ment in respect of processing of such personal data, as may be specified in the order subject to such procedure, safeguards and oversight mechanism to be followed by the agency, as may be prescribed.” It is this provision which is being criticised. It may, however, be observed that the Section is drafted clearly to indicate that it is only when the government is satisfied that “it is necessary or expedient” in the “interest of sovereignty and integrity of India, security of the state and friendly relations with foreign states, public order or preventing incitement to the commission of any cognizable offence” that this provision can be invoked. Even in such a case, there has Therehasbeenample criticismoftheBill,even fromJusticeBN Srikrishna,whoheaded thecommitteethat draftedit.He,reportedly, saidthatsafeguardshad beenremovedwhichwas mostdangerous. Anthony Lawrence
32 December 30, 2019 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com to be a direction in writing to a specific agency and this would always be available for judicial review. The reasons under which the provision can be invoked omits “decency or morality or in relation to contempt of court, defamation” which are other reasons provided under Article 19(2) of the Constitution as reasons for which Fun- damental Rights can be overridden. The government has, therefore, been res- trained in adding this contingent provision and it must be treated as an “enab- ling provision” which has to be present in the law if the government has to per- form its duty to protect citizens. A ll privacy and data protection professionals who hail anything foreign may note that even EU General Data Protection Regulation under Article 23 provides similar exemp- tions. What PDPB-2019 contains is, therefore, reasonable and in tune with the government’s own obligations to society. We should stop nitpicking about whether the safeguards on paper are adequate or not. Details about how this power may be exercised would be in the rules to be notified later and we need to wait for it. Another area of criticism is the Data Protection Authority (DPA) and whether it would consist of people who are independent and represent the stakeholders. According to Section 42 of the proposed Act: “The Chairperson and the Members of the Authority shall be persons of ability, integrity and standing, and shall have qualification and specia- lised knowledge and experience of, and not less than ten years in the field of data protection, information technology, data management, data science, data security, cyber and internet laws, public administration, national security or related subjects.” The earlier draft had suggested the chief justice of India in the selection panel. This was omitted, giving rise to concerns that the choice of chairman and members could be motivated by the government’s concerns or by the industry lobby. The earlier draft had also suggested maintenance of a “list of five experts”. It is not clear if this was sup- posed to be an advisory group to guide the DPA and has been omitted. Industry people know that there is no government secretary who has 10 years’ experience in the field of data protection and is of less than 65 years of age to qualify to be appointed to the DPA. Even in the private sector, there are not many people with such experience who would take up the assignment. So there is a difficulty in the constitution of the DPA. It is hoped that the government will not look to bring foreigners and NRIs who may have the necessary experience but no commitment to the data sovereignty of India. We can keep our fingers crossed that the right people will be found at the right time for this onerous but responsible position. The draft also has some positive fea- tures which need to be recognised and hailed. One is Section 40 which suggests the creation of a “sandbox” so that start- ups can benefit by a limited time ex- emption from the obligations under the Act while they test innovative technolo- gies. Another provision is Section 37 which recognises the need to exempt BPOs in India who only process personal data of foreign citizens on the basis of a contract with a foreign data controller and provide for a suitable notification as may be required. This was necessary for companies maintaining off-shore data processing facilities who needed to com- ply with data protection laws of the respective countries and would have considered the overlapping of PDPA jurisdiction difficult to manage. Further, retaining the innovative def- inition of the role of the “person who de- termines the means and purpose of personal data” as the “data fiduciary” and the subject as “data principal”, the credit goes to Justice Srikrishna. Additionally, thinking of a role for “consent manager” could be another innovation which the industry will welcome. To take a balanced view, the Bill has tried to improve upon the earlier version and while fears and concerns are inevi- table, they are not completely valid. Column/ Personal Data Protection Bill, 2019/ Na Vijayashankar DataProtectionAuthorityandwhetherit wouldhavepeoplewhoareindependent andrepresentthestakeholdersisanarea ofconcern.Onehopesthegovernment willnotbringforeignersandNRIs. CONTENTIOUS LEGISLATION Union minister Ravi Shankar Prasad defending the Bill in Parliament this month
H istorian Ramachandra Guha is a prolific writer on contempo- rary issues and his columns in various publications are eagerly read. One of them is his weekly column in Hindustan Times which caused some heartburn on the part of the writer. Published on December 14, it was titled “From Indo-Pak to Chindia and back to Indo-Pak”. In it Guha said that recent moves by the government had brought about a rapid fall in In- dia’s standing in the world. Guha, however, tweeted that some lines from his original article had been edited out—where he had named some TV channels for pre- senting a narrow-minded view of India to the world. He declared that he would stop writing the column un- less the names of the channels were restored in the web version. The newspaper promptly did so, so we shall, thankfully, continue to read his erudite columns. H is brilliant and evocative pho- tographs have put India on the global map and Raghu Rai has done it again, becoming the first living photographer, not just the first Indian, to win the prestigious Académie des beaux-arts Photo- graphy Award (William Klein). Last week, a group of his friends, along with wife Meeta, hosted a party in Delhi. Moving tributes were paid by co-hosts artist Jatin Das and film producer Su- resh Jindal while the select gathering of friends, family and former colleagues raised a toast to his bringing further laurels for India. As he said in his speech: “I got a call from Paris and they told me that I was one of 16 photographers from all over the world who had been shortlisted by a distinguished jury. In a few hours, I got a call stating that I had won it. It’s a great thing because I just work here in India, I don’t go anywhere, my travel is related to my work and that is all I have done over 50 years.” A ccording to the Committee to Protect Journalists (CPJ), an international press advocacy group, China is the worst country to work in as a journalist, with 48 reporters imprisoned as authorities tighten their grip on news outlets. Turkey, which topped the list in 2018, was second this year as President Erdoğan has closed down more than 100 news outlets. Other countries that cracked down heavily on journalists this year include Saudi Arabia, which had been globally criticised for the murder of Washington Post columnist Jamal Khashoggi in 2018. Egypt put 26 journalists in jail for their reporting this year, while Eritrea and Vietnam also figured in the list for jailing local reporters. Iran always figures, and in 2019, economic journalist Mohammad Mossaed (top) was arrested after tweeting during an internet blackout. The CPJ under- takes an annual survey of imprisoned journalists around the world. Worst of 2019 | INDIA LEGAL | December 30, 2019 33 Media Watch Missing Link Moment of Pride Facebook
Spotlight/ Anglo-Indian Quota 34 December 30, 2019 HE cabinet’s decision to scrap the constitutional provisions that guarantee reservation of two seats for the Anglo-Indian community in the Lok Sabha while extending it for Scheduled Castes (SCs) and Scheduled Tribes (STs) by 10 years has troubled this community. Reservation for SCs, STs and Anglo- Indians in the House and state legislative assemblies was to expire on January 25, 2020. As per the Constitution, 84 seats are reserved for SCs and 47 for STs out of 543 seats in the Lok Sabha. Addi- tionally, the president nominates two members from the Anglo-Indian community, making it a House of 545 members. As per Article 331 of the Constitu- tion, the president may nominate not more than two members of the community to the House of the People (Lok Sabha) if he is of the opinion that the Anglo-Indian community is not ade- quately represented. During its first tenure, the NDA government had nominated two Anglo-In- dians to the Lok Sabha. But in its second term, it has not done so. In addition, a panel comprising Defence Mi- nister Rajnath Singh, Home Minister Amit Shah and Social Justice Minister Thawar Chand Gehlot came out with the curious finding that the Anglo-In- dian community was doing well and did not need reservation. It proposed that reservation could be reconsidered later, if need be. Its report also suggested that reservation for the community in state assemblies, guaranteed under Article 334, could also be withdrawn. Ernakulam MP Hibi Eden told India Legal that the introduction of the Bill as the 120th amendment to the Constitu- tion was a calculated move on the part of the centre. He said that while reservation for SCs and STs was extended, the government knew that scrapping the quota for Anglo-Indians would go unno- ticed as both issues were brought in as a single Bill. The community now plans to ask the centre to revisit its decision. The legislation withdrawing the quota will have to be ratified by 50 percent of state assemblies before the president gives his assent. The community feels that the Bill will get this approval as a majority of states are BJP-ruled ones. An Unjust Act? Thecentre’smovetoscrapreservationintheLokSabhaandassemblieshasledto uneaseandhurtamongacommunitythathascontributedtoIndia’sdevelopment By NV Ravindranathan Nair in Thiruvananthapuram PAST PERFECT (L-R) BJP leader SN Singh and Anglo-Indian MPs Richard Hay and George Baker meeting BJP President Amit Shah in 2015 T UNI
| INDIA LEGAL | December 30, 2019 35 What has also agitated the Anglo- Indian community is a statement by Union Law Minister Ravi Shankar Pra- sad who pegged their population at just 296 as per the 2011 census. In 2014, Rajya Sabha MP Derek O’Brien, an Anglo-Indian, had asked the government to enumerate the community under a separate head and not under the Christian category. He had said that there were around five lakh Anglo-In- dians across the globe and two lakh of them live in India. Eden said: “The centre’s claim that there are only 296 Anglo-Indians in the country is absurd. In my constituency alone, there are over 20,000 of them. In 2013, during the tenure of the UPA government, I was part of a fact-finding team and had visited five Indian cities to understand the living conditions of the Anglo-Indian community. It was found that more than 50 percent were back- ward in the education, economic and social sectors.” While the government had cited the 2011 census report to show the reduced number of Anglo-Indians, Eden said that the same census had stated that there were only 1,118 Roman Catholics, whereas the actual number was over 40 lakh. “The reason behind such mis- match is that there is no caste-based census in the country. The 2011 census stated that there were 4,000 Buddhists. This is a fact as the census contains religion-based statistics,” he said. I gnatius Gonsalves, a senior journalist from the Anglo-Indian community in Kochi, said it was sad that the centre had ignored the contributions of the community to India when it decided to scrap the quota in Parliament and assemblies. “We are Indians by choice and not by birth. The government should have understood this fact. If we had been politically empowered, we would have representatives in legis- latures and Parliament through elections. Can you find at least one MLA or MP? Derek O’Brien’s case is different. His election to the Rajya Sabha was due to Mamata Banerjee, West Bengal chief minister and TMC chief,” he said. Being a sports journalist, Gonsalves remembers that it was an Anglo-Indian who won the first Olympic medal for India. “In the Summer Olympics in 1900, Norman Pritchard won silver medals in the 200 metres and 200 metres hurdles. These remain the only athletics medals for India at the Olympics. Thou- gh he was Indian, British authorities claimed that since India was under their regime, these medals belonged to them,” he said. Gonsalves also referred to the valour and patriotism of Indian Army officers who were Anglo-Indian and had played pioneering roles in wars. Many of them had even won Vir Chakras. Cletus Hickman, vice-president of the Thangassery chapter of the All-India Anglo-Indian Association, said the community was part of Indian culture and it was unfortunate that the government forgot the part played by it in the development of the country. He too dismissed the government’s stand that there were only 296 Anglo-Indians in the country and said that in Thangassery alone (Ko- llam district of Kerala), there were some 80 families. The Association has bran- ches at Kochi, Kozhikode, Kannur and Thalassery in Kerala alone. He said that, contrary to the claim of the government that this community was well-off, almost half were marginalised with no sound financial background, job or education. “Many of our people have migra- ted to other countries. But we are still patriotic people. We value our Indian- ness and have merged with its cultural legacy. It is sad that the government is not taking note of this,” he said. Charles Dias, a former Anglo-Indian MP from Kochi, told India legal that the Federation of Anglo-Indian Associations in India, headquartered in Bengaluru, had estimated that there were 3.47 lakh people belonging to the community under 14 state chapters in the country. He said that in Faridabad alone, there were 47 families living in a cluster. He said a report in 2013 had said that a majority of the Anglo-Indian community was living in rented houses without proper means of livelihood. “In Kochi, a size- able portion of the community ekes out a living by working as plumbers, electri- cians and such like. It is an injustice to treat the community as a whole as an empowered well-to-do group,” he said. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com “Thecentre’sclaimthatthereareonly 296Anglo-Indiansinthecountryis absurd.Inmyconstituencyalone,there areover20,000ofthem.” —ErnakulamMPHibiEden “Sir,youcantakeaway13Assembly seats.YoucantakeawaytwoMPseats. Lelo (Takeitaway).Butyoucannever takeawayIndianfromtheAnglo-Indian.” —DerekO’BrieninhisRajyaSabhaspeech
Spotlight/ Bureaucracy/ Deputation of Officers 36 December 30, 2019 N the run-up to the Lok Sabha elections five years ago, Prime Min- ister Narendra Modi proclaimed “Minimum Government and Maxi- mum Governance” as his motto in 2014. It’s a different matter that in his first five years, he has not lived up to that promise. The All India Services (AIS), which is the bulwark of governance, appear to be his favourite target. First, it was the Indian Administrative Service (IAS) and now it is the Indian Police Service (IPS). The latter is being targeted through a drastic decrease in the quota of central deputation of IPS officers. IPS is an AIS, common to the Union and the states, constituted under Article 312 of the Constitution of India. IPS officers provide senior-level leadership to police forces/departments, both in the states and at the centre. The Union Ministry of Home Affairs (MHA) is responsible for cadre management of IPS and policy decisions, such as cadre structure, recruitment, training, allocation, confirmation, empanelment, deputation, pay and allowances and discipli- nary matters. The IPS is organised in 26 state cadres, reviewed after every five years. As on January 1, 2019, the authorised strength of the IPS cadre stood at 4,982 with 1,075 of these eligible for central deputation. As per the extant government policy, certain number of posts in different police and other organisations/departments of the central government in the rank of Superintendent of Police (SP) and above are filled by drawing IPS officers from various state cadres. The car- dinal principle is that IPS officers who are so borrowed will serve the Central Police Organisations (CPOs) and other Melting The Steel Frame AftertinkeringwiththeIAS,theModigovernmentis eyeingtheIPSwithplanstodrasticallyreducethe centralquotabyover50percent,amovethatcouldlead toseriousstagnationintheranks By MG Devasahayam I GIVEN A RAW DEAL (Above) PM Modi interacting with IPS probationers in New Delhi; senior CRPF officials with Army officers at a press conference. IPS officers on central deputation are generally deployed in the Central Armed Police Forces UNI
| INDIA LEGAL | December 30, 2019 37 organisations/departments of the central government for a stipulated tenure on deputation and thereafter return to their parent cadres. The two-way movement of officers from the state to the centre and back is of mutual benefit to the states and the centre on the one hand and to the officers concerned on the other. The IPS (cadre) Rules, 1954, provide for deputation of IPS officers under the central government or another state government or autonomous body wholly or substantially owned or controlled by these governments or an international organisation. Every state cadre of the service provides for a central deputation quota which, in turn, requires additional recruitment to be made to the service to supply trained and experienced members to serve in these posts. Accordingly, utilisation of the central deputation quota of different state cadres is an important factor governing the scale on which officers are borrowed from the various state cadres of the service. These well-established procedures would soon be turned topsy-turvy if a letter from the MHA to the chief secretaries of all states is any indication. Da- ted November 26, 2019, the MHA letter has unravelled a proposal to reduce the existing central deputation reserve quota from 40 percent of Senior Duty Posts i.e. 1,075 posts to about 500. This is what the MHA letter has to say: “It has been noted that most of the state governments are not sparing their IPS officers to serve on central deputation. On going through the data of officers on central deputation throughout the country, it is observed that at present only 428 IPS officers are working in these posts against the authorised strength of 1,075 i.e. 39.81 percent of reserve posts. Resultantly, a large number of the posts remain unutilised.” Comments from all state governments and Union Territories on the proposal were sought by December 15. Recent data released by MHA shows that there is just one officer each available for central deputation in the ranks of SP and Deputy Inspector General (DIG), as against 144 sanctioned posts and 75 vacancies at the DIG level, and 29 posts and 17 vacancies at the SP level. At the senior levels of Inspector General (IG), Additional Director Gen- eral (ADG), Special Director General (SDG) and Director General (DG), there are fewer vacancies. Against the sanctioned strength of 78, there are nine IG vacancies, while in the ADG, SDG and DG ranks, there is just one vacancy each, which is often a result of routine retirements. The IG level has just two officers on the offer list, but the number of officers at the other senior levels is in reasonable proportion to the vacancies—at the ADG and DG levels, there are seven and five officers available, respectively, on the offer list. T he move to drastically reduce the central deputation quota by over 50 percent, if implemented, could have far-reaching consequences for the IPS, leading to serious stagnation in the ranks. This also goes against the all-India character of the IPS and pooling of diverse experiences of working in various state/central agencies apart from serving in districts and divi- sions of their cadre states. This move also smacks of the Modi government’s attitude of indulging in “surgical strike” instead of diagnosing and understanding an issue and resolving it. According to IPS sources, if a diag- nostic study is done it would be revealed that the present crisis is largely due to the erratic recruitment policy followed by the earlier BJP-led government headed by Atal Bihari Vajpayee. The shortage at Thepresentsituationhasbeenbrought aboutbytwofactors.One,thedraband unattractivenatureofmostcentral deputationposts.Two,thetop-heavy structureofthestatepoliceforce. PIB
Spotlight/ Bureaucracy/ Deputation of Officers 38 December 30, 2019 the middle levels is because between 1998 and 2006, recruitment to this service dropped to just 30-35 officers each year in place of 80 earlier. This led to a situation where there were too few officers at executive level and so states were not sparing them for the centre. This was corrected later and over 100 officers have been recruited for some recent batches. Now, when they get promoted, the shortfall will be overcome. This could happen in the next few years. But if this hasty step of slashing the central deputation quota is carried out, there will be stagnation for these officers as they won’t have enough avenues for promotion. It is not just central deputation. At the state level also, it is said that there is a huge shortage of police officers. In such a situation, states are not relieving them to go on deputation. H owever, this is only part of the story. In actual fact, the present situation has been brought about by two factors. One, the drab and unattractive nature of most central deputation posts. Two, the top-heavy structure of the state police force wherein IPS officers can get promotions and postings for the asking—DG, ADG, IG, DIG et al, which leaves little incentive to move away to distant places on central deputation. IPS officers on central deputation are generally deployed in the Central Armed Police Forces (CAPFs) like the Indo-Tibetan Border Police, Border Security Force, Central Reserve Police Force, Central Industrial Security Force, etc., and in CPOs like the Central Bureau of Investigation, National Investigation Agency and Intelligence Bureau, among others. There are 14 CPOs and CAPFs in India, but no more than 16 IPS officers are available on the “offer list” for central deputation at present, which is an all-time low. This may perhaps be due to the pitched bat- tle going on between the CAPF cadre and IPS over the deputation of the latter as senior officers in the paramilitary forces. Recently, officers of the ITBP, BSF, CRPF and CISF obtained a stay from the Delhi High Court on central deputation of IPS officers in these forces below the rank of IG. On the other hand, in the states, the IPS has no such rivalry and there are several posts with perks and privileges no one would like to forgo. As far as the top-heavy nature of the IPS is concerned, Haryana is an example which, with minor variations, is applicable to all states. When the state was formed in November 1966, it had one IG, two Range DIGs and six district SPs with a few more in the supporting staff. Now it is: DGP–2, ADGP–6, IG–14, DIG–13 and SP–40. And there are 50 senior posts under central deputation, state deputation and training reserves. There is another major reason why there is hesitation amongst IPS officers to go on central deputation—the huge difference in the rules for the promotion of IPS officers at the state and central levels. While the states promote officers quickly, the centre takes much longer. This basically means that for an officer to want to come to the centre, it should be at a lower rank, which is an in-built disincentive. This phenomenon is vali- dated by the fact that while at the state level IPS officers from the 1994 batch have become ADGPs, at the central level the last batch to be empanelled at this level is that of 1989! This deprivation in central deputation is not confined to the IPS only. It deeply afflicts the IAS also. According to the latest data of the Union Ministry of Personnel, only 153 IAS officers were appointed on central deputation under the central staffing scheme in 2018-19, the lowest in the last five years. Instead of sorting out this severe malady with better cadre management and positive dialogue with states, the Modi government is bent on dismem- bering the AIS (IAS and IPS) by out- sourcing and privatising governance. This could prove to be the death-knell of India’s federal polity and structure. —The writer is a former Army and IAS officer Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com AccordingtoIPSsources,ifadiagnostic studyisdoneitwouldrevealthatthe presentcrisisislargelyduetotheerratic recruitmentpolicyfollowedbytheBJP- ledgovernmentheadedbyABVajpayee.

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