India Legal - 17 February 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2019192019
January 6, 2020 `100
NDIA
January 6,y , 2020 `100y ,
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January13, 2020
ParallelPowerCentres?TheKeralagovernor’ssupportoftheCAAandsimilarstatementsbyBJP-appointed
governorsisaworryingsign.HasthetimecometoimplementtheSarkaria
Commission’srecommendations?
Lawless in
UP
Book Extract:
The Cases India Forgot
Arif Mohammed Khan,
Kerala
Bhagat Singh Koshyari,
Maharashtra
Jagdeep Dhankhar,
West Bengal
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eme
em
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January20, 2020
BLOODONTHECAMPUSJNUsymbolisedcitizenship,democracyandfreedom,writesnotedcolumnistShivVisvanathan,
whoanalysesthereasonswhytheUniversityhasbecomeapoliticalandideologicalbattleground
Capital Punishment:
What judges think
Iran Crisis:
India’s options
JNU students being taken into police custody
Alol
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ud
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January27, 2020
TheLegalChallengeFollowingKerala’slead,PunjabandChhattisgarhhavejoinednon-BJPstatesthathave
challengedtheconstitutionalvalidityoftheCAAandtheNationalInvestigationAct2008in
theSupremeCourt.Howstrongisthelegalargument?
Internet Curbs:
Analysing the apex court’s ruling
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eon-
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February3, 2020
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intheirjudgmentoninternetshutdowninKashmir,saysProfUpendraBaxi
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ffoff
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February10, 2020
HANGING
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extremelyimportantinsuch
casestohavesomefinality
Shiv Visvanathan
Profiles Pranab Mukherjee
Inderjit Badhwar:
Nationalism versus patriotism

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

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

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

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

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

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

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

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

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

India Legal - 17 February 2020

India Legal - 17 February 2020

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