CONSTITUTIONAL MORALITY How the Supreme Court check-mated the brazen display of naked political muscle power in Maharashtra by standing up for the rule of law

1. NDIA EGALL STORIES THAT COUNT
I
December9, 2019
Code of Ethics
by Kalyani Shankar
NRC: A
dangerous path
CONSTITUTIONAL
MORALITYHowtheSupremeCourtcheck-matedthebrazendisplayofnakedpoliticalmuscle
powerinMaharashtrabystandingupfortheruleoflaw
Justice N V RamanaJustice Ashok Bhushan Justice Sanjiv Khanna

4. HE fiasco in Maharashtra—not the for-
mation of the rainbow coalition but the
official skulduggery that preceded it in-
volving just about every centre of power
from the president downwards—shows
how vulnerable this nation is to the manipulation
of political freebooters. All the internal checks and
balances which are designed to rein in an execu-
tive branch of government running amok, as in
the power grab during the night of the long knives
which anointed Devendra Fadnavis as the (as it
transpired, finally) fly-by-night chief minister,
appeared to have imploded.
As our cover story shows, if the night belonged
to wily politicians, the day was won by the Sup-
reme Court with its quiet, dignified, conscientious
and calibrated approach in extricating the Cons-
titution from the clutches of those who appear to
have little or no heed or need for its proscriptions
and prescriptions. There is little doubt that Justice
NV Ramana leading the bench
along with his colleagues Justices
Ashok Bhushan and Sanjiv
Khanna scored a huge goal for
the Republic.
Who ultimately formed the
government is irrelevant here.
How long the new coalition un-
der Uddhav Thackeray will last is
just as irrelevant. What is perti-
nent is that under the system of
separation of powers envisaged
by the founding fathers of mod-
ern India, this imperfect, chaotic
democracy can be nudged into
the direction of greater perfection
whenever it goes off the rails.
And this does not require ex-
traordinary judicial activism or
gratuitous meddling by the judi-
ciary into what should be the
right of the executive in tending
to the daily affairs and administration of the coun-
try. But the executive must perform this onerous
duty while bound strictly by the chains of the
Constitution. In performing the tasks assigned to
it by rules and laws and covenants and directives
and legislative mandates, the executive is unfet-
tered, as it should be. But when it usurps or un-
dermines principles of natural justice, established
conventions and, indeed, the rule of law, it is
shackled, as it should be. And that is what Justice
Ramana meant by “Constitutional Morality”, a
phrase he used when delivering the directive to
hold a floor test to determine the majority on the
floor of the House within 24 hours.
If the executive branch had been burning the
midnight oil hatching conspiracies to steal power
with the aid of a politically obsequious official, the
judiciary, sensing that a balance of power issue
was at stake, also kept its midnight candles burn-
ing to ensure that basic democratic tenets would
A BANG, BANG,
BANG, DECISION
Inderjit Badhwar
T
Letter from the Editor
4 December 9, 2019
Whentheexecutiveusurpsorunderminesnaturaljustice,settled
conventionsandtheruleoflaw,itisshackled,asitshouldbe.Andthatis
whatJusticeNVRamanameantby“ConstitutionalMorality”,aphrasehe
usedwhileaskingforafloortestwithin24hoursinMaharashtra.

5. not be sacrificed at the altar of the doctrine of Might
is Right.
And all that the Court had to do in order to en-
sure that Right prevails over Might was to pull out
some recent examples of similar gamesmanship by
political bosses and use the litmus test of well-estab-
lished law. The SR Bommai case, which has been
repeatedly cited as the Court-laid gold standard for
determining majorities through a floor test, once
again became a beacon for a no-nonsense decision
in this case as well. No ifs and buts. No hemming
and hawing. It was a bang, bang, bang decision.
And it gavelled the executive branch to bow before
the majesty of the Constitution. The order also sig-
nalled that even when faced by the power of a brute
majority in Parliament, the Constitution, when
repeatedly invoked, applied and enforced without
fear or favour is a judge’s most powerful armour
against any form of retaliation by those who may
not agree with the principles of “morality” embed-
ded in that magnificent document.
I
n the aftermath of this decision, and after Thac-
keray was sworn in as chief minister at a public
gathering in Mumbai’s Shivaji Park, the Sup-
reme Court dismissed a petition seeking that the
post-poll alliance of the Shiv Sena, the NCP and the
Congress in Maharashtra be declared unconstitu-
tional and null and void. In this related case, the
bench clearly enunciated the delineation of its right
and duty to enforce the law of the land when it is
being violated by those sworn to uphold it, the right
of the political process to find its own level and
elected representatives to perform their duties with-
out judicial interference.
Justices NV Ramana, Ashok Bhushan and Sanjiv
Khanna noted that in a democratic set-up, political
parties enjoyed the right to ally with anyone of their
choice. “It is for the people to judge,” the bench said
while dismissing a petition filed by Pramod Pandit
Joshi of the Akhil Bharat Hindu Mahasabha.
The petitioner argued that voters did not expect
this post-poll alliance as in the run-up to the polls
and during the campaign the parties were part of a
different alliance. The Shiv Sena was in alliance
with the BJP with which it fell out after the results
were declared and they could not come to an agree-
ment on the terms and conditions of the new gov-
ernment formation. After weeks of uncertainty, the
Shiv Sena finally tied up with the Congress and the
NCP, the very parties against which it had cam-
paigned in the elections.
Justice Ramana pointed out: “Constitutional
morality is different from political morality. In
democracy we can’t curtail parties to form alliances.”
And nor can the Court enforce election manifestos.
Justice Bhushan inquired: “Why should Court
interfere into pre-poll and post-poll alliance?” to
which Advocate Barun Kumar Sinha submitted that
there is violation of Art 19(1)(a). Justice Ramana
posed a question to the counsel: “How can this issue
be subjected to judicial review?”
Sinha thus quoted the PUCL judgement of the
apex court, dated March 13, 2003, wherein it was
held that the availability of basic information about
the candidates enables voters to make an informed
decision and also paves the way for public debates
on the merits and demerits of candidates. It was
thus held in that case voters have a right under Ar-
ticle 19(1)(a) of the Indian Constitution to obtain
information about political candidates.
Sinha further argued that a post-poll alliance is
not only unfair to the voter but also against the
basic structure of the election process. People voted
with the BJP-Shiv Sena’s NDA alliance in mind
which has been violated by the new Maha Vikas
Aghadi alliance.
In dismissing the petition, Justice Ramana said:
“Don’t expect the Court to go into areas where it has
no jurisdiction. It’s for public to decide and not for
the Courts.”
This will certainly go down as one of the most
memorable weeks in the Court’s history.
| INDIA LEGAL | December 9, 2019 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
RULE OF LAW
Justice NV
Ramana along
with Justices
Ashok Bhushan
(above left) and
Sanjiv Khanna
also dismissed a
petition against the
post-poll alliance
of the Shiv Sena,
the NCP and the
Congress in
Maharashtra

6. ContentsVOLUME XIII ISSUE4
DECEMBER9,2019
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Senior Content Writer Punit Mishra
(Web)
6 December 9, 2019
The SC is looking into the need for a conduct code for politicians. But is it needed when there
are several checks and balances to ensure that they behave with the highest ethical standards?
Let’s be Civil
Mayank Pratap Singh made history by cracking the Rajasthan Judicial Services at 21
years—the youngest to do so in the country
Age no Bar
LEGALEYE
SUPREMECOURT
Pulling up the Kerala government for not framing a law exclusively for the management of the
Sabarimala Temple, the SC said legislation should be in place by the third week of January
A Rap on the Knuckles
Startling developments in Maharashtra, where democratic norms were thrown to the winds,
have brought into focus the sterling role of the Supreme Court as the sentinel of the
Constitution and the questionable conduct of the governor
Pushback for Democracy 12
16
19
20
LEAD

7. Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
| INDIA LEGAL | December 9, 2019 7
REGULARS
Ringside............................8
Courts ...............................9
Is That Legal...................10
International Briefs..........34
Media Watch ..................50
Stifling Draft?
In a move that has alarmed civil rights
activists, the Rajasthan government
plans to bring in a law on the lines of
MCOCA. It defines terrorism broadly
and has no provision for bail
48
Not by
Force Alone
The Yogi Adityanath government is
studying a report by the UP State Law
Commission that recommends laws
to check forced religious conversion
in the state
46
Treading a
Dangerous
Path
The move to
repeat the NRC
exercise in Assam
has opened a can
of worms and
could lead to
further communal
and social tension
A thriving free market economy needs strong and independent
judicial institutions and a legal framework which can enforce
contracts and safeguard rights. This is missing in our country
India Needs Umpires 22
The non-inclusion of
Ladakh in the Sixth
Schedule of the
Constitution has led to
unrest in some quarters
about the status of the
region. As of now, there
are indications that it
could be declared a
tribal area
Tibetisation
of Ladakh? 26
STATES
With the MP assembly Speaker disqualifying a convicted BJP MLA
as per a Supreme Court ruling, the party’s strength has decreased,
leading to a constitutional impasse
Unseemly Slugfest 36
FOCUS
The proposed changes in the Amendments to IT Rules, 2011 will
make it contingent upon social media giants to remove malicious
content within 72 hours of a request from the government
Fall in Line 30
GLOBALTRENDS
The International Court of Justice’s nod to start a probe into the
persecution of the Rohingyas in Myanmar is a rare case of one
country suing another over an issue to which it is not a party
Hope at Last 32
Gujarat is known for its political scams. The latest politician to hit the
headlines is Babubhai Bokhiria, a BJP legislator allegedly involved in the
illegal transfer of forest land
Scam after Scam 38
MYSPACE
The Chief Justice of India SA Bobde’s proposal for introduction of
an artificial intelligence aid in the administration of the justice
delivery system holds tremendous significance
Artificial Intelligence and
the Justice System 29
Ever since prohibition was imposed in Bihar in 2016, courts have been
swamped with cases of violations of the Bihar Excise Act and arrests are the
order of the day
A State Under Siege 40
44
The first picture used in the
story “Criminal Proceedings”
(Nov 25, 2019 issue) was
taken from social media and
does not belong to RK Misra.
The error is regretted.
Corrigendum

8. 8 December 9, 2019
Anthony Lawrence
RINGSIDE
History
repeats itself,
first as
tragedy,
then as farce
—Karl Marx
Abu Abraham on Emergency declaration

9. In a stinging indictment on the severe pollu-
tion in Delhi, the Supreme Court lashed out
at the centre and various state governments
concerned for indulging in a blame game ov-
er the issue when living conditions in Delhi,
according to it, were “worse than hell”.
“Delhi has become worse than hell. Life
is not so cheap in India and you will have to
pay. How much do you value a person’s
life?” the top court asked the Delhi govern-
ment, saying that it has “no right to be in
the chair”.
A two-member bench of Justices Arun
Mishra and Deepak Gupta compared living in
Delhi to being confined in a gas chamber.
“Why are people being forced to live in gas
chambers? It is better to kill them all in one
go, get explosives in 15 bags at one go,”
Justice Mishra said.
The Court also issued notices to all the
states concerned to provide details of air
quality levels as well as measures being
taken to tackle the dispersal of pollutants. It
wanted to know from the governments of
Delhi, Haryana and Uttar Pradesh why they
should not be made liable to compensate
people for being forced to drink non-potable
water and breathe impure air.
Courts
| INDIA LEGAL | December 9, 2019 9
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
—Compiled by India Legal team
File FIRs in simple
language: Delhi HC
The Delhi High Court reiterated
the need to ensure that FIRs are
filed in simple language, avoiding
the use of difficult Urdu and Persian
words, so that the person filing the
FIR also understands it. It observed
that Urdu/Persian words were being
used “mechanically” by the police
with no idea of what they actually
meant. The Court noted that the
common man may not be able to
comprehend such words and this
was critical, considering that the FIR
was the “most vital document”
made by the police which kicks off
the criminal justice process.
The Court asked the Delhi Police
to submit at least 100 FIRs from
various police stations in the capital
at the next hearing to ascertain if its
earlier order in August on keeping
FIRs simple was being followed. A
circular had already been issued by
the DCP (legal cell) after the order,
instructing all police officers to
abstain from using Urdu/Persian
words which were “archaic”.
The directions of the Court came
in response to a PIL which objected
to the use of Urdu/Persian words in
FIRs on the grounds that it causes
problems for everyone.
The Bar Council of India (BCI) has said that
it is seriously considering introducing
some reformative measures aimed at impro-
ving the legal profession as well as legal
education. In a statement, it said that it was
likely to introduce a mandatory experience
clause for every new entrant to the Bar be-
fore joining the High Court and the Supreme
Court. Before joining any High Court bar, a
newly-enrolled advocate will have to practise
in district/taluka court, at least for a period of
two years, it said. Similarly, the BCI is pro-
posing introducing a rule for joining the
Supreme Court bar and practise in the
Supreme Court. A minimum of two years’
experience of practice at any High Court will
be mandatory for practising in the Supreme
Court. The BCI wants to make these rules
effective from March 2020.
BCI for experience clause to practise in HCs, SC
Why force people to live in gas
chambers, thunders SC
UNI

10. ISTHAT
How many times can the
parliament sit in a year?
The parliament sits thrice in a
year—Budget Session (Feb-
ruary to May), Monsoon Se-
ssion (July to September)
and Winter Session (Nov-
ember to December). The
period during which the
House meets to transact its
business is called a session.
The Constitution of India
requires the parliament to sit
for a minimum of two ses-
sions each year.
Article 85(1) of the
Constitution says: “The
President shall from time to
time summon each House of
Parliament to meet at such
time and place as he thinks
fit, but six months shall not
intervene between its last sit-
ting in one session and the
date appointed for its first
sitting in the next session.”
— Compiled by Ishita Purkaystha
Sessions of Parliament
Can there be a “conflict of interest”
issue between a lawyer and his client?
An advocate is ethically bound to
inform the client about factors that
might be detrimental to the client’s
interest. According to the Bar Council
of India rules, “an Advocate shall at
the commencement of his engage-
ment and during the continuance
thereof, make all such full and frank
disclosures to his client relating to his
connection with the parties and any
interest in or about the controversy as
are likely to affect his client’s judgment
in either engaging him or continuing
the engagement.”
?
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
What is a hung assembly?
How is a government
formed in case of a hung
assembly?
If no single party or pre-poll
alliance gets a clear
majority in any state elec-
tion, it is called a hung
assembly. This may lead to
the formation of a coalition
government in which par-
ties enter into post-poll
alliances. It may even lead
to formation of a govern-
ment with outside support
of parties and independent
MLAs.
In case no government
can be formed, then re-el-
ection may take place or
President’s Rule could be
imposed by the state gover-
nor under Article 356 of
the Constitution.
No Clear Majority After Polls
10 December 9, 2019
Why is the Supreme Court
located in New Delhi?
Article 130 of the Constitution
reads: “The Supreme Court
shall sit in Delhi or in such
other place or places, as the
Chief Justice of India may, with
the approval of the President,
from time to time, appoint.”
The law thus provides scope
for setting up the Supreme
Court in multiple places, sub-
ject to the concurrence of the
Chief Justice of India and the
President. Vice-President M
Venkaiah Naidu suggested
bifurcation of the Supreme
Court into four regional bench-
es for speedy disposal of
cases. However, the Supreme
Court has maintained that
there is no need for such
benches outside Delhi.
Based Only in
the Capital
About Client-Lawyer
Relationship

12. HE dramatic events in
Maharashtra have finally
ended with the Shiv Sena-
NCP-Congress combine
firmly in the saddle. His-
tory has repeated itself
uncannily. Last year in Karnataka, the
assembly elections saw the BJP with 104
seats fall tantalisingly short of the ma-
jority (113), but emerging as the single
largest party. In Maharashtra recently,
the BJP with 105 seats was not that
close to the majority (145), but still em-
erged as the single largest party. In both
Lead/ Maharashtra Politics
Startlingdevelopments,wheredemocraticnormswere
throwntothewinds,havebroughtintofocusthesterling
roleoftheapexcourtasthesentineloftheConstitutionand
thequestionableoneofthegovernor
By Vivek K Agnihotri
Pushback for
12 December 9, 2019
T
GETTING HIS DUE Shiv Sena President
Uddhav Thackeray greeting
supporters after being sworn in as the CM of
Maharashtra at Shivaji Park in Mumbai
UNI

13. ences in the details in both states. A ma-
jor difference was the number of MLAs
ostensibly attempting to desert the
party/coalition. While in Karnataka, it
was less than a score, in Maharashtra, a
whole party was endeavoured to be
hijacked. The question being asked was
that with two leaders (Ajit Pawar and
Jayant Patil), whose whip would NCP
MLAs be obliged to follow while voting
during the floor test. A whip is a matter
of internal discipline of political parties
and comes into the picture in the
application of the anti-defection law
(the Tenth Schedule). It is not part of
the rules of procedure and conduct of
business in legislative bodies and has
no relevance as far as the floor test
is concerned.
B
e that as it may, the Karnataka
precedent made decision-making
for the Supreme Court easy. In
order to curtail unlawful practices, to
avoid uncertainty and ensure the
smooth running of democracy, the Court
passed an interim order directing that
the following procedure be followed for
conducting the floor test:
A Pro-tem Speaker shall be appointed
for administering the oath of office to
the newly elected legislators as well as
for conducting the floor test
All the elected members shall take
oath on November 27 and the exercise
should be completed before 5 pm
Immediately thereafter, the Pro-tem
Speaker shall conduct the floor test in
order to ascertain whether the chief
minister sworn in by the governor has
the majority. These proceedings shall be
conducted in accordance with law
The floor test will not be conducted by
secret ballot and the proceedings will
have to be live telecast.
The interim order of the Supreme
Court was also facilitated by several pre-
vious pronouncements, led by the land-
mark and seminal judgment of the nine-
judge Constitutional Bench in SR
Bommai vs Union of India (1994),
which, among other things, ruled that
the majority of the government can only
be tested on the floor of the House. It
cannot be decided by the governor app-
lying his discretion. The judgment also
gave the governor the power to direct a
government to prove its majority within
a given timeframe in the legislative
Democracy
| INDIA LEGAL | December 9, 2019 13
cases, the Supreme Court ordered a
floor test under the Pro-tem Speaker
within 24 hours, but the concerned chief
minister-designate resigned ahead of it.
The BS Yediyurappa government in
Karnataka lasted two days, while the
Devendra Fadnavis government in
Maharashtra, three days. The tactics of
the BJP failed in Karnataka initially, but
worked in the long run. In Maharashtra,
it may not be that easy because of the
larger gap between the strength of the
party and the crossing line.
Of course, there were some differ-
Fortifiedwithpastjudgmentson
theissue,theSupremeCourtbench
ofJustices(clockwisefromabove
left)NVRamana,AshokBhushan
andSanjivKhannahadnohesitation
inorderingthefloortestin
Maharashtratheverynextday,
immediatelyaftercompletionofthe
swearing-inofthenewlyelected
membersofthelegislative
assemblyonNovember27,2019.

14. assembly. However, it held that the
Speaker enjoyed overwhelming powers
in running the business of the assembly.
The judgment further stated that the
court cannot decide or give direction on
matters of resignation or disqualifica-
tion of MLAs or MPs till the Speaker
has decided the matter. The courts only
have the power of judicial review. This
judgment has stood the test of time.
The Court also referred to several of
its previous pronouncements, beginning
with the case of Shrimanth Balasaheb
Patil v. Hon’ble Speaker, Karnataka
Legislative Assembly and Others of
2019, wherein it had emphasised the
requirement of imbibing constitutional
morality by constitutional functionaries.
Further in Union of India v. Shri Ha-
rish Chandra Singh Rawat, (2016) the
Court had held that being the sentinel of
the Constitution, it is under the obliga-
tion to see that democracy prevails.
A
s far as convening a special ses-
sion to conduct the floor test, the
Court said that nearly two
decades back in Jagdambika Pal v.
Union of India, (1999), it had passed an
order that a special session of the Uttar
Pradesh assembly will be summoned
after two days and the only agenda in it
would be to have a composite floor test
between the contending parties to see
which one of them had a majority in the
House. Similarly, ten years later, in
Union of India v. Sh. Harish Chandra
Singh Rawat (2016), again an interim
order was passed to observe that the
floor test should be conducted during a
special session of the Uttarakhand leg-
islative assembly summoned with the
only agenda to seek a vote of confidence
by the first respondent.
Further, in respect of giving a short
notice to hold the floor test, the Court
referred to Chandrakant Kavlekar v.
Union of India (2017), in which, by an
order on March 14, 2017, the governor of
Goa was requested to ensure that a floor
test be held two days later. Similarly, in
G. Parmeshwara v. Union of India
(2018), identical directions were issued
in respect of the formation of govern-
ment in Karnataka to test whether the
chief minister so appointed enjoyed the
majority support of the House, with the
direction that the floor test be conducted
immediately the next day.
Fortified with these precedents, the
Supreme Court had no hesitation in
ordering the floor test in Maharashtra
the very next day, immediately after
completion of the swearing-in of the
newly elected members of the legislative
assembly on November 27, 2019. This,
however, is the interim order of the
14 December 9, 2019
Lead/ Maharashtra Politics
SAVE THE CONSTITUTION
Congress president Sonia Gandhi reading out
the Preamble on Constitution Day during
Opposition protest outside Parliament
UNI

15. Court, which observed that having
heard the submissions of the counsel on
the issues of maintainability, extent of
judicial review and validity of the gover-
nor’s satisfaction, it was of the opinion
that they can be adjudicated at an
appropriate time. For this purpose, eight
weeks time has been granted to the
counsel for the respondents to file their
respective counter affidavits. A rejoinder
affidavit, if any, has to be filed within
four weeks after that. The matter would
be listed after 12 weeks.
T
hus, the final verdict of the Sup-
reme Court on the earlier mid-
night decision of the governor to
recommend revocation of President’s
Rule to invite Fadnavis to form the gov-
ernment and to administer the oath of
office to him and Ajit Pawar is yet to
come. The governor’s move had come
within hours of the declaration that the
three parties had worked out a common
minimum programme and would stake
a claim to form the government. Demo-
cracy’s dark hour in Karnataka was fol-
lowed by a midnight raid on the Consti-
tution in Maharashtra.
Over the years, whenever there is a
hung assembly, the governor is required
to exercise his discretion. And this has
more often than not, favoured the ruling
party or alliance. Whether in Karnataka
in 2018 or Maharashtra in 2019, the fo-
cus has been on the governor’s role in
terms of inviting a party or alliance to
form the government or providing it
time to prove its majority on the floor of
the House. The governor of Maharash-
tra may not have violated constitutional
provisions, but his move to give the Fad-
navis-Ajit combine two weeks to prove
its majority on the floor of the House
seemed excessive. Moreover, the gover-
nor should have taken more time to ver-
ify Ajit Pawar’s claim of NCP support.
On November 26, 2019, which was
Constitution Day, President Ram Nath
Kovind gave a call in Parliament for ob-
servance of constitutional morality am-
ong all organs of the state and persons
holding constitutional posts. There is a
need, therefore, to define, in clearer
terms, the boundaries of the governor’s
use of discretion in inviting a party or
alliance to form a government.
After all, with great power comes
great responsibility.
—The writer is former
Secretary-General, Rajya Sabha
| INDIA LEGAL | December 9, 2019 15
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
CENTRE’S STOOGE?
Maharashtra Governor Bhagat Singh
Koshyari’s decision to swear in Devendra
Fadnavis (left) and Ajit Pawar (right) seemed
unethical and was challenged in SC
UNI

16. Lead/ Code of Conduct for Politicians
16 December 9, 2019
O central and state minis-
ters need a new code of
conduct and a tighter gag?
This question arose as a
five-judge Constitution
bench of the Supreme
Court headed by Justice Arun Mishra is
looking into this issue. The bench is
examining the need for “greater restric-
tions” on high public functionaries to
protect citizens’ rights.
There are two petitions before the
Court in this regard. In one case, family
members of the victim in the Buland-
shahr rape case (2016) complained
about former Uttar Pradesh minister
Azam Khan’s public statement that the
rape case was part of a political conspir-
acy against the Akhilesh Yadav govern-
ment. The second is a petition by Joseph
Shine, a Malayalee, about alleged dero-
gatory remarks made by Kerala minister
MM Mani against women. The petition-
ers appealed to the apex court to direct
the centre to formulate a tighter code of
conduct for ministers.
Let’s Be Civil
D
UNI
RIGHT OR WRONG
CONDUCT?
AIADMK MPs staging
a protest in front
of Parliament
Theapexcourtislookingintotheneedforaconductcodeforpoliticians.Butisitneededatallwhenthere
areseveralchecksandbalancestoensurethattheybehavewiththehighestethicalstandards?
By Kalyani Shankar

17. | INDIA LEGAL | December 9, 2019 17
ters should declare their assets and lia-
bilities and those of their family mem-
bers to the prime minister (PM) and
sever all connections with their busi-
nesses once they become ministers.
Other points stipulated in the code of
conduct were that no minister should
accept contributions of any kind. Their
spouses should not take a job under for-
eign governments. Accepting valuable
gifts except from close relatives is taboo.
Any gifts they receive from foreign
countries exceeding `5,000 in value
should be sent to the Toshakhana.
While on tours, ministers should
stay as far as possible in government
accommodation. They should avoid
attending lavish parties and indulging in
pomp and pageantry.
The authority for ensuring obser-
vance of the code of conduct lies with
the PM in the case of Union ministers,
the PM and home minister in the case
of chief ministers and chief ministers in
the case of state ministers.
T
hat is not all. According to Article
324 of the Constitution, the Elec-
tion Commission has the power
to monitor the centre, state govern-
ments, all candidates and their respec-
tive political parties. The Model Code of
Conduct (MCC), which is getting refined
by the day, comes into play as soon as
the Commission announces the election
schedule. Even before they contest, can-
didates have to declare their assets and
liabilities to the Commission and their
criminal background, if any.
The Commission has devised many
rules for campaign spending and tim-
ings, graffiti and general conduct.
However, what is lacking is that the
MCC is not enforceable by law, though
certain provisions may be implemented
by invoking corresponding provisions in
other laws such as the Indian Penal
Code and Representation of the People
Act, 1951. The Commission has been
demanding more teeth but the govern-
ment has not undertaken any strong
electoral reforms.
Just like other Parliaments,
Codeofconductforconstitutionalfunc-
tionariesandpeople’srepresentativeshas
beenunderdiscussionforquitesometime.
Thehomeministry,ElectionCommission
andParliamenthaveprescribedcodes.
Arguing against this, Attorney Ge-
neral KK Venugopal contended that the
apex court had taken a consistent stand
against any further restrictions on free
speech of citizens, and public function-
aries were no exception. The Administ-
rative Reforms Commission in its fourth
report had suggested that in addition to
the code of conduct for ministers, there
should also be a code of ethics. How-
ever, the Empowered Committee had
rejected this recommendation saying it
would only be duplication and might
not serve the purpose.
A code of conduct for high constitu-
tional functionaries and people’s repre-
sentatives has been under consideration
for some time. Do we need a stricter
code of conduct for ministers when
many such codes already bind them?
A code for Union ministers was ad-
opted in 1964 and state governments
were advised to also adopt it. The Union
home ministry’s code of conduct, as
amended in 2013, stipulates that minis-
IRRESPONSIBLE ACTION
A petition in the SC objected to SP MP Azam
Khan’s statement after the Bulandshahr gang
rape in 2016; protest after the incident
UNI

18. 18 December 9, 2019
including the UK, US, Canada and even
Pakistan, have a certain code of conduct
with regard to speech and behaviour of
members, the Indian Parliament too has
a permanent standing committee on
ethics in both Houses. The Rajya Sabha
committee was inaugurated by then
chairman KR Narayanan on May 30,
1997, and in the Lok Sabha on May 16,
2000. As ministers are primarily mem-
bers of either House, they are subject to
disciplining by the standing committees.
Besides overseeing the moral and ethical
conduct of the members, the ethics
committee also formulates a code of
conduct for them, which is amended
from time to time. It also examines the
cases referred to it by the House.
However, there are some differences
in the two House committees. While the
Rajya Sabha’s ethics committee acts on
complaints and takes up issues suo
motu, the Lok Sabha’s committee acts
only on complaints made either by the
public or a member of the House. The
Rajya Sabha also has a “Register of
Members’ Interest” where MPs have to
declare their interest in various issues
such as remunerative directorship,
remunerated activity, majority share-
holding, paid consultancy and profes-
sional engagement. The code requires
ministers to relinquish not only their
business activities, if any, but also affilia-
tions to other institutions, including
charitable ones. Apart from the “cash for
query” scam when 10 members who we-
re alleged to have taken money for ask-
ing questions were expelled from the
Lok Sabha in 2005, the House does not
maintain a list of complaints and enqui-
ries. This is a drawback which needs to
be plugged.
The state assemblies have their own
rules regarding declaration of assets and
other issues of financial discipline. Most
states, however, do not monitor the ru-
les of the code of ethics.
S
o when there are so many checks
and balances, why do we need a
new code for ministers, chief min-
isters and the prime minister? Why is
the Constitution bench looking into this
unless it has found some prima facie
evidence? There is no doubt that those
holding public office must submit them-
selves to scrutiny as their decisions and
actions should be shining examples of
probity. Ministers, be it at the centre or
in states, are expected to behave with
the highest ethical standards. They have
a moral responsibility to preserve the
reputation of their office. They should
make decisions purely on merit. There
must be no compromise on integrity and
no room for arrogance.
The petitioners probably want to
check politicians from making mislead-
ing and false accusations about their
opponents. After all, elections in India
are often remembered for heated per-
sonal attacks, negative campaigning and
intemperate speeches. In their attempt
to assert their superiority over their
opponents, leaders of most parties often
go overboard and do not differentiate
between the public and private lives of
their rivals. Therefore, there is need to
ensure civility in political speeches and
expression by having a tighter code
of conduct.
Till the debate for a tighter code of
ethics is decided, it is important that the
dos and don’ts regarding the personal
ethics of central and state ministers are
implemented by the PM and chief min-
isters. If there is any laxity in maintain-
ing a certain code of ethics, it is not
because they are not there. It is because
there is no political will to implement
them. Even if the court directs the gov-
ernment to come up with a stricter code
of ethics, the real test is how far they
will be implemented.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
IN BAD TASTE A petition was filed in the SC against Kerala minister
MM Mani (left) for his anti-women comments; AG KK Venugopal
Lead/ Code of Conduct for Politicians

19. | INDIA LEGAL | December 9, 2019 19
Legal Eye/ India’s Youngest Judge
famous for churning out successful IIT
aspirants. Both his parents are govern-
ment school teachers and his elder sister
is a housewife. There is no one in the fa-
mily who is in the legal profession.
Asked whether this was a tough
choice, Singh said: “In fact, not having a
family member in the legal profession
proved to be an advantage. It was a
Age no Bar
blessing in disguise. I knew I didn’t wa-
nt to be a lawyer as this practice de-
mands a lot of effort in the initial years.
It is easier for those whose parents or
grandparents are lawyers because there
is already an established practice for
them. I knew that initially I would get
small cases only.” This “disadvantage”
worked as a motivating factor. “Clearing
any exam does not mean that you have
to sit for long hours at your study table.
One needs to concentrate and grasp the
content,” he added.
Singh said that one advantage of
doing a five-year law course from Rajas-
than University was that it had made
him more aware of international and
national issues. “Now I can understand
them better than a layman because I
know their legal implications and back-
ground,” he said.
When asked if his first judgment
would also attract the same attention as
he was now enjoying, a confident Singh
said he is aware of this fact but does not
feel daunted by it. He said he was sure
that the training and guidance that his
seniors would give him would equip him
with the knowledge to carry out his
duties responsibly.
When asked if he would like to see a
change in the Indian Penal Code or the
Indian Evidence Act, which were enact-
ed in the 18th century and are continu-
ing in the same form, Singh said that
many people think that Indian law is
stagnant. This is wrong. From time to
time, changes have been made in the
Indian Penal Code by increasing the
punishments for certain crimes. As far
as the Indian Evidence Act is concerned,
tribunals like those for debt recovery
and rent control have been given the
freedom to decide their own procedure,
which is not bound by the Act.
“Nothavingafamilymemberinthelegal
professionprovedtobeanadvantage. It
wasablessingindisguise.Ididn’twantto
bealawyerasthispracticedemandsalot
ofeffortintheinitialyears...”saidSingh.
HE fact that he is going to
be the youngest judge in
India hasn’t sunk in yet for
Mayank Pratap Singh, 21.
Sitting in a modest home
in a middle class neigh-
bourhood here, Singh cracked the
Rajasthan Judicial Services 2018 exam
but hardly looks overawed by his success
and the subsequent media glare.
Talking exclusively to India Legal,
Singh said that although he had taken
the science stream in Class XII, he had
made up his mind that he would not
tread the beaten path and sit for IIT
exams. This, when Kota, in Rajasthan, is
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
PROUD MOMENT
Mayank Pratap Singh with his parents,
who are government school teachers
MayankPratapSinghmadehistorybycrackingtheRajasthanJudicial
Servicesat21years.HefeelsthatIndianlawisnotstagnantand
changesintheIPChavekeptupwiththetimes
By Asif Ullah Khan in Jaipur
T

20. Supreme Court/ Sabarimala Shrine
20 December 9, 2019
HE Supreme Court has
taken note of the Left De-
mocratic Front (LDF) gov-
ernment’s efforts to mix
politics with the adminis-
tration of the Lord Ayya-
ppa Temple in Sabarimala. It has direct-
ed it to enact an exclusive law to admin-
ister the temple and stay clear of the
controversy surrounding women’s
entry there.
Conveying its displeasure to the state
government for not framing a law exclu-
sively for the shrine’s management des-
pite an undertaking given earlier, the
Court asked it to come up with such leg-
islation by the third week of January.
This came days after a Constitution
Bench turned to a larger bench, saying
the September 28, 2018, judgment lift-
ing age restrictions on the entry of wo-
men may impinge on the affairs of other
religions and would require detailed
examination.
While going through the draft legis-
lation prepared by the state government
for Sabarimala, a bench of Justices NV
Ramana, R Subhash Reddy and BR
Gavai observed that despite the state
government’s claim in August that it
would make a new law, it had not made
any progress. The bench was hearing a
plea by a Pandalam royal family mem-
ber, Revathi Nal P Ramavarama Raja, in
2011, seeking a separate committee for
the temple’s administration.
However, the most interesting ques-
tion the bench asked the state counsel,
Jaideep Gupta, was about the proposal
to reserve one-third of the members of
the temple advisory board for women. It
wondered what would happen if the
larger bench, which would look into iss-
ues suggested by the Constitution Ben-
A Rap on the Knuckles
PullinguptheKeralagovernmentfornotframingalawexclusivelyforthemanagement
oftheshrinedespiteanearlierundertaking,theCourtsaidlegislationshouldbein
placebythethirdweekofJanuary
By NV Ravindranathan Nair in Thiruvananthapuram
T
UNEASY CALM?
Devotees on their way to the Sabarimala
temple during the ongoing pilgrimage season
UNI

21. | INDIA LEGAL | December 9, 2019 21
ch, took a stand at odds with what was
decided in September 2018. The judges
said women in the committee would be
required to enter the temple premises
and, hence, the views of the larger bench
would have implications. Gupta replied
that in such an event, the proposed
members would be women above the
age of 50.
The bench asked the state to take in-
to consideration the report of the Justice
Chandrasekhara Menon Commission
while framing the law. The Commission,
which was constituted after the January
1999 stampede which killed 52 pilgrims,
had mooted an independent administra-
tive body for the shrine.
Justice Ramana asked Gupta: “Two-
three months not sufficient for you?”
The bench also said that the state gov-
ernment, instead of mooting a separate
administrative board for the shrine, had
come up with the Travancore-Cochin
Hindu Religious Institutions (Amend-
ment) Bill, 2019. This Bill proposed a
common law for the administration of
Sabarimala and over 1,200 temples
which fall under the Travancore Deva-
som Board. It said that in view of the
speciality and importance of Sabarimala
as a seat of spirituality and worship
where lakhs of pilgrims throng every
year, it has to be managed separately.
“You have proposed one administration
for thousand temples. It’s unmanage-
able,” Justice Ramana told Gupta. Ad-
mitting that he did not know the con-
tours of the Bill, Gupta said that the
state would follow the Court’s orders.
The bench said there were already many
working models such as the Tirupati,
Guruvayur and Siddhivinayak temples
and the state government would require
something on those lines to be consti-
tuted for Sabarimala.
J
ustice Reddy sought to know if the
proposed commissioner was an
IAS officer, and added that a senior
officer could be put in charge. At this
point, Justice BR Gavai sought to know
the factual and legal position regarding
women’s entry. While Gupta cited the
previous restrictions on women in the
age group of 10 to 50, Justice Gavai
said: “But as of now anybody can enter…
right? As of now, the September 2018
judgment revoking prohibition on entry
of women is what holds the field.”
As the five-member Constitution
Bench had not stayed the September 28,
2018, judgment, there were no restric-
tions. However, the LDF government,
which had taken an aggressive posture
in 2018 facilitating women’s entry into
Sabarimala, had borne the brunt of de-
votees’ ire during the last Lok Sabha
polls and faced a near rout. The CPI(M)
leadership then decided to do a U-turn
and took the stand that neither the
party nor the government would provide
any security to young women going to
Sabarimala. As local body elections are
round the corner and assembly elections
just a year ahead, the government can’t
afford to go against the sentiments of
the devotees. In such a scenario, the
Court’s displeasure over reservation for
women in the proposed board is once
again a setback.
The Travancore Devaswom Board
(TDB), an autonomous body constituted
under the Travancore Cochin Hindu
Religious Institutions Act XV of 1950, is
entrusted with the task of administering
1,248 temples in the erstwhile princely
state of Travancore. The constitution of
the Board was based on the covenant
entered into by the Maharaja of Travan-
core in May 1949 and concurred and
guaranteed by the Government of India.
Hindus in the Kerala legislative assem-
bly elect them for three years. Till re-
cently, it had the semblance of autono-
my. But after the Pinarayi Vijayan gov-
ernment assumed office, it has usurped
the TDB’s powers by amending the Act.
But a separate administrative mecha-
nism for Sabarimala would lead to a big
financial crisis in over 1,000 temples
under the TDB as the income from Sab-
arimala has been sustaining them.
For several decades, Hindutva forces
and a large section of devotees have been
demanding that the temple administra-
tion be freed from politics and returned
to them. But the LDF and the UDF had
taken a stand against it. Once the tem-
ples become unsustainable, the TDB will
not want to take them over. Moreover,
the government will have to pay nearly
5,000 Devaswom employees. But it
would help the devotees to have a say in
the temples’ administration in future
and the government will have to respect
the sentiments of the devotees and the
customs and traditions of each temple.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
TheSCbenchof(fromleft)JusticesNVRamana,RSubhashReddyandBRGavaisaid
thegovernment,insteadofmootingaseparateadministrativeboardforSabarimala,
cameupwiththeTravancore-CochinHinduReligiousInstitutions(Amendment)Bill.

22. Focus/ Rule of Law for the Economy
22 December 9, 2019
recent report, the India
Justice Report, 2019, pub-
lished by Tata Trusts,
ranked 18 large and mid-
sized states in relation to
their capacity to deliver
access to justice. The ranking assessed
the four “pillars” of the justice system—
police, prisons, legal aid and the judici-
ary—in each state. Each cog is vital for
the rule of law to work efficiently.
None of the states scored over 60
percent on justice delivery. And unsur-
prisingly, the states that have high eco-
nomic growth scored better than the
poorer states. Figure 1 shows the rank-
ings of each state in its ability to provide
an effective justice system and its corre-
sponding GSDP (gross state domestic
product) ranking. There is a strong cor-
relation between a state’s economic
prosperity and its judicial system.
The relationship between economic
prosperity and the rule of law has been
emphasised by Indian thinkers since
ancient times. Kautilya, an Indian phil-
osopher and royal advisor, wrote in his
4th century BC political treatise, the
Arthashastra: “The Rule of Law and
maintenance of order is the science of
governance.” Kamandaks in his book on
political thought, Nitisara, wrote: “No
branch of knowledge and policy is of any
avail if the Rule of Law is neglected.”
There have been many reasons put
forward to explain the slowdown in
India’s economic growth and the rate of
job creation. The popular and financial
media repeatedly focus on lack of bank
financing, poor and inadequate infra-
structure and the quality of education as
the leading causes of the economic slow-
down. While the above three concerns
are important, they are the symptoms
and not the underlying cause of the
slowdown. To jumpstart India’s econom-
ic growth and job creation, we must first
correctly diagnose the underlying cause.
Figure 2, based on the Madison
Project Database, illustrates the share of
world GDP by select countries and
regions for the period, 1820-2016.
Today, the US has the highest percent-
age of the world GDP compared to other
countries. In 1820, the situation was
quite different; China accounted for a
third of the world GDP, India a sixth
and the US barely registered. So why are
there such different economic growth
rates for the US, India and China during
the past two centuries? Free market
capitalism is now well-accepted to be
the primary reason for these discrepan-
cies in growth. What is ignored is the
fact that rule of law is an indispensable
foundation of a free market economy
because it protects private ownership of
assets which is essential to capitalism.
The rule of law fosters transparency in
business transactions and encourages
investors to provide capital that creates
jobs and promotes prosperity.
The economic growth of a country is
the sum total of all transactions that
take place. In a free-market economy,
the government plays a minimal role,
and the vast majority of transactions are
voluntary between private individuals.
And key to the success of these transac-
tions is the enforcement of contracts
between the parties. When disputes
arise, the legal system needs to provide a
systematic and expedient approach for
the resolution of differences. A well-
established, clear and consistent rule of
law provides an atmosphere of pre-
India Needs Umpires
Athrivingfreemarketeconomyneedsstrongandindependentjudicialinstitutionsandalegal
frameworkwhichcanenforcecontractsandsafeguardrights.ThisismissinginIndia
By Sanjai Bhagat and Sanjiv Bhatia
Figure1:State-wiserankings:Justicesystem&GSDP
ScoreonJusticeRankings
Per capita GSDP for 2017-18 (at 2011-12 prices) in `
7
6
5
4
3
2
1
0
Bihar
UP
Jharkhand
Rajasthan
AP
Telangana
Karnataka
Uttarakhand
Gujarat
Haryana
Maharashtra
MP
20,000 40,000 60,000 80,000 1,00,000 1,20,000 1,40,000 1,60,000 1,80,000 2,00,000
Kerala
TN
Punjab
Odisha
Chhattisgarh
West Bengal
Source for overall justice rankings: India Justice Report 2019
A
Infographics: Rajender Kumar

23. | INDIA LEGAL | December 9, 2019 23
dictability and minimises disputes.
India continues to lag in enforcing
contracts and has had no improvement
in its global ranking on this critical fac-
tor. In the 2018 Ease of Doing Business
rankings, India ranked 163rd on the effi-
ciency with which contracts were enfor-
ced. This is a significant detriment to
the growth of the transaction mechan-
ism that drives economic growth. It tak-
es on average 1,445 days to resolve a co-
mmercial dispute through a local first-
instance court, almost three times the
average time in OECD high-income eco-
nomies. This adds an unnecessary cost
to doing business and destroys trust.
Figure 3 illustrates the GDP per cap-
ita in 2010 dollars for the US, Argentina
and Australia for the period 1900-2016.
The differential economic growth rates
for the US and Argentina for the past
century is quite instructive. One notice-
able difference between these two coun-
tries could be based on geography: the
US is in the northern hemisphere,
Argentina in the southern hemisphere.
However, Australia has also enjoyed sig-
nificantly higher economic growth rates
than Argentina in the past century; yet,
both countries are in the southern hemi-
sphere. The difference in the rule of law
and control of corruption is the reason
for the difference in the GDP growth
rates of the US and Argentina.
Since Adam Smith, economists have
focused on the role of independently
functioning institutions in promoting
economic growth. Nobel laureate
Douglas North provides a useful defini-
tion of such institutions: “Institutions
are the humanly devised constraints
that structure political, economic and
social interaction… Institutions provide
the incentive structure of an economy;
as that structure evolves, it shapes the
direction of economic change towards
growth, stagnation, or decline.”
E
conomic institutions involve the
rule of law, including control of
corruption and enforcement of
private property rights. The World Bank
defines the rule of law as the extent to
which citizens have confidence in and
abide by the rules of society, and in par-
ticular the quality of contract enforce-
ment, property rights, the police and the
courts, as well as the likelihood of crime
and violence.
We submit that lack of adequate rule
of law (including control of corruption)
is the single-most important underlying
cause of India’s slow economic growth
and job creation. The rule of law encom-
passes a variety of discrete components
from the security of person and property
rights, to checks on government and
control of corruption.
Figure 4 deals with the relation
between corruption and GDP per capita.
Countries with lower levels of institu-
tional corruption are more prosperous
than those with high corruption levels.
Consider one of the key symptoms of
India’s slow economic growth: lack of
bank financing. Most of the banks and
banking resources are owned by the
public sector. The problem is not one of
adequate financing, but of poor and cor-
rupt lending decisions made by man-
agers influenced directly and indirectly
by the political bosses. These corrupt
lending practices end up costing Indian
taxpayers billions. Just in the first six
months of the 2019 fiscal year (April-
September), India's public sector banks
reported frauds totalling $13 billion.
Worse, these frauds add a significant
risk premium to the cost of capital as a
result of which Indian banks have
among the highest intermediation cost
(almost 560 basis points) in the world.
This has direct consequences for eco-
nomic growth, and it all results from a
breakdown in the rule of law. Despite
bank frauds totalling more than $100
billion over the last ten years, no politi-
cian or senior bank executive has been
indicted or convicted.
Numerous studies have investigated
the causes and measured the conseque-
nces of differences in corruption among
countries. They find a significant inter-
relationship between legal (in)effective-
ness and various measures of corrup-
tion. This re-enforcing
inter-relationship suggests that corrup-
tion is a persistent phenomenon which
can only be reduced by having an effec-
tive legal system which preserves the
rule of law. You need umpires, and you
need people who can enforce contracts
coercively if need be, without which it
would be a jungle. Honest police and
judges are vital to a nation’s prosperity.
A major obstacle to the rule of law in
India is the problem of over-
Figure2:ShareofWorldGDP,1820-2008
Inpercent
China
1820 1830 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000 2005
100
90
80
70
60
50
40
30
20
10
0
US W. Europe Latin America Mideast & Africa India Japan Former Soviet Union Other
Source: Bolt, Jutta, Robert Inklaar, Herman de Jong and Jan Luiten van Zanden (2018),
“Rebasing ‘Maddison’: new income comparisons and the shape of long-run economic
development”, Maddison Project Working paper 10

24. Focus/ Rule of Law for the Economy
24 December 9, 2019
legislation and state overreach, which
ends up empowering only those who are
able to game the system. The result is an
unwieldy and often arbitrary surfeit of
laws and regulations that by their sheer
volume stifle individual freedom and
entrepreneurship yet leave a lot of
power in the hands of the political class.
This fact was alluded to recently by
Dr Manmohan Singh, the architect of
India’s liberalisation in 1991. “The func-
tioning of any economy is the result of
the combined set of exchanges and
social interactions among its people and
institutions,” Singh wrote in a recent
article. “Mutual trust and self-confide-
nce are the bedrock of such social trans-
actions that foster economic growth.
Our social fabric of trust and confidence
is now torn and ruptured because of dis-
trust among citizens in the society’s
institutions.” Singh went on to blame
the “palpable climate of fear” especially
among businesses which was resulting
in a decline in business investment.
While not directly mentioning the
rule of law, it is clear what Singh was
implying. The economy doesn’t exist in a
vacuum—you need rules of the game,
and it is the job of the government to
create institutions to ensure that the
rules are fairly and equally applied to all
participants. This ensures that transac-
tions, investment and risk-taking can
proceed with minimal costs and friction.
That is currently not happening in India.
Unfair regulations applied selectively,
unclear and capricious tax policy espe-
cially as it relates to GST, and the bogey-
man of “black” money, have created a cli-
mate of uncertainty among investors and
businesses who fear harassment by gov-
ernment authorities. Combine this with
corruption, the risk of expropriation and
sectoral violence and it is not hard to
understand why the Indian economy is
in a deep structural slide.
H
ow can things be turned
around? There are the obvious
fixes: increasing rural incomes
and demand, lowering the cost of capi-
tal, improving liquidity in the economy,
and streamlining tax policies. But all
these fixes cannot be applied successful-
ly without understanding the relation-
ship between economic growth and the
rule of law. Strong and independent
judicial institutions are vital to India’s
future prosperity because effective mar-
ket relations can exist only in a legal
framework which safeguards
property and non-property rights.
The role of the legal profession is,
therefore, vital to India’s economic
future. A clear, concise and fair rule of
law applied consistently, equally, and
expediently is the vital cog missing from
India’s growth story.
—Sanjai Bhagat is Professor of Finance,
University of Colorado; Sanjiv Bhatia is
Founder, contractwithindia.com
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Figure3:GPDpercapita1990$
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Figure4:GPDpercapitavsCorruptionin2017
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Source: World Bank, PRS Group’s International Country Risk Guide
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Curruption; 6=least corrupt
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VNM

26. Focus/ Sixth Schedule
26 December 9, 2019
ILL the non-inclusion
of Ladakh in the Sixth
Schedule of the Con-
stitution trigger viole-
nce and separatism in
this strategic trans-
Himalayan territory? This Schedule pro-
vides for autonomous tribal areas and
gives them the power to make laws on
matters of local importance. Are the
fears in this regard justified? No. The
region has a commendable history of
bravery and patriotism. Uniformed for-
ces have been unanimous in their praise
of the role of the local population in all
wars—from the first in 1947 to the last
in Kargil in 1999. Why then are such
apprehensions being regularly expressed
by Sonam Wangchuk, the innovator who
inspired Aamir Khan’s character, Phun-
sukh Wangdu (Rancho), in 3 Idiots? He
told India Legal: “If driven into a corner,
the people may lose gratitude and patri-
otism.” When told that his observations
were strong, he remarked: “It is the
message and when the message is not
good, you don’t kill the messenger.”
One would have ignored 53-year-old
Wangchuk, but for his well-earned repu-
tation of being a man of ideas. His con-
tribution to the education system in
Ladakh is widely acknowledged. He was
honoured with the Magsaysay Award in
Tibetisation of Ladakh?
Whilethereisunrestinsomequartersaboutthestatusoftheregion,thereisevidence
thatacensushasbeendoneforeachtribe,indicatingthatitcouldbedeclaredatribalarea
By Pushp Saraf
W

27. | INDIA LEGAL | December 9, 2019 27
2018. Of late, he has been raising the
spectre of a grim scenario in Ladakh
which is inconsistent with the celebra-
tions in Leh after the region’s elevation
to a Union Territory. Ladakh, consisting
of Leh and Kargil districts, is actually
the only part of the erstwhile Jammu
and Kashmir which has been jubilant
after its bifurcation into the two UTs of
Ladakh and J&K.
Wangchuk’s argument is that people
may “pick up arms” and there may be
“Tibetisation of Ladakh” if it is not incl-
uded in the Sixth Schedule. The forma-
tion of the UT, according to him, has
exposed the region to the risk of outside
interference, threatening its culture,
ecology and environment. Media-savvy
Wangchuk has circulated a series of
videos with the title “Mann ki baat
(message from heart) of Ladakh” bor-
rowed from Prime Minister Narendra
Modi’s monthly broadcast. In the videos,
he has said that the people of the region
think that “what is happening here is
what China did in Tibet”.
He added that “unfortunately there
are murmurs whether the status of a
Union Territory was granted for others
to exploit the vast resources of Ladakh”.
He hoped that the issue gets resolved
before the people’s love wanes and
before alienation grows and turns into a
separatist movement. He said that three
months had passed, and there was no
announcement and people feared that
their land and environment were threat-
ened. He said if there was indiscrimi-
nate development or a ten-fold increase
in population, the land wouldn’t be able
to sustain it. “We are not asking for any
special law, we are asking for the imple-
mentation of the one that is already in
the Constitution,” he said. There is no
evidence to suggest that he has evoked
widespread response.
H
is comment on “three months”
having passed refers to the rec-
ommendation made by the Na-
tional Commission for Scheduled Tribes
(NCST) at a meeting in Delhi on Sept-
ember 11 that the UT of Ladakh should
be brought under the Sixth Schedule as
it would help in (i) democratic devolu-
tion of powers; (ii) preserve and pro-
mote distinct culture of the region; (iii)
protect agrarian rights, including rights
on land; (iv) enhance transfer of funds
for the development of the region. Acco-
rding to an official release, Dr Nand
Kumar Sai, chairperson of the Comm-
ission, had communicated the recom-
mendation to the home minister and the
tribal affairs minister and consulted
both the ministries as well as the law
and justice ministry before reaching the
conclusion.
The NCST was guided by the consid-
eration that Ladakh was “predominantly
a tribal region” and its total tribal popu-
lation was over 97 percent, taking into
account “a number of communities incl-
uding Sunni Muslims in the region, who
are claiming Scheduled Tribe status”.
The official release noted that “prior to
the creation of the Union Territory, peo-
ple in Ladakh region had certain agrari-
an rights, including right on land, which
restricted people from other parts of
Apprehensionsare
beingexpressedby
SonamWangchuk,
MagsaysayAward
winner,whoinspired
AamirKhan’s
characterPhunsukh
Wangdu (Rancho)
inthefilm,3Idiots.
Wangchuksays:“If
drivenintoacorner,
thepeoplemay
losegratitude
andpatriotism.”
RICH CULTURE AND HISTORY
Tribal communities constitute over 97 percent
of the Ladakh population
thrillophilia.com
Facebook

28. Focus/ Sixth Schedule
28 December 9, 2019
the country to acquire land in
Ladakh. Similarly, the region
has several distinct cultural
heritages by communities such
as Drokpa, Balti and Changpa,
among others, which needs to
be preserved and promoted”.
Drokpas are considered the
last descendants of the Aryan
race; Baltis are an ethnic group
of Shia Muslims, mainly inhab-
iting Kargil district, and Chan-
gpa is a semi-nomadic tribe in
the high-altitude Changthang
region of Leh district. Likewise,
the other tribes are either
Buddhist or Shia Muslims.
Communities like the Sunni
Muslims, who constitute a
minuscule minority, don’t fig-
ure in the official list and they
include “arguns”, the hybrids
between Ladakhis and non-
Ladakhis.
From the figures given by
the Commission—66.8 percent tribal
population in Leh, 73.35 percent in
Nubra, 97.05 percent in Khalsti, 83.49
per cent in Kargil, 89.96 percent in
Sanku and 99.16 per cent in Zanskar—it
is evident that the census has already
been done for each tribe. This indicates
that preparations for declaring the
region a tribal area are being made in
tune with the popular aspirations expre-
ssed from time to time by the Ladakh
Buddhist Association, a powerful socio-
religious organisation which had agitat-
ed for the UT status.
The NCST had met on the issue of
Ladakh a month after Parliament pass-
ed the Jammu and Kashmir Reorgani-
sation Act in August approving the bifu-
rcation of J&K state. The UTs actually
came into existence on October 31. The-
re are teething troubles which the gov-
ernment is still struggling to resolve. It
is believed that the government wants to
find middle ground between the region’s
legitimate aspirations for preserving its
identity and culture while ensuring its
all-round economic development. This
is possible only with the participation of
investors from other states who need to
be encouraged to develop stakes in its
tough environment.
G
iven this background, a few ob-
servers believe that Wangchuk
may have jumped the gun. The-
re is speculation that he may be rousing
local sentiment to cater to his political
ambitions. He had floated an outfit
called the New Ladakh Movement some
years ago only to see it flop miserably.
Wangchuk denies this: “I don’t have any
interest. I just hope that professional
politicians don’t sit on their hands.”
One leader who disagrees with him is
Jamyang Tsering Namgyal, a BJP MP
from Ladakh, who shot into prominence
after the PM and Home Minister Amit
Shah tweeted their appreciation of his
speech in Parliament on the abrogation
of J&K’s special status and its
bifurcation. He has been a
votary of Sixth Schedule status
and had raised the demand in a
letter to Union Tribal Affairs
Minister Arjun Munda.
According to him, it would
guarantee people “a swift ride
on the path of development and
prosperity as per their aspira-
tions”. He had, among others,
backed his case with the follow-
ing arguments: 98 percent trib-
al population engaged in prim-
itive land-based economy, lim-
ited means of livelihood, poor
connectivity, harsh climate,
undeveloped markets for local
produce, low employment
opportunities, fragile ecology,
receding glaciers affecting agri-
culture, and so on.
He felt that talk of going ag-
ainst the country had tarnished
the image of his constituency.
He told India Legal: “Even if we don’t
get the Sixth Schedule, it does not mean
that we will preach separatism and ter-
rorism.” He recalled Ladakh’s adherence
to patriotic values. He said that India
was not China. “We are a democratic
nation and China is a communist regi-
me. Any student of public affairs can
understand that this is a significant dif-
ference,” he said.
The Congress seems to be watching
from the sidelines. Party leader Rigzin
Spalbar, a former chairman and chief
executive councillor of the powerful La-
dakh Autonomous Hill Development
Council, has welcomed the formation of
the UT and supported the demand for
tribal category inclusion. He ruled out
separatist tendencies but said there
might be “alienation if there is invasion
on local ethos”. Clarity will emerge once
the government disposes of the NCST’s
recommendation. The sooner it is done,
the better it will be for the region.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
JamyangTseringNamgyal,aBJP
MPfromLadakh,says:“Evenifforsome
reasonwedon’tgettheSixthSchedule,
itdoesnotmeanthatwewillpreach
separatismandterrorism.”
ANI

29. sure was among eight other causes mod-
elled to evaluate effect on adenocarcino-
ma/lung cancer. The causal effects of
“what” caused the adenocarcinoma and
“who” among the multiple employers
caused it were determined through these
causative models. Outcomes were causal-
ly superior to both primary and appeal
court judgments.
Over time, there have been several
advances in legal AIs—TAXMAN for
corporate tax laws in the ’70s, HYPO for
trade secret law in the ’80s, Smart Settle
for e-commerce automated negotiation
in the ’90s, and Family Winner for di-
vorce settlements in the 2010s. HYPO,
despite all its celebrity, has been used as
a tutoring tool for law students while
Smart Settle has limited use in micro
insurance claim settlements.
So, why has AI not scaled out of aca-
demia into courtrooms and mediation
chambers? Today’s AI stops at lexical
analysis, i.e., analysis of word structure,
their frequency of occurrence, etc. It
| INDIA LEGAL | December 9, 2019 29
My Space/ Artificial Intelligence Avinash Amble
Artificial Intelligence
and the Justice System
does not have a semantic understanding
of concepts for even everyday language.
The bigger issue is mapping legal seman-
tics and ontology to everyday language
and then on to computers. AI has not
understood the words yet; so, it does not
know the law. AI being a rational agent,
cannot consider equitable distribution
of benefits.
Let us set aside AI’s lack of under-
standing of words, their force and effect,
and look at a problem with human deci-
sion-making—that of bounded rationali-
ty. Legal reasoning assumes that all par-
ticipants in conflict are “rational agents”.
As Cass Sunstein demonstrates through
his research on the intersection of behav-
ioural economics and the law, human
decision-making is not perfectly rational
at all times. Human decision-making
resolves conflicts via several heuristics
(any approach to problem solving that is
not guaranteed to be optimal, perfect or
rational, but which is sufficient for rea-
ching an immediate, short-term goal),
which cannot be represented in today’s
AI. Tomorrow’s AI, built on causal infer-
ence, might resolve conflicts completely
rationally with only data—if that is the
goal. Else, it has to figure out how to rep-
resent heuristics to model the real world
more accurately.
—The author is an expert on Artificial
Intelligence. He is an entrepreneur and
inventor and has founded a research
lab, Ovid
HE latest theoretical ad-
vances in Artificial Intelli-
gence (AI) and Adversarial
Machine Learning (AML)
are borrowed from legal
reasoning. Yesterday’s AI
did not use adversarial inferences, it only
computed forward probability. Given a
hypothesis, it would match evidentiary
patterns across huge volumes of data. If
we pair that with an AI that computes
reverse probability, thereby generating
several hypotheses for a corpus of evi-
dence, and adds adversarial inference, it
learns to resolve conflicts in a non-zero-
sum game. At best, today’s AI (not yet
applied beyond consumer internet) com-
putes the legal equivalent of balance of
probabilities to establish causation.
Theoretical work on causal inference
was presented at the ICAIL in June 2019
which used the landmark Meneghan v
Manchester case. It focused on over-det-
ermination, i.e., more than one cause
leading to one outcome. Asbestos expo-
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
ChiefJusticeofIndiaSABobde’sproposalforintroduction
ofanartificialintelligenceaidintheadministrationofthe
justicedeliverysystemholdstremendoussignificance
T
SClaunchesmultilingualmobileapplication
The Supreme Court’s official multilin-
gual mobile application is now available
for use. It was launched on November
26 (Constitution Day) in the presence of
President of India Ram Nath Kovind
and CJI SA Bobde. The app will pro-
vide real-time access to case status,
display board, daily orders, judgments,
office reports, circulars, daily causelists
and other useful information for lawyers
and litigants. For now, the app can be
downloaded from the apex court’s web
portal. It is available for use in English,
Hindi, Marathi, Telugu, Kannada and
Tamil. The app was developed with the
technical consultation of the National
Informatics Centre. The apex court also
launched the Supreme Court Vidhik
Anuvaad Software (SUVAS) which has
been trained to use artificial intelligence
in the judicial domain. It will intelligently
translate documents, orders and judg-
ments into regional languages.
—By Ishita Purkaystha

30. ProposedchangesinruleswillmakeitcontingentonIT
intermediariestoremovemaliciouscontentwithin
72hoursofarequestfromthegovernment
My Space/ Amendments to IT Rules, 2011 Na Vijayashankar
30 December 9, 2019
N December 24, 2018,
the IT ministry proposed
a change in the notifica-
tion of rules under Sect-
ion 79 of the Information
Technology Act, 2000
(ITA-2000), and placed the draft for
public comment. The proposals faced
stiff opposition from the industry. It joi-
ned hands with political opponents of
the government and a huge campaign
was built opposing them. The
amendments were projected to be an
assault on the freedom of expression
and the government was literally bludg-
eoned into silence. The amendments
have now been listed for debate and
await approval in the current session of
Parliament.
These amendments are being pro-
posed to the original rule, namely, the
Information Technology (Intermediary
Guidelines) Rules, 2011, which were
notified in the gazette on April 11, 2011.
Ever since the proposed amendments
were brought to public notice, there
have been discussions on the desirability
of introducing them.
In a related development, the Delhi
High Court has given an interesting
judgment in the case of Baba Ramdev
Vs Facebook and others where it said
that when objectionable content is uplo-
aded from India, the responsibility of
the intermediary to remove it based on
court orders will include removal from
foreign servers. This is now before the
divisional bench of the Court for review
and the outcome will have a significant
impact on the interpretation of interme-
diary liabilities as per ITA-2000.
The “fake news” debate, which was
one of the primary reasons cited for this
amendment, has, to some extent, redu-
ced primarily because the general elec-
tion is over. It may resurface when the
next election is due. Further, the possi-
bility of “deep fake videos” is lurking in
the background and will create more
problems in the days to come when
“fake news” may be put out through
celebrities.
Whether it is control of fake news or
detection of cyber fraud, “intermedi-
aries” have a key role to play. Without a
strong legal deterrent that ITA-2000
and these guidelines represent, national
security would be at stake. The govern-
ment cannot be complacent in delaying
the issue of the guidelines anymore.
The Supreme Court has expressed
similar views in respect of the curbs
placed in J&K, upholding that “security”
is an important responsibility of the
government and has a legitimate priori-
ty over “rights” in certain circumstances.
The suggested amendments need to be
evaluated in this context.
Under the proposed guidelines,
intermediaries, on receipt of appropriate
request from the government on issues
of cyber security, should provide the
necessary assistance within 72 hours.
Such notices may be issued under
Sections 69, 69A, 69B or even 70B. The
government has already designated
appropriate agencies under each of
these sections along with a due process.
One of the most contentious parts of
the guidelines has been the need that
when content is hosted on their plat-
form, “the intermediary upon receiving
actual knowledge in the form of a court
order, or on being notified by the appro-
priate Government… shall
a) remove or disable access...immediate-
ly, but not later than 24 hours of com-
munication…
b) archive the information for at
least 180 days...or as long as required
under law”.
On receipt of an order of the Court
or in the process when certain content
is sought to be removed, there should
be no excuse for the intermediary not
to follow the order as it has already
been examined by a competent court
or authority.
Tech giants are normally willing to
O
Fall in Line
Anthony Lawrence

31. | INDIA LEGAL | December 9, 2019 31
ment may be taken to the Supreme
Court but for the government that
should hardly matter.
It is pertinent to ask whether the
intermediaries are, in fact, observing
“due diligence”. Most international tech
giants such as Facebook, Twitter and
Google do not have a designated “griev-
ance officer” to receive and resolve com-
plaints from the public. In fact, it is even
difficult to locate a proper email address
where a complaint can be sent. Most
intermediaries do not have a published
“address” for communication and send-
ing a legal notice is the last resort. Even
law enforcement agencies complain that
they do not get minimal cooperation
from the intermediaries during the
investigation of cyber crime.
W
e must remember that the
definition of “intermediaries”
in ITA-2000 is broad enough
to encompass even mobile apps. Non-
compliance with due diligence in this
segment is even higher. Recently, it was
reported that Uber’s mobile app had
bugs that charge customers for can-
celled trips and generate false trip maps
in certain circumstances. In such fraud-
ulent cases, the company does not pro-
vide information on how to register a
proper complaint. It also does not dis-
close if there was a code audit for this
reported bug or publication of statistics
of wrong debits occurring out of such
bugs. Each such incident is actually a
“security incident” that the intermediary
should report to CERT-IN. However,
they fail to do so.
Intermediaries should realise that
“due diligence” as prescribed by Section
79 does not end with the publication of
a privacy policy. They should follow rea-
sonable security practices which include
a grievance redressal system. Without
complying with their responsibilities,
complaints being raised by them about
the amendments do not deserve respect.
It is also true that the CERT-IN
rarely questions the intermediaries and
does not undertake suo motu audits to
ensure that websites or mobile apps
process the data properly and follow
Section 79’s guidelines. Intermediaries
will also be required to comply with the
Personal Data Protection Act (PDPA)
which is expected to be debated in the
same session. This will have a far more
significant impact on intermediaries
since all of them are also data fiduciaries
under PDPA and more importantly, “sig-
nificant fiduciaries” and “guardian fidu-
ciaries”. There may also be a bill on “Re-
gulation of Newspapers and Periodicals”
which include online publications and
social media, which will try to regulate
news intermediaries in its own ways.
Hence, the intermediary rules are a
minor regulation and should pass smo-
othly in Parliament.
There is no need to get irked over
them as they need to be compatible with
PDPA and the digital media regulations
which will override them.
—The writer is a cyber law and
techno-legal information security
consultant based in Bengaluru
Mostinternationaltechgiants
suchasFacebook,Twitterand
Googledonothaveadesignated
“grievanceofficer”toreceive
andresolvecomplaintsfromthepublic.
accept “right to forget” under General
Data Protection Regulation and are pre-
pared to identify and remove the per-
sonal information even if it is scattered
across an organisation in individual
computer devices. Comparatively, rem-
oving the hosted content is child’s play.
Another area of concern for interme-
diaries is the guideline that “the inter-
mediary shall deploy technology-based
automated tools or appropriate mecha-
nisms with appropriate controls for pro-
actively identifying and removing or dis-
abling public access to unlawful infor-
mation or content”. This guideline may
require some additional technical meas-
ures to be deployed. But in the days of
Artificial Intelligence, it is natural for
the government to expect that the inter-
mediaries show a sense of social respon-
sibility to ensure that they lend their
support to the cause of national security.
When the intermediary is in doubt
whether the given content is unlawful
or not, he can always introduce app-
ropriate policies and procedures to
make a reference to his legal cell. This is
part of the “incident management”
programme that any sensible content
hosting company should be able
to implement.
It is clear that the objections raised
by the industry in respect of the above
are only commercial in nature. National
security should not be subordinated to
the commercial considerations of inter-
mediaries who do not want to spend
money on the suggested technical meas-
ures. The cry of “censorship” is only me-
dia hype as any contentious issue can be
resolved by competent courts.
The other issue which should be
noted is the requirement that those
intermediaries having a large user base
(more than 50 lakh users) need to have
a permanent registered office and a
nodal officer in India. This is an attempt
by the government to ensure that tech
giants who benefit from business in
India invest in creating jobs also in the
country. The objections raised against
the amendments are, therefore, unsus-
tainable. It is possible that the amend-
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

32. 32 December 9, 2019
OR the Rohingyas, the largely
Muslim community living as
stateless people in Myanmar
for centuries and who have
been facing rights abuses in
their country of birth, there is
hope yet. With the International Court
of Justice (ICJ), the highest UN court
and the International Criminal Court
(ICC) approving a full investigation into
Myanmar’s alleged crimes committed by
the Myanmar military, the persecuted
community now feels justice may not be
long in coming.
The case will be the first internation-
al legal attempt to bring a nation (Mya-
nmar) to justice over allegations of cri-
me against the Rohingyas, concerning
an issue to which it is not directly a
party. The Hague-based International
Court of Justice, set up in 1945 to probe
war crimes, authorised its prosecutors to
launch an investigation into the perse-
cution of the Rohingyas. An Argentinian
rights group has separately filed a law
suit over the Rohingyas, in which Myan-
mar’s icon and Nobel laureate Aung San
Suu Kyi is personally named.
Though the country is not a member,
the ICC says that Myanmar can be held
responsible for crimes that affect neigh-
bouring Bangladesh. The ICJ settles dis-
putes between nations while the ICC
seeks to convict individuals responsible
for crimes. Both courts are based in The
Hague in the Netherlands.
The ICJ will hold a public hearing
from the second week of December. The
hearings will be devoted to the request
for the involvement of provisional meas-
ures submitted by Gambia.
Leaders of the persecuted communi-
ty who fled their country to take shelter
in neighbouring Bangladesh feel the
step will put pressure on Myanmar to
grant them their rightful demands for
citizenship rights. The ICC approved a
full investigation into Myanmar’s alleged
crimes against the Rohingyas.
Since August 2017, some 75,00,00
Rohingyas have fled a brutal military
campaign and taken shelter in an
unwilling Bangladesh where they are
treated as “unwanted guests”, who will
never return home. “The ICC decision
marks an important step in the fight for
justice and accountability in Myanmar
and sends a strong message to the
orchestrators of atrocities that their days
of impunity are numbered,” said
Nicholas Beguine, Amnesty
International Director for Asia.
Rohingyas were denied citizenship
rights by the Buddhist-dominated Mya-
nmar’s citizenship law of 1982. Since
then, they have been denied basic rights,
including freedom of movement, health
services and government jobs. The Mya-
nmar army, for the past four decades,
has been harassing the Rohingyas in
Myanmar’s Rakhine state, and accord-
ing to the Ontario-based International
Development Agency, over 24,000 were
killed and thousands raped by the
Myanmar security guards.
The United Nations termed the
atrocities on the Rohingyas a classic
example of ethnic cleansing, but no con-
crete action against Myanmar was taken
and it was allowed to commit serious
TheInternationalCourtof
Justice’snodtoits
prosecutorstostartaprobe
intothepersecutionofthe
communityisararecaseofa
countrysuinganotheroveran
issuetowhichitisnotaparty
By Prakash Bhandari
in Dhaka
F
Hope At Last
Global Trends/ Myanmar/ Rohingyas
UNI

33. | INDIA LEGAL | December 9, 2019 33
violations, including war crimes against
civilians in Rakhine, Kachin and Shan
states where the Rohingyas are located.
The UN in October this year adopted
a resolution on the situation of the hu-
man rights of Rohingyas and other min-
orities but prior to that, the UN Security
Council took no concrete action against
Myanmar mainly because of opposition
from China and Russia.
Even India has given a lukewarm
response to the whole situation though
Myanmar is a neighbour. The UN
adopted the resolution on the situation
of the human rights of the Rohingyas at
the 74th UN General Assembly. It was
tabled by the UAE and Finland on
behalf of the Organisation of Islamic
Cooperation (OIC) and it received 140
votes in its favour and nine against. The
support of the UN resolution will cer-
tainly help in ensuring protection to the
displaced Rohingyas.
Myanmar first refused to cooperate
with the ICC investigation, stating that it
was not a party to the Rome Statute. But
it is a member of the ICC which can car-
ry out the investigation as Bangladesh, a
party to the Rome Statute, agreed to
cooperate with it. While the ICC can
hold an individual, not a state, responsi-
ble for the crimes against Rohingyas, the
ICJ can hold Myanmar responsible.
M
yanmar is now facing a bar-
rage of legal challenges glob-
ally in an attempt to make it
responsible for its involvement in the
alleged genocide against its own people.
Both Gambia, the tiny African nation
that filed a case on behalf of the 57-nat-
ion OIC and Myanmar are signatories to
the 1948 UN genocide convention. It
prohibits states from committing geno-
cide, and compels signatories to prevent
and punish all cases of genocide. A
rights group in Argentina also filed a
case against Myanmar military officers
and Suu Kyi. Argentinean law permits
taking up issues related to other coun-
tries that involve rights violations.
The Argentinean court has begun
independent investigations and has
issued an arrest warrant against the
accused in this case. It can issue an
arrest warrant against Suu Kyi also
and her generals.
Argentinean lawyer Tomas Ojea has
taken up the issue under the principle of
“universal jurisdiction”, a legal concept
enshrined in many countries, including
his own. He sought criminal sanction
against the perpetrators and accom-
plices of the genocide. Ojea’s suit
demands that, apart from Suu Kyi, army
chief Min Hlaing should be brought to
justice over the “existential threat” faced
by the Muslim Rohingyas.
Various organisations supporting the
cause of the Rohingyas are taking up the
issue and are likely to go with individual
petitions. Param Preet Singh, associate
director of the International Justice
Programme of Human Rights Watch
hopes that the ICC’s approval of investi-
gation will give Rohingyas renewed
hope. “The architects of the brutal sco-
rched earth campaign against them may
one day be held to account,” said Singh.
Dhaka-based rights activist Noor Khan
Liton said Bangladesh has been footing
a heavy bill, giving the refugees food and
shelter, and hopes to get justice.
Facing a dilemma, Suu Kyi has
decided to appear before the ICJ to
defend herself. Suu Kyi, who is the state
counsel of Myanmar, will lead a team to
defend the national interest of
Myanmar. She has taken the decision
after consulting the military generals
and will defend her country against
accusations of genocide and argue that
she was never involved in human rights
violations. She has said that she will face
“the law suit all by herself”.
Clearly, international legal history is
in the making.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Facingdilemma,
Myanmar’siconand
Nobellaureate
AungSanSuuKyihas
decidedtoappear
beforetheICJto
defendherself.
NOWHERE PEOPLE
Rohingya refugees
collect water at a camp in
Cox’s Bazar, Bangladesh

34. 34 December 9, 2019
Frequent flyers are always comparing notes
on which airline offers the best experience
and service. The answer would be a surprise to
many—Air New Zealand! AirlineRatings.com,
an aviation safety and product rating agency,
brings out an annual ranking and its Airline of
the Year 2020, just released, has rated Air New
Zealand tops for in-flight innovations, safety
record and the high standards set by its staff,
on the ground and in the air. It topples last
year’s winner, Singapore Airlines. The rating
audit includes areas such as airport lounges,
first-class experience, in-flight entertainment,
fleet age, passenger reviews, product offerings
and profitability.
The rating agency says: “The airline has
been a pioneer in a number of important in-
dustry initiatives such as bio-fuels and more
efficient flight paths as well as a host of on-
ground improvements such as electric vehicles.”
The jury for the award is a group of experi-
enced aviation editors.
International Briefs
Airline of the Year
The biggest jewellery heist in histo-
ry at the Dresden’s Royal Palace
has been an eye-opener for museums
across the world. For one, the ease
with which the robbers gained access
to the famous Green Vault and es-
caped with one billion euros worth of
precious gems. The other, more shoc-
king revelation was that none of the
precious gems taken from one of the
world’s oldest museums was insured.
German police have no clue to work
with except grainy security camera
shots but the loss is incalculable.
The treasures in the Green Vault
were not just unique but had histori-
cal value. The royal jewels date back
to August the Strong, prince-elector of
Saxony and King of Poland. Three of
them—the Diamond Rose, Diamond
and Queens’ Jewellery—formed the
centrepiece of the display. The dia-
monds in various cuts date between
1782 and 1789 and included a sword
with a diamond-encrusted handle,
shoe buckles and buttons made of dia-
monds as well as brooches, a hair clip
shaped like the sun and parts of a dia-
mond necklace.
One piece from the “Diamond” set,
a hat clip with a flawless 41-carat gem
known as the Dresden Green Dia-
mond, was saved since it is displayed
on another floor of the museum.
The lack of insurance means a big-
ger blow for the museum, and the
only slim hope for recovery is that the
pieces are so unique and famous that
they would be impossible to sell in the
open market. The downside is that the
pieces could be broken down and the
gems re-cut.
Stolen Treasures
chadslattery.com
1. Air New Zealand
2. Singapore Airlines
3. All Nippon Airways
4. Qantas
5. Cathay Pacific
6. Emirates
7. Virgin Atlantic
8. EVA Air (Taiwan)
9. Qatar Airways
10. Virgin Australia
Twitter/@PolizeiSachsen

35. | INDIA LEGAL | December 9, 2019 35
I
t takes a crisis to spur innovation and cre-
ativity. In other words, let ideas fly. That is
the case, literally, with the auto industry, fac-
ing new technologies and emission curbs which
are disrupting its traditional business model.
Electric cars are the new area of focus for most
of the big names in the business but until the
infrastructure is in place, their numbers are not
big enough yet. The answer: Look to the skies.
Many of the major auto brands are looking at
the unexplored field of personal air mobility.
They include such names as Porsche, Daimler
and Toyota. All three are currently experiment-
ing with what is known as eVTOL (electric verti-
cal takeoff and landing aircraft). If it gets official
approval from governments, it could revolu-
tionise urban transportation. In cities, only air-
craft that can take off vertically and land in a
similar fashion are going to work. The blueprint
companies are working on is to produce electri-
cally-powered, lightweight air vehicles capable of
vertical take-off and landing that can be sum-
moned via an app, a la Uber and Ola. Some
cities, like Dubai, have already drawn up plans
for an eVTOL fleet for the future. Daimler,
which owns Mercedes, has invested in
Volocopter, an electric vertical lift two-passenger
aircraft. It has completed its first flight and has a
head start in bidding for the Dubai contract.
Cars Can Fly
In 2018, the United Nation’s
Fashion Industry Charter for
Climate Action was launched and
leading brands were asked to id-
entify ways in which they could
contribute to the cause. Since
then, a number of global fashion
brands have responded in quite
spectacular fashion.
Initially, brands that signed
the UN agreement include Nike,
Burberry and PUMA, who prom-
ised to develop more sustainable
production models. Since then,
leading fashion names like Gucci
have joined the cause—the iconic
Italian brand recently held its
first carbon-neutral runway show
at New York Fashion Week. The
brand says it will track every
stage—from supply chains to
travel emissions for both guests
and models at fashion week, to
recycling and ending paper invi-
tations. Close on its heels is Bur-
berry, which recently launched a
new line of an eco-friendly col-
lection. The luxury label’s staple
coats, such as the Jacquard Parka
and classic car coat, have been
remade through sustainable fab-
rics and cutting out some details.
Simultaneously, Ralph Lauren
announced their new sustain-
ability strategy.
Other luxury fashion gia-
nts like LVMH have also an-
nounced eco-friendly initiatives.
Another famous luxury brand,
Chanel, have said they are invest-
ing in the creation of high-per-
forming silk and biomaterials, as
an eco-friendly alternative to
synthetic dyes and chemicals cur-
rently in use. Individual fashion
designers have also responded by
showcasing collections made
from recycled materials. Cus-
tomers of high-end fashion can
now wear their commitment to
climate change on their sleeves.
Fashion
Goes Green
burberryplc.com
UNI

36. States/ MP/MLA Disqualification
36 December 9, 2019
ADHYA Pradesh is wit-
nessing a constitutional
row. The dispute is about
whether the assembly
Speaker has the power to
disqualify an MLA who
was convicted and sentenced to a two-
year jail term by a designated special
court for public representatives in Bho-
pal on the charge of assaulting a govern-
ment servant.
The opposition BJP says the Spea-
ker’s decision is unconstitutional. The
ruling Congress is defending him on the
ground that he has only followed Sup-
reme Court guidelines in this matter.
The dispute has got further complicated
as the Madhya Pradesh High Court
granted an interim stay on BJP MLA
Prahlad Lodhi’s sentencing by the
Bhopal court.
Interestingly, the Kamal Nath gov-
ernment’s majority hinges on the dis-
qualified MLA’s fate. In the 230-strong
assembly, the Congress has 115 MLAs
and the BJP 108. Losing the Jhabua ass-
embly by-poll in October had brought
down the BJP’s tally from 109 to 108
seats and this could further decline to
107 if Lodhi is disqualified. The strength
of the House too will come down to 229
and the Congress with 115 seats will
automatically gain majority.
It was on October 31 that a Bhopal
court sentenced Lodhi of Pavai assembly
constituency and 12 others to two years’
jail for attacking RK Verma, a tehsildar,
in 2014 in Panna district. The assault
took place after Verma had allegedly
stopped a tractor-trolley from carrying
sand that had been mined illegally. The
court, however, granted bail to Lodhi.
On November 2, the assembly secretari-
at announced the disqualification of
Lodhi following his conviction in the
criminal case. The secretariat also
informed the Election Commission that
the Pawai seat had fallen vacant.
Speaker NP Prajapati said that as per
a Supreme Court ruling, a public repre-
sentative should be disqualified as soon
as he or she is convicted and the rule
was followed in Lodhi’s case. The Spea-
ker cited the Supreme Court order of
Unseemly Slugfest
WiththeSpeakerdisqualifyingaconvictedBJPMLAasperaSupremeCourtruling,the
party’sstrengthhasdecreased,leadingtoaconstitutionalimpasse
By Rakesh Dixit in Bhopal
I
n a shocking statistic, 41 percent of
Madhya Pradesh MLAs (94 in the
230-member house) have criminal
cases against them. This was revealed
by the Madhya Pradesh Election Watch
and Association for Democratic Reforms
(ADR). Compare this to 32 percent (73)
MLAs in 2013.
Meanwhile, 20 percent (47) of MLAs
have declared serious criminal cases
against them. These include murder,
attempt to murder and crime against
women, the analysis noted. Six MLAs
have declared cases related to attempt
to murder (IPC Section 307), while one
Congress MLA, Sukhdev Panse from
Multai constituency, has a case related
HouseofRogues?
CONSTITUTIONAL ROW
The move of the Speaker NP Prajapati (right)
to disqualify BJP MLA Prahlad Lodhi from the
assembly is a setback to the party in the state
M